Case T-197/01: Action brought on 14 August 2001 by Société Coopérative Agricole GIPAM against Commission of the European Communities
Date: 2001-10-27
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), agricultural cooperative, implementing Regulation, restriction on competition, tropical fruit

C 303/24

EN

Official Journal of the European Communities

27.10.2001

The Commission has now decided to open a procedure under
Article 88(2) EC, qualifying the legislation in question as
non-notified new aid. According to the Commission, the
amendments made to the legislation in 1979 and 1983,
following the United Kingdom’s accession to the European
Communities, were substantial modifications, so that the entire
scheme had to be qualified as new aid. That decision is now
contested by the applicant.

According to the applicant, the Commission has violated
Gibraltar’s rights of defence, by providing an insufficient
statement of the reasons for the contested decision and by
insufficiently hearing the Government of Gibraltar as the party
directly and individually concerned by the decision. In addition,
the Commission has violated the United Kingdom’s rights of
defence,
in so far as they constitute essential procedural
requirements.

Further, the applicant claims that the decision is incompatible
with Article 88 of the EC Treaty and that the Commission has
violated the principle of proportionality and the principles of
legal certainty and legitimate expectations, as well as failing to
fulfil its duty to exercise due diligence.

According to the applicant, the legislation in question cannot
be qualified as new aid since that legislation already existed
prior to the accession of the United Kingdom to the European
Community, and because the later 1976 and 1983 amend-
ments did not alter the legislation substantially. It should
therefore rather be considered as existing aid under Article 88
(1) EC.

To proceed now under Article 88(2) EC in respect of new aid
would be to impose an unjustified burden with possibly
grave consequences, especially since an investigation under
Article 88(1) EC Treaty would, for the applicant, constitute a
measure having a comparable effect and less severe conse-
quences. In addition, having regard to the time which has
elapsed since the amendments in question were adopted, the
applicant finds the decision disproportionate. In this respect,
the applicant also points out that the amendments in question
are severable from the rest of the tax system and that there is
therefore no need to call in question the entire system.

the

applicant. The

18 and 23 years after the amendments in question, would
violate the principle of legal certainty and the legitimate
in
expectations of
Article 1(b)(iv) of Regulation No 659/1999 for regarding state
aid as new aid expired long ago. This principle should,
according to the applicant, also apply in equity to the
Commission’s review of alterations to existing aid schemes, as
is the case here.

time-limit

set

Finally, the applicant states that the Commission’s investigation
prior to the decision was too lengthy, and therefore constitutes
a breach of the Commission’s duty to exercise due diligence
and of the principle of good administration.

Action brought on 14 August 2001 by Société Coopéra-
tive Agricole GIPAM against Commission of the European
Communities

(Case T-197/01)

(2001/C 303/39)

(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 14 August 2001 by Société
Coopérative Agricole GIPAM, whose registered office is at
Ducos (France), represented by Alain Lorang, Hubert Mazingue
and Patrick Leroyer Gravet, lawyers, with an address for service
in Luxembourg.

The applicant claims that the Court should:

— annul Commission Regulation No 896/2001 of 7 May

2001;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant further claims that since the accession of the
United Kingdom to the European Communities, and since the
time when the amendments in question were made, the
interpretation of ‘state aid’ under EC law has evolved, especially
in relation to fiscal measures. At that time, that type of measure
was, according to the applicant, not generally regarded as
falling within the rules of the EC Treaty concerning state aid.
There was therefore no reason to notify the legislation at that
time. To regard that legislation as new aid now, respectively

In support of its arguments, the applicant claims that the
regulation at issue (1) does not comply with Council Regulation
No 404/1993 (2) for whose application the contested regu-
lation lays down detailed rules. According to the applicant,
those rules adversely affect the rights acquired by the applicant
under the earlier regulations adopted to implement Regulation
No 404/1993. Under those earlier regulations, the applicant
was characterised as a traditional importer, which is no longer

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.