Action brought on 25 October 2004 by Nomura Principal Investment plc and Nomura International plc against the Commission of the European Communities

(Case T-430/04)

(2005/C 31/48)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 25 October 2004 by Nomura Principal Investment plc and Nomura International plc, London (United Kingdom), represented by C.-D. Ehlermann, F. Louis, A. Vallery, G. A. Gutermuth and C. Duvernoy, lawyers.

The applicant claims that the Court should:

Pleas in law and main arguments

The contested decision was taken under the procedure established by Section 3 of Annex IV of the Accession Treaty to the European Union, for the review, by the Commission, of State aid measures that the new Member States adopted prior to their accession and that their authorities notified to the Commission before 1 May 2004. The contested decision determines that pre-accession aid measures that the Czech Republic granted to the Czech bank Ceskoslovenska obchodni banka (‘CSOB’) are not ‘applicable after accession’ within the meaning of Section 3 of Annex IV of the Accession Treaty and therefore not subject to the Commission's review for substantive conformity with the EU State aid rules.

The applicant submits that this decision should be annulled on the grounds that the Czech aid measures in question are applicable after accession. According to the applicant, the contested decision violates Section 3, Annex IV of the Accession Treaty, Article 253 EC, Article 88 EC and Regulation 659/1999 (1) by applying an incorrect definition of ‘measures still applicable’ after accession.

The applicant further claims that in adopting the contested decision, the Commission misused its powers in violation of Section 3, Annex IV of the Accession Treaty and Article 88 EC by redefining ‘measures still applicable’ to avoid review of a measure adopted by an accession country that would have fallen under the Commission's prior definition of this legal concept.

The applicant also submits that the Commission erred in law in violation of Section 3, Annex IV of the Treaty of Accession and Article 88 EC by failing to open the formal investigative procedure despite the continuing open and unresolved factual issues and the many doubts concerning the legality of the notified measures. It also erred in law by misapplying its own definition for post-accession applicability of pre-accession aid measures granted by the Czech Republic to guarantees for litigation risks and other claims issued by the Czech National Bank to CSOB. Finally, it erred both in law and in fact by failing to correctly investigate the facts relating to the aid measures granted by the Czech State to CSOB.

(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 L 83, 27.3.1999, p. 1.