C-89/97

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 30 April 1997*

In Case C-89/97 P(R),

Moccia Irme SpA, a company incorporated under Italian law, with its registered office in Naples, 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,

appellant,

APPEAL against the order of the President of the Court of First Instance of the European Communities of 17 December 1996 in Case T-164/96 R Moccia Irme v Commission ECR [1996] 11-2261 seeking to have that order set aside and seeking an order suspending the operation of Commission Decision 96/678/ECSC of 30 July 1996 concerning certain aid proposed by Italy as part of a programme for the restructuring of its private steel industry (OJ 1996 L 316, p. 24),

after hearing the views of the Advocate General, Mr B Elmer,

makes the following

Order

1 By application lodged at the Registry of the Court of Justice on 27 February 1997 the appellant brought, pursuant to the second paragraph of Article 50 of the ECSC Statute of the Court of Justice, an appeal against the order of the President of the Court of First Instance of 17 December 1996 in Case T-164/96 R Moccio. Irme v Commission ECR [1996] 11-2261 (hereinafter 'the contested order') dismissing its application inter alia for suspension of the operation of Commission Decision 96/678/ECSC of 30 July 1996 concerning certain aid proposed by Italy as part of the programme for the restructuring of its private steel industry (OJ 1996 L 316, p. 24, hereinafter 'the decision at issue'). The appellant is asking for the contested order to be set aside and for one of its claims submitted at first instance, for suspension of operation of the decision at issue, to be upheld.

2 By document lodged at the Registry on 4 April 1997, the Commission submitted written observations to the Court.

Facts and procedure

7 In February and August 1994 the Italian authorities notified to the Commission legislation on urgent measures for the implementation of the steel restructuring programme in Italy.

s After verifying that that legislation complied with Decision N o 3855/91 and, in particular, with Article 4 of that decision, the Commission, by decision of 12 December 1994, authorized the aid in question and made its award in each indi- vidual case subject to prior notification.

9 O n the basis of the provisions of the Italian legislation, Moccia Irme, together with other ECSC steel-producing undertakings established in Italy, made an application for authorization for aid for the definitive closure of steelworks.

I-2331

ORDER OF 30. 4. 1997 — CASE C-89/97 P(R)

io After these individual cases had been notified to the Commission in accordance with Article 6(6) of Decision N o 3855/91, the Commission decided to open the examination procedure with regard to them. The Italian Government submitted its observations by letter of 31 January 1996.

I - 2332

MOCCIA IRME v COMMISSION

The contested order

u By the contested order the President of the Court of First Instance dismissed the application for interim relief after examining the appellant's interest in obtaining the interim measures which it sought.

is As regards the first interim measure sought, namely suspension of operation of the decision at issue, the President of the Court of First Instance observed, in para- graph 28 of his order, that that decision was negative in character, so that its sus- pension would be of no avail to the appellant since it would not enable the Italian Government to pay the aid applied for.

ie As regards the alternative claim, for an order that the Commission reopen the pro- cedure for examining the aid in question, the President of the Court of First Instance pointed out, in paragraph 29 of his order, that such an order, on the one hand, would not necessarily lead the Commission to adopt a positive decision which alone could permit the Italian Government to pay the aid intended for the applicant and, on the other hand, would not be an interim measure, because it would produce the same results as those sought in the main proceedings and pre- judge the decision on the merits.

'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 ... granted to it by 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 bal- ance, 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 con- ferred 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.'

19 Since the written observations of the parties contain all the information necessary for a decision to be given on the appeal, there is no need to hear oral argument.

A r g u m e n t s of the parties

20 The appeal is based on a single plea in law to the effect that the President of the Court of First Instance, in determining whether the appellant had an interest, con- fined himself to examining the measures indicated by the appellant in its statement of the relief which it sought, whereas the examination should also have been concerned with the positive indirect effects which might result from the interim measures.

25 As a preliminary point, the Commission observes that the appeal is based on a single plea, alleging the absence of any examination, in the contested order, of the positive indirect effects which could result from suspension of operation of the decision at issue. According to the Commission, that plea is in reality based on an allegation that the reasons stated for the order are incomplete.

26 T h e C o m m i s s i o n c o n t e n d s that t h e appeal is manifestly inadmissible for three reasons.

I - 2335

ORDER OF 30. 4. 1997 — CASE C-89/97 P(R)

27 First in paragraph 30 of the contested order, the President of the Court of First Instance gave, as the reason for his finding on the need for suspension of operation of the decision at issue, the fact that any reservation of the amount initially granted to the appellant would have served no purpose, given the time-limit of 31 Decem- ber 1996 for payment of the aid (see paragraph 18 of this order). The appellant does not contest that decisive argument, so that the appeal is manifestly inadmis- sible on this first point.

28 Second, the Commission contends that the appeal gives no precise indication of the specific points in the contested order which are the subject of these proceed- ings or of the legal arguments put forward in support.

Findings

33 As a preliminary point, it should be noted that the appellant is asking for the con- tested order to be set aside only so far as concerns the refusal to grant it the first of the three interim measures which it initially sought, that is to say suspension of operation of the decision at issue.

Admissibility

34 The Commission contends that the appeal is manifestly inadmissible.

35 O n this point, it is apparent, however, that the appeal, although drafted in sum- mary terms, does identify in a comprehensible manner the points in the contested order which are complained of and also the legal arguments put forward in sup- port of the claim for the order to be set aside.

36 The indications given in the appeal have in fact enabled the defendant to prepare its defence and the Court to give its decision.

4i Finally, as regards the Commission's argument concerning the inadequacy of the arguments put forward in the appeal, in the light of the content of the contested order, it must be held that the examination of that matter goes to the substance of the case, since such a matter is not in principle such as to entail the inadmissibility of the appeal.

42 The appeal must therefore be declared to be admissible.

I - 2338

MOCCIA IRME v COMMISSION

Substance

43 It should first be pointed out that the assessment of an applicant's interest in obtaining the measures which he seeks takes on particular importance in proceed- ings on an application for interim relief.

47 F u r t h e r m o r e , c o n t r a r y t o w h a t is claimed b y the appellant, its interest in obtaining a m e a s u r e t e m p o r a r i l y setting aside the funds w h i c h had been granted, b u t n o t paid, t o it b y the Italian G o v e r n m e n t was expressly examined in p a r a g r a p h 30 of the contested order.

48 In that regard, the judge hearing the application for interim relief found that inter- est to be lacking because those funds could in principle no longer be paid to the appellant after 31 December 1996.

49 That point, which is of decisive importance, has not been contested by the appel- lant in its appeal.

so In those circumstances, the fact that that point was not considered by the judge hearing the application for interim relief in his examination of the application for suspension of operation of the decision at issue but in his examination of the appellant's request for the Commission to be directed to call upon the Italian authorities to suspend the payment of closure aid to the other steel undertakings is of no importance.

si The appeal must therefore be dismissed.

I - 2340

1. The appeal is dismissed.

2. The appellant is ordered to pay the costs.

Luxembourg, 30 April 1997.

R. Grass G. C. Rodriguez Iglesias

Registrar President

I - 2341