France
| Author | Th. Jestaedt; J. Derenne; T. Ottervanger |
| Profession | Jones Day; Lovells; Allen & Overy |
| Pages | 561-574 |
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In France, the authority responsible for enforcing negative Commission decisions is mainly the Ministry of Finance ("Ministère de l'Economie et des Finances" or "Trésor"). Other ministries may also be responsible in some cases, such as the Ministry of Agriculture.
In cases where the State aid is granted by local authorities ("collectivités locales", such as regions or other State's departments) or other public bodies32 (such as the social security institutions), the Ministry of Finance must liaise with these local authorities in order for them to issue claims or acts requesting the recovery of State aid. The local authorities in question may be prefects, regional social security units or others, depending on which local authority granted the aid.
Communication with the Commission is generally via the French Permanent Representation to the EC in Brussels ("Représentation permanente de la France auprès de l'Union européenne"). In some cases, the Ministry of Finance deals directly with the Commission.
Actions concerning the recovery of aid will normally be brought before the administrative courts. However, the civil courts can also be competent if the aid was not granted by means of an administrative act but merely happened to be granted in practice, or when recovery is sought by competitors, which is rare in France (there has not yet been a final judgment on recovery)33.
As stated above, administrative law and procedure will generally be applicable to the recovery of illegal aid. However, in a few cases, generally dealing with tax matters, civil law may apply34.
Generally, the French State will first inform the beneficiary of the obligation to reimburse the aid, following a negative Commission decision. The recovery procedure will then be initiated by the State or at the local level, in the same way as the State would proceed in order to obtain the reimbursement of a debt owed to the State35.
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Illegal aid is recovered in France by means of an executory act ("acte exécutoire"), which is issued by the Judicial Officer of the Treasury ("agent judiciaire du Trésor")36.
This executory act ("titre de perception" or "ordre de restitution") can be the object of an opposition procedure (pursuant to the usual procedure), i.e. an action for misuse of powers or an action for annulment ("excès de pouvoir") before the administrative courts on grounds relating to the inexistence, "payability" ("exigibilité") or amount of the claim. This type of action has suspensory effect.
If the undertaking concerned does not reimburse the aid, the State can turn to a third party that holds the undertaking's funds ("avis à tiers détenteur") to recover the aid directly by seizing ("saisie administrative") the funds deposited in a bank account.
The Administrative Court of Paris37 has held that the act by which the French government recovers illegal aid presents the characteristics of an administrative act taken by national authorities when exercising their discretionary public powers falling within the authority of the State ("prérogatives de puissance publique") in order to comply with their international obligations.
If, for example, the aid was granted by unilateral decision of the State, that act must be withdrawn before the State can recover the aid. This applies to acts which create rights.
Where the aid was granted by law, for example under a law providing for tax breaks in specific circumstances, recovery of the aid must be imposed by a regulatory or legislative act or the applicable legislation, as amended. The beneficiaries of the illegal aid can challenge the regulatory act and the measure implementing the legislative act before the responsible administrative courts.
Finally, in insolvency proceedings, the State must register its claim with the creditors' representative once insolvency proceedings have been opened.
The State generally requests prefects ("préfets") to execute recovery at the local level but recovery could also be ordered by any other local authority: a municipality ("la commune"), the General Council ("Conseil general") of the French départments, the Regional Council ("Conseil regional") of the French régions or a local public undertaking.
A new provision has been inserted into the General Code for Local Authorities ("Code Général des collectivités territoriales") which came into force on 1 January 2005. It provides that "any local authority [...] having granted aid to an undertaking is to proceed without delay Page 563 to its recovery if so requested by a Commission decision or a judgment of the ECJ, whether provisional or definitive. In the absence of such recovery, after a notice has remained without effect for a month from notification, the State representative will proceed to the recovery of its own motion and by all means. The local authorities [...] will bare the financial consequences that could result for the State from a condemnation for late or incomplete implementation of recovery decisions. This is compulsory expenditure [...]"38.
