CELEX: C2001/331/37
Language: en
Date: 2001-11-24 00:00:00
Title: Case T-206/01: Action brought on 7 September 2001 by P&O Ferries (Portsmouth) Limited against the Commission of the European Communities

C 331/22                EN                      Official Journal of the European Communities                                        24.11.2001
Finally, the applicant challenges several aspects of the Com-              to BAI in the period 1995-1998. The applicant considered
mission’s decision fixing the amount of the fine imposed,                  that if the enquiry was limited to this period, a vast amount of
including the starting point adopted for calculating the basic             other State aid received by BAI would be ignored, and in
amount, the calculation of the duration of the infringement,               February 2001, the applicant submitted a formal complaint.
the increase in the basic amount for aggravating factors, and
the percentage reduction from the basic amount for mitigating
factors. It claims, inter alia, that the contested decision infringes      In December 2000, the applicant commenced a procedure
Article 7 of the European Convention for the Protection of                 against the Commission under Article 232 EC for its failure to
Human Rights and Fundamental Freedoms.                                     act in relation to all the elements of the applicant’s complaint.
                                                                           That procedure is now the subject of Court proceedings (2).
                                                                           By the present action, the applicant requests the Court to
                                                                           annul the Commission Decision to the extent that it approves
                                                                           aid granted to BAI. It submits that the limitation period
Action brought on 7 September 2001 by P&O Ferries                          provided for in Regulation (EC) No 659/1999 (3) does not
(Portsmouth) Limited against the Commission of the                         apply to this case, and that the pre-1989 State aid identified in
                     European Communities                                  the complaint must be addressed expressly by the Commission.
                                                                           It alleges that the Commission is wrong in finding that the
                                                                           three shipowning companies (‘SPCs’) and BAI constitute a
                           (Case T-206/01)                                 single economic group and that charter payments between
                                                                           BAI and the SPCs are irrelevant to State aid laws.
                          (2001/C 331/37)
                   (Language of the case: English)                         Further, the applicant submits that the Commission’s con-
                                                                           clusions in relation to the market economy investor test are
                                                                           wrong, and the applicant alleges that a number of guarantees
                                                                           and public sector cash grants and loans should have been
An action against the Commission of the European Communi-                  taken into account in the contested decision.
ties was brought before the Court of First Instance of the
European Communities on 7 September 2001 by P&O Ferries
(Portsmouth) Limited, represented by Julian Ellison and Mark               As far as the restructuring aid is concerned, the applicant
Clough QC of Ashurst Morris Crisp, Brussels (Belgium).                     rejects the Commission’s findings that the SPCs/BAI economic
                                                                           group has made, and will make, satisfactory returns on equity
                                                                           and that BAI pays market rate charter to the SPCs. It
The applicant claims that the Court should:                                submits that these findings are based on wholly unreasonable
                                                                           assumptions as to the residual values of the vessels. The
—     annul under Article 230 (ex 173) of the EC Treaty the                applicant further rejects the Commission’s conclusions about
      Commission Decision C (2001) 1442 of 8 May 2001                      the relevant market, its finding that a withdrawal of BAI would
      concerning State aid implemented by France in favour                 leave the applicant in a monopoly position on the relevant
      of the Bretagne Angleterre Irlande company (save for                 market(s) and its assessment of the intensity of the restructur-
      Articles 1(2) and 1(3)) to the extent that it has approved           ing aid package.
      aid granted to BAI,
—     order the Commission to pay the applicant’s costs.                   Finally, the applicant submits that the Commission has
                                                                           infringed a number of procedural requirements under the state
                                                                           aid rules, in particular the requirement to inform the parties
                                                                           concerned of the matters under investigation.
Pleas in law and main arguments
The applicant is a ferry operator which provides tourist and
freight ferry services on certain routes between France and the
United Kingdom in the western end of the Channel. Its main
competitor is the French ferry operator Bretagne-Angleterre-
Irlande SA, ‘Brittany Ferries’ (‘BAI’).                                    (1) Procedure No C 31/98.
                                                                           (2) Case T-49/01 (OJ 2001 C 161, p. 19).
                                                                           (3) Council Regulation(EC)No 659/1999 of 22.3.1999 laying down
The applicant brought its concerns in relation to BAI’s receipt                detailed rules for the application of Article 93 of the EC Treaty
of State aid informally to the Commission’s attention in                       (OJ 1999 L 83, p. 1).
May 1998, very shortly after the Commission’s opening of the
formal procedure (1). It later became clear to the applicant that
the Commission was focusing exclusively on State aid awarded