Case T-130/07: Action brought on 19 April 2007 — Aughinish Alumina v Commission
Date: 2007-04-19
Institutions: Court of First Instance
Subjects: European Commission, Ireland, State aid, action for annulment (EU), excise duty, mineral oil, tax exemption

23.6.2007

EN

Official Journal of the European Union

C 140/35

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) of Council Regu-
lation No 40/94 (1), in that, contrary to the finding of the Board
of Appeal of OHIM in the contested decision, the mark for
which registration is sought has no strictly laudatory connota-
tion and does not describe a characteristic or quality of the
goods or services which it serves to designate.

exemptions fall within the nature and logic of the domestic
taxation system.

Secondly, the applicant claims that the Commission failed to
carry out a proper competition analysis in support of its conclu-
sion that the Irish measure can be assumed to affect intra-com-
munity trade and to distort or threaten to distort competition.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1)

Action brought on 17 April 2007 — Ireland v Commission

(Case T-129/07)

(2007/C 140/59)

Language of the case: English

Parties

Applicant: Ireland (represented by: D. O'Hagan, E. Alkin, Agents,
and P. McGarry, Barrister)

Defendant: Commission of the European Communities

Form of order sought

— Annul pursuant to Article 230 of the Treaty, in whole or in
part, Commission Decision C(2007) 286 final of 7 February
2007 concerning the exemption from excise duty on
for alumina production in
mineral oils used as
Gardanne,
imple-
mented by France, Ireland and Italy respectively, insofar as it
concerns the exemption from excise duty on mineral oils
used as fuel for alumina production in the Shannon region
implemented by Ireland;

in the Shannon region and in Sardinia,

fuel

— order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C
(2007) 286 final of 7 February 2007 by which the Commission
found that the exemptions from excise duty granted by France,
Ireland and Italy in respect of heavy fuel oils used in the produc-
tion of alumina as from 1 January 2004 constitute State aid
within the meaning of Article 87(1) EC and that a certain part
of this aid was incompatible with the common market.

In support of its application, the applicant invokes four pleas in
law.

Firstly, the applicant submits that the Commission was wrong
when it concluded that Ireland had not demonstrated that the

the applicant alleges

Thirdly,
the contested decision
infringes the principle of legal certainty in circumstances where
the Council had already authorised the specific derogation until
the end of 2006.

that

Finally, the applicant contends that the Commission erred in
law in concluding that the State aid concerned constitutes new
aid, as opposed to existing aid.

Action brought on 19 April 2007 — Aughinish Alumina v
Commission

(Case T-130/07)

(2007/C 140/60)

Language of the case: English

Parties

Applicant: Aughinish Alumina Ltd (Askeaton,
sented by: J. Handoll, C. Waterson, Solicitors)

Ireland)

(repre-

Defendant: Commission of the European Communities

Form of order sought

In the light of its submissions, AAL respectfully requests the
Court:

— to annul

the Commission decision of February 2007
concerning the exemption from excise duty on mineral oils
used as fuel for alumina production in Gardanne,
in the
Shannon Region and in Sardinia insofar as it relates to AAL;

— to order the Commission to pay the costs incurred by AAL

in the current proceedings.

Pleas in law and main arguments

By means of this application the applicant requests the partial
annulment of Commission Decision C(2007)286 final of 7
February 2007 concerning the exemption from excise duty on
mineral oils used as fuel for alumina production in Gardanne, in
the Shannon Region and in Sardinia respectively implemented
by France, Ireland and Italy, insofar as it relates to Aughinish
Alumina Ltd (hereinafter ‘AAL’).

C 140/36

EN

Official Journal of the European Union

23.6.2007

AAL submits that there are eight grounds for annulment in
support of its pleas:

was subject to a number of environmental obligations and to
consider measures which would have had the same incentive
effect as a requirement to pay a significant proportion of the
national tax.

First, the Commission has failed, according to the applicant, to
appreciate that the exemption falls within the nature and logic
of the Irish tax regime and hence does not constitute aid.

the applicant sustains that

Seventh,
the contested decision
violates the principles of protection of legitimate expectations
and of legal certainty.

Second, the applicant claims that the Commission has failed to
analyse properly the relevant markets and their competitive
structure. In circumstances where the Commission had itself
earlier accepted that there was no distortion of competition, and
in the light of the fact that the Council had authorised the
exemptions until 31 December 2006, the applicant contends
that it was incumbent on the Commission to demonstrate that
it had carried out a thorough economic analysis which clearly
demonstrated that there was an actual or threatened distortion
of competition. The applicant
the
Commission failed to establish that the exemption constituted
aid.

therefore submits

that

Third, the applicant advances that should the exemption none-
theless be considered to constitute aid, the Commission has
failed to treat the aid in question as existing aid falling under
Article 88(1) EC. The aid was the subject of a binding commit-
ment given before Ireland's accession to the European Commu-
nities, notified in January 1983. As the Commission did not act
until 17 July 2000, the ten-year limitation period was exceeded
and recovery was, thus, precluded. The applicant claims thus
that the aid cannot be characterised as an aid scheme.

Fourth, the applicant puts forward that the Commission should
have had regard to the overall acquis on excise harmonisation, in
order to determine whether and how to exercise its powers
under the State aid provisions of the EC Treaty. The contested
decision constitutes a serious breach of the principle of legal
certainty since it allegedly undermines authorisations granted by
the Council under Article 93 EC, on the basis of a Commission
proposal. Moreover,
the Commission has allegedly failed to
appreciate that the Council measures taken on the basis of
Article 93 EC constituted lex specialis that should have prevailed
over any inconsistent application of the State aid rules. In addi-
tion, the Commission has failed, according to the applicant's
contentions, to use the procedures available to it under Article 8
of Directive 92/81/EEC to resolve State aid or other concerns,
or indeed to seek the annulment of relevant Council decisions
and has, hence, undermined the effet utile of
the Council
measures.

Fifth, the applicant claims that in adopting the contested deci-
sion, the Commission has failed to take account of the funda-
mental requirements of Articles 3 and 157 EC, to strengthen
competitiveness of Community industry and to ensure that the
conditions necessary for the competitiveness of the Communi-
ty's industry exist.

Eighth, the excessive length of the procedure under Article 88
(2) EC contravenes the principles of good administration and of
legal certainty and is even more serious, according to the appli-
cant, since the Commission had, before initiating the procedure,
already failed to act in relation to the 1983 notification.

Action brought on 19 April 2007 — Fuji Electric Holdings
and Fuji Electric Systems v Commission

(Case T-132/07)

(2007/C 140/61)

Language of the case: English

Parties

Applicants: Fuji Electric Holdings Co., Ltd (Kawasaki, Japan) and
Fuji Electric Systems Co., Ltd. (Tokyo, Japan) (represented by: P.
Chapatte, P. Walter, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

The applicants respectfully request the Court to:

— annul Article 1(g) of the decision in so far as it finds that
the infringement imputed to FEH by that provision existed
after September 2000;

— annul Article 1(h) of the decision in its entirety;

— annul Article 2(d) of the decision in so far as it imputes
liability upon FES for the fine imposed

joint and several
pursuant to that provision;

— annul Article 2(f) of the decision in so far as it imputes joint
and several liability upon Fuji for the fine imposed pursuant
to that provision;

— reduce the fine imposed on Fuji; and

Sixth, in finding that 20 % of the exemption constituted aid, the
Commission has allegedly failed to appreciate that the applicant

— order the Commission to bear its own costs and those

incurred by Fuji.