The provision lays down the principle of liability of local authorities for not recovering State aid granted that should have been recovered pursuant to a Commission decision or a court judgment. It is interesting to note that the aid should be recovered, even if the beneficiary has, for example, challenged the Commission's decision.
The recovery act adopted by the local authority can be subject to forced execution. However, it can also be challenged by the addressee within two months following receipt of the executory act. The introduction of an action to challenge the recovery act will automatically suspend the recovery procedure.
Article L.4 of the Code of Administrative Procedure ("Code de justice administrative") provides that "except for specific legislative provisions, actions do not have suspensory effect unless the court decides differently". In principle, an action against an administrative decision does not therefore suspend the effects of that decision, even if the decision is illegal.
There are derogations to this principle. In particular, actions by which the claimant challenges the existence, the amount or the "payability" ("exigibilité") of orders for recovery ("ordres de recettes", "titres de perception" or "ordres de recouvrement") by "opposition to execution" ("opposition à execution") have suspensory effect. This applies both to claims issued by the State and claims issued by local authorities39.
Moreover, if the beneficiary of illegal State aid contests the validity of public accountants seizing ("saisie administrative") assets on the basis of the executory act, the opening of opposition to these administrative proceedings ("opposition à poursuites") also has suspensory effect.
This means that the process of recovery of illegal aid is suspended by the introduction of an action ("opposition") against the executory act ordering repayment of the illegal aid or any subsequent measure of execution of the executory act. The process will, however, not be suspended if the beneficiary simply challenges the State's liability or requests damages from the State.
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In all cases of opposition, however, suspensory effect ceases when the competent court of first instance dismisses the beneficiary's action, even if the beneficiary appeals that decision40.
French administrative case law specifically provides that suspensory effect cannot be "circumvented" by the Administration requesting an order for payment of the contested sum. As a result, no interim measures, it seems, are available to the Administration before the administrative judge41.
It seems that there are very few civil cases dealing with recovery, mainly because most contracts, transactions and acts in which the State is involved will be governed by administrative law. However, recovery issues may arise before civil courts if the action is brought by a competitor, in the context of insolvency proceedings, for which the commercial courts are competent, or relating to certain taxes and contributions.
If a beneficiary contests the validity of the proceedings leading to the execution of the executory act ("voies d'exécution"), this opposition to execution ("opposition à exécution") also has suspensory effect, as it does before the administrative courts.
However, interim measures are available before the civil judge. The following conditions must be met: (i) urgency; (ii) prima facie case; and (iii) existence of difficulties hindering the recovery process. The interpretation of these criteria is generally less strict than under EC law. For example, urgency can result from the purely financial consequences of the implementation of the contested measure.
Where illegal aid has been granted but the State does not seek recovery, a competitor of the beneficiary could, for example, bring an action against the beneficiary (civil liability) and request the civil judge to order provisional recovery of the aid, the constitution of a bank guarantee or any other provisional and/or conservatory measure deemed necessary.
Insolvency proceedings are provided for by the Commercial Code ("Code de Commerce", Articles L-611 to L-623). There are two types of procedure: the non-contentious procedure taking place at the preliminary stage and the contentious procedure.
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(i) Non-contentious procedure
In the context of the non-contentious procedure, the objective is to find a way of improving the company's financial situation. An ad hoc representative is appointed by the president of the competent court (i.e. "tribunal de commerce") who will informally consult with creditors in order to conclude an agreement, which will remain confidential. If no agreement is reached, the president of the court will appoint a mediator who will negotiate a more formal solution with all creditors. Such an agreement must be approved by the court. Actions can be suspended by the court during the negotiation phase. The president can also decide to commence the contentious procedure.
(ii) Contentious procedure
The contentious procedure is instituted either (i) by the company declaring that it cannot continue to carry out its activities ("déclaration de cessation de paiements"); (ii) by a creditor;
(iii) by the public prosecutor ("Procureur de la République"), or (iv) by the court itself. The court must render a judgment opening insolvency proceedings ("jugement d'ouverture"). The court can either declare that the company should be liquidated immediately, or, if the court considers the company financially viable, impose an observation period.
