# C_2006310EN.01002201.xml

| 16.12.2006 | EN | Official Journal of the European Union | C 310/22 |
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16.12.2006

EN

Official Journal of the European Union

C 310/22

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Action brought on 18 October 2006 — Operator ARP v Commission

(Case T-291/06)

(2006/C 310/43)

Language of the case: Polish

Parties

Claimant:‘Operator ARP’ Sp. z o.o. (represented by: J. Szymanowska, lawyer)

Claimant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | Declare partially invalid 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., that is to say, set aside Article 3(2) of that decision in so far as it obligates Poland to take all requisite steps to recover from Operator Sp. z o.o. the State aid granted to Huta Częstochowa S.A. in a manner inconsistent with the common market; |
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Declare partially invalid 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., that is to say, set aside Article 3(2) of that decision in so far as it obligates Poland to take all requisite steps to recover from Operator Sp. z o.o. the State aid granted to Huta Częstochowa S.A. in a manner inconsistent with the common market;

| — | Order the Commission to pay the costs. |
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Order the Commission to pay the costs.

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 wrongfully granted aid from the undertakings named in that provision, which include the claimant. Pursuant to that decision, all the undertakings mentioned in Article 3(2) are jointly and severally liable for the recovery of that aid, which is to be effected without delay and in accordance with the procedures under national law. Interest is payable in respect of the entire period from the date of 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)

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In its claim that the contested decision is invalid, the claimant states that it is not itself a beneficiary of the aid granted to Huta Częstochowa S.A. over the period from 1997 to 2002, and therefore cannot be a debtor jointly and severally liable for the return of the aid, with the result, according to the claimant, that the obligation placed on Poland to take all requisite steps to recover that aid from the claimant serves no purpose.

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

| — | Infringement of the rights of defence through breach of Article 88 EC by reason of defective compliance with the obligation to enable interested parties to set out their views in the framework of the formal investigative procedure relating to the aid in question. The claimant submits that, as it did not take part in the formal investigative procedure conducted by the Commission, it did not have an opportunity to set out its views or submit legal argument in the context of that procedure, which would, in its view, have led the Commission to draft differently the operative part of the decision with regard to the definition of the group of aid beneficiaries (exclusion of ‘Operator’ Sp. z o.o. from that group); |
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Infringement of the rights of defence through breach of Article 88 EC by reason of defective compliance with the obligation to enable interested parties to set out their views in the framework of the formal investigative procedure relating to the aid in question. The claimant submits that, as it did not take part in the formal investigative procedure conducted by the Commission, it did not have an opportunity to set out its views or submit legal argument in the context of that procedure, which would, in its view, have led the Commission to draft differently the operative part of the decision with regard to the definition of the group of aid beneficiaries (exclusion of ‘Operator’ Sp. z o.o. from that group);

| — | Breach of Article 253 EC, that is to say, lack of proper reasoning for the decision. The claimant submits that, inasmuch as it is named as a beneficiary of the aid, the grounds of the decision are terse and incoherent in that the Commission, in those grounds, does not treat the claimant as an individual capable of being recognised as a beneficiary of the aid, but at the same time refers to it in the operative part as an individual obligated to return the aid. The claimant also points out that the contested decision fails to cast light on the factual circumstances concerning the aid granted to Huta Częstochowa in a manner, according to the decision, at variance with the common market; in particular, the decision does not contain any analysis, within the context of an extension of the group of beneficiaries, of the issue of a possible transfer of benefits accruing from the aid obtained in favour of individuals assuming the assets and liabilities of Huta Częstochowa; |
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Breach of Article 253 EC, that is to say, lack of proper reasoning for the decision. The claimant submits that, inasmuch as it is named as a beneficiary of the aid, the grounds of the decision are terse and incoherent in that the Commission, in those grounds, does not treat the claimant as an individual capable of being recognised as a beneficiary of the aid, but at the same time refers to it in the operative part as an individual obligated to return the aid. The claimant also points out that the contested decision fails to cast light on the factual circumstances concerning the aid granted to Huta Częstochowa in a manner, according to the decision, at variance with the common market; in particular, the decision does not contain any analysis, within the context of an extension of the group of beneficiaries, of the issue of a possible transfer of benefits accruing from the aid obtained in favour of individuals assuming the assets and liabilities of Huta Częstochowa;

| — | Misconstruction of Articles 87 EC and 88 EC and of Article 14 of Council Regulation (EC) No 659/1999 (2) by reason of the mention of the claimant as a beneficiary of the aid. The claimant submits that, by designating it as an aid beneficiary, the Commission exceeded the limits of its discretion inasmuch as the claimant does not belong to the group of individuals which in fact benefited from the aid; |
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Misconstruction of Articles 87 EC and 88 EC and of Article 14 of Council Regulation (EC) No 659/1999 (2) by reason of the mention of the claimant as a beneficiary of the aid. The claimant submits that, by designating it as an aid beneficiary, the Commission exceeded the limits of its discretion inasmuch as the claimant does not belong to the group of individuals which in fact benefited from the aid;

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| — | Infringement of the principles of legal certainty and proportionality by reason of the designation of the claimant as an individual obligated to return the aid declared incompatible with the common market, notwithstanding the fact that the claimant was not a beneficiary of that aid. |
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Infringement of the principles of legal certainty and proportionality by reason of the designation of the claimant as an individual obligated to return the aid declared incompatible with the common market, notwithstanding the fact that the claimant was not a beneficiary of that aid.

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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).

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(2)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

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