Action brought on 23 November 2012 - Alro v Commission
(Case T-517/12)
Language of the case: English
Parties
Applicant: Alro SA (Slatina, Romania) (represented by: C. Quigley, QC, O. Bretz, Solicitor, and S. Verschuur, lawyer)
Defendant: European Commission
Form of order sought
The applicant claims that the Court should:
Annul the Commission's decision of 26 April 2012 to open, pursuant to Article 108(2) of the Treaty on the Functioning of the European Union ("TFEU") and Article 4(4) of Council's Regulation (EC) No 659/1999 ("the Procedural Regulation"), a formal investigation into alleged unlawful State aid granted by Romania, through its control of Hidroelectrica S.A. ("Hidroelectrica"), to ALRO in the form of preferential tariffs for the purchase of electricity through a contract concluded in 2005 and its successive amendments ;
Alternatively, annul the said decision of 26 April 2012 in so far as it applies to the period 1 January 2007 to 31 December 2009 ;
Order the Commission to pay the applicant's costs.
Pleas in law and main arguments
In support of the action, the applicant relies on three pleas in law.
First plea in law, alleging a material error of law
In relation to the first plea, stating that the Commission committed a material error of law in relation to the scope of Article 107(1) TFEU, ALRO will demonstrate that the Commission has failed to apply properly the requirements relating to imputability, as set out in Case C-482/99, France v Commission [2002] ECR I-4397 ("the Stardust Marine judgment"). In particular, the Commission has sought to base its analysis solely on "organic" indicators. However, ALRO will demonstrate that the requirements set out in the Stardust Marine judgment also require the Commission to demonstrate the existence of other substantive indicators because "organic" indicators in isolation are insufficient to establish imputability.
Second plea in law, alleging a manifest error of assessment
In relation to the second plea in law, stating that the Commission committed manifest errors of assessment in reaching the conclusion that Hidroelectrica's actions were imputable to the Romanian State, ALRO will demonstrate that the Commission has failed to analyse correctly the governance structure of Hidroelectrica and the impact that this structure has on the decision-making process of this organisation. Secondly, ALRO will outline why the Commission was wrong to compare the ALRO contract to the agreement between Hidroelectrica and ArcelorMittal. Thirdly, it will demonstrate why the Ministerial Order No 445/2009 is not relevant to the Commission's analysis and why its references to press reports in 2010 are insufficient to meet the evidentiary threshold necessary to demonstrate imputability.
Third plea in law, alleging an inadequate statement of reasons
In relation to the third plea in law, ALRO will demonstrate that for the points relied on by the Commission (as outlined in the paragraph above), it has failed to provide an adequate statement of reasons, and has therefore acted contrary to the requirements of Article 296 TFEU. Such a statement of reasons is necessary to allow the General Court to review the legality of the decision and to provide the parties concerned with the information necessary to enable them to ascertain whether or not the decision is well-founded. As indicated in more detail in this application, the contested decision fails to satisfy this requirement.
____________1 - Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 83, p. 1)