EN Official Journal of the European Union C 319/15

Action brought on 6 September 2012 — Diputación Foral de Bizkaia v Commission

(Case T-397/12)

2012/C 319/29

Language of the case: Spanish

Parties

Applicant: Diputación Foral de Bizkaia (Spain) (represented by: I. Sáenz-Cortabarría Fernández, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul Article 2 of the contested decision, in so far as it declares unlawful the aid provided for in the agreements notified on 15 April 2009 or, in the alternative, in so far as it declares unlawful the aid provided for in the notified agreement on land;

— annul Articles 5 and 6 of the contested decision, in so far as the Commission based its examination of the compatibility with the Treaty, provided for in Article 108(2) TFEU, on the premiss that the aid was unlawful;

— in any event, order the Commission to pay the costs.

Pleas in law and main arguments

The contested decision (1) qualifies as unlawful aid compatible and incompatible with the internal market, respectively, the ‘land’ agreement (Convenio sobre suelo) and the ‘housing’ agreement (Convenio sobre viviendas) entered into on 15 December 2006 between Bizkailur S.A. (public company, wholly owned by the Diputación (Regional Council)), on the one hand, and Habidite Technologies Pais Vasgo S.A., the Grupo Empresarial Afer S.L. and the Grupo Habidite, on the other, relating to the construction of a Habidite factory in Alonsótegui.

In supports of its action, the applicant raises four pleas in law.

1. By its first plea in law, it alleges an error of law in that the decision classifies the aid granted in the 2006 agreements as unlawful, in finding that, on that date, a legally binding and unconditional agreement to grant aid to Habidite existed. The Commission takes no account of the legal consequences resulting from an interpretation of the contracts in accordance with the provisions of domestic law which govern them (in particular, Article 1258 of the Spanish Civil Code).

2. The second plea in law, which is subsidiary to the first one, is based on an error of law in the contested decision in that it declares as unlawful the aid included in the so-called ‘land agreement’, in so far as it fails to take account of the fact that the said agreement explicitly establishes that its implementation is dependent on its being lawful (‘if lawful its possible’), thereby infringing — by a misinterpretation and a misapplication — Article 108(3) TFEU and Article 1(f) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty. (2)

3. By its third plea, the applicant alleges an infringement of Article 6(1) of Regulation No 659/1999 and of the general principle of good administration and, in particular, of the Diputación’s procedural rights and guarantees as an interested party in the procedure laid down in Article 108(2) TFEU, in de facto having unduly made difficult or limited its ability to participate adequately in the administrative procedure carried out by the Commission and to express, in an effective and useful manner, its point of view on the issue that the aid concerned is lawful, in any event.

4. The fourth plea is based on a lack of, or invalid, grounds, since the Commission carried out its examination of compatibility, as established in Article 108(2) TFEU, on the premiss that unlawful aid was at issue, not notified aid.

(1) Decision of the European Commission of 27 June 2012 on State aid No SA.28356 (C 37/2009) (ex N 226/2009), Habidite Alonsotegui [COM (2012) 4194 final].

(2) OJ 1999 L 83, p. 1