26.1.2008

EN

Official Journal of the European Union

C 22/50

(Case T-440/07)

(2008/C 22/95)

Language of the case: Polish

Parties

Applicant: Huta Buczek sp. z o.o. (Sosnowiec, Poland) (represented by: D. Szlachetko-Reiter, legal adviser)

Defendant: Commission of the European Communities

Form of order sought

—declare invalid Articles 1, 3(1) and 3(3) of the Commission decision of 23 October 2007 in Case No C 23/2006 (ex NN 35/2006) concerning State aid granted by Poland to the steel producer Grupa Technologie Buczek;

—in the alternative, declare invalid Articles 1, 3(1) and 3(3) of the Commission decision of 23 October 2007 in Case No C 23/2006 (ex NN 35/2006) concerning State aid granted by Poland to the steel producer Grupa Technologie Buczek in so far as the Commission orders recovery to be effected from the company Huta Buczek sp. z o.o.;

—declare invalid Articles 4 and 5 of the Commission decision of 23 October 2007 in Case No C 23/2006 (ex NN 35/2006) concerning State aid granted by Poland to the steel producer Grupa Technologie Buczek in so far as those provisions concern the effecting of recovery from Huta Buczek sp. z o.o.;

—order the Commission to pay the costs of the proceedings.

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. constitutes aid that is contrary to the common market. The applicant 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 incompatible 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 applicant 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 acknowledgement 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 procedure 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 infringement of the principle of proportionality resulting therefrom by reason of the imposition on the company Huta Buczek sp. z o.o. of the obligation to reimburse the aid, even 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 allegedly 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.