EN Official Journal of the European Union C 148/12

Appeal brought on 12 February 2010 by France Télécom SA against the judgment delivered on 30 November 2009 in Joined Cases T-427/04 and T-17/05 French Republic and France Télécom v Commission

(Case C-81/10 P)

2010/C 148/19

Language of the case: French

Parties

Appellant: France Télécom SA (represented by: S. Hautbourg, L. Olza Moreno, L. Godfroid and M. van der Woude, avocats)

Other parties to the proceedings: European Commission, French Republic

Form of order sought

— Set aside the judgment under appeal;

— give final judgment as to the substance in accordance with Article 61 of the Statute of the Court of Justice and grant the form of order sought by France Télécom at first instance;

— alternatively refer the case back to the General Court; and

— order the Commission to pay all the costs.

Pleas in law and main arguments

The appellant puts forward five pleas in law in support of its appeal.

By its first ground of appeal, France Télécom invokes the misapplication by the Court of First Instance (now ‘the General Court’) of the concept of State aid when it accepts that categorisation in the present case while, on the other hand, admitting that the existence (or non-existence) of any advantage did not depend in the present case on the inherent characteristics of the regime at issue, but on factors extraneous to the regime itself, the effects of which could be determined only ex post. The General Court thus misconstrued the very nature of the system of prior scrutiny of State aid provided for by Articles 107 TFEU and 108 TFEU, an ex ante system based on an objective analysis of the inherent characteristics of regimes on the basis of prior notification of national authorities.

By its second ground of appeal, the appellant submits that the General Court misapplied the concept of advantage, in that it refused to carry out a comprehensive analysis of all the provisions laid down by the special tax regime. That regime, which was established by Law No 90-568, provided for two specific methods of taxation: (i) the ‘fixed levy’, during the period 1991 to 1993, which resulted in the overtaxation of the appellant as compared with the position under the general law, and (ii) the general law, during the period 1994 to 2002, which had a favourable fiscal effect as far as the appellant was concerned. By refusing to compare the effects of the special tax regime as a whole with the general law in respect of both of the periods at issue, the General Court made a number of errors of law.

By its third ground of appeal, the appellant alleges a breach of the principle of legitimate expectations, in that the General Court refused to hold that the Commission’s silence, in its decision of 8 February 2005 concerning La Poste, as regards the established tax regime, could have given rise to an expectation on the appellant’s part as to the conformity of the measures concerned under the rules on State aid. Furthermore, the General Court had failed to take account of certain exceptional circumstances specific to the present case which justified the application of the principle of legitimate expectations.

By its fourth ground of appeal, France Télécom invokes a failure to state reasons for the judgment, in that the General Court substituted its own reasoning for that of the Commission in response to its arguments relating to breach of the limitation principle with regard to State aid. Thus, according to the appellant, the 10-year limitation period laid down under Article 15(1) of Regulation (EC) No 659/1999 (1) should have been calculated from 2 July 1990, the date on which Law No 90-568 established the tax regime at issue, and not from the date on which the aid was actually granted to the beneficiary.

By its fifth and final ground of appeal, the appellant submits, lastly, that the General Court erred in law by holding that the Commission was entitled to quantify the aid on the basis of a ‘range’ and to order its recovery without committing a breach of the principle of legal certainty, whereas it was impossible to determine the real advantage which it could have enjoyed. Furthermore, the General Court had failed to respond to all of the appellant’s arguments alleging breach of the principle of legal certainty.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).