22.2.2016   

EN

Official Journal of the European Union

C 68/30


Action brought on 28 November 2015 — Micula e.a. v Commission

(Case T-704/15)

(2016/C 068/40)

Language of the case: English

Parties

Applicants: Viorel Micula (Oradea, Romania), European Drinks SA (Ștei, Romania), Rieni Drinks SA (Rieni, Romania), Transilvania General Import-Export SRL (Oradea), West Leasing International SRL (Pantasesti, Romania) (represented by: J. Derenne, A. Dashwood, D. Vallindas, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

annul Commission Decision (EU) 2015/1470 of 30 March 2015 on State aid SA.38517 (2014/C) (ex 2014/NN) implemented by Romania [Arbitral award Micula v Romania of 11 December 2013 (notified under document C(2015) 2112)] (OJ 2015 L 232, p. 43);

alternatively, annul the contested decision insofar as

i.

it identifies Viorel Micula as an ‘undertaking’, and therefore part of the alleged single economic unit constituting the beneficiary of the aid,

ii.

identifies the beneficiary of the aid as a single economic unit comprising Viorel Micula, Ioan Micula, S.C. European Food SA, S.C. Starmill S.R.L., S.C. Multipack, European Drinks SA, Rieni Drinks SA, Scandic Distilleries SA, Transilvania General Import-Export SRL, and

iii.

orders, at Article 2(2), that Viorel Micula, Ioan Micula, S.C. European Food SA, S.C. Starmill S.R.L., S.C. Multipack, European Drinks SA, Rieni Drinks SA, Scandic Distilleries SA, Transilvania General Import-Export SRL, and West Leasing SRL shall be jointly liable to repay the State aid received by any one of them;

order the Commission to bear the costs of these proceedings.

Pleas in law and main arguments

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

1.

First plea in law, alleging a lack of competence and misuse of powers. By its mischaracterisation of the execution of the ICSID arbitral award (the ‘Award’) as the granting of State aid within the meaning of Article 107(1) TFEU, the Commission is effectively asserting powers, which it enjoys in relation to State aid granted by Romania following that country’s accession to the EU, retrospectively to the pre-accession period. The Commission manifestly lacks competence to use its State aid powers in this way. The adoption of a decision having such purpose and effect further entails the misuse of those powers.

2.

Second plea in law, alleging a violation of Article 107(1) TFEU

First, the decision does not demonstrate the existence of an economic advantage as it identifies the execution/implementation of the Award as the incompatible aid. The present case meets the conditions of the Asteris case-law (judgment of 27 September 1988 in Asteris and Others, 106/87 to 120/87). Any advantage (quod non) pre-dates Romania’s accession to the EU and is thus outside the scope of EU State aid rules. Second, the decision does not demonstrate the existence of selectivity. The Bilateral Investment Treaty Romania-Sweden (‘BIT’ — the legal basis of the Award) establishes a system of general liability that is equally applicable to any investor. Third, the decision does not demonstrate that the measure in question is imputable to the Romanian State. Romania has no margin of appreciation to execute the Award.

3.

Third plea in law, alleging a violation of Article 351 TFEU and general principles of law. Article 351 TFEU protects the obligations incurred by Romania through the execution of the BIT with Sweden, while it was still an agreement between a Member State (Sweden) and a third country (Romania), against any possible post-accession effects of the EU State aid rules.

4.

Fourth plea in law, alleging a violation of the principle of the protection of legitimate expectations. The EU authorities actively encouraged the conclusion of BITs, and consequently caused to entertain a legitimate expectation that an effort to enforce such a BIT through arbitration would not be blocked e.g. under State aid rules.

5.

Fifth plea in law, alleging in the alternative, that the alleged aid should be considered as compatible aid. The national measure in question which was at the origin of the arbitration and the Award was never the subject of a definitive finding of incompatibility. In any event, it would have been compatible with EU State aid rules.

6.

Sixth plea in law, alleging, in the alternative, that the decision incorrectly determines the beneficiaries of the alleged aid. The decision does not demonstrate either that Viorel and Ioan Micula form part of the alleged single economic unit, or that there is a single economic unit in this case.

7.

Seventh plea in law, alleging errors in the recovery ordered by the decision. As the decision incorrectly determines the beneficiaries of the alleged aid, it orders the recovery from individuals and companies which are not beneficiaries of the alleged aid.

8.

Eighth plea in law, alleging a violation of an essential procedural requirement (right to be heard). The decision opening the formal investigation procedure did not mention at any point the applicants European Drinks, Rieni Drinks, West Leasing and Transilvania General Import-Export.