Case C-314/02: Action brought on 6 September 2002 by the Kingdom of the Netherlands against the Commission of the European Communities
Date: 2002-10-12
Institutions: Court of Justice
Subjects: EU waters, Netherlands, State aid, action for annulment (EU), aid system, harbour installation, maritime transport

C 247/12

EN

Official Journal of the European Communities

12.10.2002

Action brought on 6 September 2002 by the Kingdom of
the Netherlands against the Commission of the European
Communities

(Case C-314/02)

(2002/C 247/20)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 6 September 2002 by the Kingdom of the
Netherlands, represented by H.G. Sevenster, acting as Agent,
with an address for service in The Hague.

The Kingdom of the Netherlands claims that the Court should:

1. Annul Commission Decision C(2002) 2158 final of
19 June 2002 concerning State aid provided by the
Netherlands in favour of the activities of Netherlands tug
boats in seaports and inland waterways within the EU;

2.

In the alternative, annul Article 3 of that Decision;

3. Order the Commission to pay the costs.

Pleas in law and main arguments

— Breach of law: the Netherlands Government disputes the
Commission’s description in the contested decision of the
aid measures in question as constituting new aid. The
the
Commission appears intent on suggesting that
Netherlands Government
the
failed to indicate that
measures in question (‘tax incentives’ and ‘taxation
according to tonnage’) could also apply to tug-boat
services within ports and inland waterways. It is, however,
clear from the documents available to the Commission
that, with regard to tug-boat activities, it is only the
formal criterion as to whether a vessel can be treated as
‘sea-going’ that is conclusive in determining the scope of
application of the measures in question. The place where
the tug-boat activities are actually performed is irrelevant.

The Commission erred in basing its decision as to the
compatibility of the aid in question on the Community’s
1997 Guidelines on State aid to maritime transport (OJ
1997 C 205 of 5 July 1997, p. 5). Those Guidelines

cannot possibly be used as a basis on which to assess
those measures, which were notified in 1995. According
to a Commission decision of 11 December 1998 relating
to a German fiscal measure and taxation according
to tonnage (see: Staatliche Beihilfe No N 396/98 —
Deutschland, SG(98) D/11575), there was in December
1998 still no question whatever of port activities being
excluded from aid measures within the maritime sector.

On the contrary, that decision brings (maritime) trans-
port, including that of tugs, in foreign ports expressly
within the scope covered by the German measures.
Should the Commission, when carrying out its task of
constant review of existing aid measures, classify such a
measure, whether on its own initiative or in response to
a complaint, forthwith and retroactively as a new aid
measure, that would be at variance with the system laid
down in Article 88 EC and Regulation (EC) No 659/
1999.

A claim for repayment as from 12 September 1990 is
contrary to the basis used by the Commission itself in its
investigation and is for that reason contrary to law.

The contested decision is also otherwise ambiguous with
regard to its scope. Use of the term ‘inland waterways’
rests on the assumption that that term has a Community-
wide definition; such, however, is not the case.

— Infringement of the principle of legal certainty.

— Failure to comply with the obligation to provide reasons.

Removal from the register of Case C-145/00 (1)

(2002/C 247/21)

By order of 17 June 2002 the President of the Fifth Chamber
of the Court of Justice of the European Communities ordered
the removal from the register of Case C-145/00: Commission
of the European Communities v Kingdom of the Netherlands.

(1) OJ C 233 of 12.8.2000.