Case T-55/01: Action brought on 9 March 2001 by Asahi Vet SA against the Commission of the European Communities
Date: 2001-06-02
Institutions: Court of First Instance
Subjects: European Commission, Spain, action for failure to act, animal nutrition, food industry

C 161/20

EN

Official Journal of the European Communities

2.6.2001

— further, or in the alternative, to annul under Article 230
(ex 173) of the EC Treaty the implied decision of the
Commission not to initiate the procedure provided for
under Article 88(2) of the EC Treaty (ex93(2)) regarding
the applicant’s complaint at all, or at least regarding that
part of the applicant’s complaint dealing with the period
up to 1995 outside the scope of the Case C-31/98
procedure, (and/or the implied decision not to close the
preliminary investigation procedure in any of the other
ways available to it), contained in a letter dated 7 February
2001;

compatibility with the common market. It follows that the
Commission has committed an error of law and a procedural
irregularity by not initiating the procedure provided for under
Article 88(2) (ex 93(2)) of the Treaty.

(1) See Commission communication pursuant to Article 93(2) of the
EC Treaty to the other Member States and other interested parties
concerning aids in the shipping sector (State aids for the shipping
company Brittany Ferries (BAI)), C 31/98, OJ C 244, 4.8.1998,
p. 9.

— order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

Action brought on 9 March 2001 by Asahi Vet SA against
the Commission of the European Communities

The applicant is a ferry operator which provides tourist and
freight ferry services on certain routes between France and the
United Kingdom in the western end of the Channel. Its main
competitor is the French ferry operator Bretagne-Angleterre-
Irlande S.A. (‘Brittany Ferries’).

In February 2000, the applicant submitted a complaint to the
Commission against State aid granted to Brittany Ferries by
the French authorities. Prior to this complaint, the Commission
initiated a formal investigation procedure against certain State
aid granted to Brittany Ferries in 1998 (1). However, according
to the applicant, a part of its complaint is not covered by this
procedure.

The applicant submits that by failing to define its position on
the complaint, the Commission has, in breach of Article 232
EC, failed to act. In particular, the Commission has failed to
adopt one of the three decisions that it is required by the
Court’s case law to take in order to close the preliminary
examination of State aid within a reasonable time when it has
serious doubts as to whether a measure constitutes aid and, if
so, as to whether it is compatible with the common market.
Each of such decisions is of direct and individual concern to
the applicant under Article 230 EC.

As far as the grounds for annulment are concerned, the
applicant claims that it is clear from the correspondence and
meetings between the parties that the Commission had cause
its
to suspect

the existence of State aid and to doubt

(Case T-55/01)

(2001/C 161/44)

(Language of the case: German)

An action against the Commission of the European Communi-
ties as brought before the Court of First Instance of the
European Communities on 9 March 2001 by Asahi Vet SA,
Rubı´, Barcelona (Spain), represented by Rechtsanwalt Carsten
Bittner.

The applicant claims that the Court should:

— annul

the defendant’s decision of 29 January 2001
rejecting the applicant’s request for an unlimited unauth-
orisation in respect of ToyoCerin for rearing pigs, sows
and piglets, and an interim authorisation for fattening
chickens, laying hens, calves, fattening cattle, fattening
rabbits and breeding rabbits;

— require the defendant to propose to the Standing Com-
mittee for Feedingstuffs under Article 23(3) of Directive
70/524/EEC that it be awarded an unlimited Community
authorisation in respect of ToyoCerin for use with rearing
pigs, piglets and sows;

— require the defendant to propose to the Standing Com-
mittee for Feedingstuffs under Article 23(3) of Directive
70/524/EEC that it be awarded a temporary Community
authorisation in respect of ToyoCerin for use on fattening
chickens, laying hens, calves, fattening cattle, fattening
rabbits and breeding rabbits;

— order the defendant to pay the costs.

