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Action brought on 17 February 2010 - Embraer and others v Commission

(Case T-75/10)

Language of the case: English

Parties

Applicants: Empresa Brasileira de Aeronáutica, SA (Embraer) (São José dos Campos, Brazil), Embraer Aviation Europe SAS (EAE) (Villepinte, France), Indústria Aeronáutica de Portugal SA (OGMA) (Alverca do Ribatejo, Portugal) (represented by: U. O'Dwyer and A. Martin, Solicitors)

Defendant: European Commission

Form of order sought

annul the contested decision,

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2009) 4541 final of 17 June 2009 declaring compatible with the common market the aid for the research and development costs involved in the design and manufacture of an aircraft product granted by the United Kingdom authorities to Bombardier (Short Brothers) [N 654/2008]¹. The Commission's decision was taken following a preliminary examination under Article 108(3) TFEU. The applicants are the competitors to the beneficiary of the aid and they lodged a complaint opposing the proposed aid and asking the Commission to open a formal investigation procedure.

In support of its application for annulment, the applicants submit the following pleas in law:

First, they claim that the Commission experienced serious difficulties during its preliminary examination of the compatibility of the State aid with the common market and, therefore, was obligated to initiate the formal investigation procedure provided for in Article 108(2) TFEU. They further state that the Commission's failure to initiate the formal procedure denied applicants and other parties concerned of their right to be consulted during the Commission's assessment. In the applicants' opinion this constitutes a procedural defect in violation of the Treaty.

Specifically, the serious difficulties encountered by the Commission are evidenced by:

the length and circumstances of the preliminary examination;

the failure of the Commission to identify the market for wings of aircraft with 100-149 seats as a relevant product market;

the failure of the Commission to analyse the impact of the State aid on competition in the market for wings of aircraft with 100-149 seats;

the Commission's analysis of the impact of the State aid on competition for finished aircraft with 100-149 seats, which was insufficient and incomplete.

Second, the applicants contend that the Commission's identification of a purported market for aerostructures and failure to identify the relevant market for wings of aircraft with 100-149 seats constitutes a manifest error of assessment of the aid's compatibility with the common market carried out under Article 107(3)(c).

Third, they argue that the Commission's failure to analyse the impact of the State aid on the relevant market for wings of aircraft with 100-149 seats constitutes a manifest error of assessment of the aid's compatibility with the common market carried out under Article 107(3)(c).

Fourth, they submit that the Commission's incomplete and flawed analysis of the impact of the State aid on the market for finished aircraft with 100-149 seats constitutes a manifest error of assessment of the aid's compatibility with the common market carried out under Article 107(3)(c).

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¹ - OJ 2009 C 298, p. 2