Action brought on 23 June 2009 - Sniace v Commission

(Case T-238/09)

Language of the case: Spanish

Parties

Applicant: Sniace (Madrid, Spain) (represented by: F.J. Moncholí Fernández, lawyer)

Defendant: Commission of the European Communities

Form of order sought

declare that this action for annulment has been lodged in accordance with the provisions of Article 230 EC and that it is well founded;

annul and declare inapplicable the provisions of Article 1(2) of the decision of 10 March 2009 which states that the following State aid implemented by Spain in favour of Sniace is incompatible with the common market: (i) the agreement concluded on 8 March 1996 between Sniace and the Social Security Treasury relating to debt rescheduling; (ii) the implementation of the agreement concluded on 5 November 1993 between Sniace and FOGASA and (iii) the agreement concluded on 31 October 1995 between Sniace and FOGASA;

annul and declare inapplicable the provisions of Articles 2(2) and 3(2)of the Decision of 10 March 2009 ordering Spain to:

(i)    recover from the beneficiary the aid granted plus the corresponding interest with immediate effect, and,

(ii)    inform the Commission with two months of the total amount, the measures adopted and anticipated in order to comply with the decision and documentary evidence to show that the recipient has been ordered to repay the aid;

order the European Commission to pay all the costs incurred by the applicant in these proceedings.

Pleas in law and main arguments

The contested measure in this case is Commission Decision C(2009) 1479 final of 10 March 2009 relating to measure No C/2000 (ex NN 118/1997) implemented by Spain in favour of the applicant (SNIACE), and amending Decision 1999/395/EC of 28 October 1998. That decision held that the aid granted by the Fondo de Garantía Salarial (FOGASA) and by the Social Security Treasury (TGSS) in favour of SNIACE to be unlawful and incompatible with the common market, on the ground that the agreements for debt repayment concluded between SNIACE and FOGASA and the rescheduling agreement concluded between SNIACE and the TGSS did not comply with market conditions as regards the type of interest applicable.¹

The contested decision has declared the aid set out in paragraph 2 of the form of order incompatible with the common market.

In support of its form of order, the applicant claims first that, when examining the agreements and concluding that neither FPGASA nor the TGSS acted in the same way as a private creditor would have done, the Commission incorrectly interpreted the applicable law. The applicant states in that respect that the defendant's position is based on a comparison of the position of the private creditor BANESTO with that of FOGASA, making a generalisation which consists in unjustifiably assuming that all private creditors would behave in the same way as BANESTO.

In any event, the applicant states, in its capacity as a public creditor it conducted itself in manner almost identical to that of BANESTO.

SNIACE also alleges the infringement of the duty to state reasons. It states in particular that the Commission fails to give any reasons for the 'threatened distortion of competition' which is the key for finding that aid is State aid.

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¹ - See Case C-342/96 Spain v Commission [1999] ECRI-2459, Case C-525/04 P Spain v Commission [2007] ECR I-9947, and Case T-36/99 Lentzig AG v Commission [2004] ECR II-3597.