During the six-months' observation period (which can be extended), an administrator is in charge of the company's activities ("judicial control"). The administrator also draws up a social and financial statement of affairs.
Creditors must declare their claims to the creditors' representative within two months of the judgment opening insolvency proceedings. During the observation period, the company is prohibited from paying any claim pre-dating the judgment. Generally, it is only possible for secured creditors to request advanced payments. The judgment opening insolvency proceedings also suspends actions by creditors pending before the courts and the accrual of legal or agreed interest and any late interest or surcharges.
On the basis of the administrator's assessment, the court will decide whether the company should (i) continue its activities; (ii) be sold; or (iii) liquidated. The court is not required to wait until the end of the six-month period to decide that the company must be liquidated.
If the court decides that the company may continue its activities, it will approve a recovery plan ("plan de redressment"). In that case, the court will renew the time limits for repayments or waivers of part of the claim granted by creditors who concluded an agreement with the debtor. The time limits for repayments or for such waivers may be reduced by the court if appropriate. For other creditors, the court will impose uniform time limits for repayments, subject, to longer time limits for long-term debt, agreed by the parties before the commencement of insolvency proceedings.
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Appeals, including to the Cour de cassation, may be lodged by creditors against:
- the judgment opening insolvency proceedings;
- the decision laying down or rejecting the plan to continue the company's activities; and
- the decision amending the plan to continue the company's activities.
The main difficulty in recovery cases is that, once the court has decided to open the observation period, the State cannot enforce recovery of the aid and interest rates are frozen. The only solution for the State is to register its claim within two months of the commencement of the observation period with the creditors' representative.
It seems that it is possible for the State, in its capacity as creditor, to appeal the court's decision to open the observation period rather than requesting that the company be put into liquidation immediately. In case of liquidation, the Commission may find that any possible distortions of competition resulting from the grant of the aid will "disappear" for the future (although the past effects of the aid cannot be repaired).
In case of a sale of the assets of the company at market price, and depending on the nature of the aid, the State will probably not have priority over other creditors, especially if the latter have guarantees or security or if they are employees.
Finally, if the court decides that the company can continue its activities, the State must negotiate the timing of the reimbursement of the aid. It is not certain that the State will obtain priority over other creditors from the debtor and/or the court for the reimbursement of the aid.
All cases brought before the national judge to date are set out in more detail in Part I. The focus of this section is on issues that have arisen before the national judge during the recovery process. These issues will be considered, in turn, from the point of view of the State, the beneficiary's competitors and the beneficiary.
To the best of our knowledge, we are not aware of any cases where the State tried to obtain recovery of the aid by bringing an action in the administrative courts.
If the State does not order recovery of the aid from the beneficiary following a Commission decision, competitors can request the State to act and bring an action for annulment of the State's decision of rejection in the administrative courts, and apply for an injunction (with aPage 567 daily fine for non-compliance) against the Administration to recover the aid. An action based on a claim for misuse of powers does not allow the national judge to order recovery.
Facts and legal issues: the Commission42 considered that financial aid granted to CELF constituted State aid that was compatible with the Common Market. Its decision was annulled by the CFI. The case does therefore not deal with illegal, incompatible State aid.
Decision: the Administrative Court of Appeal of Paris held that the financial aid constituted State aid. The annulment of the Commission decision implied that the Minister should have suspended and recovered the aid. In the absence of a Commission decision concerning recovery when the Minister was required to recover the aid, the Paris Court considered that it was the responsibility of the State to assess whether legitimate reasons existed for not recovering the aid.
The Paris Court considered that there was no obstacle to recovery. It upheld the decision of the lower court and ordered recovery of the aid granted from 1980 to 2002 and imposed a penalty payment, but then rejected a claim for damages and State liability.
