Appeal brought on 8 May 2015 by Orange, formerly France Télécom, against the judgment delivered by the General Court (Ninth Chamber) on 26 February 2015 in Case T-385/12 Orange v Commission

(Case C-211/15 P)

Language of the case: French

Parties

Appellant: Orange, formerly France Télécom (represented by: S. Hautbourg and S. Cochard-Quesson, avocats)

Other party to the proceedings: European Commission

Form of order sought

The applicant claims that the Court should:

set aside the judgment under appeal;

give final judgment on the substance of the matter in accordance with Article 61 of the Statute of the Court and grant the order sought by Orange at first instance;

in the alternative, refer the case back to the General Court for judgment;

order the Commission to pay the costs.

Pleas in law and main arguments

In support of its appeal, the appellant relies on several grounds of appeal.

In the first place, it is alleged that the General Court erred in law in finding that the criteria for finding that there was State aid within the meaning of Article 107(1) TFEU had been satisfied. First, the General Court erred in law in considering that Orange had benefited from an advantage, despite the fact that the measure aimed to remove the structural disadvantage which resulted from the continued application of the provision laid down by the Law of 1990 and aimed to enable there to be full competition in the context of the complete liberalisation of the telecommunications markets. Second, the appellant also complains that the General Court erred in law in concluding that, in order to uphold the selective character of the contested measure, it was not necessary in the circumstances of the case to ascertain whether that measure might differentiate between operators in a factually and legally comparable situation, despite the fact that, in the circumstances of the case, no other undertaking could have been included in the framework of reference decided upon by the Commission. Third, the General Court failed to comply with the duty to state the reasons for its decision and erred in law in not proceeding to assess any of the arguments submitted by the appellant for considering the measure to be incapable of distorting or threatening to distort competition within the meaning of Article 107(1) TFEU.

In the second place, it is alleged that the General Court erred in law when adopting the Commission’s analysis with regard to the compatibility of the measure at issue. First, the General Court failed to comply with the duty to state the reasons for its decision and distorted the facts in concluding that Article 30 of the Law of 1996, as amended, did not make any provision concerning the purpose of the exceptional lump-sum contribution and in concluding that that article does not therefore exclude the Commission’s conclusion according to which the exceptional lump-sum contribution did not constitute a social charge for the undertaking. Second, the General Court is alleged to have failed to comply with the duty to state the reasons for its decision when it adopted the Commission’s assessment of the facts and merely stated that the precedent established in the ‘La Poste’ case was not applicable to that of France Télécom (Orange).

Lastly, the appellant considers that the General Court erred in law in its assessment of the period in which the aid defined by the decision was neutralised by the exceptional lump-sum contribution. In particular, the General court distorted the facts and substituted its own reasoning for that of contested decision when it affirmed that the discontinuance of the charges of compensation and over-compensation formed part of the aid defined in Article 1 of the contested decision.

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