Case C-349/04: Action brought on 13 August 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg
Date: 2004-09-25
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, competition, electronic mail, exchange of information, public contract, service, telecommunications, transmission network

25.9.2004

EN

Official Journal of the European Union

C 239/9

Action brought on 2 August 2004 by the Commission of
the European Communities against the French Republic

(Case C-337/04)

(2004/C 239/16)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 2 August
2004 by the Commission of the European Communities, repre-
sented by Gérard Rozet and Christophe Giolito, acting as
Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. declare that, by failing to enforce, within the period
prescribed, the decision of 15 January 2002 concerning the
State aid carried out by the French Republic in favour of
Crédit Mutuel (State Aid C 88/1997 ex NN 183/1995; since
published in OJ L 88, 4.4.2003, p. 39), the French Republic
has failed to fulfil
its obligations under the fourth sub-
paragraph of Article 249 EC and Articles 2 and 3 of that
decision;

2. order the French Republic to pay the costs.

Pleas in law and main arguments

Considering that the attribution by the French public authori-
ties in favour of Crédit Mutuel of the distribution right to the
‘Livret bleu’ savings scheme involved State aid incompatible
with the common market, on 15 January 2002 the Commis-
sion adopted, under the first subparagraph of Article 88(2) EC,
a decision requiring France to recover from Crédit Mutuel the
aid granted since 1 January 1991 and to take measures to with-
draw in future aid included in the ‘Livret bleu’ scheme and to
improve supervision of it.

On 18 June 2003 the French authorities sent a recovery order
for EUR 117,9 million to Crédit Mutuel. However,
the
Commission notes that to date no amount of the aid has been
reimbursed by Crédit Mutuel and no further action has been
taken by France to recover that aid. In the Commission's view,
therefore, France has not complied with the decision and since
it has not alleged that compliance with the decision was abso-
lutely impossible, which is the only defence available to it, it
must be found that it failed to fulfil its obligations under Com-
munity law.

Furthermore, the Commission does not agree regarding the
simple interest method used by the French authorities to calcu-
late interest to be paid on the amount to be recovered, nor
regarding the amount of tax deducted from the amount to be
recovered. It considers that only capitalisation of interest by the
compound interest method will result in the neutralisation of
the economic advantage from which Crédit Mutuel has bene-
fited. Furthermore, the French authorities have not shown that
the deduction of the tax from the amount to be recovered was

made by application of the internal rules and in a non-discrimi-
natory manner in comparison with similar cases governed by
to be recovered
national
the
proposed by the French authorities does not permit
Commission decision to be implemented effectively.

law. Consequently,

the amount

Finally, the Commission considers that France has not complied
with Articles 2(2), 2(3) and 2(4) of the decision of 15 January
2002, intended to ensure the withdrawal of the elements of aid
involved in the ‘Livret bleu’ scheme and the better supervision
of
the necessary
measures were being taken. The Commission has to date
nothing in its possession which might lead it to conclude that
the decision has been implemented effectively on those points.

the scheme, but has merely stated that

Action brought on 13 August 2004 by the Commission of
the European Communities against the Grand Duchy of
Luxembourg

(Case C-349/04)

(2004/C 239/17)

An action against
the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Commu-
nities on 13 August 2004 by the Commission of the European
Communities, represented by E. Gippini Fournier and K. Mojze-
sowicz, acting as Agents, with an address for service in Luxem-
bourg.

The applicant claims that the Court should:

1. Declare that, by failing to supply the Commission with all
the information necessary to allow it to confirm that the
provisions of Directive 2002/77/EC (1) have been complied
with, Luxembourg has failed to fulfil its obligations under
Article 9 of that directive;

2. Order Luxembourg to pay the costs.

Pleas in law and main arguments

Article 9 of Directive 2002/77/EC requires the Member States
to supply the Commission, no later than 24 July 2003, with
information allowing it to confirm that the provisions of that
directive have been complied with.

(1) Commission Directive 2002/77/EC of 16 September 2002 on
competition in the markets for electronic communications networks
and services (OJ 2002 L 249, p. 21).