T-164/96

MOCCIA IRME v COMMISSION

O R D E R O F T H E PRESIDENT O F T H E C O U R T O F FIRST INSTANCE 17 December 1996 *

In Case T-164/96 R,

Moccia Irme SpA, a company incorporated under Italian law, with its registered office in Naples (Italy), represented by Emilio Cappelli, Paolo De Caterini and Andrea Bandini, of the Rome Bar, with an address for service in Luxembourg at the Chambers of Charles Turk, 13b Avenue Guillaume,

applicant,

v

T H E P R E S I D E N T O F THE C O U R T O F FIRST INSTANCE O F THE EUROPEAN COMMUNITIES

makes the following

Order

Facts and procedure

1 Under Article 4(c) of the ECSC Treaty, subsidies or aids granted by States in any form whatsoever are recognized as incompatible with the common market for coal and steel and are accordingly prohibited within the Community. By virtue of the first and second subparagraphs of Article 95, where it proves necessary in order to attain one of the objectives of the Community set out in Articles 2, 3 and 4, the Commission may authorize subsidies or aid granted by the Member States to the steel sector by a decision adopted with the unanimous assent of the Council. With that in view, the Commission adopted Decision N o 3855/91/ECSC of 27 Novem- ber 1991 establishing Community rules for aid to the steel industry (OJ 1991 L 362, p . 57), better known as the 'Fifth Steel Aid Code'.

2 Under Article 1(1) of the decision in question, all 'aid to the steel industry, whether specific or non-specific, financed by Member States or their regional or local authorities or through State resources in any form whatsoever may be deemed Community aid and therefore compatible with the orderly functioning of the common market only if it satisfies the provisions of Articles 2 to 5'.

3 In order to permit application of the provisions in question to be effectively moni- tored, Article 6(1) provides for the Commission to be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid of the types referred to in Articles 2 to 5. Under Article 6(4), if 'after giving notice to the inter- ested parties concerned to submit their comments, the Commission finds that aid in a given case is incompatible with the provisions of this decision, it shall inform the Member State concerned of its decision. The Commission shall take such a decision not later than three months after receiving the information needed t o assess the proposed aid'. Finally, Article 6(6) provides that all individual awards of the types of aid referred to in Articles 4 and 5 are to be notified to the Commis- sion in accordance with the procedure provided for in paragraph (1).

4 In February 1994, in accordance with Article 6(1) of Decision N o 3855/91, the Italian Government notified to the Commission Decree-Law N o 103 of 14 Febru- ary 1994 introducing urgent measures for the implementation of its steel

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restructuring programme. As it was not converted into a law, the decree concerned was repeated in Decree-Law N o 234 of 14 April 1994 and again in Decree-Law N o 396 of 20 June 1994, the latter being definitively converted into Law N o 481 of 3 August 1994. Article 1(3) of Law No 481/94 states that 'requests for the grant of aid (...) must be submitted to the General Industrial Production Division of the Ministry of Industry, Trade and Craft Trades before 30 July 1994 (...)', whereas 'dismantling of plant and equipment must take place before 31 March 1995 and the aid is to be paid in instalments by 31 December 1996'.

6 After verifying that Law N o 481/94 and Ministerial Decree N o 683 complied with Decision N o 3855/91 (and, in particular, with Article 4 thereof), the Commission, by decision of 12 December 1994, authorized the aid in question and made the actual grant of aid subject to previous notification. With regard to the condition concerning 'regular production' of ECSC iron and steel products laid down in the second indent of Article 4(2) of Decision N o 3855/91, the Commission stated, on the basis of the information notified by the Italian authorities, that the condition in question must be considered satisfied where the undertaking concerned had 'been in operation for on average at least one shift per day, i. e. at least eight hours per day, five days per week for the whole of 1993 and up to February 1994, when Decree-Law N o 103/94 was notified to the Commission' (see page 3, paragraph 1, second indent, of the letter of 12 December 1994 addressed to the Italian Govern- ment by the Competition Commissioner, Karel van Miert, Annex 8 to the applica- tion). The Commission also stated that the Italian authorities could 'establish, on the basis of objective criteria, that an undertaking which did not satisfy that con- dition had regularly produced ECSC iron and steel products', thereby confirming that the condition in question was to be regarded as mentioned merely by way of example.

