Case T-273/06: Action brought on 11 September 2006 — ISD Polska and Industrial Union of Donbass v Commission
Date: 2006-12-02
Institutions: Court of First Instance
Subjects: European Commission, Poland, State aid, action for annulment (EU), aid for restructuring, control of State aid, iron and steel industry

2.12.2006

EN

Official Journal of the European Union

C 294/57

Fourthly, the applicant contends that the Commission violated
its rights of defence by denying it
full access to the file,
including communications between the Commission, on the
one hand, and its experts, on the other.

Finally, the applicant suggests that the amount of the periodic
penalty payment
is excessive and disproportionate as the
Commission failed to take into account the complexity of the
compliance obligation, while it completely disregarded the
applicant's substantial good faith efforts to comply with the
Commission's previous decisions.

Moreover, the applicant submits that the contracting authority's
decision contains evident errors of assessment in the frame-
work of the evaluation of its offer, exceeding, thus, the discre-
tion that European Institutions dispose in procurement proce-
dures.

Action brought on 11 September 2006 — ISD Polska and
Industrial Union of Donbass v Commission

Action brought on 29 September 2006 — Evropaïki Dyna-
miki v Court of Justice

(Case T-272/06)

(2006/C 294/116)

Language of the case: English

Parties

(Case T-273/06)

(2006/C 294/117)

Language of the case: French

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepi-
koinonion Pliroforikis kai Tilematikis AE (Athens, Greece)
(represented by: N. Korogiannakis and N. Keramidas, lawyers)

Defendant: Court of Justice of the European Communities

ISD Polska sp. z.o.o.

(Częstochowa, Poland) and
Applicants:
Industrial Union of Donbass Corp. (Donetsk, Ukraine) (repre-
sented by: C. Rapin and E. Van den Haute, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Form of order sought

— Annulment of the decision of the Court of Justice to eval-
uate the applicant's bid as not successful and award the
contract to the successful contractor;

— order the Court of Justice to pay the applicant's legal and
other costs and expenses incurred in connection with this
application, even if the current application is rejected.

Pleas in law and main arguments

By means of its application, the applicant seeks annulment of
the decision of the Court of Justice of 20 July 2006, rejecting
its bid filed in response to the open Call for Tenders AM CJ
13/04 for
the maintenance, development and support of
computer applications (OJ 2005/S 127-125162 & 2005/S 171-
169521) and awarding the same Call for Tender to another
bidder.

— declare this action admissible;

— annul Article 3 of the Commission decision of 5 July 2005
concerning the aid granted by Poland to Huta Częstochowa
SA (notified under C(2005) 1962);

— in the alternative, declare that on the date of this action
there is no obligation on Poland to recover the aid and
interest referred to in Article 3 of the decision and therefore
that the amounts of that aid and interest is not payable;

— in the further alternative, annul the second subparagraph of
Article 3(2) of the decision and refer the question of the
interest to the Commission for a new decision in accord-
ance with Annex A to this application, or with such other
consideration as the Court may indicate in the grounds of
the judgment;

The applicant claims that the contested decision was taken in
violation of the Financial Regulation (EC) No 1605/2002 (OJ L
its Implementing Rules and Directive
248, 16/09/02, p. 1),
2004/18/EC, through an alleged misinterpretation of the selec-
tion criteria, violation of the principles of transparency and
equal treatment of the participants.

— in any event, order the Commission to pay all of the costs;

— if the Court should decide that there is no need to adjudi-
cate, order the Commission to pay the costs pursuant to
the combined provisions of Article 87(6) and Article 90(a)
of the Rules of Procedure of the Court of First Instance.

C 294/58

EN

Official Journal of the European Union

2.12.2006

Pleas in law and main arguments

By its decision C(2005) 1962 final of 5 July 2005 (State Aid
No C 20/04, ex NN 25/04), the Commission declared certain
restructuring aid granted by Poland to the steel producer Huta
Częstochowa SA incompatible with the common market and
ordered its recovery. The applicant ISD Polska is successor to
the beneficiary of the aid and a subsidiary of the second appli-
cant, Industrial Union of Donbass, which holds all of its shares.
The two applicants are referred to in the contested decision
among the undertakings required jointly and severally to repay
the aid declared incompatible with the common market.