Comments: the Paris Court strictly applied Article 88 EC and the established case law of the ECJ and the CFI by ordering immediate recovery. Indeed, at the time of the request by the claimant, the Minister should have ordered recovery of the illegal aid. The Paris Court took this decision, although, at the time of the ruling, a new Commission decision declaring the aid compatible with the Common Market had been issued.
After the annulment of the first Commission decision by the CFI, the Commission adopted a second decision, which was again annulled by the CFI43 The Commission adopted a third decision on 20 April 200444. However, at the time of the decision of the Paris Court, CELF had already introduced an action for annulment against this new decision (on 15 September 2004), disputing the finding that the measure constituted State aid (whether compatible with the Common Market or not, since this meant that it was required to recover the illegal aid)45. The Paris Court mentioned the absence of a definitive Commission decision.
In any case, despite the positive Commission decision declaring the aid compatible, the mere fact that CELF had benefited from State aid was sufficient for the Paris Court to order recovery. It is noteworthy that the Paris Court also imposed a daily fine in case of non-compliance by the State, pursuant to powers granted to the administrative judge in 1995.
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In the Ryanair case, competitors brought an action before the administrative courts. However, because the action was based on an alleged misuse of powers by the Chamber of Commerce for having granted illegal aid, the Strasbourg Court was not competent to order recovery. It seems obvious, however, that the French authorities were intent to draw the necessary conclusions from the judgment and order recovery of the aid without having been ordered to do so (see part I).
Facts: a laboratory filed an action for reimbursement of social security contributions, arguing that the contributions were unlawful State aid, because certain other laboratories were exempted from paying them. Referring to the Banks case, the Court of Appeal ruled that, in this context, the sanction for granting unlawful State aid was its withdrawal and not the imposition of a tax refund for the benefit of the laboratories subject to the contributions.
Decision: the Cour de Cassation referred the following questions to the ECJ for a preliminary ruling: (i) whether EC law must be interpreted as meaning that a company may file a claim for a tax refund because certain companies are exempted from paying the tax and whether this exemption constitutes State aid; and (ii) whether EC law must be interpreted as meaning that the burden of proof on the claimant filing an action for a tax refund (who must prove, according to French civil procedural rules, that this tax exemption for certain companies constitutes State aid on the basis that it over-compensates these companies for the costs incurred by discharging public service obligations or because it does not fulfill the four criteria of the Altmark case) "makes it impossible or excessively difficult to exercise the right to recovery of the aid" within the meaning of established ECJ case law46.
Comment: the answer in this case will be interesting in that there are numerous cases in France (see Part I) where the national courts allowed the claimant not to pay a tax or contribution instead of ordering recovery of the illegal aid. The Cour de cassation raises the issue of the repayment of the illegal tax and draws parallels with the conditions for recovery.
As mentioned above, the procedure for recovery of unlawful aid is initiated on the issuance of the executory act ("état exécutoire") by the State requesting reimbursement. This act can bePage 569 contested before the administrative courts47. The arguments brought forth by beneficiaries in recovery cases are dealt with below, following an analysis of two special cases dealing with the identity of the beneficiary.
In this case, a company ("target") that had benefited from aid was sold to another company ("purchaser") with the net asset value of target being guaranteed. Following a negative Commission decision in 1997, the State ordered recovery of the aid from the purchaser in 2000. The purchaser went into liquidation but the State did not register its claim with the creditors' representative. The Commercial Court of Paris therefore concluded that the purchaser had no grounds for claiming damages from target on the basis that target had not reimbursed the aid.
This case is interesting because the State sought to recover the aid from the purchaser of target. This decision was probably justified, considering that target had guaranteed the net asset value of the company.
Facts: following the EDF decision by the Commission of 16 December 200348, the State ordered recovery of the aid from EDF. EDF sought reimbursement of part of the aid from RTE, EDF's department in charge of the high-voltage electricity network. Since the parties could not agree on the amount to be paid by RTE to EDF, RTE decided to refer the case to the Energy Regulation Commission.
