Case T-117/07: Action brought on 18 April 2007 — Areva & Others v Commission
Date: 2007-04-18
Institutions: Court of First Instance
Subjects: European Commission, France, Switzerland, action for annulment (EU), award of contract, electrical equipment, energy industry, restrictive trade practice

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.

23.6.2007

EN

Official Journal of the European Union

C 140/29

In their second plea in law, the applicants criticise the Commis-
sion for having infringed Article 81 EC and, in particular, the
legal rules relating to the imputation of liability for an infringe-
ment, by holding AREVA T&D SA, and AREVA T&D AG liable
for the anti-competitive practices preceding their transfer by
ALSTOM SA, when it had held that those companies were not
independent of ALSTOM before being transferred.

Action brought on 16 April 2007 — MB Immobilien and
MB System v Commission

(Case T-120/07)

(2007/C 140/50)

Language of the case: German

The applicants' third plea in law alleges infringement of Article
81 EC in that the Commission imputed to AREVA SA and
AREVA T&D HOLDING SA liability for anti-competitive prac-
tices attributed to their direct or indirect subsidiaries AREVA
T&D SA and AREVA T&D AG, when, in the applicants' submis-
it had not shown that AREVA SA and AREVA T&D
sion,
HOLDING SA effectively controlled those subsidiaries during
the infringement period.

Parties

Applicant(s): MB Immobilien Verwaltungs GmbH (established in
Neukirch/Lausitz, Germany) and MB System GmbH & Co. KG
represented by: G.
(established in Nordhausen, Germany),
Brüggen, Rechtsanwalt.

Defendant(s): Commission of the European Communities

The fourth and fifth pleas in law allege infringement of Articles
7 EC and 81 EC and relate, in particular, to the rules concerning
the joint and several liability for the infringement. The appli-
cants claim out that the Commission could not find AREVA
T&D SA and ALSTOM SA jointly liable to pay the fine since
they do not form an economic unit and such a joint sanction
constitutes an unlawful delegation of the Commission's power
to impose sanctions and also an infringement of the general
principles of equal treatment, legal certainty and effective judi-
cial protection.

In the sixth plea in law, the applicants criticise the contested
decision for having misapplied the concept of ringleader and
thus infringed Article 81 EC and also the Guidelines on the
method of setting fines (1) and several general principles of law.

In their last plea in law, the applicants claim that the Commis-
sion made an error of assessment as regards the extent of the
cooperation provided by the applicants during the investigation,
in breach of Article 81 EC and the guidelines regarding coopera-
tion set out in the Notice on immunity from fines and reduction
of fines in cartel cases (2).

(1) OJ C 9 of 14.1.1998, p. 3
(2) OJ C 45 of 19.2.2002, p. 3

Form of order sought

— Annulment of

the Commission's Decision K(2007) 130
endg. of 24 January 2007 on State Aid No C 38/2005 (ex
NN 52/2004) of Germany to the Biria-Gruppe

— the Commission to pay the costs.

Pleas in law and main arguments

The applicants challenge the Commission's Decision K(2007)
130 endg. of 24 January 2007, in which it decided that state
aid by Germany, encompassing three measures in favour of Bike
Systems GmbH & Co Thüringer Zweiradwerk KG, Sachsen
Zweirad GmbH and Biria GmbH (subsequently Biria AG) was
incompatible with the common market.

The first applicant is the legal successor of Biria AG, the second
of Bike Systems GmbH & Co Thüringer Zweiradwerk DG. The
they are directly and individually
applicants
concerned by the contested decision.

argue

that

In support of their action, the applicants argue first that Com-
munity law has been infringed through defective interpretation
of an approved aid regulation. In that context, they argue that
the Commission failed to use as the basis of its decision the
definition of an undertaking in difficulties which is contained in
the aid regulation which it approved.

The Commission further infringed Community law through
misassessment of
the evidence. The applicants argue that,
contrary to what the Commission maintains, the undertakings
concerned by the contested decision were not undertakings in
difficulty at the time the aid was granted.

The applicants further argue that Community law has been
infringed by serious errors in the statement of reasons.