JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber, Extended Composition)
30 January 2002 (1) (State Aid - Decision declaring aid compatible with the common market - Action for annulment - Recipient company - Legal interest in bringing proceedings - Inadmissibility)
In Case T-212/00,
Nuove Industrie Molisane Srl, established in Sesto Campano (Italy), represented by I. Van Bael and F. Di Gianni, lawyers,
applicant,
v
Commission of the European Communities, represented by V. Di Bucci, acting as Agent, assisted by A. Abate and G.B. Conte, lawyers, with an address for service in Luxembourg,
defendant,
APPLICATION for the partial annulment of Commission Decision SG(2000)D/103923 of 30 May 2000 authorising State aid amounting to LIT 29 176.69 million in favour of Nuove Industrie Molisane in order to carry out investment at Sesto Campano (Molise, Italy),
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (First Chamber, Extended Composition),
composed of: B. Vesterdorf, President, M. Vilaras, J. Pirrung, A.W.H. Meij and N.J. Forwood, Judges,
Registrar: J. Palacio González, Administrator,
having regard to the written procedure and further to the hearing on 25 September 2001,
gives the following
Judgment
1.
The multisectoral framework on regional aid for large investment projects (OJ 1998 C 107, p. 7, the multisectoral framework) lays down the rules for assessing aid awarded for such projects, which falls within its scope.
2.
Paragraph 3.10 of the multisectoral framework describes the calculation formula the Commission uses to determine the maximum allowable intensity for aid notified to it.
3.
The formula is based, first, on determination of the maximum allowable intensity for aid to large companies in the area concerned, referred to as the regional ceiling (factor R), which is then adjusted by three coefficients corresponding, in turn, to competition in the sector concerned (factor T), the capital/labour ratio (factor I) and the regional impact of the aid in question (factor M). The formula for the maximum allowable aid intensity is thus: R x T x I x M.
4.
As regards the competition factor, an adjustment coefficient of 0.25, 0.5, 0.75 or 1 is applied, according to paragraph 3.10 of the sectoral framework, on the basis of the following criteria:
(i) Project which results in a capacity expansion in a sector facing serious structural overcapacity and/or an absolute decline in demand
0.25
(ii) Project which results in a capacity expansion in a sector facing structural overcapacity and/or a declining market and which is likely to reinforce high market share
0.5
(iii) Project which results in a capacity expansion in a sector facing structural overcapacity and/or a declining market
0.75
(iv) No likely negative effects in terms of (i) - (iii)
1
Background to the dispute
5.
By letter of 20 October 1999, registered at the Commission Secretariat on 20 December 1999, the Italian authorities notified the Commission under Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] EC (OJ 1999 L 83, p. 1) of a project to grant aid to the applicant which fell within the multisectoral framework. Under that project the applicant was to be granted ITL 46 312.2 million in order to establish a plant for the production of clinker, the total cost of which was ITL 127 532 million.
6.
By letter of 21 January 2000, the Commission informed the Italian authorities that it was necessary to initiate a formal investigation procedure within the meaning of Article 6 of Regulation No 659/1999. The Commission further informed them that the competition coefficient to be applied was 0.25, that insufficient evidence had been adduced of the number of jobs which would be created, and that it therefore considered that the project would result in the maximum allowable aid intensity being exceeded. It requested them therefore to provide further information.
7.
In a document sent to the Commission at the beginning of February 2000 the Italian authorities provided further information, as requested.
8.
Following a meeting between the Commission and the Italian authorities on 23 February 2000, the latter informed the Commission in a letter dated 6 March 2000 that they agreed to a competition coefficient of 0.75 in order to avoid the initiation of a formal investigation procedure.
9.
By letter of 9 March 2000 the Italian authorities sent the Commission the new details for calculating the maximum intensity of the aid on the basis of a competition coefficient of 0.75, and so they set the amount of the proposed aid at ITL 29 176.69 million.
10.
On 30 May 2000 the Commission adopted, under Article 4(3) of Regulation No 659/1999, a decision not to raise objections to the aid project notified to it (the Decision).
11.
In the Decision the Commission states that the Italian Government supplemented its notification in letters dated 6 and 9 March 2000, and that the amount of aid proposed in favour of the applicant was ITL 29 176.69 million, with a total investment cost estimated at ITL 127 532 million, that is to say, a net grant equivalent (NGE) of 15.56%.
12.
On the basis of an assessment of the notified aid in the light of the criteria laid down in the multi-sectoral framework the Commission sets out the reasons for which the factors applying in this particular case had to be set as follows:
- 25% as regards the maximum allowable intensity in the Molise region;
- 0.75 for factor T in view of competition on the market concerned;
- 0.7 for factor I (capital/labour ratio);
- 1.2 for factor M in view of the regional impact of the proposed aid,
which makes the NGE a total of 15.75% (25% x 0.75 x 0.7 x 1.2).
13.
Having established that the amount of aid which the Italian Republic proposed to award the applicant was thus within the maximum allowable aid, the Commission declared the aid compatible with the common market under Article 87(3)(c) EC.
Procedure and forms of order sought
14.
By application lodged at the Registry of the Court of First Instance on 11 August 2000 the applicant brought the present action.
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