Case C-202/07 P: Appeal brought on 16 April 2007 by France Télécom SA against the judgment of the Court of First Instance (Fifth Chamber, Extended Composition) of 30 January 2007 in Case T-340/03 France Télécom SA v Commission of the European Communities
Date: 2007-07-21
Institutions: Court of Justice
Subjects: European Commission, France, General Court (EU), Internet, action for annulment (EU), fixing of prices, reduced price, restriction on competition, telecommunications

21.7.2007

EN

Official Journal of the European Union

C 170/9

Operative part of the order

A national measure which, in the context of taxation on share divi-
dends as income from assets up to the limits of a flat-rate yield calcu-
lated by applying a specific percentage to a base including, besides the
capital invested by the shareholder, a fraction of the salaries paid to
employees of
the company issuing the dividends, does not permit
salaries of workers employed in a branch of this company, or by one of
its subsidiaries to be taken into account, in a third country, seriously
restricts freedom of establishment within the meaning of Article 43 EC
et seq. Those articles cannot be pleaded in circumstances involving the
establishment of a company of a Member State in a third country.

(1) OJ C 106, 30.4.2005.

Appeal brought on 13 February 2007 by Smanor SA,
Hubert Ségaud and Monique Ségaud against the Order of
the Court of
(Fourth Chamber) of
Instance
14 December 2006 in Case T-150/06, Smanor and Others v
Commission

First

(Case C-99/07 P)

(2007/C 170/15)

Language of the case: French

Other party to the proceedings: Commission of
Communities

the European

Forms of order sought

— set aside the judgment of the Court of First Instance of the
European Communities in Case T-340/03 France Télécom SA
v Commission of the European Communities, which dismissed
the European
the appeal against
Communities decision of 16 July 2003 relating to a
proceeding under Article 82 [EC] (Case COMP/38.233 —
Wanadoo Interactive);

the Commission of

— accordingly:

— either refer the case back to the Court of First Instance

for a fresh decision;

— or give final

judgment and annul the decision of the
Commission of the European Communities of 16 July
2003 relating to a proceeding under Article 82 [EC]
(Case COMP/38.233 — Wanadoo Interactive), by
granting the forms of order sought in the application
filed by the appellant at first instance;

— order the Commission of the European Communities to pay

the costs.

Parties

Appellants: Smanor SA, Hubert Ségaud, Monique Ségaud (repre-
sented by: J.P Ekeu and L. Roques, avocats)

Pleas in law and main arguments

Other party to the proceedings: Commission of
Communities

the European

By Order of 23 May 2007 the Court (Sixth Chamber) dismissed
the appeal and ordered Smanor SA and Mr & Mrs Ségaud to
bear their own costs.

Appeal brought on 16 April 2007 by France Télécom SA
against the judgment of the Court of First Instance (Fifth
Chamber, Extended Composition) of 30 January 2007 in
Case T-340/03 France Télécom SA v Commission of the
European Communities

(Case C-202/07 P)

(2007/C 170/16)

Language of the case: French

Parties

Appellant: France Télécom SA, formerly Wanadoo Interactive SA
(represented by: O.W. Brouwer, H. Calvet,
J. Philippe and T.
Janssens, avocats)

The appellant puts forward seven grounds in support of its
appeal.

By its first ground of appeal the appellant claims that the Court
of First
Instance failed to comply with its duty to provide
reasons both as regards the possibility for recoupment of losses,
which must be proven, and as regards the right to align prices
with those of competitors, which the Court ruled out without
explanation.

By its second ground of appeal the appellant claims that the
Court infringed Article 82 EC by refusing Wanadoo the right to
align its prices, in good faith, with those of its competitors. That
right
the
is enshrined in the decision-making practice of
Commission and the case-law of the Court, as well as in the
French Competition doctrine and authorities, and furthermore is
the only means for the appellant to remain competitive in the
market.

