# C_2006310EN.01000902.xml

| 16.12.2006 | EN | Official Journal of the European Union | C 310/9 |
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16.12.2006

EN

Official Journal of the European Union

C 310/9

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Action brought on 25 October 2006 — Commission of the European Communities v French Republic

(Case C-441/06)

(2006/C 310/17)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: C. Giolito, Agent)

Applicant:

Defendant: French Republic

Defendant:

Form of order sought

| — | declare that, by failing to give effect, within the prescribed period, to the Commission Decision of 2 August 2004 on the State aid implemented by France for France Télécom (State Aid C 13/b/2003) (1), the French Republic has failed to fulfil its obligations under Articles 2 and 3 of that decision, the fourth paragraph of Article 249 EC and Article 10 EC; |
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declare that, by failing to give effect, within the prescribed period, to the Commission Decision of 2 August 2004 on the State aid implemented by France for France Télécom (State Aid C 13/b/2003) (1), the French Republic has failed to fulfil its obligations under Articles 2 and 3 of that decision, the fourth paragraph of Article 249 EC and Article 10 EC;

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| — | order the French Republic to pay the costs. |
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order the French Republic to pay the costs.

Pleas in law and main arguments

Pointing out, as a preliminary point, that the cancellation of unlawful aid by means of its recovery is the logical consequence of the finding that it is unlawful, the applicant invokes the defendant's failure to observe that case-law inasmuch as, more than two years after the adoption of the decision in question, no repayment of the aid granted to France Télécom has yet been made and no repayment procedure has even been commenced at national level. Consequently, several essential provisions of Community law have been infringed, in particular Article 10 EC and the fourth paragraph of Article 249 EC.

The applicant notes in that respect that, pursuant to the case-law of the Court, no provision of Community law requires the Commission to fix the exact amount of the unlawful aid to be recovered. It is sufficient that the decision ordering the recovery of aid declared incompatible with the common market includes information enabling the addressee to work that amount out himself, without undue difficulty. If that decision were, none the less, to cause practical problems, the Commission and the Member State in question would be required, in any event, to work together, pursuant to the obligation of genuine cooperation set out in Article 10 EC, in order to overcome those difficulties.

That being so, the applicant contests the defendant's claim that it is impossible to give a sufficiently reliable estimate of the amount of aid to be recovered, particularly inasmuch as the decision of 2 August 2004, in its grounds, refers expressly to two estimates provided by the French authorities during the administrative procedure, on the basis of which the sum of the range to be recovered was fixed by the Commission in its decision. It thus follows clearly from that decision that the aid to be recovered is equivalent to the difference between the amount of business tax that France Télécom should have paid pursuant to ordinary law and the amount of tax actually paid by that company.

The applicant also observes that, during the recovery procedure, the Commission made several specific proposals as to the amount of aid to be recovered even though, pursuant to the case-law of the Court, it is in general primarily a matter for the Member State concerned to make those proposals in the event of difficulties. Furthermore, the defendant never put forward any suggestions seeking to improve the Commission's proposals.

The applicant concludes by observing that it also follows from the case-law that the fact that there is an appeal against a Commission decision declaring aid to be unlawful does not suspend the obligation to implement that decision and therefore to secure repayment of the unlawful and incompatible aid, except in the event of temporary measures granted by the Court of First Instance under Article 242 EC.

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(1)  OJ 2005 L 269, p. 30.

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