2.6.2001

EN

Official Journal of the European Communities

C 161/21

Pleas in law and main arguments

Action brought on 12 March 2001 by Solvay SA against
the Commission of the European Communities

The applicant is a subsidiary of the Japanese company Asahi
Vet Japan Co. Ltd, which developed the feedingstuff additive
ToyoCerin, and is the only manufacturer of that additive in the
world. The applicant produces the additive for the European
market in Spain and distributes it in Europe. In that capacity,
the applicant is the applicant in a procedure for Community
authorisation in respect of the additive ToyoCerin pursuant to
Articles 3 and following of Council Directive 70/524/EEC (1).

The applicant first applied for a Community authorisation in
respect of ToyoCerin for all categories of animal in 1991, and
a temporary authorisation for ToyoCerin in respect of the
following categories of animal was granted in 1994: rearing
pigs, piglets and sows. That temporary authorisation was
periodically extended until April 1999. As regards other
animals, such as fattening chickens, cattle and fattening rabbits,
ToyoCerin was authorised on a temporary basis by Regulation
(EC) No 1411/1999 (2). The applicant claims that that tempor-
ary authorisation was not extended and that the applicant’s
request for unlimited authorisation of ToyoCerin in respect of
rearing pigs, piglets and sows has not been determined.

The action is directed against the Commission’s decision to
dismiss the applicant’s request for unlimited authorisation in
respect of ToyoCerin for use on swine, and for an extension of
the temporary authorisation in respect of use of ToyoCerin on
other types of animal. The applicant claims that it is entitled
to be awarded the authorisation it is requesting pursuant to
Article 3(a) of Directive 70/524/EEC, and that the Com-
mission’s decision not to propose to the Standing Committee
for Feedingstuffs that such authorisation be granted, and to
dismiss the applicant’s request, infringes that provision.

Furthermore, the applicant has legitimate expectations in the
present case, pursuant to which it was entitled to assume that
ToyoCerin would be granted fresh authorisation for categories
of animal other than swine before the temporary authorisation
expired. Finally, the procedure followed by the defendant
infringes the provisions relating to the time limits within
which the authorisation procedure is to be carried out and
the defendant’s contested decision infringes the principle of
proportionality and the requirement to provide reasons in
Directive 70/524/EEC.

(1) Council Directive 70/524/EEC of 23 November 1970 concerning
additives in feeding stuffs (OJ L 270, p. 1), most recently amended
by Commission Regulation (EC) No 45/1999 of 11 November
1999 (OJ L 6, p. 3).

(2) Commission Regulation (EC) No 1411/1999 of 29 June 1999
concerning the authorisation of new additives and new additive
uses in feedingstuffs (OJ L 164, p. 56).

(Case T-57/01)

(2001/C 161/45)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance on 12 March
2001 by Solvay SA, established in Brussels, represented by
Lucien Simont, Paul Alain Foriers, Guy Block Frédéric Louis
and Anne Vallery, Lawyers.

The applicant claims that the Court of First Instance should:

— find that the action taken against it was time-barred;

— in any event, annul

the Commission Decision of
13 December 2000 relating to a procedure under
Article 82 of the Treaty (COMP/33.133-C: Soda-ash —
Solvay);

— find that the power to impose fines is time-barred;

— in any event, annul Article 2 of the contested decision, in
so far as it imposes a fine of EUR 20 million on the
applicant;

— declare that no fine should be imposed on the applicant
or, at the very least, that the fine should be substantially
reduced;

— order the Commission to pay the costs.

Contentions and principal arguments adduced in support

The applicant is a company incorporated under Belgian law,
which operates in the soda-ash sector through marketing
outlets in nine countries in Europe.

On 19 December 1990, the Commission adopted Decision
91/299/EEC (1) finding that the applicant held a dominant
position on the soda-ash market in continental Europe and
had abused that position, and imposed on the applicant a fine
of ECU 20 million. An action for the annulment of that initial
decision was brought before the Court of First Instance. By
Instance
judgment of 29 June 1995,
annulled the decision (2). The Commission’s appeal against that
judgment was dismissed by the Court (3).

the Court of First