The Court of the EU has confirmed the bastardy of the loan granted from the State to Alitalia



The Court of the European Union has confirmed the decisions of the EU commission that characterize as illegitimate the loan granted from the Italian State to Alitalia, but authorizes the sale of the assets of this last one.

Draft of the loan of 300 million euros that in the 2008 Italian State have granted to Alitalia, recognizing them also - the Court has remembered - the faculty to charge such sum on account capital. After such measure the airline, in insolvency situation, is placed in extraordinary administration and is named independent a which expert bank to the aim to verify the congruity of the selling price of the assets of the company regarding the market price. The Court has remembered moreover that the offer of Italian Airline (CAI), introduced to the aims of the purchase of some assets of Alitalia in response to the invitation to manifest launch interest for this purpose, is transmitted by the Italian authorities to the EU commission, that he has so started a procedure of formal investigation with respect to the relative measures to the loan and the faculty to charge the sum on account capital.

With a first decision, the EU commission has stated that the loan constituted an aid of illegitimate and incompatible State with the common market, as conferred a financed economic advantage with state resources, than would not be granted by a noticed private investor. The Commission therefore has ordered the recovery of such aid.

With a second decision the EU commission has considered that the relative measure to the sale of the assets of Alitalia did not imply the concession of an aid of State to the purchasers of this last one, fact except the integral respect of the engagements taken from the Italian authorities, in force of which the sale would be realized at the price of market. Moreover the Commission has confirmed that not even the procedure of extraordinary administration to which had been Alitalia subordinate did not carry to the concession of an aid in favor of the purchasers. Commission has therefore concluded that the procedure put into effect from Italy did not imply an economic continuity between Alitalia and the purchasers of its assets - taken into consideration the extension of the sale of such assets and the fragmentation of the offers introduced from the purchasers - and that such sale did not have as effect to elude it obligation of recovery of the aid, neither that to grant aids to the purchasers of Alitalia.

After simultaneously to have deposited several denunciations near the EU commission to other airlines and the European association of the airlines to low cost (ELFAA), Ryanair has asked the Court of the EU to cancel the two decisions of the Commission.

Pronouncing itself in the first instance on the relative decision to the sale of the assets, in its today's sentence the Court of the EU has specified that the Commission was competent to adopt such a decision that, in stating the insussistenza of an aid of State, took note of the engagements assumed from the Italian State, constituent integral part of the notified measure.

The Court has stated that the Commission had matured the convincement that the sale would be realized at the price of market and has consequently rejected the arguments of the Ryanair second which the Commission would have carried out an insufficient or incomplete examination in occasion of the phase of preliminary examination and would have had to start a procedure of formal investigation with respect to the sale of the assets, to the aim to verify the eventual existence of various options from such sale.

The Court has rejected also the argument of the Ryanair second which the sale, being implicitly subordinated to the condition of the nationality (Italian) of the purchaser, had implied a decrease of the price. The Court of the EU has considered, on the contrary, that the EU commission has verified that the invitation to manifest interest did not contain some founded discriminatory clause on the nationality of the offerers and that such invitation had constituted the object of wide publicity to level is national that international.

The Court has emphasized that the Commission had considered that the procedure of sale of assets, integrated from the invitation to manifest interest, did not offer a level of sufficient transparency in itself to guarantee that the assets would be yielded at the price of market. Consequently, the Commission had verified that the offer had been subordinate to an independent appraisal, to the aim to make sure that the proposed price was not inferior at the price of market. Moreover, the Commission had verified that the procedure introduced the guarantees necessary in order to make sure that the sale would be realized at the price of market.

At last, the Court of the European Union has confirmed that the Commission had correctly considered that did not exist some economic continuity between Alitalia and the CAI and that this last one had not benefitted of some advantage, from the moment that the measures were adopted all so that the cession happened to a not inferior price to that of market.

In the second place, to the outcome of the examination of the decision on the loan, the Court has considered that Ryanair, also having carried out an active role in the procedure of adoption of such decision, has not demonstrated that the fact to order the recovery of the aid near Alitalia (and near the CAI) had not prejudiced substantially its competitive position. He achieves some - he has found the Court - that Ryanair has not demonstrated of being individually regarded from such decision. Consequently, the Court has rejected to the resource of Ryanair, confirming so the decisions of the Commission.