# C_2005069EN.01002001.xml

| 19.3.2005 | EN | Official Journal of the European Union | C 69/20 |
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19.3.2005

EN

Official Journal of the European Union

C 69/20

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Action brought on 24 November 2004 by Bouygues SA and Bouygues Télécom against the Commission of the European Communities

(Case T-475/04)

(2005/C 69/37)

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 24 November 2004 by Bouygues SA, established in Paris, and Bouygues Télécom, established in Boulogne-Billancourt (France), represented by Louis Vogel, Joseph Vogel, Bernard Amory, Alexandre Verheyden, François Sureau and Didier Théophile, lawyers.

The applicants claim that the Court should:

| 1. | annul Commission decision C(2004)2647 of 20 July 2004 – State aid – France concerning alteration of the fees payable by Orange and SFR for the Universal Mobile Telecommunication System (UMTS) licences; |
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1.

annul Commission decision C(2004)2647 of 20 July 2004 – State aid – France concerning alteration of the fees payable by Orange and SFR for the Universal Mobile Telecommunication System (UMTS) licences;

| 2. | order the Commission to pay the costs. |
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2.

order the Commission to pay the costs.

Pleas in law and main arguments

This action is brought against Commission decision C(2004)2647 final of 20 July 2004 concluding that aid was not granted by the French State to Orange France and SFR by way of the retroactive reduction in the fee of EUR 4 995 000 000 which each of those operators had undertaken to pay to the French State for the Universal Mobile Telecommunication System (UMTS) licence awarded to it on 18 July 2001. By the adoption of that decision, the complaint lodged by the applicant companies was rejected.

It is recalled in that regard that the French Government issued two invitations to apply for the award of the UMTS licences. The first, in which Orange France and SFR participated, was launched in August 2000. The amount of the fee had been set at EUR 4 995 000 000 per licence. Bouygues Télécom had decided not to compete on account of the price set. In the second invitation to apply, the amount of the fee was reduced to EUR 619 000 000. Bouygues Télécom was awarded a UMTS licence following that second procedure. However, in the meantime, the French Government decided to align retroactively the amount of the fees provided for in the first procedure with that provided for in the second invitation to apply.

In support of their claims, the applicants plead, first, infringement of Article 87 of the Treaty. They argue in that regard that:

| — | State licence fees are public revenue and that the French State, by altering retroactively the amount of the fees payable by Orange and SFR, waived its right to collect a debt in an immediately available form, payable and of a fixed amount; |
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State licence fees are public revenue and that the French State, by altering retroactively the amount of the fees payable by Orange and SFR, waived its right to collect a debt in an immediately available form, payable and of a fixed amount;

| — | By relying on the consideration that the contested decision is justified by the principle of non-discrimination, the Commission avoided discussion of the substance of the issue. It is argued inter alia in that regard that Orange and SFR were able, through the effect of the French Government's decision, to enjoy a temporal advantage arising from the possibility of penetrating the UMTS market early while being guaranteed, even though nothing had been envisaged to that effect during the first invitation to apply, that the amount of their UMTS licence fee would be reduced to the level of that required in respect of the second invitation to apply; |
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By relying on the consideration that the contested decision is justified by the principle of non-discrimination, the Commission avoided discussion of the substance of the issue. It is argued inter alia in that regard that Orange and SFR were able, through the effect of the French Government's decision, to enjoy a temporal advantage arising from the possibility of penetrating the UMTS market early while being guaranteed, even though nothing had been envisaged to that effect during the first invitation to apply, that the amount of their UMTS licence fee would be reduced to the level of that required in respect of the second invitation to apply;

inter alia

| — | The decision at issue had a real effect on competition by enabling Orange and SFR, which were already powerful operators on the French mobile telephony market, to consolidate their position on the emerging UMTS market and, as a result, to restrict the access of their competitors to that market. |
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The decision at issue had a real effect on competition by enabling Orange and SFR, which were already powerful operators on the French mobile telephony market, to consolidate their position on the emerging UMTS market and, as a result, to restrict the access of their competitors to that market.

In addition, the applicants submit that, by merely stating, without any further explanation, that the award of the UMTS licences cannot be treated as a market transaction, the defendant, in breach of Article 230 of the Treaty, failed to state proper reasons for its decision.

Finally, the applicants submit that the Commission infringed Articles 87 and 88 EC by not examining the measure at issue by way of the formal review procedure laid down by those provisions.

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