Case T-401/07: Action brought on 2 November 2007 — Caixa Geral de Depósitos v Commission
Date: 2007-11-02
Institutions: Court of First Instance
Subjects: European Commission, European Regional Development Fund, Portugal, action for annulment (EU), aid system

12.1.2008

EN

Official Journal of the European Union

C 8/17

Action brought on 31 October 2007 — Kingdom of Spain
v Commission of the European Communities

(Case T-398/07)

(2008/C 8/32)

Language of the case: Spanish

tion rules. Furthermore, inconsistency of the results obtained
by the Commission with international experience and the
reality of the Spanish market, impeding the Spanish national
regulatory authority from attaining the objectives set out in
that regulatory framework, and breach of the principle of
specificity.

— Breach of the principle of legal certainty, since the contested
decision implies an ex post change in the concept of the
regulatory framework as defined ex ante.

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad,
Agent)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission Decision of 4 July 2007 relating to
a proceeding under Article 82 EC (Case COMP/38.784 —
Wanadoo España v Telefónica) and

— Order the defendant to pay the costs

Pleas in law and main arguments

The present action is brought against the decision of 4 July
2006 relating to a proceeding under Article 82 EC (Case
COMP/38.784 — Wanadoo España v Telefónica) in which the
Commission imposed a fine of EUR 151 875 000 on Telefó-
nica, S.A. and jointly and severally on Telefónica de España S.A.
U., for an infringement of Article 82 EC. According to the
Commission, from September 2001 until December 2006 both
companies charged unfair tariffs in the form of disproportion
between their wholesale and retail broadband access prices.

In support of
following grounds:

its claims,

the applicant puts

forward the

— Breach of the duty to cooperate laid down in Article 10 EC
and in Article 7(2) of Directive 2002/21/EC (1) in so far as
the Commission did not give the Spanish national regulatory
authority the opportunity to collaborate with it,
for the
purposes of considering the means which might have
enabled the alleged infringement to be resolved, in the most
effective way possible.

— Infringement of Article 82 EC on account of manifest errors
of assessment as regards the indispensability of the whole-
sale products, the calculation of costs and the effects of Tele-
fónica's behaviour on competitors and consumers.

— Ultra vires application of Article 82 EC, since the contested
decision impinges on the regulatory framework for current
electronic communications in force in Spain, and thus
upsets the balance between ex ante regulation and competi-

— Breach of

the principle of

legitimate expectation with
respect to Telefónica, and with respect to the rest of the
operators in that market, by failing to comply with the regu-
latory framework in a matter that had already been regulated
by the Commission for the Telecommunications Market.

(1) Directive 2002/21/EC of

the
Council of 7 March 2002 on a common regulatory framework for
electronic communications networks and services (Framework Direc-
tive) (OJ L 108, 24.4.2002, p. 33).

the European Parliament and of

Action brought on 2 November 2007 — Caixa Geral de
Depósitos v Commission

(Case T-401/07)

(2008/C 8/33)

Language of the case: Portuguese

Parties

Applicant: Caixa Geral de Depósitos SA (Lisbon, Portugal) (repre-
sented by: Nuno Mimoso Ruiz, Francisca Ponce de Leão
Paulouro and Carla Farinhas, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare that the action for annulment brought pursuant to
Article 230 of the EC Treaty and, simultaneously and cumu-
latively, the action brought pursuant to Article 238 of the
EC Treaty on the basis of the arbitration clause laid down in
Article 18 of the agreement concluded on 15 November
1995 between the Commission and the CGD were brought
in accordance with law;

C 8/18

EN

Official Journal of the European Union

12.1.2008

— annul Article 1 of Decision C(2007) 3772 of 31 July 2007

in accordance with Article 230 of the EC Treaty;

— irrespective of whether

the action brought pursuant

to
Article 230 of the EC Treaty is upheld or dismissed, uphold
the action brought pursuant to Article 238 of the EC Treaty
and the claim relating thereto and, consequently, order the
Commission to pay the sum of EUR 1 925 858,61, plus
default interest at the statutory rate of 7 %, calculated from
the date on which [formal] notice was given, namely
7 March 2003, until 30 April 2003 in accordance with
Portaria (Decree) No 263/99 of 12 April 1999, and at the
statutory rate of 4 % from 1 May 2003 onwards until full
repayment of
in accordance with Portaria
No 291/03 of 8 April 2003;

the debt

— order the Commission of the European Communities to pay
the costs of the proceedings and the costs incurred by the
CGD.

