Case C-316/02 P: Appeal brought on 10 September 2002 by Hĳos de Andrés Molina S.A. against the judgment delivered by the Fifth Chamber (Extended Composition) of the Court of First Instance of the European Communities on 10 July 2002 in Case T-152/99 between Hijos de Andrés Molina S.A. and the Commission of the European Communities
Date: 2002-11-09
Institutions: Court of Justice
Subjects: State aid, action for annulment (EU), aid for restructuring, aid to undertakings

C 274/18

EN

Official Journal of the European Communities

9.11.2002

Appeal brought on 10 September 2002 by Hijos de
Andrés Molina S.A. against the judgment delivered by the
Fifth Chamber (Extended Composition) of the Court of
First Instance of the European Communities on 10 July
2002 in Case T-152/99 between Hijos de Andrés Molina
S.A. and the Commission of the European Communities

(Case C-316/02 P)

(2002/C 274/29)

An appeal against the judgment delivered by the Fifth Chamber
(Extended Composition) of the Court of First Instance of the
European Communities on 11 July 2002 in Case T-152/99
between Hijos de Andrés Molina S.A. and the Commission of
the European Communities was brought before the Court of
Justice of the European Communities on 10 September 2002
by Hijos de Andrés Molina S.A. (HAMSA), represented by Luis
Manuel Olivencia Brugger and José Luis Ballester García-
Izquierdo, with an address for service in Luxembourg.

The appellant claims that the Court should:

— set aside in part the judgment of 11 July 2002, and rule

(a)

(b)

that
the aid granted to HAMSA in 1994 was
compatible with Community law, being compatible
with the general aid scheme applicable;

that the aid granted pursuant to the HAMSA restruc-
turing plan in December 1995 was compatible with
Community law;

(c)

uphold the remainder of the contested judgment of
11 July 2002 which is not challenged in this appeal.

Pleas in law and main arguments

(a)

The aid received by HAMSA in 1994 on the basis of a
general aid scheme previously approved by the Com-
mission was compatible with Community law:

In its judgment the Court of First Instance introduced a
new matter, extraneous to the proceedings and to the
dispute brought before it. Whereas the parties, HAMSA
and the Commission, took the view that the aid granted
in 1993 and 1994 was regulated by general aid schemes
N 624792 and N 428/93, respectively, the Court of First
Instance considered that schemes N 428/93 and N 462/
94 applied to the aid granted in 1993 and 1994,
respectively.

HAMSA had no opportunity, during either the adminis-
trative or the judicial procedure, to put forward its
arguments concerning that new formulation by the Court
of First Instance of the matter at issue, which amounted
to breach of HAMSA’s right to a fair hearing. In its
submission, that fact constitutes a breach of procedure
which adversely affects its interests within the meaning
of Article 51 of the EEC Statute of the Court of Justice.

Secondly, the appellant alleges that the Court of First
Instance failed to analyse the aid granted to HAMSA in
1994 in accordance with scheme N 462/94 which it
regards as applicable.

(b) The rescue and restructuring aid granted on the basis of a
restructuring plan was compatible with the common
market:

In its decision of 3 February 1999 the Commission stated
that it had not received the HAMSA restructuring plan
until 4 July 1997. None the less, in response to questions
asked by the Court of First Instance a few days before the
hearing,
it had
the Commission acknowledged that
received the restructuring plan before the Spanish auth-
orities notified it of the aid on 1 July 1996. In actual fact,
the restructuring plan was delivered by a Spanish official
to a Community official in DG Agriculture in January
1996, but the Commission did not decide to initiate the
procedure under Article 93(3) of the Treaty or to adopt
measures of any kind with regard to the plan and the aid
granted in implementing it
in accordance with the
provisions of the directives relating to the rescuing and
restructuring of undertakings in crisis. Later, on 29 April
1997, that is to say, 14 months after the restructuring
plan was notified, the Commission gave notice of the
opening of the procedure, considering that the aid had
not been notified, when, following the Lorenz case-law,
it ought to have been regarded as existing aid.

Reference for a preliminary ruling by the korkein Hallin-
to-oikeus by order of that Court of 10 September 2002 in
the appeal brought by Petri Mikael Manninen

(Case C-319/02)

(2002/C 274/30)

Justice of the
Reference has been made to the Court of
European Communities by order of the korkein Hallinto-
oikeus (Supreme Administrative Court) of 10 September 2002,