Appeal brought on 23 September 2008 by Sviluppo Italia Basilicata SpA against the judgment delivered on 8 July 2008 in Case T-176/06 Sviluppo Italia Basilicata SpA v Commission of the European Communities

(Case C-414/08 P)

(2008/C 301/37)

Language of the case: Italian

Parties

Appellants: Sviluppo Italia Basilicata SpA (represented by: F. Sciaudone, R. Sciaudone and A. Neri, avvocati)

Other party to the proceedings: Commission of the European Communities

Form of order sought

The appellant claims that the Court of Justice should:

Pleas in law and main arguments

By the judgment under appeal, the Court of First Instance dismissed the action brought by Sviluppo Italia Basilicata SpA for (i) annulment of Commission Decision C(2006) 1706 of 20 April 2006 (‘the contested decision’) reducing the financial assistance from the European Regional Development Fund (ERDF) in favour of a global grant for the purposes of implementing measures for the encouragement of small and medium-sized enterprises (SMEs) operating in the Basilicata Region of Italy, and (ii) damages for the harm suffered by Sviluppo Italia Basilicata SpA following, and in consequence of, the adoption of that decision.

In support of the forms of order sought, the appellant alleges various errors of law on the part of the Court of First Instance.

First, the appellant maintains that, by addressing in reverse order the various pleas in law relied upon by Sviluppo Italia Basilicata SpA in support of its action at first instance, the Court of First Instance manifestly distorted the meaning and overall scope of the application.

Secondly, the appellant submits that the judgment under appeal contains various errors of law in relation to the interpretation and application of the Global Grant, the Agreement, and Datasheet No 19 in the Annex to Decision 97/322/EC (1) According to the appellant, the Court of First Instance did not understand the true content and purpose, in the light of the above measures, of Measure 2 of the Global Grant. In consequence, the interpretative analyses that the Court of First Instance then went on to make in relation to certain significant concepts (e.g. ‘impegno’ (commitment), ‘spesa’ (expenditure), ‘durata’ (duration)) were flawed on account of that serious initial error.

Thirdly, the appellant maintains that the Court of First Instance should have concluded that the contested decision was unlawful, in that it had been adopted on the basis of the alleged breach of a condition (‘the condition as to use’) which is not laid down in the decision granting the financial assistance, or in the global grant programme, and which raises problems relating to legal certainty and the excessive freedom with which it is applied.

Fourthly, the appellant alleges that the Court of First Instance misinterpreted — and, in consequence, failed to apply — the principles laid down by the Court of Justice in its judgment of 21 September 2000 in Case C-462/98 P Mediocurso v Commission  (2).

Fifthly, the appellant alleges infringement of Articles 25 and 26 of Regulation No 4253/88 (3) as regards the obligations of supervision and control incumbent upon the Commission. In particular, the statements made by the Court of First Instance would ultimately lead to the non-application and the non-observance of the supervision and monitoring arrangements provided for in the legislation in question.

Sixthly, the appellant alleges breach of the principles of legal certainty and the protection of legitimate expectations, in that the Court of First Instance rejected the complaints put forward by Sviluppo Italia Basilicata SpA on the erroneous premiss that the expectations generated by the Commission (inter alia, through the behaviour of the Monitoring Committee) were in any event incompatible with the applicable provisions and could not therefore be protected.

Seventhly, the appellant maintains that the Court of First Instance distorted the clear sense of the evidence and infringed the general principles relating to the burden of proof, in that it refused to recognise as established facts either the evidence provided by Sviluppo Italia Basilicata SpA or certain facts which constituted common ground.

Eighthly, the appellant alleges breach of the Community case-law relating to the application of the principle of proportionality in cases where Community funding is reduced, in that the Court of First Instance did not take into account the circumstances which would have led the financial adjustment to be less severe.

As regards the grounds of appeal relating to the claim for damages, the appellant alleges above all that erroneous and inadequate reasons were given in the judgment under appeal for dismissing the application for compensation, as regards the harm attributable to the Community's liability in respect of unlawful acts.

Lastly, the appellant alleges that erroneous and inadequate reasons were given in the judgment under appeal for dismissing the application for compensation, as regards the harm attributable to the Community's liability in respect of lawful acts (‘objective liability’).

(1)  Commission Decision of 23 April 1997 modifying the decisions approving the Community support frameworks, the single programming documents and the Community initiative programmes in respect of Italy (OJ 1997 L 146, p. 11).

(2)  [2000] ECR I-7183.

(3)  Council Regulation (EEC) No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p. 1).