# C_2006310EN.01002502.xml

| 16.12.2006 | EN | Official Journal of the European Union | C 310/25 |
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16.12.2006

EN

Official Journal of the European Union

C 310/25

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Action brought on 17 October 2006 — Majątek Hutniczy v Commission

(Case T-297/06)

(2006/C 310/48)

Language of the case: French

Parties

Applicant: Majątek Hutniczy sp. z o.o. (Częstochowa, Poland) (represented by: C. Rapin and E. Van den Haute, lawyers)

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | declare this action admissible; |
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declare this action admissible;

| — | annul Articles 3 and 4 of the Commission Decision of 5 July 2005 concerning the aid granted by Poland to Huta Częstochowa S.A. (notified under document number C (2005) 1962); |
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annul Articles 3 and 4 of the Commission Decision of 5 July 2005 concerning the aid granted by Poland to Huta Częstochowa S.A. (notified under document number C (2005) 1962);

| — | in the alternative, declare that on the date on which this action is brought there is no obligation on Poland to recover the aid and interest referred to in Article 3 of the decision and that the amounts of that aid and interest are therefore not payable; |
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in the alternative, declare that on the date on which this action is brought there is no obligation on Poland to recover the aid and interest referred to in Article 3 of the decision and that the amounts of that aid and interest are therefore not payable;

| — | in the further alternative, annul the second subparagraph of Article 3(2) of the decision and refer the question of interest back to the Commission for a fresh decision in accordance with Annex A to this application or with such other consideration as the Court may indicate in the grounds of its judgment; |
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in the further alternative, annul the second subparagraph of Article 3(2) of the decision and refer the question of interest back to the Commission for a fresh decision in accordance with Annex A to this application or with such other consideration as the Court may indicate in the grounds of its judgment;

| — | in any event, order the Commission to pay all of the costs; |
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in any event, order the Commission to pay all of the costs;

| — | if the Court should decide that there is no need to adjudicate, order the Commission to pay the costs pursuant to the combined provisions of Article 87(6) and Article 90(a) of the Rules of Procedure of the Court of First Instance. |
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if the Court should decide that there is no need to adjudicate, order the Commission to pay the costs pursuant to the combined provisions of Article 87(6) and Article 90(a) of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments

By its decision C (2005) 1962 final of 5 July 2005 (State Aid No C 20/04, ex NN 25/04) the Commission declared certain restructuring aid granted by Poland to the steel producer Huta Częstochowa S.A. to be incompatible with the common market and ordered its recovery. The applicant is one of the successors to the aid beneficiary which, in the context of the restructuring of Huta Częstochowa S.A., received certain assets and liabilities from that company to be bought up subsequently by the company Industrial Union of Donbass through its subsidiary ISD Polska. The applicant is included in the contested decision among the companies required jointly and severally to repay the aid declared incompatible with the common market.

In support of its action for the partial annulment of the decision, the applicant relies on four pleas in law.

By its first plea, it claims that the Commission made a manifest error of assessment of the facts decisive for the outcome of the investigation. It maintains that, once the assets of the original beneficiary of the incompatible aid are sold, those assets having been bought by ISD Polska (and Donbass), it is the vendor of the original aid beneficiary that retains the benefit of that aid and must ensure that it is repaid. The applicant claims that in this case, if the Commission had correctly established the relevant facts concerning the sale of the assets of Huta Częstochowa, through, among others, Majątek Hutniczy, to ISD Polska (and Donbass), it would have come to the view that, because the means of production of Huta Częstochowa were acquired at a price reflecting the market price, restitution of the aid would thereby already have been made to the vendor. According to the applicant, the Commission was therefore in breach of its obligation to examine, carefully and impartially, all the relevant facts of the case.

By its second plea, the applicant claims that the Commission infringed Protocol No 8 to the Treaty of Accession, on the restructuring of the Polish steel industry (1), by interpreting purely literally certain of its provisions which, in the view of the applicant, it should have interpreted in the light of the objectives pursued by that protocol and in consideration of the background to its adoption. That allegedly incorrect interpretation led the Commission to require, by its decision, repayment of State aid received before the adoption of Protocol No 8 by companies not included in Annex 1, which designates eight beneficiary companies which are eligible for aid from Poland in derogation from Articles 87 EC and 88 EC. It also claims that, as Protocol No 8 does not expressly state that it applies retroactively for a specific period, the Commission's interpretation of that protocol infringed several general principles such as those of non-retroactivity and of legal certainty. The applicant claims that Protocol No 8, on a correct interpretation, does not empower the Commission to call for the repayment of State aid received before its adoption by companies not referred to in Annex 1. It thus concludes that, having acted in that way without a legal basis, the Commission encroached upon the temporal competence of other Community institutions.

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The third plea, invoked as an alternative plea if the Court should find that the Commission has properly established the facts and correctly interpreted Protocol No 8, alleges infringement of Article 14(1) of Regulation No 659/1999 (2). The applicant submits that, by adopting the decision to recover the aid, the Commission is acting at variance with the principles of equal treatment, legitimate expectations and legal certainty.

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By its fourth plea, the applicant submits, in support of its alternative request for annulment of the second subparagraph of Article 3(2) of the contested decision, that the Commission infringed Regulation No 794/2004 (3) when calculating the interest rate applicable to the recovery of the aid in the present case.

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(1)  OJ 2003 L 236, p. 948.

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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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(3)  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 L 140 of 30.4.2004, p. 1).

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