Case T-118/01: Action brought on 31 May 2001 by Diputación Foral de Bizkaia against the Commission of the European Communities
Date: 2001-08-11
Institutions: Court of First Instance
Subjects: European Commission, Spain, State aid, action for annulment (EU), control of State aid, maritime transport

11.8.2001

EN

Official Journal of the European Communities

C 227/29

The applicant claims that the Court should:

— annul the Commission’s decision not to promote him to
grade A6 in the course of the 2000 promotion procedure;

— order the Commission to pay the costs.

article. In the applicant’s view, the present case does not
involve any selective advantage of the type which is
inherent in all aid, at least as regards the amounts paid to
FGV, the consideration for which was the provision of a
maritime transport service.

Pleas in law and main arguments

In support of his action, the applicant pleads a failure to
provide a statement of reasons, as required by Article 25 of
the Staff Regulations, and also infringement of Article 45 of
the Staff Regulations and breach of the principle of equal
treatment and the principle that officials should have reason-
able career prospects. The applicant bases his claim, inter alia,
on the absence of a staff report.

Action brought on 31 May 2001 by Diputacio´ n Foral
de Bizkaia against the Commission of the European
Communities

(Case T-118/01)

(2001/C 227/56)

(Language of the case: Spanish)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 31 May 2001 by Diputacio´ n Foral
de Bizkaia, established in Bilbao (Spain), represented by
Marta Morales Isasi and Ignacio Saenz-Cortabarria Ferna´ndez,
abogados.

The applicant claims that the Court should:

— annul the Commission’s decision of 29 November 2000
on the aid scheme implemented by Spain in favour of the
shipping company Ferries Golfo de Vizcaya (OJ L 89 of
29 March 2001, p. 28);

— annul Article 2 of that decision in so far as it orders the
recovery of ESP 985 500 000 together with interest
thereon;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant bases its action on the following pleas:

— Infringement of Article 87(1) EC, on account of the
incorrect assessment made by the Commission in con-
sidering, from the outset, that all the amounts granted to
Ferries Golfo de Vizcaya (FGV) under the 1995 Agree-
ment constitute State aid within the meaning of that

— Misinterpretation of the concept of aid within the mean-
ing of the abovementioned article,
inasmuch as the
Commission states that the amounts paid in return for
travel vouchers did not correspond to any actual need of
the applicant, since they had not yet been used as at the
date when the contested decision was adopted. The
applicant asserts in that regard that the travel vouchers
do not have to be used within any specific period
and that the purchase of them constituted a normal
commercial transaction.

— Breach of the right to property enshrined in Article 295
EC,
inasmuch as the contested decision obliges the
contractor providing the transport service to refund all
the amounts received, on the basis of the non-utilisation
of the vouchers purchased. The applicant states that the
imposition of that obligation entails a de facto restriction
on the capacity to conclude contracts which goes beyond
what is permitted by the Community rules governing
State aid.

— Absence or insufficiency of a statement of reasons for the
decision, inasmuch as it does not show that the 1995
Agreement has any real effect on competition and intra-
Community trade.

— Misinterpretation of Article 87(2)(a) EC, inasmuch as the
Commission, having acknowledged that the aid benefits
individual consumers with special needs and may there-
fore be regarded as aid having a social character, goes on
to state, without producing any evidence in support, that
the condition laid down by the Treaty (namely, the
absence of discrimination related to the origin of the
products concerned) is not fulfilled.

In the alternative, in the event that the Court of First Instance
considers that — as the contested decision maintains — the
1995 Agreement in itself constitutes State aid in favour of
FGV within the meaning of Article 87(1) EC, the applicant
asserts that it is lawful aid (existing aid), since the Kingdom of
Spain has not infringed the obligation laid down in the final
sentence of Article 93(3) of the Treaty (now Article 88(3) EC).
Given that what is involved is lawful aid, Article 14(1) of
Regulation (EC) No 659/1999 of 22 March 1999 laying down
detailed rules for the application of Article 93 of the EC Treaty
does not permit its recovery, and Article 2 of the decision is
therefore null and void.