Case T-456/04: Action brought on 12 November 2004 by Association Française des Opérateurs de Réseaux et Services de Télécommunications – AFORS Télécom against Commission of the European Communities
Date: 2005-02-05
Institutions: Court of First Instance
Subjects: European Commission, France, State aid, action for annulment (EU), control of State aid, telecommunications industry

5.2.2005

EN

Official Journal of the European Union

C 31/27

Action brought on 9 November 2004 by Bouygues SA and
Bouygues Télécom against Commission of the European
Communities

combined all the characteristics of State aid, it did not draw
the logical conclusion and classify the statements as aid;

(Case T-450/04)

(2005/C 31/51)

(Language of the case: French)

— as concerns the refusal to order recovery of the aid, there is
a breach of Article 14(1) of Regulation No 659/1999 laying
down detailed rules for the application of Article 88 of the
Treaty and also a breach of essential procedural require-
ments in that the reasons are inadequate. The applicants
maintain that
the Commission was perfectly capable of
quantifying the amount of the aid without infringing Fran-
ce's rights of defence and that recovery of the aid in ques-
tion would not in this case have constituted a breach of the
principle of protection of legitimate expectations.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 9 November 2004 by Bouygues SA
and Bouygues Télécom, established in Paris and in Boulogne
Billancourt (France) respectively, represented by L. Vogel,
J.
Vogel, F. Sureau, D. Théophile, B. Amory and A. Verheyden,
lawyers.

The applicant claims that the Court should:

— annul Article 1 of Decision C(2004)3060 of the Commis-
sion of the European Communities of 2 August 2004;

— annul Article 2 of that decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

The present action is directed against Decision C(2004)3060 of
2 August 2004, whereby the European Commission considered
that the shareholder's advance granted by France to the Groupe
France Télécom in December 2002, in the form of a credit line
of EUR 9,000 million, placed in the context of the statements
made since 2002, constituted State aid incompatible with the
common market. The Commission also decided that that aid
should not be recovered.

As regards the finding that the measure in question constituted
aid, the applicants further criticise the decision in issue for
having refused to classify as State aid the commitments
resulting from the statements of
the French Government,
which had publicly supported France Télécom's credit between
July and October 2002, although that undertaking, which was
heavily in debt, was making enormous losses.

In support of their claims, the applicants allege that:

— by refusing to classify as State aid the statements of the
French Government of July, September and October 2002,
taken either individually or collectively, the Commission
misapplied Article 87 of the Treaty. The defendant should
have found in that regard that the statements had conferred
on France Télécom an advantage which distorted both
competition and trade between Member States;

— the contested decision is based on contradictory and inade-
quate reasons. The applicants maintain on that point that,
the French Government's statements
after

finding that

Action brought on 12 November 2004 by Association
Française des Opérateurs de Réseaux et Services de Télé-
communications – AFORS Télécom against Commission
of the European Communities

(Case T-456/04)

(2005/C 31/52)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 12 November 2004 by Association
Française des Opérateurs de Réseaux et Services de Télécommu-
nications – AFORS Télécom, established in Paris, represented
by O. Fréget, lawyer.

The applicant claims that the Court should:

— annul Article 2 of Decision C(2004)3060 of the Commis-
the European Communities of 2 August 2004

sion of
concerning State aid paid by France to France Télécom;

— order the Commission to pay the costs.

Pleas in law and main arguments

In the context of a scheme designed to restore the balance of
the French telecommunications company France Télécom,
France, at the time the majority shareholder in that company,
granted it a shareholder's advance, in order to shore up its own
funds, in the form of a credit line of EUR 9,000 million. By
the contested decision, the Commission found that the advance
in question constituted State aid. However, by Article 2 of that
decision, it decided that no measures to recover the amount
concerned should be taken.

