Case T-288/07: Action brought on 30 July 2007 — Alcan France v Commission
Date: 2007-07-30
Institutions: Court of First Instance
Subjects: European Commission, France, State aid, action for annulment (EU), control of State aid, infringement of EU law, mineral oil, tax exemption

6.10.2007

EN

Official Journal of the European Union

C 235/17

Action brought on 30 July 2007 — Alcan France v
Commission

(Case T-288/07)

(2007/C 235/31)

Language of the case: French

Parties

Applicant: Alcan France SAS (Paris, France) (represented by: M.
Thill-Tayara, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the contested decision of the Commission and find
that the measure in dispute does not constitute State aid or,
in the alternative, find that that aid may not be recovered
since the Commission infringed the principle of legitimate
expectations and did not order that the aid be recovered
within a reasonable time limit;

— Annul Article 1 of

the contested decision classing the

contested measure as aid;

— Annul Articles 2 and 3 of the contested decision classing

the aid measure as incompatible;

— Annul Articles 4 to 6 of the contested decision ordering

recovery of the aid;

— Order the Commission to pay the applicant the expenses

and costs resulting from the contested decision.

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 was authorised to apply those
reduced rates or exemptions to heavy fuel oil used as fuel for
the production of alumina in the Gardanne region.

fuel

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 region (2). On 7 December 2005, in consequence of
this procedure, the Commission adopted Decision 2006/323/EC
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
common market,
concerned to recover all such aid (3).

is in part

incompatible with the
and thus ordered the Member States

The Commission decided to extend the formal
investigation
procedure regarding the exemption from excise duty on heavy
the period
mineral oils used for alumina production for
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.

In support of its action the applicant claims, at the outset, that
the decision is invalid as a result of a formal defect in that
France was not given notice to submit its comments pursuant
to Article 88 EC, since the second procedure for the period
after 2004 was opened, in its view, on the basis of recitals in
the preamble to the decision of 7 December 2005.

As regards the merits the applicant relies on two pleas in
support of its action for annulment.

By its first plea it submits that the Commission found there to
be State aid in infringement of Articles 87 and 88 EC both at
the stage of classifying the use of the aid and at the stage of
examining its compatibility. In addition, in the context of that
plea,
it alleges that the Commission infringed Article 1(c) of
Regulation No 659/1999 (4) and erroneously applied the
criterion of selectivity of the aid. It also claims that the grounds
of the contested decision are contradictory and insufficient and
thus infringe Article 253 EC. Moreover, the applicant submits
that the Commission based its finding that the aid was incom-
patible on the wrong legal basis since, in its view, the conditions
for the applicability of the Community guidelines on State aid
for environmental protection (5) were not met.

In the alternative, the applicant claims by its second plea that
the recovery of the aid ordered by the Commission infringes the
principles of legitimate expectation and legal certainty.

(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) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC Treaty
(OJ 1999 L 83, p. 1).

(5) Community guidelines on State aid for environmental protection

(OJ 2001 C 37, p. 3).