# C_2004273EN.01002303.xml

| 6.11.2004 | EN | Official Journal of the European Union | C 273/23 |
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6.11.2004

EN

Official Journal of the European Union

C 273/23

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Appeal brought on 22 September 2004 by Technische Glaswerke Ilmenau GmbH against the judgment delivered on 8 July 2004 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-198/01 between Technische Glaswerke Ilmenau GmbH and the Commission of the European Communities, supported by Schott Glas

(Case C-404/04 P)

(2004/C 273/44)

An appeal against the judgment delivered on 8 July 2004 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-198/01 between Technische Glaswerke Ilmenau GmbH and the Commission of the European Communities, supported by Schott Glas, was brought before the Court of Justice of the European Communities on 22 September 2004 by Technische Glaswerke Ilmenau GmbH, represented by Christoph Arhold and Norbert Wimmer, Rechtsanwälte, White & Case LLP, 62 rue de la Loi, B-1040 Brussels, with an address for service in Luxembourg.

The appellant claims that the Court should:

| 1. | Set aside the judgment of the Court of First Instance of 8 July 2004 in Case T-198/01; (1) |
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1.

Set aside the judgment of the Court of First Instance of 8 July 2004 in Case T-198/01; (1)

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| 2. | Annul the decision of the Commission of 12 June 2001; |
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2.

Annul the decision of the Commission of 12 June 2001;

| 3. | In the alternative, refer the case back to the Court of First Instance; |
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3.

In the alternative, refer the case back to the Court of First Instance;

| 4. | Order the respondent to pay the costs. |
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4.

Order the respondent to pay the costs.

Pleas and main arguments:

| 1. | The appellant contests the judgment of the Court of First Instance of 8 July 2004 in Case T-198/01 dismissing the application for annulment of the Commission's decision classifying as aid the reduction by DEM 4 000 000 of the purchase price of an undertaking privatised by the Treuhandanstalt (subsequently BvS) and requiring it to be recovered. |
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1.

The appellant contests the judgment of the Court of First Instance of 8 July 2004 in Case T-198/01 dismissing the application for annulment of the Commission's decision classifying as aid the reduction by DEM 4 000 000 of the purchase price of an undertaking privatised by the Treuhandanstalt (subsequently BvS) and requiring it to be recovered.

| 2. | The appellant, both in the procedure for the examination of aid and in the procedure before the Court of First Instance, put forward the view that it had been entitled to the reduction of the purchase price on the ground that the basis of the transaction had ceased to exist, since it and the vendor — the Treuhandanstalt — had both presumed when fixing the purchase price that the Freistaat Thüringen (Land of Thuringia) would support the appellant's investment in the privatised undertaking from GA funds (a general regional aid scheme approved by the Commission) at a higher rate (permissible for small and medium-sized undertakings). That support had been the basis of the calculation. Since only normal, not higher-rate support had been granted, the basis of calculation had ceased to exist to that extent, and the purchase price should have been adjusted accordingly. Since there had been a general civil-law claim to adjustment of the purchase price, which any private seller would also have been subject to, there could have been no question of aid (no economic advantage and no selectivity within the meaning of Article 87(1) EC). That was also the case because under the Treuhand system in force at the time of privatisation the fixing of a correspondingly lower purchase price would have been permissible without any problems as regards aid law. |
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2.

The appellant, both in the procedure for the examination of aid and in the procedure before the Court of First Instance, put forward the view that it had been entitled to the reduction of the purchase price on the ground that the basis of the transaction had ceased to exist, since it and the vendor — the Treuhandanstalt — had both presumed when fixing the purchase price that the Freistaat Thüringen (Land of Thuringia) would support the appellant's investment in the privatised undertaking from GA funds (a general regional aid scheme approved by the Commission) at a higher rate (permissible for small and medium-sized undertakings). That support had been the basis of the calculation. Since only normal, not higher-rate support had been granted, the basis of calculation had ceased to exist to that extent, and the purchase price should have been adjusted accordingly. Since there had been a general civil-law claim to adjustment of the purchase price, which any private seller would also have been subject to, there could have been no question of aid (no economic advantage and no selectivity within the meaning of Article 87(1) EC). That was also the case because under the Treuhand system in force at the time of privatisation the fixing of a correspondingly lower purchase price would have been permissible without any problems as regards aid law.

| 3. | The Commission rejected the appellant's argument on legal grounds and took the view that claims against the Treuhand and the Freistaat Thüringen were to be investigated separately. The Court of First Instance approved that reasoning, and furthermore pointed out that the applicant had not produced in the judicial proceedings any written evidence that the Freistaat Thüringen had agreed to provide support. |
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3.

