Official Journal of the European Union EN 23.8.2003 C 200/18
Pleas in law and main arguments
The Applicant submits that Commission Decision
C(2003)1084 should be annulled on the following grounds:
I.Manifest error of approach or assessment by the Commis-
sion
a) The Irish Authorities do not accept the validity of the
extrapolation exercise purportedly carried out by theCommission and submit that extrapolation is not anacceptable methodology for establishing a monetary
repayment value in the case of very broadly-based grant
schemes such as the Operational Programme for Tourism,1989 —1993. Further, it is submitted that the Commis-
sion has failed to identify the legal basis on which theextrapolation exercise it has purported to carry out is
based.
b) The application by the Commission of its own definition
of the meaning of the terms of Article 23 of Regulation
4253/88 (
1) in a manner that permits it to extend the
scope of its powers amounts to an infringement of theexpress provisions of that article and constitutes a mani-fest error of assessment on the part of the Commission inthe exercise of its discretion pursuant to Article 24
thereof.
c) It is manifestly erroneous of the Commission to seek to
justify imposing a penalty on Ireland on the basis of
Datasheets, published in April 1997, several years after
the Programme finished on the basis that they representeda codification of previously established practice, when thisgeneral practice had not been established by either theCommission or the European Court of Auditors in theirmonitoring of the Programme.
d) It is furthermore submitted that the Commission was
manifestly wrong in concluding that there were errors or
risks inherent in the reporting system developed by the
Irish authorities.
II.Infringement of a fundamental rule of law relating to the
implementation of the Treaty
In exercising its discretion pursuant to Article 24 of Regulation
4253/88, the Commission misdirected itself or was wrong in
law in failing to take account of the matters pleaded in theapplication. The Commission approach is in breach of theprovisions of inter alia, articles 23 and 24 of Regulation4253/88.
III.Failure to respect the principles of non-retrospectivity,
legal certainty, and legitimate expectation
The retrospective application of standards for financial manage-
ment, and in particular the issue of eligibility criteria, that werenot developed until several years after the conclusion of the
projects in issue in circumstances where the procedures usedwere at all times in accordance with best practice at the timeas approved by the Commission amounts to a retrospectiveapplication of Community rules by the Commission.
IV.Breach of the principle of proportionality and/or the
principles in relation to the imposition of penalties
The Commission clearly had available alternatives to the deci-
sion adopted in this case. The approach adopted by the
Commission is out of all proportion to the result intended to
be achieved having regard to the ongoing efficacy of theprojects in issue and the nature of the project beneficiary.Such an approach effectively amounts to the imposition of apenalty in circumstances where there is no evidence of anywrongdoing on the part of any undertaking or authority.
(1) Council Regulation (EEC) No 4253/88 of 19 December 1988,
laying down provisions for implementing Regulation (EEC)
No 2052/88 as regards coordination of the activities of the
different Structural Funds between themselves and with the opera-
tions of the European Investment Bank and the other existing
financial instruments OJ L 374, 31.12.1988, p. 1-14.
Action brought on 24 June 2003 by the Commission of
the European Communities against Ireland
(Case C-274/03)
(2003/C 200/32)
An action against Ireland was brought before the Court of
Justice of the European Communities on 24 June 2003 by theCommission of the European Communities, represented byMr Georges Zavvos, acting as agent, with an address for servicein Luxembourg.
The Applicant claims that the Court should:1) declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2000/26/EC of the European Parliament and of the
Council of 16 May 2000 on the approximation of thelaws of the Member States relating to insurance againstcivil liability in respect of the use of motor vehicles andamending Council Directives 73/239/EEC and 88/357/EEC(Fourth motor insurance Directive), published in the Offi-
cial Journal L 181, 20.07.2000, p. 65-74, or in any event
by failing to communicate them to the Commission,Ireland has failed to fulfil its obligations under the Direc-tive;
Official Journal of the European Union EN 23.8.2003 C 200/19
2) order Ireland to pay the costs.
Pleas in law and main arguments
The period within which the directive had to be transposed
expired on 20 July 2002.
