16.3.2015

EN

Official Journal of the European Union

C 89/40

(Case T-36/15)

(2015/C 089/48)

Language of the case: Spanish

Parties

Applicant: Hispasat, SA (Madrid, Spain) (represented by: J. Buendía Sierra, A. Lamadrid de Pablo and A. Balcells Cartagena, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—annul the contested decision, in particular Article 1 thereof, insofar as it finds the existence of State aid granted to HISPASAT incompatible with the internal market;

—consequently, annul the orders for the recovery of that aid set out in Articles 3 and 4 of the decision;

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

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

1.First plea in law, alleging that by designating HISPASAT SA as a direct beneficiary of the contested measure, the Commission made a manifest error of fact which must result in the annulment of the decision, since that company did not take part in the measures and has derived no benefit from them. The principle of good administration was also infringed insofar as the European Commission identified HISPASAT SA as the beneficiary of the measures after the investigation was commenced without analysing the factual situation that arose and without permitting the applicant to be heard during the administrative procedure.

2.Second plea in law, alleging, in the alternative, that the Commission infringed Articles 106 and 107 TFEU and Protocol 26 TFEU since the measures disputed by the decision do not constitute State aid as there is no economic activity; at issue, rather, is the activity of public authorities in their capacity as administrations. Still more subsidiarily, the applicant submits that the contested decision incorrectly concludes that the measures at issue were not related to the provision of a public service of general interest (PSGI) and, consequently, incorrectly assesses the applicability of the Altmark case-law and that of Decision PSGI 2005/842/EEC (on the application of 86(2) EC), which could have led to a finding of the absence of aid or of the compatibility of any aid found to have been granted.

3.Third plea in law, alleging that the disputed measures are not likely to distort competition or trade between Member States.

4.Fourth plea in law, alleging that the contested decision manifestly errs in its assessment of the compatibility of the aid under Article 107(3)(c) TFEU: (i) by holding the principle of technological neutrality as an absolute principle; (ii) by holding that the measures at issue infringed technological neutrality despite the conclusions to the contrary set out in the technical reports provided by the regional government, by the Spanish central authorities and by a private operator; (iii) by concluding that the measures at issue were not appropriate or proportionate; and (iv) by stating that the measure creates unnecessary distortions of competition.

5.Fifth plea in law, alleging, in the alternative, that the decision infringes Regulation No 659/1999 insofar as it errs in its assessment of existing aid under Article 1(b)(v).