Case T-288/06: Action brought on 18 October 2006 — Huta 'Częstochowa' v Commission
Date: 2006-12-02
Institutions: Court of First Instance
Subjects: European Commission, 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 294/63

Action brought on 18 October 2006 — Huta 'Często-
chowa' v Commission

In support of its action, the claimant raises the following heads
of complaint:

(Case T-288/06)

(2006/C 294/125)

Language of the case: Polish

Parties

Claimant: Huta
‘Częstochowa’ S.A.
Sadkowski and D. Sałajewski, lawyers)

(represented by: Cz.

Defendant: Commission of the European Communities

Form of order sought

— Declare invalid point 2 of Article 3(2) of the Commission
decision of 5 July 2005 in Case No C 20/04 (ex. NN 25/04)
concerning State aid for the benefit of Huta ‘Częstochowa’
S.A.

Pleas in law and main arguments

The claimant seeks a declaration of invalidity in regard to the
European Commission decision of 5 July 2005 in State aid
Case No C 20/04 (ex. NN 25/04), Article 3(1) of which declares
incompatible with the common market the aid which Poland
accorded to Huta ‘Częstochowa’ S.A over the period from 1997
to May 2002 in the form of operating aid and aid for employ-
ment restructuring. The decision was notified to the claimant
on 21 August 2006. In Article 3(2) of the contested decision
the Commission imposed an obligation on Poland to take all
requisite steps to recover the unlawfully granted aid from the
undertakings named in that provision, which include the clai-
mant. Pursuant to that decision, all the undertakings mentioned
in that provision are jointly and severally liable for the recovery
of
that aid, which must be effected without delay and in
accordance with the procedures under national law. Interest is
payable in respect of the entire period from receipt of the aid
up to the date on which it is actually repaid,
in accordance
with the provisions contained in Chapter V of Commission
Regulation (EC) No 794/2004 (1).

— Breach of Articles 87 EC and 88 EC and of Article 7(5) of
Council Regulation (EC) No 659/1999 of 22 March 1999
laying down detailed rules for the application of Article 93
of the EC Treaty (2) by reason of the Commission's accep-
tance that the abovementioned provisions permit the adop-
tion of a decision defining aid granted by a Member State
prior to its accession to the European Union as being aid
incompatible with the common market, even though the
aid in question was not applied after Poland acceded to the
EC Treaty, and consequently the acceptance that
the
amounts subject to reimbursement must be increased by
interest in respect of the entire period from the date on
which the aid was granted to Huta ‘Częstochowa’ up to that
of its actual repayment. The claimant submits that the aid
granted in the years 1997 to 2002 and not applied after
Poland's accession to the European Union cannot be treated
as incompatible with the common market on the basis of
Article 87 EC as it could not have affected intra-Com-
munity trade in the period prior to 1 May 2004, that is to
say, prior to Poland's accession to the European Union, at a
time when the Polish market did not constitute part of the
intra-Community market. A further reason,
in the clai-
mant's view,
lies in the fact that Protocol No 8 to the
Accession Treaty (3) on the restructuring of the Polish steel
industry makes no mention of the claimant in Annex 1, as
a consequence of which the majority of the provisions of
that protocol do not concern the claimant.

— Breach of Article 9(4) of Commission Regulation (EC)
No 794/2004 by virtue of the fact that no percentage rate
for interest in respect of the repayment of the State aid was
laid down in the decision. In the meantime, according to
the claimant, pursuant to the provision cited, in connection
with the absence in Poland of five-year swap rates for inter-
bank transactions prior to Poland's accession to the Euro-
pean Union, there was a need for coordination between the
Commission and Poland in this area which would subse-
quently have had to be reflected in the contested decision
or in some other Commission decision.

(1) 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 2004
L 140, p. 1).

(2) OJ 1999 L 83, p. 1.
(3) Treaty of 23 April 2003 concerning the accession of the Czech
the
Republic,
the Republic of
Republic of Latvia,
the
Hungary,
Republic of Slovenia and the Slovak Republic to the European
Union (OJ 2003 L 236, p. 17).

the Republic of Lithuania,

the Republic of Poland,

the Republic of Estonia,

the Republic of Cyprus,

the Republic of Malta,