# C_2004106EN.01007602.xml

| 30.4.2004 | EN | Official Journal of the European Union | C 106/76 |
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30.4.2004

EN

Official Journal of the European Union

C 106/76

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Action brought on 21 February 2004 by Bouygues SA and Bouygues Télécom against Commission of the European Communities

(Case T-81/04)

(2004/C 106/150)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 21 February 2004 by Bouygues SA, having its registered office in Paris, and Bouygues Télécom, having its registered office in Boulogne Billancourt (France), represented by Bernard Amory and Alexandre Verheyden, lawyers.

The applicants claim that the Court should:

| — | declare that, by failing to define its position within the period of two months commencing on the date of the letter of formal notice of 12 November 2003, the Commission has failed to act; |
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declare that, by failing to define its position within the period of two months commencing on the date of the letter of formal notice of 12 November 2003, the Commission has failed to act;

| — | in the alternative, declare the Commission's definition of its position of 11 December 2003 to be void; |
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in the alternative, declare the Commission's definition of its position of 11 December 2003 to be void;

| — | order the Commission to pay the whole of the costs. |
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order the Commission to pay the whole of the costs.

Pleas in law and main arguments:

The subject-matter of this action is the complaint lodged by the applicants with the defendant concerning inter alia the aid granted by the French State to ORANGE FRANCE and SFR by way of a retroactive reduction in the royalty payments of EUR 4 955 000 000 which each of those operators had undertaken to pay in exchange for the Universal Mobile Telecommunications System (‘UMTS’) licence awarded to them on 15 June 2001. The other complaints raised by the applicants related to:

| — | the making available on an exclusive basis of FRANCE TELECOM outlets for the benefit of ORANGE FRANCE; |
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the making available on an exclusive basis of FRANCE TELECOM outlets for the benefit of ORANGE FRANCE;

| — | the exceptional arrangements for commercial tax applying to FRANCE TELECOM; |
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the exceptional arrangements for commercial tax applying to FRANCE TELECOM;

| — | the reduction in liability for pension charges and the exemption from unemployment benefit contributions granted to FRANCE TELECOM; |
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the reduction in liability for pension charges and the exemption from unemployment benefit contributions granted to FRANCE TELECOM;

| — | the French rules relating to universal service; |
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the French rules relating to universal service;

| — | the treatment of dividends paid by FRANCE TELECOM; |
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the treatment of dividends paid by FRANCE TELECOM;

| — | the measures of financial support granted to FRANCE TELECOM. |
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the measures of financial support granted to FRANCE TELECOM.

As regards the action for a declaration of failure to act, the applicants claim that the Commission has still not defined its position in relation to the UMTS complaint, which was none the less the subject of the letter of formal notice, and that the letter of 11 December 2003 sent to them by the Commission in response to their letter of formal notice cannot amount to a definition of its position in terms of Article 232 EC. That letter simply noted that the consideration of measures potentially amounting to State aid for the benefit of FRANCE TELECOM was one of the Commission's priorities, without stating an opinion on the merits of the complaint in question. Accordingly, having regard to the omissions in its reasoning, that letter could not be treated as having remedied the failure to act.

As regards the application brought in the alternative for a declaration of invalidity relating to the decision of 11 December 2003 which dismissed the complaint, the applicants rely on three pleas in law based on:

| — | breach of the duty to state reasons; |
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breach of the duty to state reasons;

| — | a manifest error of assessment under Article 87 EC et seq., in that the retroactive reduction in the amount of UMTS royalties which ORANGE FRANCE and SFR had originally undertaken to pay met all the requirements of a measure constituting State aid; |
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a manifest error of assessment under Article 87 EC et seq., in that the retroactive reduction in the amount of UMTS royalties which ORANGE FRANCE and SFR had originally undertaken to pay met all the requirements of a measure constituting State aid;

| — | a breach of the procedural rules laid down in Article 88(3) EC, in that the Commission wrongly decided, having regard to the circumstances of the case, not to initiate the formal investigation procedure laid down under that provision. |
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a breach of the procedural rules laid down in Article 88(3) EC, in that the Commission wrongly decided, having regard to the circumstances of the case, not to initiate the formal investigation procedure laid down under that provision.

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