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Action brought on 9 June 2009 - British Telecommunications v Commission

(Case T-226/09)

Language of the case: English

Parties

Applicant: British Telecommunications plc (London, United Kingdom) (represented by: G. Robert and M. M. Newhouse, Solicitors)

Defendant: Commission of the European Communities

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) 685 final of 11 February 2009 declaring incompatible with the common market the aid granted by the British authorities in favour of the applicant by means of Crown guarantee to BT Pension Fund (State aid N° C 55/2007 (ex NN 63/2007, CP 106/2006)).

The applicant puts forward seven pleas in law in support of its claims.

First, the applicant claims that in concluding that the applicant has a selective economic advantage, the Commission erred in law and committed a manifest error of assessment incorrectly applying Article 87(1) EC and the notion of State aid. The applicant submits that the Commission failed to take into account the full economic and factual context in which the applicant acts.

Second, the applicant contends that in concluding that the applicant enjoys a selective economic advantage because the Trustees of the BT Pension Scheme (BTPS) do not contribute to the Pension Protection Fund (PPF) in respect of the pensions of BTPS members covered by the Crown guarantee, the Commission committed a manifest error of assessment and infringed the principle of equal treatment by failing to compare like with like. In the applicant's opinion, the Commission failed to take into consideration differences between the private sector schemes covered by PPF and civil service-type scheme inherited by the applicant at the time of privatisation.

Third, the applicant argues that the Commission erred in law and infringed the principle of legitimate expectations in re-characterising a measure which was not aid at the time it was granted as the "underlying reason" why it should be considered to be an aid twenty years later because a legislative measure has been adopted in the meantime.

Fourth, the applicant submits that in requiring the BTPS Trustees to contribute to the PPF, the Commission infringed the principles of equal treatment and proportionality.

Fifth, it claims that the Commission committed a manifest error of assessment and failed to investigate as to whether the selective economic advantage alleged by the Commission distorts competition and affects trade between Member States within the meaning of Article 87(1) EC.

Sixth, the applicant argues that the Commission made a manifest error of fact and law in concluding that there existed a transfer of state resources.

Seventh, it submits that, by failing to provide reasons for the contested decision, the Commission infringed Article 253 EC.

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