# C_2005106EN.01001502.xml

| 30.4.2005 | EN | Official Journal of the European Union | C 106/15 |
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30.4.2005

EN

Official Journal of the European Union

C 106/15

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Appeal brought on 16 February 2005 (by fax/email on 11 February 2005) by the Federal Republic of Germany against the judgment delivered on 1 December 2004 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Case T-27/02 between Kronofrance SA and the Commission of the European Communities, supported by Glunz AG and OSB Deutschland GmbH

(Case C-75/05 P)

(2005/C 106/30)

Language of the case: German

An appeal against the judgment delivered on 1 December 2004 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Case T-27/02 between Kronofrance SA and the Commission of the European Communities, supported by Glunz AG and OSB Deutschland GmbH, was brought before the Court of Justice of the European Communities on 16 February 2005 (by fax/email on 11 February 2005) by the Federal Republic of Germany, represented by W.-D. Plessing and C. Schulze-Bahr, of the Federal Ministry of Finance, Berlin, Germany, acting as Agents, as well as by Dr. M. Núñez Müller, Rechtsanwalt, Hamburg, Germany.

The appellant claims that the Court of Justice should:

| 1. | set aside in its entirety the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 1 December 2004 in Case T-27/02 (1); |
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1.

set aside in its entirety the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 1 December 2004 in Case T-27/02 (1);

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| 2. | give a final decision in the case and dismiss the application as inadmissible, but in any event as unfounded; |
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2.

give a final decision in the case and dismiss the application as inadmissible, but in any event as unfounded;

| 3. | join these proceedings, for the purposes of the procedure and the judgment, with the parallel appeal brought by Glunz AG; |
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3.

join these proceedings, for the purposes of the procedure and the judgment, with the parallel appeal brought by Glunz AG;

| 4. | order the applicant in the main proceedings to pay the costs of these appeal proceedings as well as the costs of the proceedings at first instance in Case T-27/02. |
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4.

order the applicant in the main proceedings to pay the costs of these appeal proceedings as well as the costs of the proceedings at first instance in Case T-27/02.

Pleas in law and main arguments

The contested judgment infringes, in particular, the fourth paragraph of Article 230 EC, Article 87(3)(c) EC and Article 64 of the Rules of Procedure of the Court of First Instance.

First, the applicant lacked locus standi. Individual concern for the purposes of the fourth paragraph of Article 230 EC does not flow directly from the status of ‘interested party’ within the meaning of Article 1(h) of Regulation No 659/1999. Rather, it depends only on the substance of the disputed act and the applicant's competitive situation. A competitor who objects to a grant of aid in preliminary proceedings must make out a case for and, if necessary, prove that he has been ‘appreciably’ affected by the aid granted. Even if being only ‘simply’ affected is considered sufficient, a detailed case to that effect must be made out. The application at first instance should, therefore, have been dismissed as inadmissible, as the applicant had not made out a case for being simply, let alone appreciably, affected.

locus standi

Furthermore, the contested judgment infringes points 3.3, 3.4, 3.10 and 3.10.1 of the 1998 multisectoral framework, in that the Court requires the Commission to analyse consumption and any possible decline in the relevant market, even where sufficient data on relevant capacity utilisation is available. In doing so, the Court is also in breach of Article 87(3)(c) EC, having substituted its own assessments for those which only the Commission is entitled to make.

Finally, the contested judgment also infringes Article 64 of the Rules of Procedure of the Court of First Instance in that the Court failed to investigate of its own motion facts which were relevant to its decision and which would have enabled it to determine the issue of locus standi. This applies, in particular, to the degree of competition between the applicant and the recipient of the aid.

locus standi

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(1)  OJ C 31 of 5.2.2005.

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