Action brought on 12 November 2004 by Association Française des Opérateurs de Réseaux et Services de Télécommunications – AFORS Télécom against Commission of the European Communities

(Case T-456/04)

(2005/C 31/52)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 12 November 2004 by Association Française des Opérateurs de Réseaux et Services de Télécommunications – AFORS Télécom, established in Paris, represented by O. Fréget, lawyer.

The applicant claims that the Court should:

Pleas in law and main arguments

In the context of a scheme designed to restore the balance of the French telecommunications company France Télécom, France, at the time the majority shareholder in that company, granted it a shareholder's advance, in order to shore up its own funds, in the form of a credit line of EUR 9,000 million. By the contested decision, the Commission found that the advance in question constituted State aid. However, by Article 2 of that decision, it decided that no measures to recover the amount concerned should be taken.

The applicant, which claims to represent a large proportion of the alternative telecommunications operators in France, direct competitors of France Télécom, maintains that it is entitled to seek annulment of that article. In support of its action, it claims first of all that the Commission made a manifest error of assessment in taking the view that it would be unable to estimate the advantage received by France Télécom as a result of the conduct and statements of the French State. It further alleges that the Commission breached the principle of proportionality, since it would have been less harmful to the market to take an amount lower than the actual value of the advantage and of its effects on competition than to preclude any recovery. The applicant then argues that, in any event, the Commission is not required to evaluate precisely the amount of the aid.

The applicant also contends that the Commission failed to have regard to the consistent case-law, which allows a derogation from the obligation to recover unlawful aid only where there are exceptional circumstances or where it is absolutely impossible to do so. The applicant also claims that the Commission wrongly considered that recovery of the aid would breach the rights of the defence and also the principle of legitimate expectations.

The applicant further claims that the Commission breached the principle of transparency in failing to submit to interested third parties, including the applicant itself, certain expert reports presented by France, which played a decisive role in the outcome reached by the Commission.

The applicant also maintains that the Commission committed an abuse of process by ignoring the constraints imposed by its own guidelines on aid for restructuring. Furthermore, the mere fact of having declared an aid incompatible and having then not demanded its recovery constitutes in itself a misuse of powers, in the applicant's submission. Last, the applicant claims that there has been a breach of the obligation to State reasons.