23.10.2010

EN

Official Journal of the European Union

C 288/57

(Case T-362/10)

()

(2010/C 288/106)

Language of the case: English

Parties

Applicants: Vtesse Networks Ltd (Hertford, United Kingdom), (represented by: H. Mercer QC, Barrister)

Defendant: European Commission

Form of order sought

—Declare the application admissible;

—Annul paragraph 72 of Commission Decision C(2010) 3204 in state aid case N 461/2009 (OJ 2010 C 162, p. 1); and

—Order the defendant to pay the applicant’s costs incurred in this action.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of Commission Decision C(2010) 3204 in state aid case N 461/2009 (OJ 2010 C 162, p. 1), whereby it has been decided that the aid measure ‘Cornwall & Isles of Scilly Next Generation Broadband’, providing aid from the European Regional Development Fund to support the deployment of next generation broadband networks in the Cornwall & Isles of Scilly region, is compatible with Article 107(3)(c) TFEU.

In support of their action, the applicant submits the following pleas in law:

Firstly, the applicant alleges that the Commission committed manifest errors in the appreciation of the facts, in particular that the Commission found that:

(a)There was an open, non-discriminatory and competitive tender process when it should have found that competition had been eliminated in relation to the tender;

(b)Existing infrastructure was available to all bidders on request when the incumbent operator has openly admitted that it did not use infrastructure which was packaged into products and available to all bidders on request;

(c)The overall effect on competition was positive when competition was eliminated by the actions of the incumbent operator.

In addition, the applicant contends that the Commission fails to apply and/or breaches Article 102 TFEU so that the assessment in the Commission Decision C(2010)3204 of the impact of the measure on competition is invalid and that therefore the said decision is unlawful and not within Article 107(3)(c) TFEU, the relevant abuses for Article 102 TFEU being:

(a)Unlawful bundling with respect to existing infrastructure of dark fibre with active electronics;

(b)Refusal of access for competing bidders to fibre and/or ducts;

(c)Margin squeeze abuse through bundling fibre with active electronics to construct products which do not permit the Applicant or other competitors to compete in the Tender Process.

Finally, the applicant argues that the Commission breaches its rights of defence, including in particular failing to open a full investigation under the procedure in Article 108(2) TFEU on the following grounds:

(a)In the light of the first and second pleas, it was unlawful to terminate the enquiry under Article 108(3) TFEU and/or not to open a full investigation under Article 108(2) TFEU;

(b)Termination of the investigation prior to a formal investigation deprives the Applicant of its procedural rights;

(c)Breach of rights of defence through not giving the applicant an opportunity to refute arguments and/or evidence presented by the UK authorities.