Case T-442/07: Action brought on 30 November 2007 — Ryanair v Commission
Date: 2007-11-30
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for failure to act, air transport, competition law, complaint to the Commission

C 37/28

EN

Official Journal of the European Union

9.2.2008

As a result, the applicant claims that a prima facie infringement
of competition law existed and the Commission should have
taken less than 21 months to reach such a conclusion and,
the
accordingly,
Commission's failure to act therefore exceeded reasonable limits.

to initiate proceedings. The duration of

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (Text with EEA relevance) (OJ L 1, p. 1).

(2) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating
to the conduct of proceedings by the Commission pursuant to Arti-
cles 81 and 82 of the EC Treaty (Text with EEA relevance) (OJ L 123,
p. 18).

Action brought on 30 November 2007 — Ryanair v
Commission

(Case T-442/07)

(2008/C 37/44)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin,
Vahida, lawyer)

Ireland)

(represented by: E.

Defendant: Commission of the European Communities

Form of order sought

— To declare that the Commission has failed to define its posi-
the EC Treaty,
to its obligations under
tion pursuant
including, in particular, Article 232 EC, in response to the
applicant's complaints of 3 November and 13 December
2005, 16 June and 10 November 2006, and its letter of
formal notice of 2 August 2007;

— to order the Commission to pay the entire costs, including
the costs incurred by the applicant in the proceedings even
if, following the bringing of the action, the Commission
takes action which in the opinion of the Court removes the
need to give a decision or if the Court dismisses the applica-
tion as inadmissible; and

— to take such further action as the Court may deem appro-

priate.

3 November 2005, 13 December 2005, 16 June 2006 and
10 November 2006, followed by a letter of formal notice of
2 August 2007.

It is submitted as the main plea, that the Commission has failed
to conduct and conclude a diligent and impartial examination
of the complaints lodged by the applicant, alleging the grant of
unlawful aid in the form of advantages conferred by the Italian
State to airlines Alitalia, Air One and Meridiana. Alternatively, as
a subsidiary plea, the applicant submits that the Commission
failed to define its position on the applicant's complaints alle-
ging anticompetitive discrimination and, hence, an infringement
of Article 82 EC.

financing of Alitalia's

The applicant claims that the measures that are subject to its
complaint, namely, (i) payment to Alitalia of ‘9/11 compensa-
tion’ aid, (ii) favourable conditions surrounding the transfer of
Alitalia Servizi to Fintecna, (iii) the failure of the Italian State to
claim payment of debts owed by Alitalia to Italian airports,
(iv) public
redundancy payments,
(v) rebates on fuel costs, (vi) reductions in airport charges at
Italian hubs, (vii) the transfer of over 100 Alitalia employees to
Meridiana and Air One and (viii) discriminatory restrictions on
the operation of the applicant at regional airports including
Ciampino airport, are attributable to the Italian State, constitute
lost revenue to it and specifically benefit to Alitalia as well as
Air one and Meridiana for some of the measures concerned.
According to the applicant, these measures constitute State aid,
fulfilling all conditions set out in Article 87(1) EC.

Alternatively, as a subsidiary plea, the applicant submits that the
failure of Italian airports to obtain payment of debts owed by
Alitalia, the reductions in airport charges at Italian hubs, the
rebates on fuel costs and the discriminatory restrictions on the
operation of the applicant at regional airports constitute an
infringement of competition law. Accordingly,
the applicant
contends that, in the event that the Court found that some of
the advantages conferred to Alitalia, Air One and Meridiana
were not attributable to the State, because Italian airports and
fuel providers that have granted the above advantages would
have been acting in an autonomous manner, such advantages
would amount to anticompetitive discrimination which cannot
be
infringe
Article 82 EC.

by objective

justified

reasons

hence,

and

Moreover, the applicant contends that it has a legitimate interest
to bring such a complaint both as a customer of airport services
and aviation fuel and as a competitor of Alitalia, Air One and
Meridiana.

Pleas in law and main arguments

By means of its application, the applicant initiated an action
under Article 232 EC, claiming that the Commission has failed
to define its position in connection with the complaints filed on

The applicant further submits that the Commission was under
an obligation to act,
in accordance with the provisions of
Council Regulations (EC) 659/1999 (1) and (EC) No 1/2003 (2)
and Commission Regulation (EC) No 773/2004 (3). The
Commission did not however take any action upon receipt of
the complaints, nor did it take position upon receipt of its letter
of formal notice.

