Case T-173/01: Action brought on 25 July 2001 by Asahi Vet Sa against the Commission of the European Communities
Date: 2001-10-13
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), animal nutrition, food additive, food industry, marketing

13.10.2001

EN

Official Journal of the European Communities

C 289/31

— adopt such measures as it deems necessary;

Action brought on 25 July 2001 by Asahi Vet Sa against
the Commission of the European Communities

— order the Commission of the European Communities to
pay the applicant the costs of the proceedings in their
entirety.

Pleas in law and main arguments

The applicant is a joint-enterprise company governed by
Argentinean law, established by a European Communities
undertaking and an Argentinean ship owning company, to
which the Commission granted aid by decision of 25 July
1995 (1).
In 1997 the Commission decided to initiate a
procedure to reduce the aid granted, without first suspending
payment of the balance of the aid by formal decision (2).
On 19 March 2001 the Commission adopted a decision
withdrawing the balance of the aid. The applicant was excluded
from the scope of application of that decision (3).

(Case T-173/01)

(2001/C 289/71)

(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 25 July 2001 by Asahi Vet SA of
Rubı´, Barcelona (Spain), represented by Dr Carsten Bittner.

The applicant claims that the Court should:

Faced with that situation, on 18 May 2001, the applicant
formally called upon the Commission to pay the balance of
the aid still outstanding. That request satisfies all the legal
requirements laid down in case-law. The Commission failed to
define its position with regard to that request within the two-
month period provided for in Article 232 EC.

— Annul Commission Regulation No 937/2001 of 11 May
2001 (1) in so far as it limits the provisional authorisation
of the additives Bacillus cereus var. toyoi (ToyoCerin) for
fattening chickens, laying hens, calves, fattening cattle,
fattening rabbits and breeding rabbits to the period up to
1 March 2002;

The applicant maintains that the Commission was under an
obligation to act, given that it is the body responsible for
ordering the payment of the aid and remitting the Community
funds in question to the Argentinean authorities, who merely
execute the payment. Thus, by failing to answer the said
request, the Commission failed to fulfil its obligations.

Pleas in law and main arguments

— Order the defendant to pay the costs.

(1) Aid granted within the framework of Council Regulation (EEC)
No 3447/93 of 28 September 1993 on the conclusion of the
Agreement between the European Economic Community and the
Argentine Republic on relations in the sea fisheries sector (OJ
1993 L 318, p. 1).

(2) The two addressees of the decision to grant the aid (the Com-
munity undertaking and the joint enterprise) then brought an
action in non-contractual liability, claiming damages on account
of the Commission’s unlawful action (Case T-44/01 Eduardo
Vieira and Vieira Argentinav Commission, OJ 1997 C 134, p. 26).
(3) The decision was challenged by its addressee, the Community
undertaking, in Case T-126/01 Eduardo Vieirav Commission, ECR
II-0000.

The applicant is a subsidiary of the Japanese company Asahi
Vet Japan Co. Ltd, which developed the feeding stuff 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
Article 3 and following of Council Directive 70/524/EEC (2).

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 (3). That temporary authorisation was
extended to 20 February 2001 by Regulation (EC)
No 2697/2000 (4). The use of ToyoCerin was not authorised
for a period of more than three months under that regulation.

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.