Action brought on 22 February 2010 - COLT Télécommunications France SAS v European Commission

(Case T-79/10)

Language of the case: French

Parties

Applicant: COLT Télécommunications France SAS (Paris, France) (represented by: M. Deboux, lawyer)

Defendant: European Commission

Form of order sought

Pursuant to the measures of organisation of procedure and measures of inquiry under Article 49, 64 and 65 of the Rules of Procedure of the Court, order the Commission to make available certain documents, referred to in Commission Decision C(2009) 7426 Final (State aid N 331/2008 - France);

Annul the decision in so far as it found that the 'measure notified does not constitute aid within the meaning of Article 87(1) EC';

Order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks annulment of Commission Decision C(2009) 7426 Final of 30 September 2009 declaring that the compensation for the costs of providing a public service in the amount of EUR 59 million, granted by the French authorities to a group of undertakings for the establishment and operation of a very-high-speed broadband electronic communications network (project THD 92) in the Hauts-de-Seine department does not constitute State aid.

In support of its action, the applicant puts forward a single plea based on the failure by the Commission to open the formal investigation procedure provided for in Article 108(2) of the Treating on the Functioning of the European Union (TFEU). That plea is broken down into seven parts.

The first part of the plea is based on the finding that the particularly long period of time spent on investigating the case (15 months) is in itself an indicator of the complexity of the issues and the need to open a formal investigation procedure.

In the second part of the plea, the applicant states that the two-phase schedule for rolling out the network should have led the Commission to find at least that the first phase of rolling-out of the network, concentrated in very dense and profitable areas, did not require any public subsidies.

The third part of the plea aims to establish that the methodological approach taken in the decision to define alleged 'non-profitable areas' is very questionable and contradicts the findings of the ARCEP (the French sectoral regulator); those contradictions and methodological errors should have led to the opening of an in-depth investigative phase.

The fourth part of the plea is based on the numerous, substantiated objections put forward by competing operators, which also should have led the Commission to open an in-depth investigative phase.

In the fifth part, the applicant states that the Commission did not even make a minimum check to ensure that the French authorities had not made a manifest error of assessment in creating an alleged service of general economic interest, particularly since there was no market deficiency.

The sixth part also relates to the lack of even minimal verification of whether there was a manifest error of assessment made by the French authorities in the creation of the service of general economic interest, particularly given the lack of specifics as to the planned public involvement.

Lastly, in the seventh part of the plea, the applicant submits that the decision did not take account of the real risk of over-compensation for the alleged additional costs linked to the alleged public service obligations.

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