Action brought on 11 October 2010 - France v Commission

(Case T-488/10)

Language of the case: French

Parties

Applicant: French Republic (represented by: E. Belliard, G. de Bergues and N. Rouam, Agents)

Defendant: European Commission

Form of order sought

annul the contested decision in its entirety;

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks annulment of European Commission Decision No C (2010) 5229 of 28 July 2010 concerning the cancellation of part of the contribution of the European Regional Development Fund (ERDF) under the single programming document for objective 1 for Community structural assistance in Martinique, France. That decision cancels in its entirety the contribution of the ERDF allocated to the major project entitled 'Village de vacances Club Méditerranée - Les Boucaniers' of EUR 12 460 000.

The applicant puts forward four pleas in law in support of its action.

By its first plea, the applicant submits that the Commission has infringed Article 2(1) of Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts¹, by taking the view that the works contracts concluded for the renovation and extension of 'Club Méditerranée - Les Boucaniers' constituted works contracts directly subsidised by more than 50% by the contracting authorities. Those contracts were subsidised by only 29.92% of the cost of the project. The tax relief which the partners of the private companies received on account of their investment in the project cannot constitute a subsidy within the meaning of Article 2(1) of Directive 93/37/EEC.

By its second plea in law, which is divided into two parts, the applicant submits that the Commission infringed Article 2(2) of Directive 93/37/EEC by taking the view that the works contracts for the renovation and extension of 'Club Méditerranée - Les Boucaniers' concerned building work for facilities intended for sports, recreation and leisure within the meaning of that provision.

First, the applicant takes the view that the Commission should have taken account of the general industrial classification of economic activities within the European Communities (NACE) established by Regulation No 3037/90² to which Article 2(2) of Directive 93/37/EEC refers. That classification distinguishes between hotels and restaurants on one hand and recreational, cultural and sporting activities on the other.

Second, the applicant takes the view that Article 2(2) of Directive 93/37/EEC concerns contracts which, by their very nature, fall within the traditional interests of the contracting authorities and that it therefore concerns facilities intended for sports, recreation and leisure open to all and not those reserved for private clients.

By its third plea, the applicant submits that the Commission has breached the duty to state reasons laid down in the second paragraph of Article 296 TFEU by failing to set out clearly and unequivocally the reasons why the renovation and extension works for 'Club Méditerranée - Les Boucaniers' concerned building work for facilities intended for sports, recreation and leisure within the meaning of Article 2(2) of Directive 93/37/EEC.

By its fourth plea in law, the applicant submits, in the alternative, that the Commission has breached the principle of proportionality by adopting a rate of correction of 100% for the ERDF's subsidy, even though the works relating to the sports and leisure facilities are slightly below 10% of the project.

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¹ - OJ 1993 L 199, p. 54.

² - Council Regulation (EEC) No 3037/90 of 9 October 1990 on the statistical classification of economic activities in the European Community