# C_2012227EN.01001501.xml

| 28.7.2012 | EN | Official Journal of the European Union | C 227/15 |
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28.7.2012

EN

Official Journal of the European Union

C 227/15

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Appeal brought on 1 June 2012 by Telefónica SA against the order of the General Court (Eighth Chamber) delivered on 21 March 2012 in Case T-228/10 Telefónica v Commission

(Case C-274/12 P)

2012/C 227/21

Language of the case: Spanish

Parties

Parties

Appellant: Telefónica SA (represented by: J. Ruiz Calzado, abogado, M. Núñez-Müller, Rechtsanwalt, and J. Domínguez Pérez, abogado)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court of Justice should:

| — | set aside the order under appeal; |
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set aside the order under appeal;

| — | declare the action for annulment in Case T-228/10 admissible and refer the case back to the General Court for it to give judgment on the substance of the dispute; |
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declare the action for annulment in Case T-228/10 admissible and refer the case back to the General Court for it to give judgment on the substance of the dispute;

| — | order the Commission to pay all the costs of the proceedings at both instances relating to admissibility. |
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order the Commission to pay all the costs of the proceedings at both instances relating to admissibility.

Grounds of appeal and main arguments

Grounds of appeal and main arguments

| 1. | The General Court erred in law in adopting a decision which infringes the right to an effective remedy. In considering, in a general manner, that the option of a reference for a preliminary ruling is always adequate and possible, the General Court infringed the appellant’s right at first instance to an effective remedy, such as laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and which is recognised expressly in Article 47 of the Charter of Fundamental Rights of the European Union. |
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1.

The General Court erred in law in adopting a decision which infringes the right to an effective remedy. In considering, in a general manner, that the option of a reference for a preliminary ruling is always adequate and possible, the General Court infringed the appellant’s right at first instance to an effective remedy, such as laid down in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and which is recognised expressly in Article 47 of the Charter of Fundamental Rights of the European Union.

| 2. | The General Court erred in law by wrongly interpreting the case-law on the admissibility of actions against decisions on State aid declaring an aid scheme unlawful and incompatible. |
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2.

The General Court erred in law by wrongly interpreting the case-law on the admissibility of actions against decisions on State aid declaring an aid scheme unlawful and incompatible.

| 3. | The General Court erred in law in interpreting the fourth paragraph of Article 263 TFEU, in fine. The General Court erred in law in stating that decisions regarding State aid schemes, such as the contested decision, entail implementing measures within the meaning of the new Treaty provision (the fourth paragraph of Article 263 TFEU). In its order, the General Court failed to recognise that a negative decision regarding State aid has direct effect, immediately renders the aid granted unlawful, and normally implies an obligation on the part of the Member States to recover such aid. |
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3.

The General Court erred in law in interpreting the fourth paragraph of Article 263 TFEU, in fine. The General Court erred in law in stating that decisions regarding State aid schemes, such as the contested decision, entail implementing measures within the meaning of the new Treaty provision (the fourth paragraph of Article 263 TFEU). In its order, the General Court failed to recognise that a negative decision regarding State aid has direct effect, immediately renders the aid granted unlawful, and normally implies an obligation on the part of the Member States to recover such aid.

in fine

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