The Energy Regulation Commission noted that the reserves which had not been taxed (therefore creating an advantage for EDF) had been incorporated into EDF's capital and had therefore benefited all activities and departments of EDF, including RTE. The Energy Regulation Commission considered that each department of EDF should bear a share of the recovery charge in proportion to its funds: 27 % for RTE, 17 % for the distribution department and 56 % for the production department.
Comment: it is interesting that EDF and RTE raised the issue of how recovery of the aid should be apportioned between the two entities before the Energy Regulation Commission. EDF had already paid the amount due to the State on 16 February 2004 when the above-Page 570mentioned apportionment was decided. EDF nevertheless challenged Articles 3 and 4 of the decision of the Commission (relating to the tax treatment of certain provisions)49.
Facts and legal issues: Under a 1996 law, the claimant entered into an agreement with the French government according to which the claimant would reduce the working time of employees in exchange for an additional reduction in social charges on low salaries.
The aid had been notified to the Commission and in a 1997 decision, the Commission declared the aid granted under the 1996 law incompatible with the Common Market. The decision was upheld by the ECJ50.
The claimant, considering that Article 88 (3) EC had been violated, since the aid had been implemented prior to Commission approval, requested the State to award damages for the loss resulting from a delay when the company relocated (finally in 2000) as well as from a reduction in the company's gross margin due to the recovery of the aid.
Decision: the Administrative Court of Clermont-Ferrand rejected the arguments relating to the liability of the legislator because the strict conditions for such liability were not met in the present case.
The Administrative Court of Clermont-Ferrand then noted that the Administration could be held liable for having granted State aid prior to the Commission decision and that the claimant could therefore be awarded compensation for the loss sustained, although the claimant's own negligence must be taken into account when determining the amount of damages.
Moreover, the Administrative Court of Clermont-Ferrand held that the amount of damages could not include the amount received in aid under the agreement, since the judgment of the ECJ provided for the exact sum to be recovered by the State. However, the Administrative Court of Clermont-Ferrand stated that it could award damages for the harm suffered by the claimant and ordered an expert opinion.
The Administrative Court of Clermont-Ferrand noted that the agreement entered into by the State and the claimant was null and void and that the claimant could claim reimbursement of its expenses. The Administrative Court of Clermont-Ferrand added that, if the nullity of the contract resulted from a fault committed by the authorities, the claimant could, in addition, claim compensation for the loss resulting from the State's contractual liability for the nullity.
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However, the Clermont-Ferrand Court considered that the claimant could not obtain an indemnity which would render the EC State aid rules ineffective by conferring on the claimant a benefit similar to that which the State had illegally granted.
Comment: in this case, the beneficiary did not contest the principle of recovery but asked for damages. The national judge expressly stated that damages could be awarded, provided they were not equivalent to the amount granted in State aid that was to be reimbursed by the claimant. In this respect, the national court should not confuse damages following a violation of EC law by the State with the fact that the aid must be reimbursed by the beneficiary of the State aid. Indeed, the amount awarded in damages only depended on the loss suffered by the claimant, regardless of the amount of illegal aid that must be recovered.
In general, the main arguments put forward by beneficiaries against recovery are the following:
* in several cases before the Commission, beneficiaries argued that reimbursing the aid would give rise to financial difficulties, and possibly bankruptcy;
* in the CELF case mentioned above, beneficiaries argued that recovery would threaten the public service mission carried out by the organisation by exporting French books; and
* beneficiaries have sometimes referred to the principle of legitimate expectations.
Although the principle of legitimate expectations is a general principle of EC law, it is not part of the French "public policy" ("ordre public")51. Moreover, the Conseil d'Etat held that the principle can only be applied in the French legal system if EC law applied to the case before the national court52 or if the contested decision was taken in order to implement EC law53.
Courts of first instance54 have held, however, that the Administration could be liable if the principle of legitimate expectations inherent in legal rules and administrative actions that are clear and foreseeable is not respected.