C 31/28

EN

Official Journal of the European Union

5.2.2005

The applicant, which claims to represent a large proportion of
the alternative telecommunications operators in France, direct
competitors of France Télécom, maintains that it is entitled to
seek annulment of that article. In support of its action, it claims
first of all that the Commission made a manifest error of assess-
ment in taking the view that it would be unable to estimate the
advantage received by France Télécom as a result of
the
conduct and statements of the French State. It further alleges
that the Commission breached the principle of proportionality,
since it would have been less harmful to the market to take an
amount lower than the actual value of the advantage and of its
effects on competition than to preclude any recovery. The
applicant then argues that, in any event, the Commission is not
required to evaluate precisely the amount of the aid.

The applicant also contends that the Commission failed to have
regard to the consistent case-law, which allows a derogation
from the obligation to recover unlawful aid only where there
are exceptional circumstances or where it is absolutely impos-
sible to do so. The applicant also claims that the Commission
wrongly considered that recovery of the aid would breach the
rights of the defence and also the principle of legitimate expec-
tations.

The applicant further claims that the Commission breached the
principle of transparency in failing to submit to interested third
parties,
including the applicant itself, certain expert reports
presented by France, which played a decisive role in the
outcome reached by the Commission.

The applicant also maintains that the Commission committed
an abuse of process by ignoring the constraints imposed by its
own guidelines on aid for restructuring. Furthermore, the mere
fact of having declared an aid incompatible and having then
not demanded its recovery constitutes in itself a misuse of
powers, in the applicant's submission. Last, the applicant claims
that there has been a breach of the obligation to State reasons.

Action brought on 9 November 2004 by Camar S.r.l.
against the Commission of the European Communities

(Case T-457/04)

(2005/C 31/53)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 22 November 2004 by Camar S.r.l.,
represented by Wilma Viscardini, Simonetta Donà and Mario
Paolin.

The applicant claims that the Court should:

— annul

the Commission's refusal communicated by the
Director General for Agriculture by letter of 10 September
2004 (ref D (2004) 29695 A/25707) received on 20
September 2004;

— order that paragraph 1 of the operative part of the judg-
ment of 8 June 2000 in Joined Cases T-79/96, T-260/97
and T-117/98 be enforced;

— order the Commission to give effect to paragraph 1 of the
operative part of that judgment by the financial equivalent
of the value of the entitlements that it should have, but has
not delivered, pursuant to the judgment in question, in the
sum of EUR 5 065 600, or such other sum as the Court
may fix, increased to reflect changes in monetrary values,
and interest at a rate to be determined by the Court, with
effect from 8 June 2000 until the date of discharge of the
judgment debt;

— order the Commission to compensate the applicant

for
non-pecuniary loss – to be determined equitably by the
Court – sustained by the applicant's constituent partners as
a result of the failure to enforce the judgment of 8 June
2000;

— order the Commission to pay the costs of

the present

action.

Pleas in law and main arguments:

In support of its pleas in law, the applicant submits that the
Commission's failure to act – not only has it not adopted any
specific measure, it has not even proposed to Camar appro-
priate measures to give effect to the judgment delivered in Case
T-79/96 (a continuing failure to act since 8 June 2000) – and
its express refusal to enforce that judgment, communicated by
the letter of 10 September 2000, constitute a serious infringe-
ment of Article 233 EC.

To the extent that the Commission is no longer able to deliver
the entitlements to the applicant which it should have done to
give effect to that judgment – because,
imports of
third-country bananas will no longer be subject to tariff quota
but instead completely liberalised –, Camar seeks equivalent
loss
enforcement in the form of compensation for financial
which, according to settled case-law, is available where it is no
longer possible to enforce a judgment in a specific way.

in short,

the non-
The applicant also seeks equitable damages for
pecuniary loss sustained by reason of the failure to enforce the
judgment of 8 June 2000. According to settled case-law, that
fact alone already constitutes a ground for compensation in
that it infringes the principle of legitimate expectations. In this
case, that infringement is aggravated by the fact that Camar
expected the Commission to enforce the judgment because it
said it would do so in a letter of 20 May 2003. That letter has
since been withdrawn.