Appeal brought on 2 December 2013 by Iliad SA, Free infrastructure and Free SAS against the judgment delivered on 16 September 2013 in Case T-325/10 Iliad and Others v Commission

(Case C-624/13 P)

2014/C 39/16

Language of the case: French

Parties

Appellants: Iliad SA, Free infrastructure, Free SAS (represented by: T. Cabot, avocat)

Other party to the proceedings: European Commission, French Republic, Republic of Poland, Département des Hauts-de-Seine

Forms of order sought

Grounds of appeal and main arguments

The appellants put forward six grounds in support of their appeal.

First, the appellants argue that the General Court disregarded its obligation to state reasons in failing to address the second part of the plea alleging infringement by the Commission of its obligation to open the formal investigation procedure provided for in Article 108(2) TFEU relating to the conclusions inferred from the commitments undertaken by the French authorities, indicating serious difficulties encountered by the Commission and on the basis of which the Commission was required to open the formal investigation procedure.

Second, they complain that the General Court erred in law in calculating the duration of the preliminary investigation procedure conducted by the Commission. They submit that the notification by France could not be considered to have been completed within the prescribed periods and it accordingly should not have been taken into account. They further submit that the General Court erred in law in treating a request for ‘any’ observations from the Commission to the French authorities as a request for additional information within the meaning of Regulation (EC) No 659/1999. (1)

Third, they rely on public policy grounds in alleging an error of law by the General Court in failing to note of its own motion that the Commission could not declare the disputed aid to be compatible with the Treaty when the notification of that aid ought to have been deemed to have been withdrawn, pursuant to Article 5 of Regulation No 659/1999. As the French authorities failed to respond to the request for additional information within the prescribed periods, the notification at issue ought to have been withdrawn pursuant to Article 5(3) of that regulation. Consequently, the Commission was not competent to rule on the notified measure, which the General Court should have held of its own motion in the judgment under appeal.

Fourth, the General Court erred in law in the assessment of the market failure. That error of law results from the fact that the Court applied the universality test of market failure from the Olsen line of case-law, consisting in ascertaining whether competitors were providing a similar service and not a universal service.

Fifth, the General Court erred in law with respect to the temporal application of the European Union law rules in assessing market failure. The error in law results from limiting the examination of the market failure to the years 2004 and 2005, and from the lack of prospective market analysis to determine whether the market failure can be established for the entire duration of application of the service of general economic interest.

Sixth, the appellants submit that the General Court’s reasons were self-contradictory.

(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).