In the CELF case, the beneficiary raised the principle of legitimate expectations: considering the size of the undertaking, its activities and the fact that the State aid had been granted since 1980, the claimant argued that the company should not be required to recover the aid. This argument was dismissed.
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As can be seen from the cases examined above, there are few cases which deal exclusively or primarily with the issue of recovery and can therefore serve as a reference point.
In order to implement negative Commission decisions ordering recovery of illegal aid, the authorities need to identify the beneficiaries, as well as the amount of aid to be recovered. This information should, as far as possible, be included in the Commission decision.
The national authorities may encounter practical difficulties if more beneficiaries are granted illegal aid or in cases of indirect State aid (for example, tax breaks) where the amount granted in State aid varies considerably between beneficiaries.
Moreover, if national authorities are responsible for determining the amount of State aid, disagreements with the Commission could arise on the method of calculating the aid to be recovered.
Recovery in France seems to take place essentially via administrative channels, as is clear from the absence, to the best of our knowledge, of actions brought by the State to recover illegal aid.
There are also relatively few complaints dealing with the recovery of State aid. Two main factors could explain this:
- length and cost of the proceedings (between two to six years in average) which may thus not be a solution for competitors of the aid recipient to remedy distortions of competition; and
- choice of proceedings by the complainant (challenging the act granting aid rather than, where possible, directly requesting recovery).
Regarding the efficiency of recovery procedures, an important obstacle is the suspensory effect resulting from different types of procedures.
As described above, the action by the beneficiary to contest the recovery order or any executory measures has suspensory effect. Until the national court hands down its judgment, the State cannot recover the aid, not even by applying for interim measures before the administrative judge.
This suspensory effect is limited to the case where the beneficiary contests the recovery order. In all other cases, the judge can order interim measures, provisional or forced execution of a judgment, as well as conservatory measures.
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The problem of suspensory effect may also arise in the context of insolvency proceedings: under French law, where the court decides to open an observation procedure (in order to decide whether the company should be sold, put into liquidation or allowed to continue its activities), all creditor claims and payments are suspended. The authorities therefore cannot seek recovery of the aid until the court has taken a final decision on the future of the company.
In general, where there is a large number of beneficiaries who all contest the relevant recovery orders before the competent courts, the State authorities will not recover the total amount of the aid and may choose not to proceed with the recovery process until these actions have been decided, especially if a national court requests a preliminary ruling from the ECJ.
Ideal recovery cases are those where the beneficiary has been informed of a negative Commission decision and reimburses the aid to the State as soon as the Commission has adopted a negative decision and
This type of recovery takes place exclusively via administrative channels, without any court intervention.
In the EDF case, it is interesting to note that the beneficiary reimbursed the aid before challenging the Commission decision before the CFI. This solution is in compliance with EC law: the beneficiary uses the legal means at its disposal while avoiding a pending recovery situation. The risk that there is no State aid or, if so, that it is compatible with the Common Market is therefore transferred to the Commission. The Commission should encourage this type of behaviour.
As outlined above, it is of primary importance to inform competitors and the French legal community of all available national actions and the EC law principles applicable to the recovery of illegal aid.
Competitors, for example, should be aware of the possibility, in some cases, to request recovery of illegal aid before the commercial courts, without first having to obtain a decision from the administrative courts which annuls the act that granted the illegal aid.
Judges, for example, should be aware of EC law principles according to which the suspensory effect resulting from certain types of procedures should be set aside.
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It is suggested that, in order to increase the level of information available to all parties concerned and improve recovery procedures, a national, independent surveillance authority is created that will be in charge of controlling the grant and recovery of State aid in France.
The surveillance authority could, first, be responsible for advising beneficiaries on State aid issues, determine what constitutes State aid and question the French authorities on notification to the Commission.
The surveillance authority could also review notifications in order to ensure that all necessary information has been provided. It could also monitor all actions by the French government, the French parliament and local authorities that are likely to contain elements of State aid and alert them to the fact, if necessary, while also informing the Commission and the public. As a result, the French government or the French parliament would be encouraged to strictly comply with EC State aid law (notably procedural aspects), avoiding unlawful State aid.
