# C_2006178EN.01003302.xml

| 29.7.2006 | EN | Official Journal of the European Union | C 178/33 |
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29.7.2006

EN

Official Journal of the European Union

C 178/33

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Action brought on 12 May 2006 — ECZG v Commission

(Case T-142/06)

(2006/C 178/62)

Language of the case: English

Parties

Applicant: Elektrociepłownia Zielona Góra S.A. (Zielona Góra, Poland) (represented by: M. Powell, Solicitor, C. Arhold and K. Struckmann, lawyers)

Applicant:

Defendant: European Commission of the European Communities

Defendant:

Form of order sought

| — | Annul the decision of the European Commission to open the formal investigation procedure in Case State Aid C 43/2005 (ex N 99/2005) — Polish Stranded Costs — of 23 November 2005, or in the alternative, annul the decision as far as the PPA (power purchase agreement) concluded by the applicant is concerned; |
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Annul the decision of the European Commission to open the formal investigation procedure in Case State Aid C 43/2005 (ex N 99/2005) — Polish Stranded Costs — of 23 November 2005, or in the alternative, annul the decision as far as the PPA (power purchase agreement) concluded by the applicant is concerned;

| — | award the applicant the costs of the present action. |
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award the applicant the costs of the present action.

Pleas in law and main arguments

The applicant is a heat and power plant operator located in Poland. In the contested decision, the Commission decided to open a formal investigation procedure into alleged new State aid in the form of power purchase agreements concluded between power generators in Poland and the State owned network operator ‘PSE’ (1).

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In support of its application, the applicant argues that the Commission had no jurisdiction to open a formal investigation procedure regarding aid measures granted before the accession of Poland to the European Union, which are not applicable after the date of accession. In doing so, the Commission violated the general legal principles of non-retroactivity and of the protection of legitimate expectations.

Furthermore, the applicant submits that the Commission has committed an error of law and of appreciation in classifying the measure as a new state aid. First, the Commission omitted to assess the measure in the light of the factual and legal circumstances existing at the time the agreements were concluded. Secondly, the Commission inadequately assessed the notion of economic advantage within the meaning of Article 87(1) EC by doing a global examination of all power purchase agreements instead of doing an individual examination. Thirdly, the Commission did not take into account the fact that, at the time the electricity markets of the Member States were opened to competition, the agreement concluded by the applicant could not distort competition in the common market as Poland was not yet a Member State. Finally, the applicant submits that the aid constitutes not new state aid, but existing aid according to both the Accession Treaty and the case law, by virtue of which aid already in application in a market closed to competition until its liberalisation is to be regarded as existing aid from the time of liberalisation. The applicant further states that the Commission did not examine whether the agreement in question was still in force after the Polish accession.

Finally, the applicant submits that the contested decision is inadequately reasoned and infringes Article 253 EC.

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(1)  State aid — Poland — State aid No C 43/2005 (ex N 99/2005) — Polish Stranded Costs — Invitation to submit comments pursuant to Article 88(2) of the EC Treaty (OJ C 52, 2006, p. 8).

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