Pleas in law and main arguments

Although, in theory, the State may refrain from requiring the
CGD to repay the amount claimed by the Commission, the
contested decision dismisses from the outset the possibility of
the release of an amount owed by the Commission itself to the
CGD.

Given that, in the contested decision, the Commission does not
make a distinction between the legal position of the State and
that of the applicant, it is in the CGD's interests that that deci-
sion be annulled since, although it is addressed to the Portu-
guese Republic, it concerns the CGD individually and directly.
The contested decision is vitiated by the following procedural
errors:

— Lack of reasoning: the contested decision does not contain
any explanation of the way in which the Commission calcu-
lated the amount of the financial assistance paid in advance
by the ERDF and which it considers should be returned to it.
In addition,
is contradictory,
contains omissions, inaccuracies and errors.

the statement of

reasons

— Error of fact: the contested decision presupposes that the
intermediary is to pay the beneficiaries interest subsidies on
the loans forming part of the global grant, when that is not
the case, those subsidies are to be deducted from the interest
which the beneficiaries owe to the CGD.

— Error of law, infringement of the legal rules relating to the
application of the EC Treaty and infringement of the agree-
ment concluded between the Commission and the CGD: in
the present case, the fact that, on 31 December 2001, the
financial assistance granted by the ERDF corresponded to
82 % of the total amount of interest subsidies due is not
contrary
(EEC)
13(3)
No 2052/88 (1). It is true that Article 21(1) of Regulation
(EEC) No 4253/88 (2) refers to advances or final payments
in respect of ‘expenditure actually incurred’ but charges (not
payments) also exist with interest subsidies which did not
arise until after 31 December 2001. The debts corre-
sponding to the flux of the residual ERDF subsidies (due for
payment) of each loan may be certified by the Commission

Regulation

Article

to

of

as ERDF expenses actually incurred and paid. Proof that
expenses or charges have actually been incurred is not furn-
ished by the advance payment of those subsidies to the final
beneficiaries but by determining the obligations deriving —
or ‘to be assumed’ — from binding loan contracts concluded
and executed up until that date. There is no obligation what-
soever to anticipate the ‘payment of the subsidies’ which are
due on 31 December 2001 or, in the alternative, to open a
special account for the deposit of the national contribution.

— Infringement of

that

actually

incurred

expenses were

the principles of proportionality,

legal
certainty and protection of legitimate expectations: in reci-
tals 19 and 26 in the preamble to the contested decision the
Commission justifies the alternative conditions for consid-
ering
before
31 December 2001 in the light of the guidelines announced
at a meeting of the CDCR (Committee on the Development
and Conversion of Regions) held on 29 May 2002, those
guidelines having been distributed in the CDCR after
31 December 2001. The applicant admits that those guide-
lines may contribute to ensuring the closing of the overall
subsidies intended to subsidise interest payments and that
the interest owed by the borrower is net of those subsidies.
None the less,
it is also necessary that the implementing
decisions and the agreements reached have actually been
designed in conformity with those solutions or are compa-
tible with them, which is not the case with the SGAIA deci-
sion or the agreement in question. In the guidelines referred
to above, the Commission admits that other methods exist
for taking account of the expenses in question. One of those
methods consists of the so-called ‘assumption’ of all the
the
financing of
programme, which leads to the presumption that the legal
guarantees are permissible. However, that ‘assumption’ actu-
ally takes place from the moment at which the CGD cannot
require the beneficiaries to pay it more than the interest net
of the subsidies. Thus, the contested decision ignores solu-
tions which are more consistent with the SGAIA, easier to
execute and less disadvantageous for the intermediary and
for the beneficiaries and which are also capable of protecting
the interests at stake. On the other hand, the Portuguese
Republic and the CGD had legitimate expectations in relying
on the subsidy in conditions which are different from those
resulting from the guidelines referred to above since they
were notified after the programme had been closed.

subsidies due

closure of

after

the

(1) Council Regulation (EEC) No 2052/88 of 24 June 1988 on the tasks
of the Structural Funds and their effectiveness and on coordination
of their activities between themselves and with the operations of the
European Investment Bank and the other existing financial
instru-
ments (OJ 1988 L 185, p. 9).

(2) Council Regulation (EEC) No 4253/88 of 19 December 1988, laying
down provisions for implementing Regulation (EEC) No 2052/88 as
regards coordination of the activities of the different Structural Funds
the European
between themselves and with the operations of
Investment Bank and the other existing financial
instruments
(OJ 1988 L 374, p. 1).