By its third ground of appeal the appellant claims that the Court
also infringed Article 82 in failing to find fault with the
Commission's method for calculating cost
recovery, which
involved a distortion of the test of predation required by the
Court. The method which the Commission used made it impos-
sible to know whether the Wanadoo subscribers generated a
profit or loss for that business during their subscription period.

C 170/10

EN

Official Journal of the European Union

21.7.2007

By its fourth ground of appeal the appellant claims that, by
deciding that the costs and revenues subsequent to the period of
the alleged infringement should not be taken into account, the
Court misconstrued both Article 82 EC and its duty to provide
reasons. The Commission wrongly concluded there had been an
infringement on the basis of that temporal limitation on costs
and revenues to be taken into account.

By its fifth ground of appeal the appellant also alleges the Court
infringed Article 82 EC, and its duty to give reasons, by holding
that a price may be predatory even when it is accompanied by a
considerable reduction in the market share of
the relevant
undertaking. Such a price cannot be regarded as likely to lead to
the exclusion of competitors.

By its sixth ground of appeal the appellant claims that, as
regards the alleged plan of predation, the Court distorted the
facts and the evidence submitted for its consideration, and at
the same time infringed Article 82 EC. That article requires an
objectively identifiable plan to remove competitors and cannot,
in any circumstances, be satisfied by a subjective test of the
concept of an abuse of a dominant position.

Finally by its seventh ground of appeal the appellant alleges that
the Court infringed Article 82 EC not only in holding that
proving the possibility for recoupment of losses was not a pre-
requisite for finding predatory pricing, but also in confusing the
Commission's evidence on the possibility of recoupment of
those losses with the relevant undertaking's evidence on the
impossibility of recoupment of those losses.

Action brought on 23 April 2007 — Commission of the
European Communities v French Republic

(Case C-214/07)

(2007/C 170/17)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by C. Giolito, acting as Agent)

Defendant: French Republic

Form of order sought

— order the French Republic to pay the costs.

Pleas in law and main arguments

In support of its application, the Commission claims that the
defendant has not taken the necessary measures to ensure the
rapid and effective implementation of
its decision, because,
more than three years after its adoption, there has been no
repayment whatsoever of the aid illegally granted by the French
State. Such a situation also clearly contravenes the fourth para-
graph of Article 249 EC and Article 14(1) and (3) 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).

Nor can the defendant rely, in respect of the period after 1993,
on the absolute impossibility of implementing the decision of
16 December 2003. First, the French authorities did not truly
take steps in order to recover the disputed aid, since orders for
recovery were not even sent to the debtors. Secondly, those
authorities cannot rely on the difficulty of identifying the recipi-
ents of the aid in question because, as tax authorities, they
could easily quantify the amounts of the tax exemptions from
which those recipients had benefited.

In any event, it is clear from the Court's case-law that the condi-
tion as to absolute impossibility of implementation is not satis-
fied where the defendant State merely informs the Commission
of the legal, political or practical difficulties arising from the
implementation of the decision ordering the recovery of the aid,
the undertakings
without having truly taken steps against
concerned in order to recover the amount of
that aid and
without having proposed alternative methods to the Commis-
sion of implementing the decision which would have allowed
the difficulties to be overcome.

(1) OJ 2004 L 108, p. 38.
(2) OJ 1999 L 83, p. 1.

for

from the
preliminary
Reference
Verwaltungsgerichtshof (Austria) lodged on 9 May 2007 —
Jörn Petersen v Arbeitsmarktservice Niederösterreich

ruling

a

(Case C-228/07)

(2007/C 170/18)

Language of the case: German

— declare that, by failing to implement, within the prescribed
period, Decision of the Commission of 16 December 2003
on the aid scheme implemented by France for the takeover
of firms in difficulty (State aid C(2003) 4636) (1), the French
Republic has failed to perform its obligations under Arti-
cles 5 and 6 of
the fourth paragraph of
Article 249 of the EC Treaty and Article 10 of that Treaty;

that decision,

Referring court

Verwaltungsgerichtshof