Case T-138/01: Action brought on 19 June 2001 by F against the Court of Auditors of the European Communities
Date: 2001-09-15
Institutions: Court of First Instance
Subjects: European Court of Auditors, abuse of power, action for annulment (EU), appointment of staff, information profession

15.9.2001

EN

Official Journal of the European Communities

C 259/13

Zeitzer Maschinen, Anlagen Geräte GmbH, LandTechnik
Schlüter GmbH, ILKA MAFA Kältetechnik GmbH, SKL Motore-
n- und Systembautechnik GmbH, SKL Spezialapparatebau
GmbH, Magdeburger Eisengießerei GmbH, Saxonia Edelmetal-
le GmbH and Gothaer Fahrzeugwerk GmbH)
(State aid
No C 41/99 (EXN49/95) Germany) in so far as it affects
ZEMAG (Zeitzer Maschinen, Anlagen Geräte) GmbH.

Action brought on 19 June 2001 by F against the Court of
Auditors of the European Communities

(Case T-138/01)

(2001/C 259/23)

Pleas in law and main arguments

(Language of the case: French)

By the contested decision, the Commission required Germany
to demand repayment of aid totalling DEM 34 978 million
from Lintra Beteiligungsholding GmbH and its subsidiary
companies. A total sum of DEM 6 496 271 was filed against
ZEMAG GmbH in the context of that company’s insolvency
proceedings. The Commission claims that the aid to the ‘Lintra
Group’ was unlawful and used in contravention of what was
laid down by the approved restructuring plan.

The applicant claims that the Commission made its decision
on the basis of false premisses. Also, the Commission did not
consider itself required to examine to what extent individual
undertakings within the group profited from the aid, liability
being assumed on grounds of convenience without any more
searching enquiries of subsidiary companies such as ZEMAG
GmbH.

The applicant argues that the Commission misused its discre-
tion. It demands the repayment of aid directly from the debtor
on insolvency, although the aid was not paid to the latter but
to the holding company.

further argues that

The applicant
the procedure under
Article 88(2) EC has been partially circumvented. The contested
the
measure was thus in breach of discretion, since,
Commission had investigated the matter carefully, it would
have been better able to judge the specific situation. It would
then also have been able to determine specifically what amount
of aid might under certain circumstances have been actually
reclaimable from the applicant.

if

An action against the Court of Auditors of the European
Community was brought before the Court of First Instance of
the European Communities on 19 June 2001 by F, domiciled
in Luxembourg, represented by Patrick Goergen, Lawyer, with
an address for service in Luxembourg.

The applicant claims that the Court should:

— Annul the Decision of 4 December 2000.

— Order the Court of Auditors of the European Communi-
ties to pay the applicant the sum of EUR 100 000 in
compensation for non-material damage suffered.

— Order the Court of Auditors of the European Communi-

ties to pay the costs.

Pleas in law and main arguments

The applicant challenges the decision to reassign her to the
translation service as a principal revisor translator responsible
for unrevised Italian translations and under the direct authority
of head of division but not attached to the Italian section.

Irrespective of an obligation to demand repayment of the aid
in question, such an obligation would affect ZEMAG GmbH
only if the former company members remained members of
the company after the second privatisation in 1997, which
was not the case. Direct personal liability of members thus
ceased to exist, at least after the second privatisation. Nor,
finally, was there any legal basis for demanding repayment
from the subsidiary companies in accordance with a formula,
as laid down in the contested decision.

In support of her action, the applicant pleads infringement of
procedural requirements in so far as the contested decision
contains no grounds and infringement of the rights of the
defence, a manifest error of assessment, infringement of the
principle of the protection of legitimate expectations and
infringement of the principle of proper administration and the
duty to have regard for the welfare of officials. The applicant
further claims misuse of power.