Case T-116/07: Action brought on 17 April 2007 — France v Commission
Date: 2007-04-17
Institutions: Court of First Instance
Subjects: European Commission, France, State aid, action for annulment (EU), control of State aid, environmental tax, mineral oil, tax exemption

23.6.2007

EN

Official Journal of the European Union

C 140/27

Pleas in law and main arguments

The applicant lodged an action for annulment, under Article
230 EC against Commission decision of 24 January 2007 (Case
COMP/F/38.899 — Gas insulated switchgear — C(2006) 6762
final), on the basis of which the Commission found the appli-
cant, among other undertakings, liable to have infringed Article
81(1) EC and from 1 January 1994 also Article 53 EEA in the
gas insulated switchgear sector (hereinafter ‘GIS’), through a set
of agreements and concerted practices consisting of (a) market
sharing, (b) the allocation of quotas and maintenance of the
respective market shares,
(c) the allocation of individual GIS
projects (bid-rigging) to designated producers and the manipula-
tion of the bidding procedure for those projects, (d) price fixing,
(e) agreements to cease licence agreements with non-cartel
members and (f) exchanges of sensitive market information. In
the alternative, the applicant applies for a cancellation or reduc-
tion of the fines imposed.

According to the applicant, the Commission appears to have
based its findings on three arrangements concluding on the exis-
tence of a world-wide cartel. Even if that were the case, the
applicant submits that the Commission has no jurisdiction over
behaviour which might restrict competition outside the EEA.

The applicant claims that the Commission has failed to prove to
the requisite legal standard that the applicant took part in any
agreement or concerted practice not to sell in Europe, or that
European GIS suppliers compensated the Japanese companies
for not entering Europe by way of ‘loading’ European projects
into the European ‘GQ’ (1) quota. The applicant further submits
that the Commission has relied for corroboration on equally
indirect, vague, unsubstantiated evidence consisting mainly of
oral statements made by the leniency applicant and, in addition,
has allegedly ignored evidence provided to contradict the incri-
minating statements.

Moreover, whereas the applicant does not deny that it was part
of the ‘GQ agreement’ it contends that the agreement at stake
was a world-wide agreement not covering Europe and over
which the Commission lacked jurisdiction. The applicant claims
that the Commission,
in its attempt the bring the applicant
under its jurisdiction, shifted the focus of its legal assessment
entirely on whether there had been a ‘common understanding’
(that the Japanese would refrain form entering the European
market that the European companies would equally refrain from
competing in Japan) and whether certain European projects
were systematically reported to the Japanese companies or
‘loaded’ into the European ‘GQ’ as part of this ‘common under-
standing’. Hence,
it is claimed that the Commission has not
established that the applicant should be held responsible for the
series of
infringements at European level and has allegedly
committed a manifest error of appraisal.

It is further submitted that the contested decision is vitiated by
procedural irregularities. To this extent, the applicant suggests
that its rights of defence have been compromised through the
Commission's failure to provide adequate reasoning, to grant
access to evidence and distortion of evidence.

In the alternative, the applicant submits that the Commission's
failure to properly apportion responsibility between the Euro-
pean and Japanese companies vitiated the method used for
assessing the fines for the addressees of the decision. On this
account, the applicant sustains that the Commission did not
properly assess either the gravity or the duration of the infringe-
ment and thus, has unfairly discriminated against the applicant.

(1) ‘G’ stands for ‘gear’ and ‘Q’ for ‘quota’.

Action brought on 17 April 2007 — France v Commission

(Case T-116/07)

(2007/C 140/48)

Language of the case: French

Parties

Applicant: French Republic (represented by: G. de Bergues and S.
Ramet, Agents)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision in its entirety;

— order the Commission to pay the costs.

Pleas in law and main arguments

By decision of 30 June 1997, adopted following a proposal
from the Commission and in accordance with the procedure
laid down in Council Directive 92/81/EEC (1),
the Council
authorised the Member States to apply or to continue to apply
the existing reduced rates of excise duty or exemptions from
excise duty to certain mineral oils when used for specific
purposes. By four subsequent decisions, the Council extended
that authorisation, the final authorisation period expiring on 31
December 2006. France is authorised to apply these reduced
rates or exemptions to heavy fuel oil used as fuel
for the
production of alumina in the Gardanne region.

