Half-yearly financial Report at June 30, 2013 - A2A

Half-yearly financial report at June 30, 2013Other informationit is explained that the recovery “cannot take the form of a simple tax assessment without anyspecific criteria; instead, it has to determine if and how much aid has to be recovered,clarifying in particular that it is recoverable only if actually enjoyed and verifying case by casewhether the companies have actually made use of illegitimate State aid that has altered theprinciples of free competition and a company’s freedom of establishment”. In line with thisconcept, “those resources that have already been involved in forms of reimbursement” mustbe considered “excluded from the recovery measure”.In exercising the powers granted the Tax Revenue Office should therefore have identified, inthe specific circumstances, the actual enjoyment of illegitimate State aid that has not alreadybeen reimbursed.110Given that the lawsuits involving the merging company AEM S.p.A. (now A2A S.p.A.) and themerged company ASM S.p.A. are the subject of separate proceedings at the Court of FirstInstance of the European Community and have different positioning in relation to the“communication-injunction” and the assessments, the two situations are explainedseparately below for the sake of clarity.Former AEM S.p.A. (now A2A S.p.A.)In the action promoted by AEM S.p.A., on January 6, 2003 the Commission filed an objectionclaiming that it could not accept the appeal. AEM promptly replied before the legal deadline.The Court arranged the meeting concerning the objection claiming that it could not acceptthe appeal on its merit by order dated August 5, 2005. On March 15, 2006, AEM filed a brief inrelation to the judgment pending before the Court of First Instance. On February 28, 2008, theCourt of First Instance communicated to AEM its intention to combine (only for the oralphase) the various lawsuits being brought by AEM S.p.A, Confservizi, other public sectorcommercial companies and the Italian State, asking for the opinions of the parties concerned.On March 6, 2008, AEM S.p.A. communicated to the Court that it would welcome a move tocombine the various lawsuits and, apparently, the other appellants also responded in the sameway. The final hearing was held on April 16, 2008, and by a ruling dated June 11, 2009 the Court ofFirst Instance declared that the appeal filed by AEM S.p.A. was admissible but rejected it on merit- as for those filed by the other appellants - taking the view that the measure in questionconstituted State aid that was prohibited under article 87.1 of the EC Treaty, therefore confirmingthe decision of the Commission. AEM S.p.A. challenged this sentence on a timely basis before theEuropean Court of Justice. With Sentence C 320/09 P published on December 21, 2011 theEuropean Court of Justice turned down the appeal made by A2A S.p.A. (a similar rejection wasmade of the parallel appeals filed by other former municipal companies).