Case T-176/01: Action brought on 31 July 2001 by Ferrieri Nord SPA against the Commission of the European Communities
Date: 2001-10-13
Institutions: Court of First Instance
Subjects: European Commission, Friuli-Venezia Giulia, action for annulment (EU), control of State aid, iron and steel industry, regional aid

C 289/32

EN

Official Journal of the European Communities

13.10.2001

The contested regulation granted temporary authorisation for
a limited period, that is to say from 1 June 2001 to 1 March
2002.

Action brought on 31 July 2001 by Ferrieri Nord SPA
against the Commission of the European Communities

The action is directed against the Commission’s regulation
limiting the temporary authorisation of ToyoCerin to the
period ending on 1 March 2002. The applicant claims that the
brevity of that temporary authorisation following a period
during which no authorisation was extant means that ToyoCe-
rin will not be able to be distributed on the market even
though there is an authorisation. It is so short that the duration
of the authorisation only marginally exceeds the sales period
required by feedingstuff manufacturers. Accordingly, the prod-
uct cannot in fact be used by the applicant’s purchasers for the
manufacture of feedingstuffs.

form. First of all,

The applicant submits that the contested regulation infringes
general principles of Community law and also is vitiated by
the regulation infringes the
errors of
requirement to give reasons in so far as it does not clearly
show — even though the Commission has no further concerns
about renewing the temporary authorisation — why the
authorisation has to be limited to nine months. For example,
two other micro-organisms of the Saccharomyces Cerevisiae
type received temporary authorisation for four years under the
same regulation. The regulation also therefore infringes the
general principle of equality and discriminates significantly
the applicant’s product — it metes out unequal
against
treatment which is not justified on objective grounds.

(Case T-176/01)

(2001/C 289/72)

(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 31 July 2001 by Ferriere Nord
SPA, represented by Wilma Viscardini and Gabriele Donà,
lawyers, against the Commission of the European Communi-
ties.

The applicant claims that the Court should:

— annul, pursuant to Article 230 of the EC Treaty, Com-
mission Decision C(2001) 1010 final of 28 March 2001
finding incompatible with the common market the aid
granted by the Regione Autonoma Friuli-Venezia Giulia
to Ferriere Nord SPA (worth ITL 1 650 000 000) for
environmental investments in a new plant for the pro-
duction of electrically welded mesh;

The applicant furthermore claims that the regulation is not
proportionate and that it does not constitute a measure that is
appropriate either to authorise or to prohibit the additive
ToyoCerin. Finally the regulation is contradictory and infringes
the principle of proper administration.

— order the Commission to pay compensation pursuant to
Articles 235 and 288(2) of the EC Treaty for the damage
suffered by Ferriere Nord SPA as a consequence of the
illegal decision (c(2001) 1010 final of 28 March 2001)
and the consequent delay in paying the aid illegally
cancelled;

(1) Commission Regulation (EC) No 937/2001 of 11 May 2001
concerning the authorisation of new additive uses, new additive
preparation, prolongation of provisional authorisations and the
10 year authorisation of an additive in feedingstuffs (OJ 2001
L 130, p. 25).

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

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

(4) Commission Regulation (EC) No 2697/2000 of 27 November
2000 concerning the provisional authorisation of additives in
feedingstuffs (OJ 2001 L 319, p. 1).

— order the Commission to pay all costs and fees.

Pleas in law and main arguments

The contested decision concerns a production plant, for which
the regional aid at issue was requested, capable of bypassing
the cold rolling process (drawing the wire), the straightening
of the wire and its cutting to measure. The new manufacturing
process provided for the use of wire with special technical
characteristics enabling it to be used directly as steel wire in
the process for assembling the mesh. The applicant maintains
that the aid should be regarded as an instance of the application
of the general aid scheme provided for by Friuli-Venezia Giulia
Regional Law No 47 of 3 June 1978, as amended by Regional
Law No 2 of 20 January 1992. Following the adoption of a
number of amendments, the Commission decided not to raise
objections under Articles 92 or 93 of the EEC Treaty (now
Articles 87 EC and 88 EC) with regard to the 1992 Law.

13.10.2001

EN

Official Journal of the European Communities

C 289/33

In support of its application, the application submits:

— The formal investigation procedure was initiated illegally,
in so far as the aid granted to the applicant constitutes no
more than the application in a particular case of the
scheme set up by the 1978 Law, as subsequently
amended, which had been approved by the Commission.
The Commission assessed the aid directly in the light of
the provisions of the Treaty, as well as by reference to an
aid scheme which had already been authorised.

— Both the initiation of the formal investigation and its
findings exceeded the proper scope of such investigations;

the environment

— Breach of the principle of legal certainty, the protection
of legitimate expectations and the rights of the defence.
In particular, it is submitted that the contested decision
(paragraph 3) is based on the Community rules governing
in
State aid for the protection of
2001 (1), whereas the investigation of the aid to Ferriere
was conducted wholly by reference to the environmental
legislation for 1994. The decision to open the formal
procedure under Article 88(2) of the EC Treaty and the
invitation to interested parties to submit observations
were made with reference to the 1994 rules and it was
on the basis of that legislation the applicant submitted its
observations.
In consequence, Ferriere was unable to
exercise its rights of defence. The applicant contests, inter
alia, the Commission’s statement that neither the Italian
authorities nor the applicant produced adequate docu-
mentary evidence of the environmental aims underlying
the grant of the aid in question.

— Breach of the principle of sound administration, in so far

as the Commission:

— decided to open the formal procedure when this was

not permissible;

— failed to choose the correct legal basis (whether
under ECSC or EC law) for evaluating the aid;

— constantly altered the reasons given for first suppos-
ing and then confirming that the aid granted was
incompatible with the common market;

— conducted the investigation on the basis of the 1994
environmental legislation but, upon the conclusion
of that enquiry, adopted a decision on the basis of
more recent legislation (the 2001 rules).

It is also submitted that:

— the aid was evaluated in arbitrary fashion as regards
the benefits of the Ferriere investment in the working

evironment in terms of reducing noise and atmospheric
pollution;

— the Commission failed to evaluate the investment in

terms of the elimination of hazardous waste;

— the aims of the investment were evaluated in arbitrary
fashion and the Community rules governing aid for
protection of the environment were misapplied.

(1) OJ 2001, C 3, p. 3.

Action brought on 2 August 2001 by Jego-Quéré & Cie
S.A. against the Commission of the European Communi-
ties

(Case T-177/01)

(2001/C 289/73)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 2 August 2001 by Jego-Quéré &
Cie S.A., established at Lorient (France), represented by Antonio
Creus Carreras, Begon˜ a Uriarte Valiente and Albert Augustinoy
Guilayn, avocats.

The applicant claims that the Court should:

— annul Articles 3(d) and 5 of the Commission Regulation
of 14 June 2001 establishing measures for the recovery
of the stock of hake in ICES sub-areas III, IV, V, VI and
VII and ICES divisions VIII a, b, d, e and associated
conditions for the control of activities of fishing vessels
(OJ 2001 L 159, p. 4);

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant’s activities are concentrated on fishing for
whiting, with only incidental by-catches of hake, in the areas
in which the contested regulation is applicable.

In support of its application, the applicant pleads violation of
the principles of proportionality and of equality and a failure
to fulfil the obligation to provide a statement of reasons. The
applicant claims that the Commission has failed to take its
specific situation into account, whereas it has taken into
account that of other fishermen making only incidental by-
catches of hake, and has laid down exceptions and specific
measures in relation to them. Those exceptions and specific
measures do not relate to the applicant.