Case C-181/02 P: Appeal brought on 15 May 2002 by the Commission of the European Communities against the judgment delivered on 28 February 2002 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Joined Cases T-227/99 and T-134/00 Kvaerner Warnow Werft GmbH v Commission of the European Communities
Date: 2002-07-13
Institutions: Court of Justice
Subjects: European Commission, Germany, State aid, action for annulment (EU), aid to industry, shipbuilding

13.7.2002

EN

Official Journal of the European Communities

C 169/23

European Communities in Case T-218/01 between Laboratoire
Monique Rémy and Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 13 May 2002 by Laboratoire Monique Rémy,
represented by J.F. Pupel, avocat, with an address for service in
Luxembourg.

The appellant claims that the Court should:

— reverse the order of
21 March 2002;

the Court of First

Instance of

ties (Fourth Chamber, Extended Composition) in Joined Cases
T-227/99 and T-134/00 Kvaerner Warnow Werft GmbH v
the European Communities was brought
Commission of
before the Court of Justice of the European Communities on
15 May 2002 by the Commission of the European Communi-
ties, represented by Professor Klaus-Dieter Borchardt of its
legal service and Viktor Kreuschitz,
legal adviser to the
European Commission, with an address for service in Luxem-
bourg at the office of Luis Escobar Guerrero, of its legal service,
Wagner Centre C 254, Kirchberg, Luxembourg.

— suspend operation of the order in respect of Laboratoire

Monique Rémy;

The appellant claims that the Court should:

— order the Commission to pay the costs incurred at first

instance and in the appeal.

Pleas and main arguments

— Failure to respect the right to a fair hearing: although
Article 230 EC prescribes a period of two months for
bringing an appeal, the applicant was able to make use of
only a few days of that period because it had not been
informed that it could appeal, as provided for by the
internal rules of
the Commission, as amended after
November 2001.

— Unforeseeable circumstances and force majeure: in the days
following the events of 11 September 2001, postal and
transport services put in place altogether exceptional
security measures which gave rise to unforeseen and
indefinite delays. In the instant case, transmittal of the
appeal documents was delayed by 6 days longer than the
usual delivery period.

Appeal brought on 15 May 2002 by the Commission of
the European Communities against the judgment deliver-
ed on 28 February 2002 by the Court of First Instance of
the European Communities (Fourth Chamber, Extended
Composition) in Joined Cases T-227/99 and T-134/00
Kvaerner Warnow Werft GmbH v Commission of the
European Communities

(1)

set aside the judgment of the Court of First Instance of
28 February 2002 in Joined Cases T-227/99 and T-134/
00 Kvaerner Warnow Werft GmbH v Commission of the
European Communities (1);

(2)

refer the case back to the Court of First Instance for
judgment.

Pleas in law and main arguments

— Incomplete appraisal of the legal background to the
authorising decisions: when the meaning and purpose of
the capacity restriction is also regarded as a set-off in
conjunction with the specific terms of the undertaking
given by the Federal Government, it becomes apparent
that, in order not to undermine the aim of the set-off for
distortions of competition resulting from the grant of
State aid, the capacity restriction had to refer not only to
limits on technical capacity but also to restrictions on
actual production levels.

— Incorrect interpretation of the authorising decisions: the
authorising decisions were based on a concept of ‘capacity
restriction’ which covered both technical restrictions
relating to the production plants and limits on actual
production levels.

(Case C-181/02 P)

(2002/C 169/41)

(1) Not yet published in the European Court Reports.

An appeal against the judgment delivered on 28 February
2002 by the Court of First Instance of the European Communi-