In addition to this preventive approach, one could also imagine that the surveillance authority creates a State aid database which judges could consult when deciding State aid issues. Once the aid has been declared illegal, the surveillance authority could advise on the most suitable way to recover the aid and help monitor the recovery process.
The difficulty with this type of surveillance authority is that it would have close ties with the authorities granting the aid and the State, which makes it difficult to guarantee its independence vis-à-vis the State. In order to be credible to all parties concerned, i.e. beneficiaries, competitors, national judges, national authorities and the Commission, the surveillance authority must have the status of an independent regulatory authority with all corresponding privileges and organisational characteristics.
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[32] The grantors can also be public or even private undertakings. In this case, the appropriate body of the State will liaise with them (the relevant ministry of the préfets, for instance).
[33] Commercial Court of Paris, UFEX, DHL & others v La Poste, SFMI, Chronopost & others, 7 December 1999.
[34] See Part I.
[35] It is important to note that in the case of a tax constituting State aid, the Commission may order the relevant national authorities to reimburse the tax to the tax payers who did not benefit from the aid instead of ordering recovery of the aid from the beneficiaries.
[36] The executory act is a "demand" to recover direct taxes or a State claim other than taxes.
[37] Administrative Court of Paris, Société Augefi et Société Sèvres of 16 February 1994, Case n°9008722, see Part I.
[38] Free translation from French, Article L.1511-1-1 of the General Code for Local Authorities.
[39] See Article 6 of the Decree of 29 December 1992 regarding orders for recovery by the State; Article 164 and 201 of the Decree of 29 Decembre 1962 concerning national public undertakings; Article L.1617-5,1°, para. 2 of the General Code for Local Authorities.
[40] Conseil d'Etat, Opinion of 5 May 1995, Sarl Laiterie Fromsac, RFDA [1996], p. 130.
[41] The "référé provision" (interim measures in order for the judge to allow prepayments) is not available in this case, see Conseil d'Etat, Omilait, 1 October 1993, DA [1993], n°463.
[42] The letters refer to the relevant tables of classification of actions at the end of the study.
[43] OJ (1998) L 44/37 and Case T-155, SIDE v Commission [1998] ECR II-1179.
[44] OJ (2005) L 85/27.
[45] Case T-372/04, removed from the Register by order of 31 January 2005.
[46] Case C-526/04, OJ (2005) C 69/11.
[47] See, in absence of such an act, Commercial Court of Paris, SA Sojerca v Jaunet, 21 January 2003.
[48] OJ (2005) L 49/9.
[49] Case T-156/04, EDF v. Commission, pending.
[50] Case C-251/97, France v. Commission, [1999] ECR I-6639.
[51] This means that if the principle has not been raised before the court of first instance, it cannot be raised before the Conseil d'Etat and the courts will not raise the principle of their own motion; see Part I.
[52] Conseil d'Etat, 2 March 2002, Inédit Recueil Lebon, req. n°217647.
[53] Conseil d'Etat, 13 May 2001, Société TF1, published in Recueil Lebon, req. n°247353; Conseil d'Etat, Assemblée, 5 mars 1999, published in Recueil Lebon, req. n°194658; Conseil d'Etat section, 30 Décembre 1998, Entreprise Chagnaud SA, published in Recueil Lebon, n°189315; Conseil d'Etat, 16 Mars 1998, Association des élèves et Mlle Poujol, Dr. adm. 1997, n°149; Conseil d'Etat, 28 Juillet 2000, published in Recueil Lebon, req. n°205710; Conseil d'Etat, 9 Mai 2001, Transports Freymuth, published in Recueil Lebon, req. n°210944; Conseil d'Etat, 11 avril 2003, Centre école régionale de parachutisme de Picardie, published in Recueil Lebon, req. n°221140.
[54] TA Strasbourg, 8 Déc. 1994, AJDA 1995, p. 555 ; JCP G 1995, II, 22474, concl. J. Pommier.
