Case C-431/07 P: Appeal brought on 18 September 2007 by Bouygues SA and Bouygues Télécom SA against the judgment of the Court of First Instance (Fourth Chamber) delivered on 4 July 2007 in Case T-475/04 Bouygues and Bouygues Télécom v Commission
Date: 2007-11-10
Institutions: Court of Justice
Subjects: European Commission, France, State aid, action for annulment (EU), control of State aid, patents licence, telecommunications industry, telephone, waveband

10.11.2007

EN

Official Journal of the European Union

C 269/37

Pleas in law and main arguments

Transposition of directive 85/337/EEC

Appeal brought on 18 September 2007 by Bouygues SA
and Bouygues Télécom SA against the judgment of the
Court of First Instance (Fourth Chamber) delivered on
4 July 2007 in Case T-475/04 Bouygues and Bouygues
Télécom v Commission

(Case C-431/07 P)

(2007/C 269/63)

Language of the case: French

The Commission considers that Ireland has failed to fully trans-
pose directive 85/337/EEC because it fails to make provision for
measures to achieve the results of Articles 2(1) and 4 in respect
of private road projects. The Commission considers that private
road projects (proposed by private developers) fall within the
scope of directive 85/337/EEC. Moreover, there is no basis for a
presumption that such projects will not have significant effects
upon the environment. The failure to include road projects
proposed by private developers amounts to a breach of Ireland's
obligations under the aforementioned Articles of the directive.

Parties

Transposition of directive 2003/35/EC

Ireland,

The Commission contends that there has been a failure on the
part of
in accordance with Article 6 of directive
2003/35/EC, to adopt and inform the Commission of all the
national measures necessary to comply with Articles 3 and 4 of
the directive. More specifically, Article 3, paras. 1, 3, 4, 5 and 6
of the directive set out specific amendments to several Articles
of directive 85/337/EEC. Ireland does not dispute that transposi-
tion needs to be effected by changes to both Irish planning legis-
lation and legislation governing other consent systems. Ireland
did not communicate any amendments to its planning legisla-
tion within the time-frame set by the additional reasoned
opinion, and, in any case it has not yet communicated legisla-
tion governing all other consent systems. Articles 3(7) and 4(4)
of the directive require not only systems of review of decision-
making, but systems that provide specific guarantees. To the
extent that Ireland claims that its existing system of judicial
review meets the requirements of Articles 3(7) and 4(4), it has
failed to provide enough information to satisfy the requirements
of the second sentence of the first paragraph of Article 6 of the
directive.

(1) OJ L 175, p. 40.
(2) OJ L 156, p. 17.

Appellants: Bouygues SA and Bouygues Télécom SA (represented
by: F. Sureau, D. Théophile, A. Bénabent, J. Vogel and L. Vogel,
lawyers)

Other party to the proceedings: Commission of
the European
Communities, French Republic, Société française de radiotélé-
phonie — SFR, Orange France SA

Form of order sought

— Annul the judgment delivered on 4 July 2007 by the Court
of First
the European Communities in Case
T-475/04 Bouygues SA and Bouygues Télécom SA v
Commission;

Instance of

— in the alternative, refer the case back to the Court of First
Instance for reconsideration in the light of the legal views
expressed by the Court of Justice;

— order the Commission to pay all of the costs of the proceed-

ings.

Pleas in law and main arguments

The applicants raise four pleas in law in support of their appeal:

By their first plea, the applicants submit that the Court of First
Instance failed in its duty to state reasons in holding that the
debt waiver at issue in the present case was inevitable due to the
‘the logic of the system’. Since the latter in fact constitutes a rule
derogating from the principle that differential treatment of a
number of companies necessarily constitutes a selective advan-
tage, the Court should have given clear reasons both for the
content of the logic of the system to which it refers and the
causal link between the logic of the system and the established
waiver of State resources.

C 269/38

EN

Official Journal of the European Union

10.11.2007

By their second plea, the applicants then claim that the Court
erred in law in considering that the Commission was not under
an obligation to initiate the formal investigation procedure on
the sole ground that the examination of the substance of the
case showed, in its view, that an advantage for Orange and SFR
had not been proven.
investigation
Initiation of
procedure under Article 88(2) EC is in fact justified each time
the Commission is unable to ascertain,
the
evidence in its possession during the preliminary examination
phase, whether or not a measure is compatible with the rules of
the Treaty.

in the light of

the formal

By their third plea, the applicants criticise three errors made by
the Court relating to the legal assessment of
the facts, as
regards, first, the alleged unicity of the procedures for awarding
UMTS licences, secondly, the so-called uncertain nature of the
debts waived by the State, and thirdly, the wording of the minis-
terial letter of 22 February 2001, which contained the assurance
that the economic operators would be treated fairly but not
equally.

By their fourth plea, the applicants maintain that the Court
committed several errors of law in applying Article 87(1) EC.
Those errors relate, respectively, to the application of the excep-
tion based on the logic of the scheme, the appraisal of the (in)
existence of a competitive advantage and the application of the
principle of non-discrimination.

Commission Directive 2005/30/EC (1) of 22 April 2005
amending, for the purposes of their adaptation to technical
progress, Directives 97/24/EC and 2002/24/EC of
the
the Council, relating to the
European Parliament and of
type-approval of two or three-wheel motor vehicles or, in
any case, by failing to communicate them to the Commis-
sion, the Portuguese Republic has failed to fulfil its obliga-
tions under that directive;

— order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The period allowed for
domestic law expired on 17 May 2006.

transposition of

the directive into

(1) OJ 2005 L 106, p. 17.

Action brought on 18 September 2007 — Commission of
the European Communities v Portuguese Republic

Action brought on 18 September 2007 — Commission of
the European Communities v Portuguese Republic

(Case C-433/07)

(2007/C 269/64)

Parties

(Case C-434/07)

(2007/C 269/65)

Language of the case: Portuguese

Language of the case: Portuguese

Applicant: Commission of the European Communities (repre-
sented by: C. Zadra and M. Telles Romão, Agents)

Parties

Applicant: Commission of the European Communities (repre-
sented by: C. Zadra and M. Telles Româo, Agents)

Form of order sought

Defendant: Portuguese Republic

Defendant: Portuguese Republic

Form of order sought

— declaration that, by failing to adopt the laws, regulations and
comply with

administrative

provisions

necessary

to

— declaration that, by failing to bring into force the laws, regu-
lations and administrative provisions necessary to comply
with Directive 2005/41/EC (1) of the European Parliament
and of the Council of 7 September 2005 amending Council
Directive 76/115/EEC on the approximation of the laws of
the Member States relating to anchorages for motor-vehicle
safety belts or, in any case, by failing to communicate them
to the Commission, the Portuguese Republic has failed to
fulfil its obligations under that directive;

— an order that the Portuguese Republic should pay the costs.