Action brought on 14 August 2019 – Oltchim v Commission

(Case T-565/19)

(2019/C 383/71)

Language of the case: English

Parties

Applicant: Oltchim SA (Râmnicu Vâlcea, Romania) (represented by: C. Arhold, L.-A. Bondoc and S. Petrisor, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul Articles 1 and Article 3 to 7 of the Commission decision of 17 December 2018 in State aid Case SA.36086 (2016/C)(ex 2016/NN), implemented by Romania for Oltchim SA; (1)

— award the application the costs of the present action.

Pleas in law and main arguments

In support of the action, the applicant relies on nine pleas in law.

1. First plea in law, with regard to the non-enforcement of debts by the Romanian Authority for State Assets Management, alleging manifest error of assessment by deciding that that measure provided an economic advantage within the meaning of Article 107(1) TFEU.

2. Second plea in law, with regard to the aforesaid measure of non-enforcement of debts, alleging that the defendant failed, in violation of Article 296(2) TFUE, to provide sufficient reasoning with respect to the State aid classification of that measure.

3. Third plea in law, with regard to the alleged grant of aid by means of the continued supply of electricity to the applicant and further accumulation of debt by a third party after the failed privatisation of the applicant, alleging manifest error of assessment by deciding that that measure provided an economic advantage within the meaning of Article 107(1) TFEU.

4. Fourth plea in law, with regard to the aforesaid measure of continued supply of electricity and accumulation of debt by a third party, alleging infringement of Article 296(2) TFEU.

5. Fifth plea in law, with regard to the partial debt cancellation envisaged by the reorganisation plan approved by the applicant’s creditors, alleging a manifest error of assessment by deciding that the debt cancellation was a transfer of State resources, to the extent that a third party private undertaking was involved.

6. Sixth plea in law, alleging that, in any case, the aforesaid debt cancellation was not imputable to the State as far as the public companies involved were concerned.

7. Seventh plea in law, alleging that the aforesaid debt cancellation passed the private creditor test, since the most important private creditors had voted for the reorganisation plan (pari passu), the reorganisation plan was economically more favourable for the public creditors than a liquidation scenario, and under the revised reorganisation plan the company was actually sold in asset bundles – a scenario which the Commission had praised as the best option in its decision.

8. Eighth plea in law, alleging, with regard to the partial debt cancellation measure, that the defendant infringed Article 296(2) TFUE.

9. Ninth plea in law, alleging, with regard to the partial debt cancellation measure, that the Commission infringed Article 107(1) and 108(2) TFEU, as well as the Procedural Regulation, (2) by ordering the recovery of the total amount of the debt cancellation, albeit that, even under the defendant’s own (wrong) calculations of its hypothetical best case scenario, it was clear that the public creditors could not achieve much more than they actually achieved under the revised reorganisation plan.

(1) OJ 2019 L 181, p. 13.

(2) The version of this instrument cited in the application is 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)