In support of their application for the partial annulment of the
decision, the applicants rely on six pleas in law.

By their first plea, they claim that the Commission made a
manifest error of assessment of
the facts decisive for the
outcome of the investigation. They maintain that once the
assets of the original beneficiary of the incompatible aid have
been sold, those assets having been bought by ISD Polska (and
Donbass), it is the seller of the original beneficiary of the aid
which retains the benefit of that aid, and must ensure that it is
repaid. The applicants claim that in this case, if the Commis-
sion had correctly established the relevant facts concerning the
sale of the assets of Huta Częstochowa SA to ISD Polska (and
Donbass) it would have considered that, because the means of
production of Huta Częstochowa were acquired at a price
reflecting the market price, restitution of the aid had thereby
already been made to the seller. According to the applicants,
the Commission was therefore in breach of its obligation to
examine, carefully and impartially, all the relevant factors of
the case.

The second plea relied upon by the applicants alleges infringe-
ment of the right to submit comments, as recognised by Article
88 EC and Article 6 of Regulation No 659/1999 (1). They
maintain that the publication in the Official Journal of the Euro-
pean Communities of the decision to initiate the formal investiga-
tion procedure did not state in sufficient detail the aid called
into question or its amount, although according to the appli-
cants that information was known to the Commission, which
prevented them from ascertaining which aid was covered by
the investigation and evaluating the desirability of submitting
their comments.

The same alleged irregularity is the basis for the third plea
relied on by the applicants, namely infringement of the prin-
ciple of the protection of legitimate expectations. They main-
tain that if the decision to initiate the investigation procedure
had enabled Donbass to ascertain which aid was covered by
the procedure, that company could have submitted evidence to
the Commission showing, as ISD Polska and Donbass are doing
in this action, that that aid was compatible with Community
law.

tives pursued by that protocol and in consideration of the back-
ground to its adoption. That allegedly incorrect interpretation
led the Commission to require, by its decision, repayment of
State aid received before the adoption of Protocol No 8 by
companies not included in Annex 1, which designates eight
benefiting companies which are eligible for aid from Poland in
derogation from Articles 87 and 88 EC. The applicants claim
that since it acted thus without a legal basis, the Commission is
not competent to give a decision on some of the aid referred to
in the contested decision and that it therefore encroached upon
the temporal competence of other Community institutions.

The fifth plea relates to infringement of Article 14(1) of Regu-
lation No 659/1999, since the decision to recover the aid runs
counter to the principles of the protection of legitimate expec-
tations, legal certainty and equal treatment.

By their sixth plea, the applicants claim in the alternative that
the Commission infringed Regulation No 794/2004 (3) when
calculating the interest rate applicable to the recovery of the
aid in the present case.

(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 L 83 of 27.3.1999, p. 1.

(2) OJ 2003 L 236, p. 948.
(3) Commission Regulation (EC) No 794/2004 of 21 April 2004 imple-
menting Council Regulation (EC) No 659/1999 laying down
detailed rules for the application of Article 93 of the EC Treaty, OJ
L 140 of 30.4.2004, p. 1.

Action brought on 6 October 2006 — Estaser El Mareny v
Commission

(Case T-274/06)

(2006/C 294/118)

Language of the case: Spanish

Parties

Applicant: Estaser El Mareny SL (Valencia, Spain) (represented
by: A. Hernández Pardo, S. Beltrán Ruiz and L. Ruiz Ezquerra,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

By their fourth plea, the applicants claim that the Commission
infringed Protocol No 8 to the Treaty of Accession, on the
industry (2), by interpreting
restructuring of the Polish steel
purely literally some of its provisions which, in the view of the
applicants, it should have interpreted in the light of the objec-

— annul the Commission Decision of 12 April 2006 in Case
COMP/B-1/38.348 Repsol CPP relating to a proceeding
pursuant to Article 81 of the EC Treaty;

— order the defendant to pay the costs.