Appeal brought on 25 June 2003 by Scott SA against
the judgment delivered on 10 April 2003 by the Fifth
Chamber, Extended Composition, of the Court of FirstInstance of the European Communities in case T-366/00 between Scott SA, supported by the FrenchRepublic, and the Commission of the European
Communities
(Case C-276/03 P)
(2003/C 200/33)
An appeal against the judgment delivered on 10 April 2003
by the Fifth Chamber, Extended Composition, of the Court
of First Instance of the European Communities in caseT-366/00 between Scott SA, supported by the FrenchRepublic, and the Commission of the European Commu-nities (
1), was brought before the Court of Justice of the
European Communities on 25 June 2003 by Scott SA,
established in Saint-Cloud (France), represented by Sir
Jeremy Lever KCMG, QC, and G. Peretz, Barristers, andA. Nourry and R. Griffith, Solicitors, with an address forservice in Luxembourg.
The Appellant claims that the Court should:
— set aside the decision of the Court of First Instance
dismissing Scott's application for annulment of
Article 2 of the Decision (
2) in so far as Scott's
application alleges that the Commission infringedArticle 15 of the Regulation;
— annul Article 2 of the Decision, in so far as it
concerns the alleged aid granted in the form of a
preferential land price referred to in Article 1 of theDecision; and
— order the Commission to pay the costs of this appeal,
including the costs incurred by Scott at first instance.
Pleas in law and main arguments
The Appellant submits that the judgment of the Court of
First Instance should be set aside on the following grounds:
The Court of First Instance was wrong to apply the newly
introduced provisions of Article 15 of Regulation 659/
99 (
3)as if they were governed by the old case-law relating
to the conduct of administrative procedures.
— The Court of First Instance should have recognised that
the Regulation established a Community State aidregime that is, in important and relevant respects, new.— It also wrongly failed to give any, or any sufficient
weight to the fact that it is the recipient of aid thatparticularly requires protection in cases whereArticle 15 applies.
— The Court of First Instance should not have held that
the characterisation of the recipient of aid as merely an‘information source ’in the course of the procedure
under Article 88(2) EC supported its conclusion.
— The Court of First Instance wrongly failed to take
account of the wording of Articles 14 and 15 whichindicates that Article 15 is concerned with the liabilityof recipients of aid.
— The Court of First Instance wrongly failed to recognise
that the consequence of its interpretation of Article 15was to frustrate the purpose of that Article, that is to
say, to provide legal certainty to recipients of aid.
The Court of First Instance was wrong to hold that the
absence of a ‘duty ’on the part of the Commission to ‘warn ’
recipients of interrupting actions was relevant to the ques-tion of whether an action of which the recipient had nonotice could interrupt the limitation period as against it.
The Court of First Instance was wrong to hold that
Article 15 created a single limitation period that applied inthe same way to the Member State concerned and to ‘third
parties ’; alternatively, it was wrong to hold that such a
principle operated so as to exclude the application of the
limitation rule as sought by Scott.
The Court of First Instance was wrong to regard it as
relevant to the application of Article 15 that Scott couldhave had no legitimate expectation that the aid was lawfullygranted originally; the purpose of Article 15 is to providelegal certainty where, ex hypothesi, the aid was not lawfullygranted.
The Court of First Instance wrongly disregarded the wording
of Article 15 and failed to address an important argument
addressed to it by Scott, summarised by the Court of First
Instance at paragraph 42 of the judgment.
The Court of First Instance was wrong to treat it as relevant
that there was no limitation rule in force on the expiry of10 years from the grant of the aid to Scott.
(1) OJ C 61, 24.02.2001, p. 16.
(2) 2002/14/EC: Commission Decision of 12 July 2000 on the state
aid granted by France to Scott Paper SA Kimberly-Clark (Text with
EEA relevance) (notified under document number C(2000) 2183)
(OJ L 12, 15.01.2002, p. 1).
(3) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty (OJ L 83, 27.03.1999, p. 1).