7 O n the basis of Law N o 481/94 and implementing Decree N o 683, Moccia Irme SpA, together with other ECSC steel-producing undertakings established in Italy, made an application for authorization for aid for the definitive closure of steel- works.

n By Decree-Law N o 143 of 29 April 1995 the time-limit of 31 March 1995 fixed by Article 1(3) of Law N o 481/94 and Article l(l)(c) of Decree N o 683 for the dis- mantling of the plant and equipment was extended to 31 December 1995 and, sub- sequently, by Decree-Law N o 547 of 23 December 1995 to 29 February 1996, by Decree-Law N o 78 of 26 February 1996 to 30 April 1996, by Decree-Law N o 214 of 26 April 1996 to 30 June 1996, and, last, by Decree-Law N o 542 of 23 October 1996 it was definitively set at 30 September 1996, without prejudice to the time- limit of 31 December 1996 already laid down by Law N o 481 for the payment of aid by instalments. Article 3(4) of Decree-Law N o 542 of 23 October 1996 is worded as follows:

'The time-limit of 31 March 1995 prescribed by Article 1(3) of Decree-Law N o 396 of 20 June 1994, converted into law and amended by Law N o 481 of

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3 August 1994 and already extended to 30 June 1996 is hereby further extended to 30 September 1996. The firms still subject to the procedure under which prior notification is to be given to the Commission of the European Communities must in any event interrupt production as soon as they receive the order granting them aid under Article 1(2) of Decree-Law N o 396/94, without prejudice to the other obligations imposed by the Commission and the time-limit of 31 December 1996 fixed for the closure of the procedures for granting that aid'.

1 2 By application lodged at the Registry of the Court of First Instance on 19 October 1996, the applicant requested the annulment of Commission Decision 96/678/ECSC of 30 July 1996, and of the other previous acts connected or related thereto.

ie Under the second and third paragraphs of Article 39 of the ECSC Treaty in con- junction with Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p . 1), as amended by Decision N o 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 1), Council Decision 94/149/ECSC, EC of 7 March 1994 (OJ 1994 L 66, p. 29), and Council Decision 95/1/EC, Euratom, ECSC of 1 January 1995 (OJ 1995 L 1, p. 1), the Court of First Instance may, if it thinks that circumstances so require, order that application of the contested decision be suspended or may prescribe any necessary interim measures.

i7 Article 104(1) of the Rules of Procedure of the Court of First Instance specifies that an application to suspend the operation of any measure adopted by an institu- tion is admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. Article 104(2) provides that applications for the interim measures under the second and third paragraphs of Article 39 of the ECSC Treaty must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. The mea- sures sought must be provisional in that they must not prejudge the decision on the substance (see the order of the President of the Court of First Instance of 29 November 1996 in Case T-179/96 R Antonissen v Council and Commission [1996] E C R 11-1641, paragraph 19).

is In the present case the applicant claims that the President of the Court of First Instance should make an order:

20 In order to rule on such an application, it is first necessary to determine whether the applicant has an interest in obtaining the interim measures sought.

Whether the applicant has an interest in obtaining the interim measures sought

Arguments of the parties

2i The applicant maintains that its interest in obtaining the interim measures sought is to be discerned in the particular situation in which it found itself as a result of the Commission's decision of 30 July 1996 refusing authorization for the grant of aid for closures referred to in Law N o 481/94. That law, as supplemented by Decree- Law N o 542/96, lays down a time-limit for the dismantling of plant and equip- ment, at present set at 30 September 1996, and a time-limit for the payment of the aid which is the same — 31 December 1996 — as that specified generally b y Article 1(3) of the Fifth Steel Aid Code. Moccia Irme considers that the Commis- sion's refusal prevents it, so long as the case is pending before the Court, from choosing between obtaining aid for closure and selling the plant and equipment t o third parties, and thereby causes it serious and irreparable damage — that of 'being unable to choose': once the two prescribed periods have elapsed, it will no longer be possible for the applicant to qualify for aid for closure and the only alternative

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sought would not be of any advantage to the applicant which cannot be eligible for State aid since it is no longer legally possible to satisfy the condition — disman- tling of the plant and equipment — to which the grant of aid is subject.

