Appeal brought on 26 February 2013 by Alfier Costruzioni Srl and Others against the order of the General Court (Fourth Chamber) delivered on 12 December 2012 in Case T-261/00 Sacaim SpA and Others v European Commission

(Case C-95/13 P)

2013/C 129/14

Language of the case: Italian

Parties

Appellant: Alfier Costruzioni Srl and Others (represented by: A. Vianello, A. Bortoluzzi and A. Veronese, avvocati)

Other parties to the proceedings: European Commission, Italian Republic, Sacaim SpA and Others

Form of order sought

Pleas in law and main arguments

In support of their appeal, the appellants allege errors of law in the application of the principles outlined by the Court of Justice in the judgment in ‘Comitato Venezia vuole vivere’, first, with regard to the obligation to state reasons for the Commission’s decisions on State aid and, second, with regard to the allocation of the burden of proof as regards the conditions set out in Article 107(1) TFEU.

By the order under appeal, the General Court did not follow the rulings of the judgment delivered by the Court of Justice on 9 June 2011 in ‘Comitato Venezia vuole vivere’, in so far as that judgment states that the Commission’s decision ‘must contain in itself all the matters essential for its implementation by the national authorities’. Even though the decision lacked the matters essential for its implementation by the national authorities, the General Court failed to point to any deficiency in the method used by the Commission in the contested decision, and consequently erred in law.

On the basis of the principles outlined by the Court of Justice in the judgment in ‘Comitato Venezia vuole vivere’, when aid is being recovered, it is the Member State — and not, therefore, the individual beneficiary — which is required to show, in each individual case, that the conditions laid down in Article 107(1) are met. In the present case, however, in the contested decision the Commission failed to specify the ‘modalities’ for any such verification. Consequently, since it did not have available to it, at the time when the aid was to be recovered, the matters essential for the purpose of showing whether the advantages granted constituted, in the hands of the beneficiaries, State aid, the Italian Republic — by Law No 228 of 24 December 2012 (Article 1, paragraphs 351 et seq.) — decided to reverse the burden of proof, in breach of Community case law. According to the Italian legislature, in particular, it is not for the State but for the individual beneficiaries of aid granted in the form of relief to prove that the advantages in question do not distort competition or affect trade between Member States. In the absence of any such proof, there is a presumption that the advantage granted was likely to distort trade and affect trade between Member States. That is clearly contrary to the principles outlined by the Court in its judgment in ‘Comitato Venezia vuole vivere’.