Case T-198/01: Action brought on 28 August 2001 by Technische Glaswerke Ilmenau GmbH against the Commission of the European Communities
Date: 2001-10-27
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), control of State aid, glass industry

27.10.2001

EN

Official Journal of the European Communities

C 303/25

the case under the present regulation. Thus the Commission
has distorted competition and discriminated between those
undertakings able to satisfy the references laid down in the
new implementing regulation and the remaining undertakings.

(1) Commission Regulation (EC) No 896/2001 of 7 May 2001
laying down detailed rules for applying Council Regulation (EEC)
No 404/93 as regards the arrangements for importing bananas
into the Community (OJ L 126, 08/5/2001, p. 6).

(2) Council Regulation (EEC) No 404/93 of 13 February 1993 on the
the market in bananas (OJ L 47,

common organization of
25/2/1993, p. 1).

Action brought on 28 August 2001 by Technische Glas-
werke Ilmenau GmbH against the Commission of the
European Communities

(Case T-198/01)

(2001/C 303/40)

(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 28 August 2001 by Technische
Glaswerke Ilmenau GmbH, Ilmenau (Germany), represented by
G. Schohe, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

— Annul the Commission Decision of 12 June 2001 on
German State aid to Technische Glaswerke Ilmenau
GmbH, Germany — K(2001) 1549;

— Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

the applicant obtained three of the twelve production lines of
that company. A condition of the transfer of ownership was
the agreement by the German Federal State Thüringia to grant
an additional investment subsidy of DEM 4 000 000 in the
framework of the ‘joint Federal Government/Länder scheme
for improving regional economic structures’, whereby the
burden on the applicant owing to the purchase price would be
reduced by that amount. The promise was not fulfilled.

Subsequently the applicant acquired a fourth production
line. In February 1998, because of the applicant’s liquidity
problems, the German Treuhandanstalt waived payment of
the purchase price under the 1994
DEM 4 000 000 of
contract.
In December 1998 Germany notified the Com-
mission of various measures whose aim was the financial
consolidation and long-term profitability of the applicant, and
included the purchase price waiver, which the Commission
has declared incompatible with the common market in the
contested decision.

The applicant claims that the purchase price waiver was not
aid. The purpose of the purchase price waiver was to put the
applicant in the position it would have been in if the full
amount promised had been paid. That promise founded a
claim for payment and a legitimate expectation. Moreover, it
would not have infringed the aid rules if the Treuhandanstalt
had agreed with the applicant in 1994 on a purchase price
that was lower by DEM 4 000 000. The argument that the loss
of the additional aid of DEM 4 000 000 is legally irrelevant,
because the Treuhandanstalt and the Federal State of Thüringia
are different legal persons, is not a sound one.

Moreover, the applicant claims that the Commission wrongly
applied the private investor test. It ought to have examined
whether the purchase price waiver could have led in the long-
term to the applicant’s profitability. Furthermore, the purchase
price waiver has not led to a further, additional loss of State
assets, but is merely a method chosen by Germany to fulfil its
1994 promise.

The action concerns the Commission’s decision declaring State
aid of DEM 4 000 000 by Germany to the applicant to be
incompatible with the common market.

The application states that the Werk für Technisches Glas
Ilmenau, a State-owned company, was the centre of glass
manufacture in the GDR and after unification of the Federal
Republic of Germany and the German Democratic Republic
was converted into the Ilmenauer Glaswerke GmbH. In 1994

In the alternative, the applicant submits that the determination
of the amount of the aid element is incorrect. The Commission
failed to determine the amount by reference to positive
findings of fact. Germany has also avoided losses which would
have arisen without the purchase price waiver, because the
applicant would have become bankrupt if the Treuhandanstalt
had claimed the full amount of the purchase price. Further-
more, the Commission estimated the amount of the aid
element at a sum which contradicts its own findings.

C 303/26

EN

Official Journal of the European Communities

27.10.2001

The applicant claims that the Commission, when exercising its
discretion, did not take account of the fact that another firm
obtains or strengthens a dominant position in specific areas of
glass manufacture if the applicant disappears from the market.
That is a manifest error of appraisal and therefore an infringe-
ment of Article 87(3)(c) EC. Moreover, the Commission took
a restructuring plan as a basis which it knew to be no longer
current.

continue with a view to determining the quantum of the
damage, and order the Community in any event to pay
to be
the damages provisionally quantified and yet
quantified, alternatively order the Community to pay
such compensation as the Court may deem fair and
equitable, together with interest thereon from the date of
the application until payment in full;

(3) order the Commission to pay the costs.

Finally, the applicant complains of infringement of the appli-
cant’s right to a fair hearing, of its rights of defence, of the
principle of good administration, of the duty to state reasons
(Article 253 EC) and of Article 20(1) of Regulation
No 659/1999 (1).

Pleas in law and main arguments

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty (OJ L 83, p. 1).

Action brought on 30 August 2001 by Free Trade Foods
NV against the Commission of the European Communities

(Case T-202/01)

(2001/C 303/41)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 30 August 2001 by Free Trade
Foods NV, established in Curaçao (Dutch West Indies), rep-
resented by M.M. Slotboom and N.J. Helder, lawyers.

The applicant claims that the Court should:

(1)

(2)

annul Regulation 1325/2001 of 29 June 2001 introdu-
cing safeguard measures for imports from the overseas
countries and territories of sugar sector products with
EC/OCT cumulation of origin;

rule that the Community is liable for the damage suffered
by the applicant as a result of the Fifth Safeguard Measure,
and that the parties should seek to reach agreement on
the extent of the damage suffered by the applicant, and
order that, if no such agreement is reached within a time-
limit to be specified by the Court, the proceedings are to

The applicant has a sugar refinery in Curaçao which is used
for processing C sugar from the European Community. That
sugar obtains OCT origin under the EC/OCT cumulation of
origin rule, and can be imported into the Community duty-
free.

By Regulation 1325/2001 of 29 June 2001 (1)
(the Fifth
Safeguard Measure), amended by Commission Regulation
1476/2001 of 18 July 2001 (2), a quota of 4 848 tonnes was
fixed for the period 1 July to 1 December 2001.

The applicant puts forward the following pleas in law in
support of its claims:

— infringement of Article 109 of the OCT decision;

— infringement of the order of preference established by the

EC Treaty in favour of OCT goods;

— infringement of Article 7(5) of the Agreement on Safe-
guards concluded within the framework of the WTO, and
of Article 33(7) EC;

— illegality of Regulation 2553/97, the provisions of which
have been declared applicable by the contested regulation.

(1) Commission Regulation (EC) No 1325/2001 of 29 June 2001
providing for the continued application of safeguard measures
with regard to imports of sugar sector products with EC/OCT
originating status from the overseas countries and territories for
the period 1 July to 1 December 2001 (OJ L 177 of 30 June 2001,
p. 57).

(2) Commission Regulation (EC) No 1476/2001 of 18 July 2001
amending Regulation (EC) No 1325/2001 as regards safeguard
measures with regard to imports from the overseas countries
and territories of mixtures of sugar and cocoa with ACP/OCT
originating status for the period 1 July to 1 December 2001 (OJ
L 195 of 19 July 2001, p. 29).