Judgment_paragraph 133 · Servizi assicurativi del commercio estero SpA (SACE) and Sace BT SpA v European Commission (T-305/13)

133In addition, it is not established, nor is it claimed by the applicants or the Italian Republic moreover, that the absence of loss before the subscription of the reinsurance cover at issue on 5 June 2009 had been brought to the Commission’s attention in the administrative procedure in order to justify the adoption of the second measure. In accordance with case-law (judgment of 25 June 2008 in Olympiaki Aeroporia Ypiresies v Commission, cited in paragraph 83 above, EU:T:2008:222, paragraph 56; see also, to that effect, judgments of 1 July 2008 in Chronopost and The Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, ECR, EU:C:2008:375, paragraph 144, and Commission v Scott, cited in paragraph 95 above, EU:C:2010:480, paragraph 91), the lawfulness of the contested decision is to be assessed in the light of the information available to the Commission when the decision was adopted. In so far as the applicants and the Italian Republic did not communicate that information to the Commission in the course of the administrative procedure, they cannot therefore, in contesting the lawfulness of the contested decision, rely on the fact that no loss had been recorded in the five months preceding the subscription of the reinsurance cover at issue for Sace BT, such that the risks assumed by SACE were smaller (see, to that effect, judgment of 13 June 2002 in Netherlands v Commission, C‑382/99, ECR, EU:C:2002:363, paragraph 76). Furthermore, and in any event, the Commission rightly pointed out at the hearing that the new argument based on the absence of losses in the first five months of 2009, relied on for the first time during the hearing, was inadmissible under Article 48(2) of the Statute of the Court of Justice of the European Union. That argument cannot be regarded as a development of the vague and unsubstantiated reliance by the applicants in the application on the ‘historic performance favourable to reinsurers’ of Sace BT’s portfolio (see paragraph 104 above).

Servizi assicurativi del commercio estero SpA (SACE) and Sace BT SpA v European Commission (T-305/13)

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