Action brought on 30 July 2007 — Alcan France v Commission

(Case T-288/07)

(2007/C 235/31)

Language of the case: French

Parties

Applicant: Alcan France SAS (Paris, France) (represented by: M. Thill-Tayara, lawyer)

Defendant: Commission of the European Communities

Form of order sought

Pleas in law and main arguments

By decision of 30 June 1997, adopted following a proposal from the Commission and in accordance with the procedure laid down in Council Directive 92/81/EEC (1), the Council authorised the Member States to apply or to continue to apply the existing reduced rates of excise duty or exemptions from excise duty to certain mineral oils when used for specific purposes. By four subsequent decisions, the Council extended that authorisation, the final authorisation period expiring on 31 December 2006. France was authorised to apply those reduced rates or exemptions to heavy fuel oil used as fuel for the production of alumina in the Gardanne region.

In a letter of 30 December 2001, the Commission notified France of its decision to initiate proceedings under Article 88(2) of the EC Treaty relating to the exemption from excise duty on mineral oils used as fuel for alumina production in the Gardanne region (2). On 7 December 2005, in consequence of this procedure, the Commission adopted Decision 2006/323/EC finding that exemptions from excise duty on mineral oils used as fuel for alumina production in the Gardanne region, the Shannon region and Sardinia, implemented by France, Ireland and Italy respectively, constituted State aid within the meaning of Article 87(1) EC that is in part incompatible with the common market, and thus ordered the Member States concerned to recover all such aid (3).

The Commission decided to extend the formal investigation procedure regarding the exemption from excise duty on heavy mineral oils used for alumina production for the period commencing 1 January 2004. After giving the Member States and the third parties concerned the opportunity to submit their observations on that matter, the Commission adopted Decision C (2007) 286 final of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in the Gardanne region, the Shannon region and Sardinia, applied by France, Ireland and Italy respectively (State aid No C 78-79-80/2001). That is the decision which is contested in the present action.

In support of its action the applicant claims, at the outset, that the decision is invalid as a result of a formal defect in that France was not given notice to submit its comments pursuant to Article 88 EC, since the second procedure for the period after 2004 was opened, in its view, on the basis of recitals in the preamble to the decision of 7 December 2005.

As regards the merits the applicant relies on two pleas in support of its action for annulment.

By its first plea it submits that the Commission found there to be State aid in infringement of Articles 87 and 88 EC both at the stage of classifying the use of the aid and at the stage of examining its compatibility. In addition, in the context of that plea, it alleges that the Commission infringed Article 1(c) of Regulation No 659/1999 (4) and erroneously applied the criterion of selectivity of the aid. It also claims that the grounds of the contested decision are contradictory and insufficient and thus infringe Article 253 EC. Moreover, the applicant submits that the Commission based its finding that the aid was incompatible on the wrong legal basis since, in its view, the conditions for the applicability of the Community guidelines on State aid for environmental protection (5) were not met.

In the alternative, the applicant claims by its second plea that the recovery of the aid ordered by the Commission infringes the principles of legitimate expectation and legal certainty.

(1)  Council Directive of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils.

(2)  Published in OJ 2002 C 30.

(3)  Decision C(2005) 4436 final, State aid Nos C 78-79-80/2001, OJ 2006 L 119, p. 12.

(4)  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).

(5)  Community guidelines on State aid for environmental protection (OJ 2001 C 37, p. 3).