EN Official Journal of the European Union C 317/14

Appeal brought on 4 August 2010 by Bouygues SA and Bouygues Télécom SA against the judgment delivered on 21 May 2010 by the General Court (Third Chamber, Extended Composition) in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04 France and Others v Commission

(Case C-399/10 P)

()

2010/C 317/27

Language of the case: French

Parties

Appellants: Bouygues SA and Bouygues Télécom SA (represented by: J. Vogel, F. Sureau, D. Theophile, avocats)

Other parties to the proceedings: European Commission, French Republic, France Télécom SA, Association française des opérateurs de réseaux et services de télécommunications (AFORS Télécom)

Form of order sought

— set aside the judgment of the General Court of 21 May 2010 in Joined Cases T-425/04, T-444/04, T-450/04 and T-456/04;

— ruling again, allow the forms of order sought by Bouygues SA and Bouygues Télécom SA, namely: (i) annulment of Article 1 of Commission Decision 2006/621/, (1) solely in so far as it implicitly but necessarily refused to categorise as aid the declarations made by the French State in July, September and October 2002; and (ii) annulment of Article 2 of the decision, as a consequence of which the French State will be bound to recover the aid established to have been granted to France Telécom;

— in the alternative, should the Court consider that the state of the proceedings is not fit for judgment, refer the case back to the General Court for reconsideration in T-425/04, T-444/04, T-450/04 and T-456/04, taking into account the legal viewpoint developed by the Court;

— order the Commission, France Télécom and the French State to pay the costs.

Pleas in law and main arguments

Bouygues and Bouygues Télécom put forward three grounds in support of their appeal.

By their first ground, which comprises three parts, the appellants argue that the General Court erred in law in upholding the Commission’s analysis to the effect that the declarations made by the French State in July, September and October 2002 did not, separately or taken together, constitute one or more forms of State aid. The General Court thus disregarded the concept of use of State resources for the purposes of Article 107(1) TFEU in holding that declarations of support could entail a use of resources only if the form and amount of the support envisaged were specified, were to be of immediate and certain application and were legally binding (first part). The General Court furthermore distorted the rules of national law presented to the Commission in stating that those rules in turn require, in order for promises of support to have binding effect, be specified as to their details of application and the amount of support promised and not conditional on default by the debtor, whereas under national law, the promise of a result is sufficient to bind the party making the promise. The condition requiring the occurrence of financial difficulties is not an obstacle to a commitment of guarantee and the fact the State conducts itself in such a way as to give the impression that it will act in a certain way is such as engage its liability (second part). Lastly, the General Court disregarded the concept of use of State resources for the purposes of Article 107(1) TFEU in holding that such a use cannot be the result of the reaction of the markets entailing, for the State, a factual obligation to remedy France Télécom’s financing problems (third part).

By its second ground, which comprises two parts, the appellants allege an error of law by the General Court as regards the categorisation as aid of the shareholder loan granted by the State to France Télécom in the form of an opening of a line of credit of EUR 9 billion in December 2002. In that regard, Bouygues and Bouygues Télécom state, first, that the General Court disregarded the concept of aid for the purposes of Article 107(1) TFEU in holding that the advantage resulting from the announcement of an opening of a line of credit is not sufficiently closely linked to the transfer of resources resulting from that opening for it to be possible to establish a finding of State aid. The appellants argue that the General Court required, incorrectly, that the advantage and the use of resources become closely merged.

The appellants argue, second, that the General Court disregarded the concept of advantage for the purposes of Article 107(1) TFEU in considering separately the making available of the amount of EUR 9 billion to France Télécom to find that it did not entail any separate advantage in the form of an increase in the financial means available to France Télécom, without taking into account, in order to determine whether there was such an advantage, the reassuring effect which resulted from those same measures.

(1) Commission Decision 2006/621/EC of 2 August 2004 on the State Aid implemented by France for France Télécom (OJ 2006 L 257, p. 11).