Case T-167/01: Action brought on 17 July 2001 by Schmitz-Gotha Fahrzeugwerke GmbH against the Commission of the European Communities
Date: 2001-09-29
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), control of State aid, motor vehicle industry

C 275/16

EN

Official Journal of the European Communities

29.9.2001

The applicant states in that respect that, in Case C-257/98
P Lucaccioni v Commission, the damages sought were exam-
ined by the Court of Justice only in the context of the Staff
Regulations and with regard to occupational diseases. Despite
the fact that the Medical Committee’s report had given the
diagnosis date as January 1990, the Court took the view that
payment of the compensation/interest should be dated from
April 1994, the date on which the proceedings were brought
to a close. It is therefore evident that the Court did not take
into account the non-material and biological damage suffered
by the applicant and unquestionably caused by the European
Commission from September 1967 until April 1994, or at
least until November 1980, in accordance with the legal rules
currently in force, the Charter of fundamental rights of the
European Union and the Convention on Human Rights.

(1) Case T-165/95 Lucaccioniv Commission [1998] ECR FP-IA-

203,II-67.

Action brought on 17 July 2001 by Schmitz-Gotha
Fahrzeugwerke GmbH against the Commission of the
European Communities

(Case T-167/01)

(2001/C 275/31)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 July 2001 by Schmitz-Gotha
Fahrzeugwerke GmbH, Gotha (Germany), represented by
Martin Matzat, Rechtsanwalt.

The applicant claims that the Court should:

— annul Commission Decision No C 41/99 (ex N 49/95) of
28 March 2001 in so far as it holds the applicant liable
in respect of the portion of aid due for repayment
attributable to Gothaer Fahrzeugwerk GmbH;

— in the alternative, should the Commission’s decision not
be open to a challenge in part, annul the above decision
in its entirety;

— order the Commission to pay the costs.

Pleas in law and main arguments

By its decision of 28 March 2001, the Commission ordered
the Federal Republic of Germany to recover aid totalling
DEM 34 978 000 from Lintra Beteiligungsholding GmbH
and/or
including Gothaer Fahrzeugwerke
GmbH.

its subsidiaries,

Gotha Fahrzeugwerke GmbH’s main activity was in the vehicle
construction business. The company’s assets in that area were
transferred to the applicant. According to the applicant, the
Commission may be acting on the assumption that
the
applicant is the (partial)
legal successor to Gothaer Fahr-
zeugwerke GmbH, thereby establishing liability for repayment
on the part of the applicant even though only assets were
acquired.

According to the applicant, Gothaer Fahrzeugwerk GmbH,
which is currently in liquidation, repaid its share of the total
amount of aid to be repaid. If, however, that company were to
be declared insolvent, that repayment might be called back
into question and the corresponding amount partially or
insolvency mass. For that
wholly included in the general
reason, the applicant has a legal
interest in Commission’s
decision being annulled.

The applicant argues that there has been an infringement of
essential procedural requirements on account of inadequate
reasoning for the decision, inasmuch as the Commission holds
that the decision enables a requirement for repayment to be
established against the applicant. The applicant submits that,
if the Commission orders in a decision that aid should be
reclaimed from certain undertakings named in that decision,
that decision is limited solely to those particular undertakings.
If, however, the Commission takes the view that other, third-
party, undertakings, which are legally independent and have
merely had assets transferred to them, may also be held liable
for repayment of the aid, such a view requires that those
undertakings be specifically named in the decision itself and
that a detailed justification be provided as to why the factual
requirements for such liability are present.

The applicant further argues that, by assuming or declaring
the applicant to be liable, the Commission has infringed the
Treaty. It maintains, inter alia, that to hold the acquirers of
assets unrestrictedly liable is not compatible with Community
principles. In particular, such comprehensive liability infringes
the principle of proportionality. Moreover, the claims for
repayment bore no relation to the assets taken over.

29.9.2001

EN

Official Journal of the European Communities

C 275/17

Finally, the applicant argues that the Commission has misused
its discretion in ordering repayment at Gothaer Fahrzeugwerk
GmbH’s expense of aid totalling DEM 7 100 136. It argues
that the Commission did not take account of Gothaer Fahr-
zeugwerk GmbH’s contribution to the overall result. It adds
that DEM 3300000 were undeniably used in accordance with
the initial objective, and that
the remaining amount of
DEM 3800336 was determined on the basis of a distribution
ration arbitrarily adopted by the Commission, so that the
contested decision is contrary to Community law and void.

The Commission found that these terms and conditions of sale
were contrary to Article 81(1) of the EC Treaty since they
restricted parallel imports and exports to other Member States.
This decision is now contested by the applicant.

its Application,

In support of
the applicant contests the
applicability of Article 81(1) EC Treaty on the grounds that
the conditions of sale do not constitute an agreement and they
have no restrictive object or effect. The applicant further claims
that the conditions of sale compensate for a market irregularity
caused by the setting of prices by the Spanish authorities. In
the alternative, the applicant claims the conditions of sale are
eligible for an exemption under Article 81(3) EC Treaty.

Action brought on 23 July 2001 by Glaxo Wellcome plc
against the Commission of the European Communities

(Case T-168/01)

(2001/C 275/32)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 23 July 2001 by Glaxo Wellcome
plc, having its registered office in Middlesex (UK), represented
by I.S. Forrester Q.C. and A.P.
Schulz of White & Case
Brussels, F. Depoortere, T. Louko and I. Vandenborre of
Skadden, Arps, Slate, Meagher & Flom LLP, Brussels, and
S. Martinez Lage of Martinez Lage & Associados

The applicant claims that the Court should:

— annul the Commission decision of 8 May 2001;

— take such other or further steps as justice may require;

— order the Commission to pay the costs.

Action brought on 3 August 2001 by Euroagri s.r.l. against
Commission of the European Communities

(Case T-180/01)

(2001/C 275/33)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 3 August 2001 by Euroagri s.r.l.,
represented by Walter Masucci, lawyer.

The applicant claims that the Court should:

— annul the decision of the Commission of the European

Communities of 6 June 2001 C(2001)1274;

— in the alternative, annul in part the contested decision
and reduce, in proportion with the actual investments
made, the financial contribution allocated to Euroagri
s.r.l. by the Commission’s decision of 3 December 1992;

— order the Commission of the European Communities to

pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The applicant notified its new terms and conditions of sale to
the Commission pursuant to Regulation 17/62. The new terms
and conditions of sale of the applicant consisted of two
different pricing systems for its pharmaceutical products. The
first one was used for products to be sold in Spain and financed
by the Spanish Social Security system. In this case the prices
were, according to the applicant, all set by the Spanish
authorities at a low level. The second system applied to
products to be sold outside the scope of the Spanish price
setting system by wholesalers authorised according to Spanish
Law. In the latter system, the prices were set by the applicant.

By this application, the applicant company seeks the annul-
ment of the decision of the Commission of the European
Communities of 6 June 2001 C(2001)1274 cancelling the
itself by decision
contribution allocated to the applicant
C(92)3124 of 3 December 1992, pursuant to Council Regu-
lation (EEC) No 4256/88 of 19 December 1988, laying down
provisions for implementing Regulation (EEC) No 2052/88 as
regards the EAGGF Guidance Section (1) in the context of
project No 92. IT.06.069 entitled ‘Pilot demonstration project
for the use of new “Endovena” technology on fruit trees’.