Case T-271/06: Order of the Court of First Instance of 6 December 2007 — Microsoft v Commission
Date: 2007-12-06
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), dominant position, information technology industry, periodic penalty payment, software

26.1.2008

EN

Official Journal of the European Union

C 22/51

Pleas in law and main arguments

In support of its heads of claim, the applicant puts forward the
following pleas in law:

— Breach of Articles 88(2) EC and 87(1) EC by reason of what
the applicant considers to be an erroneous assumption that
a situation consisting in the existence of public-law arrears
on the part of the company Technologie Buczek S.A. consti-
tutes aid that is contrary to the common market. The appli-
cant submits that such an assertion on the part of
the
Commission results from an erroneous assumption that the
public-law authorities had desisted from enforcement
proceedings against the company Technologie Buczek S.A.
The breach of Articles 88(2) EC and 87(1) EC has also
resulted, the applicant argues, from the fact that the Polish
State was ordered to secure recovery of aid declared incom-
patible with the common market, even though Poland did
not grant aid in the amount indicated in the decision to
either the company Technologie Buczek S.A. or the group
Technologie Buczek, and from the fact that the amount of
aid to be returned was fixed at an arbitrary level without
any foundation in law or economic justification. The appli-
cant further submits that Articles 88(2) EC and 87(1) EC
were infringed by reason of the fact that the Polish State was
ordered to secure reimbursement of aid from the company
Huta Buczek sp. z o.o. notwithstanding the fact that there
was no basis for assuming that that company could have
been the actual beneficiary of aid granted to the company
Technologie Buczek S.A and despite the fact that that aid
was not granted to it, and by reason of the acknowledge-
ment that the only actual beneficiaries of the alleged aid
were the companies Huta Buczek sp. z o.o. and Buczek
Automotive sp. z o.o., even though they benefited only
from a portion of the assets of the company Technologie
Buczek S.A.

— Infringement of the principle of proper administrative proce-
dure laid down in Article 253 EC and Article 41 of the
Charter of Fundamental Rights on the grounds of: lack of
appropriate reasoning for the decision such as to allow the
applicant to determine why the decision was adopted and,
consequently, the issue of a decision that was essentially
incomprehensible to the applicant and incomprehensible by
reason of the erroneous and inadequate determination of
the factual circumstances material to the case.

— Breach of the third paragraph of Article 5 EC and infringe-
ment of the principle of proportionality resulting therefrom
by reason of the imposition on the company Huta Buczek
the obligation to reimburse the aid, even
sp. z o.o. of
though, in the view of the applicant, such action is neither
appropriate nor necessary in order to attain the objectives
set out in the Treaty, including in particular the fact that it is
not based on any need to cancel aid that is incompatible
with the common market.

— Infringement of the principle of legal certainty by reason of
the following: imposition, on a party which entered into a
contract with an individual in arrears of payment towards
public authorities, of the obligation to return aid which that
party never received and from which it never benefited;
determination, in a manner which the applicant considers to
be arbitrary, of
the extent to which persons within the
group Technologie Buczek S.A. benefited from the aid alleg-
edly distributed;
infringement of the right to property by
reason of the order to secure recovery of part of the State
aid from a person who did not receive any aid whatsoever
and was also not the actual beneficiary; misuse of powers by
reason of the publication of a decision for a purpose other
than to cancel aid incompatible with the common market.

Order of the Court of First Instance of 6 December 2007
— Microsoft v Commission

(Case T-271/06) (1)

(2008/C 22/96)

Language of the case: English

The President of the Court of First Instance (Seventh Chamber)
has ordered that the case be removed from the register.

(1) OJ C 294, 2.12.2006.