In a letter of 30 December 2001, the Commission notified
France of its decision to initiate proceedings under Article 88(2)
of the EC Treaty relating to the exemption from excise duty on
mineral oils used as
for alumina production in the
Gardanne regio (2). On 7 December 2005, in consequence of
this procedure, the Commission adopted Decision 2006/323/EC

fuel

C 140/28

EN

Official Journal of the European Union

23.6.2007

finding that exemptions from excise duty on mineral oils used
as fuel for alumina production in the Gardanne region, the
Shannon region and Sardinia, implemented by France, Ireland
and Italy respectively, constituted State aid within the meaning
of Article 87(1) EC that
incompatible with the
common market,
and thus ordered the Member States
concerned to recover all such aid (3). By action brought on 17
February 2006, France sought to have that decision annulled in
part in so far as it affected the exemption granted by France to
the Gardanne region (4).

is in part

The Commission decided to extend the formal
investigation
procedure regarding the exemption from excise duty on heavy
mineral oils used for alumina production for
the period
commencing 1 January 2004. After giving the Member States
and the third parties concerned the opportunity to submit their
observations on that matter, the Commission adopted Decision
C (2007) 286 final of 7 February 2007 concerning the exemp-
tion from excise duty on mineral oils used as fuel for alumina
production in the Gardanne region, the Shannon region and
Sardinia, applied by France, Ireland and Italy respectively (State
aid No C 78-79-80/2001). That
is the decision which is
contested in the present action.

that

In support of its action, the applicant relies on two pleas, the
first alleging infringement of the concept of State aid within the
meaning of Article 87(1) EC. It submits that the Commission
committed an error of law in holding that State aid existed even
though not all the conditions required to establish the existence
of aid, as laid down in the Altmark case (5), had been fulfilled.
The applicant also submits
the decisions authorising
exemptions up to 31 December 2006 were adopted by the
Council
from the Commission, which,
according to the applicant, should have ensured before making
such a proposal that the authorisation would not lead to a
distortion of competition. The applicant therefore claims that
the Commission could not, on the one hand, propose that the
Council adopt a decision authorising an exemption from excise
duty and not object to that authorisation being extended until
31 December 2006 and, on the other hand, find that that
exemption constitutes State aid incompatible with the common
market as of 1 January 2004.

following a proposal

The second plea raised by the applicant alleges a failure to state
reasons in that the contested decision does not set out argu-
ments concerning the market in question or the position of the
various undertakings in that market or relating to nature of the
harm to competition or the effect on the trade in question.

(1) Council Directive of 19 October 1992 on the harmonisation of the

structures of excise duties on mineral oils

(2) Published in OJ 2002 C 30
(3) Decision C (2005) 4436 final, State aid Nos C 78-79-80/2001, OJ

2006 L 119, p. 12

(4) Case T-56/06 France v Commission, OJ 2006 C 96, p. 21
(5) Case C-280/00 Altmark Trans [2004] ECR I-7747

Action brought on 18 April 2007 — Areva & Others v
Commission

(Case T-117/07)

(2007/C 140/49)

Language of the case: French

Parties

SA

Applicants: AREVA SA, AREVA T&D HOLDING SA, AREVA
T&D
AG
(Oberentfelden, Switzerland) (represented by: A. Schild, and J.-
M. Cot, lawyers

AREVA

France)

(Paris,

T&D

and

Defendant: Commission of the European Communities

Form of order sought

— annul Article 1 of the Commission Decision of 24 January
2007 in that, firstly, it holds AREVA T&D SA and ALSTOM
SA jointly liable for the anti-competitive practices imple-
mented between 7 December 1992 and 8 January 2004,
and, secondly, it attributes to AREVA T&D SA, AREVA T&D
AG, AREVA T&D HOLDING SA and AREVA SA joint and
several
the anti-competitive practices imple-
mented between 9 January 2004 and 11 May 2004;

liability for

— in the alternative, annul or substantially reduce the amount
of the fine imposed on AREVA T&D SA, AREVA T&D AG,
AREVA T&D HOLDING SA and AREVA SA;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the present, action the applicants seek the partial annulment
of Commission Decision C (2006) 6762 Final of 24 January
2007 relating to a proceeding under Article 81 of the EC Treaty
and Article 53 EEA (Case COMP/F/38.899 — Gas Insulating
Switchgear), concerning a cartel in the gas insulated switchgear
projects sector entailing manipulation of the bidding procedure
for those projects, the fixing of minimum tender prices, the allo-
cation of quotas and of projects, and exchanges of information.
In the alternative the applicants seek the reduction of
the
amount of
the fine which was imposed on them by the
contested decision.

In support of their claims, the applicants raise seven pleas in
law.

The first plea in law alleges infringement by the Commission of
the obligation to state reasons set out in Article 253 EC, in that
the reasoning is contradictory and insufficient as regards the
in particular, to the imputation of the anti-
aspects relating,
the applicants and
the finding that
competitive practices,
ALSTOM SA were jointly and severally liable, and the increase
in the basic amount of the fine on account of AREVA T&D SA's
role as ringleader of the infringement.