Judgment — ECLI:EU:T:2007:99
Date: 2007-03-29
Language of the case: English
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Formal investigation procedure;Private investor/private creditor test;Amount of aid to be recovered;Commission decision following the formal investigation procedure
Procedure: Action for annulment - successful
Origin: France

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE 30 March 2007 (*) (Proceedings for interim relief – State Aid – No need to adjudicate) In Case T‑366/00 R, Scott SA, established in Nanterre (France), represented by Sir Jeremy Lever QC, G. Peretz, Barrister, R. Griffith and M. Papadakis, Solicitors, applicant, supported by French Republic, represented by F. Million, G. de Bergues and S. Seam, acting as Agents, with an address for service in Luxembourg, intervener, v Commission of the European Communities, represented by G. Rozet and J. Flett, acting as Agents, with an address for service in Luxembourg, defendant, APPLICATION under Article 242 EC and Article 104 of the Rules of Procedure of the Court of First Instance for the partial suspension of Commission Decision 2002/14/EC of 12 July 2000 on the State aid granted by France to Scott Paper SA, Kimberly-Clark (OJ 2000 L 12, p. 1), THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES makes the following Order 1 On 12 July 2000, the Commission adopted Decision 2002/14/EC on the State aid granted by France to the applicant (OJ 2000 L 12, p. 1) (‘the contested decision’), Article 1 of which provides: ‘The state aid in the form of a preferential land price and a preferential rate of water treatment levy granted by France to Scott and amounting, in the case of the land price, to FRF 39.58 million (EUR 6.03 million) or, at present value, FRF 80.77 million (EUR 12.3 million) ... is incompatible with the common market.’ 2 Article 2 of the contested decision provides: ‘1. France shall take all necessary measures to recover from the beneficiary the aid referred to in Article 1 and already made available to it unlawfully. 2. Recovery shall be effected without delay and in accordance with the procedures of national law provided that they allow the immediate and effective execution of this Decision. The aid to be recovered shall include interest from the date on which it was made available to the beneficiary until the date of its recovery. Interest shall be calculated on the basis of the reference rate used for calculating the grant equivalent of regional aid.’ 3 By application lodged at the Registry of the Court of First Instance on 30 November 2000, Scott SA (‘Scott’) brought an action for partial annulment of the contested decision. 4 At the request of Scott, the Court of First Instance decided to rule on the plea alleging infringement of Article 15 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1) before examining the other pleas in the action. 5 By judgment of 10 April 2003, the Court of First Instance dismissed the application in so far as it was founded on infringement by the Commission of Article 15 of Regulation No 659/1999 and the costs were reserved (Case T‑366/00 Scott v Commission [2003] ECR II‑1763). For the rest, it was decided to continue the proceedings. 6 By application lodged at the Registry of the Court of Justice on 24 June 2003, Scott requested that Court to set aside the judgment of 10 April 2003 in Case T‑366/00 Scott v Commission. 7 Pending the judgment of the Court of Justice on Scott’s appeal, the Court of First Instance suspended the proceedings in Case T‑366/00 Scott v Commission. 8 By judgment of 6 October 2005 in Case C‑276/03 P Scott v Commission [2005] ECR I‑8437, the Court of Justice dismissed Scott’s appeal. 9 The proceedings in Case T‑366/00 having resumed, the main parties presented oral argument and answered the questions put to them by the Court of First Instance at the hearing on 25 October 2006. 10 By application lodged at the Registry on 18 January 2007, the applicant brought the present application for interim measures. 11 In its application, the applicant requests: – an order suspending, until the First Chamber gives judgment in Case T‑366/00, Article 2 of the contested decision to the extent that it requires France to recover the aid relating to the site; and – an order that the Commission pay the costs. 12 By order of 24 January 2007, the President of the Court of First Instance granted the request for the immediate adoption of interim measures. The operative part of that ex-parte order was worded as follows: ‘1) The operation of Article 2 of Commission Decision 2002/14/EC of 12 July 2000 on the state aid granted by France to Scott Paper SA, Kimberly-Clark is suspended until the order terminating the present proceedings for interim relief is made. 2) Costs are reserved.’ 13 The Commission submitted its written observations on the application for interim measures on 30 January 2007. 14 At the invitation of the President of the Court of First Instance, on 12 February 2007 the applicant lodged its observations on the Commission’s observations regarding the application for interim measures. On 28 February 2006 the Commission lodged its own observations on the applicant’s observations. 15 On 29 March 2007, in Case T-366/00 the Court of First Instance annulled the contested decision. 16 Consequently, there is no longer any need to adjudicate on the present application for interim measures. Costs 17 Under Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or order which closes the proceedings. Since the Court of First Instance has now ruled on the main action, a ruling must be made on the costs incurred in the interim measures proceedings. 18 According to Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court of First Instance. In the present case, since the contested decision has been annulled, the Commission must be ordered to bear its own costs and to pay those incurred by the applicant. 19 The French Republic must be ordered to bear its own costs in accordance with the first subparagraph of Article 87(4) of the Rules of Procedure. On those grounds, THE PRESIDENT OF THE COURT OF FIRST INSTANCE hereby orders: 1. There is no longer any need to take a decision in respect of Case T‑366/00 R. 2. The Commission shall bear its own costs and pay those incurred by Scott SA. 3. The French Republic shall bear its own costs. Luxembourg, 30 March 2007. E. Coulon B. Vesterdorf Registrar President * Language of the case: English.