The Commission rejected the appellant's argument on legal grounds and took the view that claims against the Treuhand and the Freistaat Thüringen were to be investigated separately. The Court of First Instance approved that reasoning, and furthermore pointed out that the applicant had not produced in the judicial proceedings any written evidence that the Freistaat Thüringen had agreed to provide support.

| 4. | The appeal is directed against this. In connection with the ceasing to exist of the basis of the transaction, the appellant puts forward in particular the following grounds of appeal:






  — | The Court of First Instance wrongly found that the Commission had not infringed the duty to state reasons (Article 253 EC), since it was not possible, on the basis of the Commission's reasoning, to ascertain why the Commission had rejected the applicant's stated claim against the Treuhand (now BvS) on the ground of the ceasing to exist of the basis of the transaction. |
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4.

The appeal is directed against this. In connection with the ceasing to exist of the basis of the transaction, the appellant puts forward in particular the following grounds of appeal:

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The Court of First Instance wrongly found that the Commission had not infringed the duty to state reasons (Article 253 EC), since it was not possible, on the basis of the Commission's reasoning, to ascertain why the Commission had rejected the applicant's stated claim against the Treuhand (now BvS) on the ground of the ceasing to exist of the basis of the transaction.

| — | If the Commission's reasoning satisfied the requirements of Article 253 EC, the Court of First Instance should in any case have found a manifest error of assessment on the part of the Commission, since the Commission's reasoning was manifestly incapable of casting doubt on the appellant's submissions on the ceasing to exist of the basis of the transaction. A breach of Article 87(1) EC by the Commission should accordingly have been found by the Court of First Instance. |
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If the Commission's reasoning satisfied the requirements of Article 253 EC, the Court of First Instance should in any case have found a manifest error of assessment on the part of the Commission, since the Commission's reasoning was manifestly incapable of casting doubt on the appellant's submissions on the ceasing to exist of the basis of the transaction. A breach of Article 87(1) EC by the Commission should accordingly have been found by the Court of First Instance.

| — | In so far as the Court of First Instance relied on additional reasons not adduced by the Commission (no evidence of a promise by the Freistaat Thüringen), these were inadmissible (substitution of reasoning) and irrelevant (it was not the promise by Thüringen that was evidentially relevant but the mistake of the contracting parties as to the amount of support). |
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In so far as the Court of First Instance relied on additional reasons not adduced by the Commission (no evidence of a promise by the Freistaat Thüringen), these were inadmissible (substitution of reasoning) and irrelevant (it was not the promise by Thüringen that was evidentially relevant but the mistake of the contracting parties as to the amount of support).

| — | Moreover, the Court of First Instance infringed essential procedural rules, inter alia the right to be heard, by rejecting in its judgment the appellant's applications for evidence to be taken as regards the basis of calculation, and at the same time basing the judgment on the fact that the appellant had not proved its submissions. |
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Moreover, the Court of First Instance infringed essential procedural rules, inter alia the right to be heard, by rejecting in its judgment the appellant's applications for evidence to be taken as regards the basis of calculation, and at the same time basing the judgment on the fact that the appellant had not proved its submissions.

inter alia

| 5. | In addition to the above grounds of appeal, the appellant also complains of errors of law in relation to other defects in the reasoning of the Commission's decision and error of law in finding that the Commission had not committed significant procedural errors. |
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5.

In addition to the above grounds of appeal, the appellant also complains of errors of law in relation to other defects in the reasoning of the Commission's decision and error of law in finding that the Commission had not committed significant procedural errors.

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(1)  Not yet published in the Official Journal of the European Union.

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Official Journal of the European Union

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