24 As regards the claim for suspension of payment of the aid referred to in Law N o 481/94, the Commission points out that that interim measure is unnecessary and excessive. It is unnecessary because it is open to the applicant 'pending the final judgment in the main proceedings, to bring an action before the competent Italian authorities in order to obtain a decision reserving to it a certain share of the funds allocated to aid for closure, or also to suspend the entire procedure for granting the aid'. Nor, according to the Commission, is it impossible that further funds might be allocated for 1997 to finance the definitive closure of steelworks: having regard to the expiry of the Fifth Steel Aid Code on 31 December 1996, 'the Com- mission has already submitted a proposal to replace the previous decision', while at national level Law N o 550 of 28 September 1995 ('1996 Finance Law') provides for the allocation of LIT 100 000 000 000 for 1997 as a contribution to the special renewable fund for technological innovation in implementing the restructuring plan for the steel industry. The measure requested is excessive, according to the Commission, because of the consequences which would result in practice if it were to be granted: such a measure would prevent the 'Italian Government from grant- ing aid for closure to any undertaking whatsoever, including those in respect of which aid has been considered to be compatible with the common market', seri- ously damaging the rights of those which had already dismantled their own plant and equipment in accordance with the national legislation.

27 In the light of that case-law, it must be enquired whether the interim measures sought by Moccia Irme are actually capable of being of any use to the applicant.

28 The first interim measure sought consists of suspension of the operation of the contested decision pursuant to the second paragraph of Article 39 of the ECSC Treaty. In this regard, it should be noted that the contested decision is negative in character and that its suspension would be of no avail to the applicant: in order for it to be granted aid by the Italian Government, it would be necessary for the Com- mission to adopt a positive decision under Article 6(4) of the Fifth Steel Aid Code, failing which the prohibition on subsidies and aid laid down by Article 4(c) of the

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ECSC Treaty must apply. Granting the measure in question — as well as suspen- sion of the prior acts, such as the Fifth Steel Aid Code — would not therefore be of any use to the applicant since it would not render illusory the damage which it fears: it would still be 'unable to choose' between aid for closure and sale of plant and equipment, since there is no way in which the Italian Government could pay the applicant the aid granted to it in the absence of a decision by the Commission giving positive authorization.

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31 December 1996, after which — as required, at the Community level, by Article 1(3) of the Fifth Steel Aid Code — no more aid can be paid, either to the under- takings authorized to receive it by the Commission or to the applicant, which would not gain any advantage from the damage caused to its competitors by sus- pension of the system. Furthermore, Article 1(4) of Decree-Law N o 542/96, according to which 'firms still subject t o the procedure under which prior notifica- tion is to be given to the Commission of the European Communities must in any event interrupt production as soon as they receive the order granting them aid under Article 1(2) of Decree-Law No 396/94, without prejudice to the other obli- gations imposed by the Commission and the time-limit of 31 December 1996 fixed for the closure of the procedures for granting that aid', does not seem to be rel- evant to the case in point, since the prior notification procedure has already been closed by decision of the Commission of 30 July 1996 refusing to authorize the aid in question. In fact, as it was possible to establish at the hearing on 11 December 1996, Moccia Irme's interests could equally be protected by reserving the funds — 13 509 million lire — granted to it b y the Italian Government but not paid by reason of the Commission's refusal to authorize the aid: however, the measure sought, even if it were to be adopted, would have no effect for that purpose since at the end of the financial year the sum already set aside for the applicant, although capable of conversion into a debit balance, could not be paid after 31 December 1996 unless new legislation refinancing the system of aid for closures were to be adopted. To allow the application in question would therefore be of no use to the applicant, and moreover would entail the adoption of a measure which would manifestly be beyond the powers conferred on the Commission in the sphere of the ECSC Treaty, since it would amount to ordering a Member State to suspend an aid scheme already found to be compatible with the Treaty (see the order of the President of the Court of First Instance of 21 October 1996 in Case T-107/96 R Pantochim v Commission [1996] ECR 11-1361, paragraph 36).

1. The application for interim measures is dismissed.

2. The costs are reserved.

Luxembourg, 17 December 1996.

H.Jung A. Saggio

Registrar President

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