20.11.2010   

EN

Official Journal of the European Union

C 317/20

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set aside the judgment under appeal (1) and the decision (2) in so far as they find that the contested measure is not indemnifying and compensatory in nature and instead take the view that that measure constitutes unlawful and incompatible State aid; and/or

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set aside the judgment under appeal in so far as it finds that the order for recovery contained in the decision is not contrary to the principle of the protection of legitimate expectations and, accordingly, set aside the decision in so far as it orders Italy to proceed immediately to recover the aid plus interest; and

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order the Commission to pay the costs of the proceedings.

1.

Breach of Articles 107 TFEU and 108 TFEU, inconsistent reasoning and manifest error by reason of the distortion of the evidence submitted with regard to the interpretation of the contested measure as State aid and not as a compensatory measure in favour of the appellant. The General Court erred in interpreting restrictively the rules and national case-law which were invoked by the appellant at first instance and which indicate that the contested measure does not constitute State aid but has retained the compensatory purpose originally intended by the Italian legislature in 1962 and recognised by the Commission and by the General Court.

2.

Breach of Article 14(1) of Regulation (EC) No 659/1999 (3) and inconsistent and inadequate reasoning in that the General Court concluded that the order for recovery contained in the decision is not contrary to the principle of the protection of legitimate expectations. The General Court’s judgment is defective and inadequately reasoned inasmuch as it held that the prolonged silence on the Commission’s part with regard to the points of clarification provided by the Italian authorities at the end of 1991 concerning the fact that the first prolongation of the Terni tariff retained the original compensatory function did not constitute a circumstance which was such as to create legitimate grounds for the appellant to believe that the prolongations of the Terni tariff, including the contested measure, did not amount to State aid.