# C_2005069EN.01000403.xml

| 19.3.2005 | EN | Official Journal of the European Union | C 69/4 |
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19.3.2005

EN

Official Journal of the European Union

C 69/4

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Appeal brought on 27 December 2004 by the Kingdom of Spain against the judgment delivered on 21 October 2004 by the Court of First Instance (Fifth Chamber, Extended Composition) in Case T-36/99 between Lenzing AG and the Commission of the European Communities, supported by the Kingdom of Spain

(Case C-525/04 P)

(2005/C 69/10)

Language of the case: German

An appeal against the judgment of the Court of First Instance of the European Communities (Fifth Chamber, Extended Composition) of 21 October 2004 in Case T- 36/99 between Lenzing AG and the Commission of the European Communities, supported by the Kingdom of Spain, was brought before the Court of Justice of the European Communities on 27 December 2004 by the Kingdom of Spain, represented by Juan Manuel Rodríguez Cárcamo, Abogado del Estado, with an address for service in Luxembourg.

The Kingdom of Spain claims that the Court should:

| 1. | Set aside in full the judgment of the Court of First Instance (Fifth Chamber, extended composition) of 21 October 2004 in Case T-36/99 between Lenzing AG and the Commission of the European Communities, supported by the Kingdom of Spain, which annulled Article 1(1) of Commission Decision 1999/395/EC (1) of 28 October 1998 on State aid implemented by Spain in favour of Sniace SA, located in Torrelavega, Cantabria, as amended by Commission Decision 2001/43/EC (2) of 20 September 2000; |
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1.

Set aside in full the judgment of the Court of First Instance (Fifth Chamber, extended composition) of 21 October 2004 in Case T-36/99 between Lenzing AG and the Commission of the European Communities, supported by the Kingdom of Spain, which annulled Article 1(1) of Commission Decision 1999/395/EC (1) of 28 October 1998 on State aid implemented by Spain in favour of Sniace SA, located in Torrelavega, Cantabria, as amended by Commission Decision 2001/43/EC (2) of 20 September 2000;

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| 2. | In the new judgment to be delivered, grant all the forms of order which it sought at first instance and accordingly dismiss the action as inadmissible, or, in the alternative, as unfounded; |
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2.

In the new judgment to be delivered, grant all the forms of order which it sought at first instance and accordingly dismiss the action as inadmissible, or, in the alternative, as unfounded;

| 3. | Order the defendant to pay the costs under Article 69(2) of the Rules of Procedure. |
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3.

Order the defendant to pay the costs under Article 69(2) of the Rules of Procedure.

Pleas in law and main arguments:

| 1. | According to the decision as amended in 2000, annulled by the judgment, the rescheduling agreement between Sniace and the General Social Security Fund and the rescheduling agreements concluded in 1993 and 1995 between Sniace and Fogasa did not constitute State aid. |
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1.

According to the decision as amended in 2000, annulled by the judgment, the rescheduling agreement between Sniace and the General Social Security Fund and the rescheduling agreements concluded in 1993 and 1995 between Sniace and Fogasa did not constitute State aid.

| 2. | The judgment appealed against alleges that the General Social Security Fund and Fogasa not only concluded rescheduling agreements with Sniace, which was in financial difficulties, but also, and in particular, that they tolerated Sniace's failure to perform those agreements. |
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2.

The judgment appealed against alleges that the General Social Security Fund and Fogasa not only concluded rescheduling agreements with Sniace, which was in financial difficulties, but also, and in particular, that they tolerated Sniace's failure to perform those agreements.

| 3. | The grounds for the Kingdom of Spain's appeal against the abovementioned judgment are as follows:






  — | Error in law, as the action was admitted on the assumption that the applicant was individually concerned, contrary to case-law according to which the applicant's position on the market must have substantially worsened. |
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3.

The grounds for the Kingdom of Spain's appeal against the abovementioned judgment are as follows:

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Error in law, as the action was admitted on the assumption that the applicant was individually concerned, contrary to case-law according to which the applicant's position on the market must have substantially worsened.

| — | Error in law in the interpretation and application of the private creditor test, since on the basis of the facts stated to be proven it was assumed that the conduct of the public institutions investigated did not fulfil the private creditor test. |
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Error in law in the interpretation and application of the private creditor test, since on the basis of the facts stated to be proven it was assumed that the conduct of the public institutions investigated did not fulfil the private creditor test.

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(1)  OJ L 149 of 16.6.1999, p. 40.

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(2)  OJ L 11 of 16.1.2001, p. 46.

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