Action brought on 28 November 2017 – Autostrada Wielkopolska v Commission

(Case T-778/17)

Language of the case: English

Parties

Applicant: Autostrada Wielkopolska S.A. (Poznań, Poland) (represented by: O. Geiss and D. Tayar, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the Commission Decision of 25 August 2017 in Case SA.35356 (2013/C) (ex 2013/NN, ex 2012/N) on State aid implemented by Poland for the company Autostrada Wielkopolska S.A.; and

order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

First plea in law, alleging that the Commission infringed the applicant’s participation rights, in particular the right to be heard prior to the adoption of the Contested Decision ;

the Commission failed to provide the applicant with adequate opportunity to comment on the evidence provided by the State ;

the Commission deprived the applicant of its right to submit observations in respect of key documents and findings on the basis of which the Commission adopted the Contested Decision ;

the possibility that these omissions affected the outcome of this case cannot be ruled out.

Second plea in law, alleging that the Commission erred in law and in fact by applying the wrong test to determine whether the constituent elements of Article 107(1) TFEU were met and applied said (incorrect) test in breach of Article 107(1) TFEU ;

the Commission’s finding that there was an advantage for the purposes of Article 107(1) TFEU relies solely on the “point-to-point comparison” test ;

the Commission carried out its private investor test assessment after having already decided that there was an advantage for the purposes of Article 107(1) TFEU ;

the Commission’s “point-to-point comparison” test is incorrect as a matter of law ;

the Commission committed manifest errors of assessment when carrying out its “point-to-point comparison” test assessment, notably by not taking into account relevant information that was available to it at the time it adopted the Contested Decision ;

Third plea in law, alleging that the Commission manifestly erred in law and in fact by failing to apply the private investor test in line with the relevant case law and by failing to provide adequate reasoning, therefore infringing Article 107 (1) TFEU ;

–    the Commission failed to apply the private investor test as an integral part of its assessment under Article 107 (1) TFEU in breach of the relevant case law ;

–     the Commission failed to take into account relevant information, which was available at the time of adopting the Contested Decision and which a normally prudent and diligent private owner in a situation as close as possible to that of the State would not a priori have ignored ;

Fourth plea in law, alleging that the Commission’s finding of incompatible aid is based on erroneous findings and is vitiated by internal contradictions ;

–    the Commission erred in fact in finding that the State funds only benefited investors.

Fifth plea in law, alleging that the Commission manifestly erred in fact and in law when calculating the amount of State aid by failing to carry out its own assessment and to provide adequate reasoning ;

the Commission’s finding of overcompensation for the period between September 2005 and October 2007 is vitiated by fundamental errors of assessment ;

the Commission failed to take into account relevant information that was available at the time of the Contested Decision.

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