28.5.2018

Official Journal of the European Union

C 182/17

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(Case C-221/18 P)

(2018/C 182/20)

Language of the case: French

Parties

Appellant: Électricité de France (EDF) (represented by: M. Debroux, lawyer)

Other party to the proceedings: European Commission

Form of order sought

Principally:

set aside the judgment under appeal;

rule on the action at first instance, upholding it and, in consequence, annulling Articles 1 to 5 of Commission Decision (EU) 2016/154 of 22 July 2015 concerning State aid SA.13869 (C 68/2002) (ex NN 80/2002); (1)

In the alternative:

rule definitively on the first plea in law and the first part of the second plea in law of the action at first instance, upholding the first part of the second plea and, in consequence, hold that the principle of the market economy operator applies to the contested measure;

refer the dispute back to a differently-composed General Court for a ruling on the other pleas and arguments set out by the applicant in its application of 22 December 2015 and reserve the costs of the first instance;

In the further alternative:

refer the dispute back to a differently-composed General Court for a ruling on all the pleas and arguments set out by the applicant in its application of 22 December 2015 (including the pleas in the alternative) and reserve the costs of the first instance;

In any event:

order the Commission to pay all the costs of the present instance.

Pleas in law and main arguments

In support of the appeal, the applicant raises four principal grounds of appeal and one ground of appeal in the alternative.

The first ground of appeal alleges disregard of the force of res judicata attaching to the judgment delivered by the General Court on 15 December 2009, EDF v Commission (T-156/04). The judgment under appeal identifies the disputed measure as an alleged tax exemption, contrary to the judgment of 15 December 2009 delivered in that case which expressly rejected that approach. In order to justify that discrepancy in the identification of the disputed measure, the judgment under appeal appears impliedly, and wrongly, to point to the need to interpret the judgment of 15 December 2009‘in the light’ of the confirmatory judgment of the Court of Justice of 5 June 2012 (C-124/10 P). In that judgment, however, the Court of Justice did not rule on the identification of the disputed measure, which is a finding of fact.

The second ground of appeal alleges a distortion of the evidence adduced before the General Court. That evidence describes the effectively implemented EDF capital restructuration measure and does not enable identification of the alleged tax exemption identified by the General Court.

The third ground of appeal alleges disregard of the nature and scope of the obligation to conduct a diligent and impartial examination laid down in the recent case-law of the Court, in particular the judgment in Frucona Košice of 20 September 2007 (C-300/16 P), which was in fact the subject matter of written observations before the General Court.

The fourth ground of appeal alleges disregard by the General Court of the obligation to state reasons, both as regards the identification of the measure at issue and the lack of discussion of the applicant’s arguments based on the Frucona Košice judgment.

Finally, one ground of appeal raised in the alternative alleges an error of law in the identification of the alleged aid as new aid when it should have been classified as existing aid.

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(1) OJ 2016 L 34, p. 152.

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