16.11.2015

Official Journal of the European Union

C 381/22

—

(Case C-486/15 P)

(2015/C 381/25)

Language of the case: French

Parties

Appellant: European Commission (represented by: C. Giolito, B. Stromsky, D. Grespan, and T. Maxian Rusche, members of the Legal Service)

Other parties to the proceedings: French Republic, Orange, formerly France Télécom, Federal Republic of Germany

Form of order sought

The Commission claims that the Court should:

—set aside the judgment of the General Court of the European Union (Sixth Chamber, Extended Composition) of 2 July 2015 in Joined Cases T-425/04 French Republic v Commission and T-444/04 France Télécom v Commission in so far as it:

—annulled Article 1 of Commission Decision 2006/621/EC of 2 August 2004 on the State Aid implemented by France for France Télécom (1);

—ordered the Commission to bear its own costs and to pay four fifths of the costs incurred by the French Republic and by Orange in Cases T-425/04 and T-444/04;

—give a definitive ruling on the case, dismissing the action brought by the applicants and ordering the applicants to pay the costs in relation to all the proceedings;

—in the alternative, refer the case back to the General Court for reconsideration and reserve the costs.

Pleas in law and main arguments

The Commission puts forward four grounds in support of its appeal.

In the first place, it submits that the statement of reasons for the judgment of the General Court is inadequate and contradictory. The General Court ignored the principles established by the judgment on appeal (2) and did not address in sufficient detail the arguments put forward by the Commission after the cases were referred back to the General Court.

In the second place, the Commission alleges that the General Court committed numerous infringements of Article 107(1) TFEU. Those infringements led the General Court to exclude the statements made by the government between July and December 2002 and the ‘restoring the confidence of the financial markets’ aspect of the announcement of 4 December 2002 from the scope of the analysis of the private investor criterion. First, by attempting to apply the prudent private investor test at a specific moment in time, the General Court disregarded the solution adopted by the Court of Justice, according to which it is necessary to place oneself in the context of the period during which the financial support measures were adopted and to take into account all the relevant information. According to the Commission, the General Court seems to have overlooked the fact that an aid measure may derive from several interlinked interventions which are inseparable from one another. Secondly, the General Court committed several errors of law as regards the link between the concept of advantage and the application of the prudent private investor criterion. In particular, the Commission alleges that the General Court limited the prudent private investor test to a limited part of the period during which the effects of the advantage manifested themselves. Thirdly, the Commission submits that the General Court excluded background factors from the scope of its examination. Fourthly, the General Court unfairly limited the joint examination of several advantages to advantages of a similar nature. Fifthly, the General Court did not apply the criterion established by the Court of Justice for determining whether State measures are indissolubly linked and must be examined together. Sixthly, the Commission contests the General Court’s identification of events constituting ‘breaks’ in the succession of State measures during the months of September to December 2002. According to the Commission, such ‘breaks’ cannot justify the separate examination of measures prior and subsequent to that date. Lastly, the Commission contests the General Court’s reasoning in relation to the reputational risk.

In the third place, the Commission submits that the General Court exceeded the limits of its review of the legality of administrative acts.

Finally, the Commission maintains that the General Court erroneously interpreted and even distorted the Commission’s decision.

* * *

(1) OJ 2006, L 257, p. 11.

(2) Judgment in Bouygues and Others v Commission and Others, C-399/10 P and C-401/10 P, EU:C:2013:175.

—