# C_2006294EN.01006301.xml

| 2.12.2006 | EN | Official Journal of the European Union | C 294/63 |
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2.12.2006

EN

Official Journal of the European Union

C 294/63

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Action brought on 18 October 2006 — Huta 'Częstochowa' v Commission

(Case T-288/06)

(2006/C 294/125)

Language of the case: Polish

Parties

Claimant: Huta ‘Częstochowa’ S.A. (represented by: Cz. Sadkowski and D. Sałajewski, lawyers)

Claimant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | Declare invalid point 2 of Article 3(2) of the Commission decision of 5 July 2005 in Case No C 20/04 (ex. NN 25/04) concerning State aid for the benefit of Huta ‘Częstochowa’ S.A. |
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Declare invalid point 2 of Article 3(2) of the Commission decision of 5 July 2005 in Case No C 20/04 (ex. NN 25/04) concerning State aid for the benefit of Huta ‘Częstochowa’ S.A.

Pleas in law and main arguments

The claimant seeks a declaration of invalidity in regard to the European Commission decision of 5 July 2005 in State aid Case No C 20/04 (ex. NN 25/04), Article 3(1) of which declares incompatible with the common market the aid which Poland accorded to Huta ‘Częstochowa’ S.A over the period from 1997 to May 2002 in the form of operating aid and aid for employment restructuring. The decision was notified to the claimant on 21 August 2006. In Article 3(2) of the contested decision the Commission imposed an obligation on Poland to take all requisite steps to recover the unlawfully granted aid from the undertakings named in that provision, which include the claimant. Pursuant to that decision, all the undertakings mentioned in that provision are jointly and severally liable for the recovery of that aid, which must be effected without delay and in accordance with the procedures under national law. Interest is payable in respect of the entire period from receipt of the aid up to the date on which it is actually repaid, in accordance with the provisions contained in Chapter V of Commission Regulation (EC) No 794/2004 (1).

1

In support of its action, the claimant raises the following heads of complaint:

| — | Breach of Articles 87 EC and 88 EC and of Article 7(5) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (2) by reason of the Commission's acceptance that the abovementioned provisions permit the adoption of a decision defining aid granted by a Member State prior to its accession to the European Union as being aid incompatible with the common market, even though the aid in question was not applied after Poland acceded to the EC Treaty, and consequently the acceptance that the amounts subject to reimbursement must be increased by interest in respect of the entire period from the date on which the aid was granted to Huta ‘Częstochowa’ up to that of its actual repayment. The claimant submits that the aid granted in the years 1997 to 2002 and not applied after Poland's accession to the European Union cannot be treated as incompatible with the common market on the basis of Article 87 EC as it could not have affected intra-Community trade in the period prior to 1 May 2004, that is to say, prior to Poland's accession to the European Union, at a time when the Polish market did not constitute part of the intra-Community market. A further reason, in the claimant's view, lies in the fact that Protocol No 8 to the Accession Treaty (3) on the restructuring of the Polish steel industry makes no mention of the claimant in Annex 1, as a consequence of which the majority of the provisions of that protocol do not concern the claimant. |
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Breach of Articles 87 EC and 88 EC and of Article 7(5) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (2) by reason of the Commission's acceptance that the abovementioned provisions permit the adoption of a decision defining aid granted by a Member State prior to its accession to the European Union as being aid incompatible with the common market, even though the aid in question was not applied after Poland acceded to the EC Treaty, and consequently the acceptance that the amounts subject to reimbursement must be increased by interest in respect of the entire period from the date on which the aid was granted to Huta ‘Częstochowa’ up to that of its actual repayment. The claimant submits that the aid granted in the years 1997 to 2002 and not applied after Poland's accession to the European Union cannot be treated as incompatible with the common market on the basis of Article 87 EC as it could not have affected intra-Community trade in the period prior to 1 May 2004, that is to say, prior to Poland's accession to the European Union, at a time when the Polish market did not constitute part of the intra-Community market. A further reason, in the claimant's view, lies in the fact that Protocol No 8 to the Accession Treaty (3) on the restructuring of the Polish steel industry makes no mention of the claimant in Annex 1, as a consequence of which the majority of the provisions of that protocol do not concern the claimant.

2

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| — | Breach of Article 9(4) of Commission Regulation (EC) No 794/2004 by virtue of the fact that no percentage rate for interest in respect of the repayment of the State aid was laid down in the decision. In the meantime, according to the claimant, pursuant to the provision cited, in connection with the absence in Poland of five-year swap rates for inter-bank transactions prior to Poland's accession to the European Union, there was a need for coordination between the Commission and Poland in this area which would subsequently have had to be reflected in the contested decision or in some other Commission decision. |
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Breach of Article 9(4) of Commission Regulation (EC) No 794/2004 by virtue of the fact that no percentage rate for interest in respect of the repayment of the State aid was laid down in the decision. In the meantime, according to the claimant, pursuant to the provision cited, in connection with the absence in Poland of five-year swap rates for inter-bank transactions prior to Poland's accession to the European Union, there was a need for coordination between the Commission and Poland in this area which would subsequently have had to be reflected in the contested decision or in some other Commission decision.

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(1)  Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC)No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 2004 L 140, p. 1).

1

(2)  OJ 1999 L 83, p. 1.

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(3)  Treaty of 23 April 2003 concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union (OJ 2003 L 236, p. 17).

3

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