Case T-206/01: Action brought on 7 September 2001 by P&O Ferries (Portsmouth) Limited against the Commission of the European Communities
Date: 2001-11-24
Institutions: Court of First Instance
Subjects: European Commission, State aid, action for annulment (EU), complaint to the Commission, maritime transport, transport company

C 331/22

EN

Official Journal of the European Communities

24.11.2001

Finally, the applicant challenges several aspects of the Com-
mission’s decision fixing the amount of the fine imposed,
including the starting point adopted for calculating the basic
amount, the calculation of the duration of the infringement,
the increase in the basic amount for aggravating factors, and
the percentage reduction from the basic amount for mitigating
factors. It claims, inter alia, that the contested decision infringes
Article 7 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms.

Action brought on 7 September 2001 by P&O Ferries
(Portsmouth) Limited against the Commission of the
European Communities

(Case T-206/01)

(2001/C 331/37)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 7 September 2001 by P&O Ferries
(Portsmouth) Limited, represented by Julian Ellison and Mark
Clough QC of Ashurst Morris Crisp, Brussels (Belgium).

The applicant claims that the Court should:

— annul under Article 230 (ex 173) of the EC Treaty the
Commission Decision C (2001) 1442 of 8 May 2001
concerning State aid implemented by France in favour
of the Bretagne Angleterre Irlande company (save for
Articles 1(2) and 1(3)) to the extent that it has approved
aid granted to BAI,

— order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

The applicant is a ferry operator which provides tourist and
freight ferry services on certain routes between France and the
United Kingdom in the western end of the Channel. Its main
competitor is the French ferry operator Bretagne-Angleterre-
Irlande SA, ‘Brittany Ferries’ (‘BAI’).

The applicant brought its concerns in relation to BAI’s receipt
of State aid informally to the Commission’s attention in
May 1998, very shortly after the Commission’s opening of the
formal procedure (1). It later became clear to the applicant that
the Commission was focusing exclusively on State aid awarded

to BAI in the period 1995-1998. The applicant considered
that if the enquiry was limited to this period, a vast amount of
other State aid received by BAI would be ignored, and in
February 2001, the applicant submitted a formal complaint.

In December 2000, the applicant commenced a procedure
against the Commission under Article 232 EC for its failure to
act in relation to all the elements of the applicant’s complaint.
That procedure is now the subject of Court proceedings (2).

By the present action, the applicant requests the Court to
annul the Commission Decision to the extent that it approves
aid granted to BAI.
It submits that the limitation period
provided for in Regulation (EC) No 659/1999 (3) does not
apply to this case, and that the pre-1989 State aid identified in
the complaint must be addressed expressly by the Commission.
It alleges that the Commission is wrong in finding that the
three shipowning companies (‘SPCs’) and BAI constitute a
single economic group and that charter payments between
BAI and the SPCs are irrelevant to State aid laws.

Further, the applicant submits that the Commission’s con-
clusions in relation to the market economy investor test are
wrong, and the applicant alleges that a number of guarantees
and public sector cash grants and loans should have been
taken into account in the contested decision.

As far as the restructuring aid is concerned, the applicant
rejects the Commission’s findings that the SPCs/BAI economic
group has made, and will make, satisfactory returns on equity
and that BAI pays market rate charter to the SPCs.
It
submits that these findings are based on wholly unreasonable
assumptions as to the residual values of the vessels. The
applicant further rejects the Commission’s conclusions about
the relevant market, its finding that a withdrawal of BAI would
leave the applicant in a monopoly position on the relevant
market(s) and its assessment of the intensity of the restructur-
ing aid package.

the applicant submits that

Finally,
the Commission has
infringed a number of procedural requirements under the state
aid rules, in particular the requirement to inform the parties
concerned of the matters under investigation.

(1) Procedure No C 31/98.
(2) Case T-49/01 (OJ 2001 C 161, p. 19).
(3) Council Regulation(EC)No 659/1999 of 22.3.1999 laying down
detailed rules for the application of Article 93 of the EC Treaty
(OJ 1999 L 83, p. 1).