# C_2008037EN.01000901.xml

| 9.2.2008 | EN | Official Journal of the European Union | C 37/9 |
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9.2.2008

EN

Official Journal of the European Union

C 37/9

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Appeal brought on 22 November 2007 by Commission of the European Communities against the judgment delivered on 12 September 2007 by the Court of First Instance (Second Chamber) in Case T-348/03 Koninklijke Friesland Foods NV (formerly Friesland Coberco Dairy Foods Holding NV) v Commission of the European Communities

(Case C-519/07 P)

(2008/C 37/11)

Language of the case: Dutch

Parties

Appellant: Commission of the European Communities (represented by: H. van Vliet and S. Noë)

Appellant:

Other party to the proceedings: Koninklijke Friesland Foods NV (formerly Friesland Coberco Dairy Foods Holding NV)

Other party to the proceedings:

Form of order sought

| — | Set aside the judgment under appeal, dismiss the action for annulment of the decision (1) and order Koninklijke Friesland Foods NV (KFF) to pay the costs of the proceedings before the Court of First Instance and of the present appeal; |
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Set aside the judgment under appeal, dismiss the action for annulment of the decision (1) and order Koninklijke Friesland Foods NV (KFF) to pay the costs of the proceedings before the Court of First Instance and of the present appeal;

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| — | in the alternative, set aside the judgment under appeal in so far as it grants rights to operators in the market — other than Koninklijke Friesland Foods NV — who, as at 11 July 2001, had lodged a request with the Netherlands tax authority for application of the aid scheme in question, and dismiss the action for annulment of the decision in so far as it relates to the grant of rights to operators in the market — other than KFF — who, as at 11 July 2001, had lodged a request for application of the aid scheme in question. |
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in the alternative, set aside the judgment under appeal in so far as it grants rights to operators in the market — other than Koninklijke Friesland Foods NV — who, as at 11 July 2001, had lodged a request with the Netherlands tax authority for application of the aid scheme in question, and dismiss the action for annulment of the decision in so far as it relates to the grant of rights to operators in the market — other than KFF — who, as at 11 July 2001, had lodged a request for application of the aid scheme in question.

Pleas in law and main arguments

The Commission takes the view that the Court of First Instance has infringed Community law:

| (i) | by concluding that KFF has a legal interest in bringing proceedings because, if its action were to succeed, it would have certain claims against the Netherlands authorities in respect of the GFA scheme (judgment under appeal, paragraphs 58 to 73); |
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(i)

by concluding that KFF has a legal interest in bringing proceedings because, if its action were to succeed, it would have certain claims against the Netherlands authorities in respect of the GFA scheme (judgment under appeal, paragraphs 58 to 73);

| (ii) | by concluding that KFF is directly and individually concerned by the decision (judgment under appeal, paragraphs 93 to 101); |
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(ii)

by concluding that KFF is directly and individually concerned by the decision (judgment under appeal, paragraphs 93 to 101);

| (iii) | by annulling the decision on the basis of facts which were not, and could not have been, known to the Commission when it took its decision, namely KFF's actual circumstances (judgment under appeal, in particular, paragraphs 141 to 143); |
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(iii)

by annulling the decision on the basis of facts which were not, and could not have been, known to the Commission when it took its decision, namely KFF's actual circumstances (judgment under appeal, in particular, paragraphs 141 to 143);

| (iv) | Part 1: by manifestly incorrectly regarding as undisputed — and thus proven — a matter of crucial importance for the Court's reasoning (erroneously proceeding on the basis that the Commission did not dispute that the applicant had taken accounting measures and financial and economic decisions which could not have been amended within a period of fifteen months) (judgment under appeal, paragraph 137);
  Part 2: by concluding that an undertaking which has merely lodged a request to be able to benefit from the aid scheme can have legitimate expectations (judgment under appeal, in particular, paragraphs 125 to 140); |
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(iv)

Part 1: by manifestly incorrectly regarding as undisputed — and thus proven — a matter of crucial importance for the Court's reasoning (erroneously proceeding on the basis that the Commission did not dispute that the applicant had taken accounting measures and financial and economic decisions which could not have been amended within a period of fifteen months) (judgment under appeal, paragraph 137);

Part 2: by concluding that an undertaking which has merely lodged a request to be able to benefit from the aid scheme can have legitimate expectations (judgment under appeal, in particular, paragraphs 125 to 140);

| (v) | by concluding that KFF is entitled to rely on the principle of equal treatment (judgment under appeal, paragraphs 149 and 150); |
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(v)

by concluding that KFF is entitled to rely on the principle of equal treatment (judgment under appeal, paragraphs 149 and 150);

| (vi) | in the alternative: the Court should set aside the judgment under appeal in so far as it grants rights to operators in the market other than KFF (judgment under appeal, operative part, point 1). |
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(vi)

in the alternative: the Court should set aside the judgment under appeal in so far as it grants rights to operators in the market other than KFF (judgment under appeal, operative part, point 1).

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(1)  Commission Decision 2003/515/EC of 17 February 2003 on the State aid implemented by the Netherlands for international financing activities (OJ 2003 L 180, p. 52).

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