Case T-137/02: Action brought on 29 April 2002 by Pollmeier Malchow GmbH & Co. KG against the Commission of the European Communities
Date: 2002-07-13
Institutions: Court of First Instance
Subjects: European Commission, State aid, action for annulment (EU), aid to undertakings, size of business, small and medium-sized enterprises

13.7.2002

EN

Official Journal of the European Communities

C 169/39

on Irish Sugar plc. The applicant would point out in this
regard that, as a result of the judgment of the Court of First
instance of 7 October 1999 in Case T-228/97 Irish Sugar -v-
Commission (1), the fine imposed on Irish Sugar by Com-
mission Decision 97/624/EC of 14 May 1997, relating to a
proceeding pursuant to Article 86 of the EC Treaty, was
reduced by 916 674 Euros. The defendant refused to pay
interest on this amount.

— in the alternative, partially annul Decision C (2001) 4447
final of the Commission of the European Communities
of 15 January 2002 to the extent that the claim for
repayment established by the Commission in Article 1
exceeds EUR 2 808 319,95;

— order the defendant to pay all the costs.

According to the Commission, the implied Decision not to
pay interest, i.e. the payment of the principal sum without
the
interest on 4 January 2000, has become definitive,
applicant not having contested it within the two month time
limit, as provided by Article 230 of the EC Treaty.

The applicant submits in this regard that this reasoning is
materially wrong. Firstly, the initial request was not for actual
payment but for confirmation that interest would be paid; for
advice as to the amount thereof and for assistance in this
matter. Secondly, there is no rule in EC Law according to
which silence must be taken to mean a refusal, unless provision
is specifically made for this. Thirdly, not only is payment of
the refund of 916 674 Euros not a refusal of the initial request
it is also, within the
for confirmation regarding interest,
meaning of Article 230 EC, not an actionable act. It follows
that the Commission’s contention that the applicant should
have challenged it at the time is legally erroneous.

(1) [1999] ECR II-2969.

Action brought on 29 April 2002 by Pollmeier Malchow
GmbH & Co. KG against the Commission of the European
Communities

(Case T-137/02)

(2002/C 169/69)

(Language of the case: German)

Pleas in law and main arguments

In Article 1 of the contested decision, the Commission found
that the aid amounting to EUR 3 650 860 granted by Germany
to Pollmeier GmbH, Malchow, was incompatible with the
common market. The applicant is challenging that decision
and claims that the declaration of partial incompatibility with
the common market of
infringes
Community law. All the grounds on which the decision is
founded are based on errors of law or on a manifestly incorrect
assessment of the facts.

the aid granted to it

The applicant claims that it satisfied the SME criteria defined
in the Commission’s Recommendation of 3 April 1996
concerning the definition of small and medium-sized enter-
prises (1) at the time when the aid was granted. Moreover, the
applicant did not circumvent those criteria.

the applicant submits that a review of the
Furthermore,
economic integration in individual cases which is not based
on the SME criteria is illegal because it is precisely those criteria
which must be used to determine whether or not there is
economic integration. In any event, there is no economic
integration.

Alternatively, the applicant submits that the claim for repay-
ment is too high and that its calculation is unclear.

(1) OJ 1996 L 107, p. 4.

Action brought on 26 April 2002 by Nanjing Metalink
International Co. Ltd. against the Council of the European
Union

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 29 April 2002 by Pollmeier
Malchow GmbH & Co., Malchow (Germany), represented by
S. Völcker and J. Heithecker, lawyers.

The applicant claims that the Court should:

(Case T-138/02)

(2002/C 169/70)

(Language of the case: English)

— annul in its entirety Decision C (2001) 4447 final of the
Commission of the European Communities of 15 January
2002;

An action against the Council of the European Union was
brought before the Court of First Instance of the European