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Action brought on 10 June 2009 - BT Pension Scheme Trustees v Commission
(Case T-230/09)
Language of the case: English
Parties
Applicant: BT Pension Scheme Trustees Ltd (London, United Kingdom) (represented by: J. Derenne and A. Müller-Rappard, lawyers)
Defendant: Commission of the European Communities
Form of order sought
annulment of the decision;
in the alternative, annulment of Article 1 of the decision to the extent that it refers to the fact that the State aid has unlawfully been put into effect, as well as Article 2, Article 3, first indent, and Article 4 to the extent that it refers to aid recovery, of the decision;
order the Commission to pay the applicant's costs.
Pleas in law and main arguments
This application is brought by the Trustee of the British Telecommunications Pension Scheme ("BTPS") - the pension scheme sponsored by British Telecommunications plc ("BT") - that is responsible for the administration of the scheme, namely, for the collection, investment of contributions and payment of benefits to retired employees of BT and their dependants, in accordance with the trust deeds governing the BTPS and the general law.
By means of its application, the applicant seeks the annulment of the Commission decision, C(2009) 685 final of 11 February 2009 (State aid No C 55/2007 (ex NN 63/2007, CP 106/2006)), insofar as it qualifies the measure concerned - "the exemption" from the payment of levies in respect of the BTPS to the Pension Protection Fund ("PPF"), "as concerns the beneficiary's pension liabilities covered by the Crown guarantee" - as unlawful and incompatible State aid within the meaning of Article 87(1) EC and to the extent that it provides that the aid should be recovered from the beneficiary with interest from the date that it was put into effect until the date of its recovery.
In its first plea, the applicant submits that the decision violated Article 87(1) EC in four respects:
First, according to the applicant, the condition of selectivity has been violated in that the decision did not clearly determine the correct reference system and its objective and the Commission therefore incorrectly found that the BTPS benefited from a so-called "exemption".
Second, it is claimed that the condition of economic advantage has been violated in that the Commission could not find that BT benefits from an economic advantage within the meaning of Article 87(1) EC because the Trustee pays reduced levies to the PPF, without having compared BT's overall situation to that of its competitors who do not suffer from the same structural disadvantage in terms of pension costs as BT.
Third, it is submitted that the condition on distortion of competition and effect on trade has been breached in that in the absence of any advantage as demonstrated under the second limb, there cannot be any distortion of competition and/or effect on trade.
Fourth, the applicant contends that the condition of transfer of State resources has been breached in that the decision could not have qualified the transfer of State resources relating to the Crown guarantee as the relevant transfer of State resources for the purposes of qualifying the illegibility of the BTPS to enter the PPF as State aid.
In its second plea, the applicant claims that the decision violates Article 253 EC in that it fails to state reasons as to the following points:
- the statement of reasons regarding the assessment of the general reference system under its analysis of the existence of a selective advantage is contradictory;
- with regard to analysis of the condition on selectivity, in particular by not carrying out in detail the three step analysis provided for by the relevant case-law;
- the Commission has allegedly insufficiently justified why it considers that the additional liabilities borne by BT upon privatisation are irrelevant for the purpose of considering BT's overall position on the market in comparison with its competitors;
- the Commission allegedly failed to explain how the transfer of State resources pertaining to the Crown guarantee could constitute the relevant transfer of State resources for several exemptions (under the Pensions Act 2004 provisions) which follow from the existence of Crown guarantees.
In its third plea, the applicant claims that the decision violated the notion of unlawful aid pursuant to Article 88(3) EC in combination with Articles 1 f) and 14 of Council Regulation (EC) No 659/1999
1 in that there is no aid to be recovered, either from BT or the BTPS and its Trustee, the alleged aid not having been put into effect, as a result of an escrow agreement.