9.2.2008

EN

Official Journal of the European Union

C 37/29

As a result, the applicant claims that a prima facie infringement
of competition law existed and that
the unreasonable long
period of 9 to 21 months which elapsed, depending on the
the complaint, between the Commission's
subject-matter of
receipt of the letter of formal notice and the Commission's inac-
tion constitutes failure to act within the meaning of Article 232
EC.

(1) 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 L 83, p. 1).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (Text with EEA relevance) (OJ L 1, p. 1).

(3) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating
to the conduct of proceedings by the Commission pursuant to Arti-
cles 81 and 82 of the EC Treaty (Text with EEA relevance) (OJ L 123,
p. 18).

Action brought on 5 December 2007 — Centre de
par
v
Promotion de
Commission

la Micro-Entreprise

l'Emploi

(Case T-444/07)

(2008/C 37/45)

Language of the case: French

Parties

Applicant: Centre de Promotion de l'Emploi par la Micro-Entre-
prise (CPEM) (Marseilles, France) (represented by: C. Bonnefoi,
lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annulment of Commission Decision C(2007) 4645 of
4 October 2007, cancelling the assistance granted by the
European Social Fund (ESF) to finance an ESF subsidy in
France
(CPEM) by Decision No C(1999) 2645 of
17 August 1999;

— acknowledgement of a right to damages for public detriment
to the reputation of a body acting in the context of a task of
general interest (estimated at EUR 100 000);

— acknowledgement of the right of CPEM's staff to individual
symbolic damages of one Euro for interference with their
peace of mind at work (threat to the future of their employ-
ment
since to pay
EUR 1 000 000 would mean the closure of the CPEM and
the MSD);

structure and thus

to their

jobs,

— repayment of lawyers' fees and the costs of legal assistance

made necessary, proof of which can be provided.

Pleas in law and main arguments

By this action, the applicant seeks annulment of Commission
Decision C(2007) 4645 of 4 October 2007,
cancelling,
following an OLAF report,
the assistance granted by the
European Social Fund (1) to finance, by way of a global subsidy,
a pilot project carried out by the applicant.

In support of its action, the applicant relies on two groups of
pleas in law,
the first concerning the way in which OLAF
carried out the investigation and enquiry procedure leading to
the contested decision and alleging breach of the rights of the
defence and the other pleas in law concerning the substance of
the contested decision.

First, the applicant claims that the form of the enquiry which
OLAF carried out was in breach of a number of principles of
Community law and of a dispassionate investigation, such as the
presumption of innocence and the right to know the actual and
specific content of the accusations contained in the complaints
on which the proceedings were based. It claims, moreover, that
laid down by Regulation
OLAF confused the procedures
No 2185/96 (2) with those concerning enquiries under Regu-
lation No 2988/95 (3). Second, the applicant alleges that OLAF
based the conclusions for which it was responsible on the
different and changing editions of the ‘Promoter's Guide’.

As to substance,
the Commission
the applicant alleges that
based its decision on the conclusions of the OLAF report, which
‘non-profit
seriously infringed the French law concepts of
making organisations’ and ‘secondment’. Moreover,
it claims
that OLAF asserted against it the superiority of the ‘Promoter's
Guide’ to the content of a Community regulation. It also claims
that the Commission was aware of this and even authorised the
facts which were alleged against the applicant by OLAF and in
the contested decision. Lastly, the applicant relies on a plea in
law alleging that Regulation No 1605/2002 (4), on which part
of OLAF's reasoning and the contested decision are based,
is
inapplicable and not capable of being relied on against it.

(1) Commission Decision C (1999) 2645 of 17 August 1999 amended

by Decision C (2001) 2144 of 18 September 2001.

(2) Council Regulation (Euratom, EC) No 2185/96 of 11 November
1996 concerning on-the-spot checks and inspections carried out by
the Commission in order to protect the European Communities'
financial
irregularities
fraud
(OJ 1996 L 292, p. 2).

interests

against

other

and

(3) Council Regulation (EC, Euratom) No 2988/95 of 18 December
the European Communities financial

1995 on the protection of
interests (OJ 1995 L 312, p. 1).

(4) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities (OJ 2002 L 248, p. 1).