Case T-326/02: Action brought on 24 October 2002 by Kotug International BV, Sleepdienst Adriaan Kooren BV and K&K International BV against the Commission of the European Communities
Date: 2002-12-21
Institutions: Court of First Instance
Subjects: Netherlands, State aid, action for annulment (EU), harbour installation, network of navigable waterways, terms for aid, vessel

21.12.2002

EN

Official Journal of the European Communities

C 323/39

That,
like the storage of data giving information about
membership of the union, infringes the provisions of Regu-
lation (EC) No 45/2001 (1).

Pleas and main arguments

( 1) Regulation (EC) No 45/2001 of the European Parliament and of
the Council of 18 December 2000 on the protection of individuals
with regard to the processing of personal data by the Community
institutions and bodies and on the free movement of such data
(OJ 2001 L 8, p. 1).

Action brought on 24 October 2002 by Kotug Inter-
national BV, Sleepdienst Adriaan Kooren BV and K&K
International BV against the Commission of the European
Communities

(Case T-326/02)

(2002/C 323/64)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 24 October 2002 by Kotug International BV,
Sleepdienst Adriaan Kooren BV and K&K International BV,
established in Rotterdam, represented by T.R. Ottervanger,
with an address for service in Luxembourg.

The applicants claim that the Court of First Instance should:

1.

2.

Primarily, annul Commission Decision C(2002) 2158 of
19 June 2002 concerning State aid by the Netherlands in
favour of the activities of Netherlands tugboats in sea
harbours and on inland waterways of the Community;

In the alternative, annul Articles 2 and 3 of the Com-
mission’s contested decision in which the Commission
requires the Netherlands Government to adopt all necess-
ary measures in order to recover aid from the recipients
— with the exception of aid paid before 12 September
1990;

3. Order the Commission to pay the costs.

The applicants benefit from fiscal arrangements and the
tonnage charge introduced by the Netherlands in favour of,
inter alia, vessels intended for towing and assistance at sea. In
the contested decision the Commission considers that these
matters constitute new State aid for tugboat activities princi-
pally carried on in and around the harbours of the Community
and on inland waterways within the Community and not
principally at sea. The Commission is at the same time seeking
recovery by the Netherlands authority of that aid.

The applicants submit that the Commission is in breach of the
EC Treaty and Regulation No 659/1999 (1) by classifying the
matters concerned as new State aid. According to the appli-
cants the provision made in regard to those matters constitutes
existing State aid authorised by the Commission.

the interpretation of

Thus, there is no question of a change in the existing aid.
According to the Commission,
the
Netherlands law has changed over the years. Under it tugboats
were eligible for aid on the basis of technical criteria relating
to the vessels rather than on the basis of the place where the
activities are carried on. According to the applicants, that was
however clear from the legislation notified by the Netherlands
authorities under which a technical and qualitative criterion is
applied rather than a geographical one. That interpretation of
the provision made in regard to the grant of the aid have
accordingly not changed.

The applicants further allege that the Commission did not
follow the correct procedure. According to the applicants, the
Commission, upon receipt of supplementary information, did
not issue a recommendation for the adoption of appropriate
measures. Nor did the Commission review the aid under
Article 9 of Regulation No 659/1999. Nor, the applicants
submit, are the requirements of that article satisfied since there
is no question of incorrect information. Moreover, according
to the applicants, the Commission failed to demonstrate that
the provision made for the matters concerned is not covered
by the aid measures approved by it previously.

Accordingly, the applicants submit that the contested decision
infringes Article 87(3) of the EC Treaty. According to the
applicants the Commission is acting incorrectly in declaring
the matters concerned incompatible with the common market.
The applicants allege that towing services provided by sea
irrespective of where those
tugboats to sea-going vessels,
activities are carried on, come within the scope of
the
Community guidelines on State aid for maritime transport (2).

C 323/40

EN

Official Journal of the European Communities

21.12.2002

According to the applicants, the contested decision further
infringes the principle of protection of legitimate expectations
and Article 14 of Regulation No 659/1999. According to the
applicants, they were entitled to rely on the legality of the aid
since it had been approved by the Commission. Recovery of
aid received would run counter to the applicants’ legitimate
expectations.

2.

In the alternative, annul Articles 2 and 3 of the Com-
mission’s contested decision in which the Commission
requires the Netherlands Government to adopt all necess-
ary measures in order to recover aid from the recipients
— with the exception of aid paid before 12 September
1990;

3. Order the Commission to pay the costs.

By altering its approach to fiscal measures for maritime
transport, the Commission, in adopting the contested decision,
also infringed the principle of legal certainty. In the applicants’
view, a change in the approach to aid measures cannot result
in already approved aid being classified as new rather than
existing aid.

The applicants are also claiming infringements of the principles
of equal treatment and proportionality and of the requirement
to provide a statement of reasons.

( 1) Council Regulation (EC) No 659/1999 of 20 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty (OJ 1999 L 83, p. 1).

( 2) Community guidelines on State aid for maritime transport (OJ

1997 C 205, p. 5).

Action brought on 24 October 2002 by Muller Marine
Holding BV, Muller Maritime Holding BV and Handel-
en Scheepvaartmaatschappij Multraschip BV against the
Commission of the European Communities

(Case T-327/02)

(2002/C 323/65)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 24 October 2002 by Muller Marine Holding
BV, Muller Maritime Holding BV and Handel- en Scheepvaart-
maatschappij Multraschip BV established in Rotterdam, rep-
resented by T.R. Ottervanger, with an address for service in
Luxembourg.

The applicants claim that the Court of First Instance should:

1.

Primarily, annul Commission Decision C(2002) 2158 of
19 June 2002 concerning State aid by the Netherlands in
favour of the activities of Netherlands tugboats in sea
harbours and on inland waterways of the Community;

Pleas and main arguments

The pleas relied on are the same as in Case T-326/02.

Action brought on 24 October 2002 by Smit Harbour
Towage Rotterdam BV against the Commission of the
European Communities

(Case T-328/02)

(2002/C 323/66)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 24 October 2002 by Smit Harbour Towage
Rotterdam BV, established in Rotterdam, represented by
T.R. Ottervanger, with an address for service in Luxembourg.

The applicants claim that the Court of First Instance should:

1.

2.

Primarily, annul Commission Decision C(2002) 2158 of
19 June 2002 concerning State aid by the Netherlands in
favour of the activities of Netherlands tugboats in sea
harbours and on inland waterways of the Community;

In the alternative, annul Articles 2 and 3 of the Com-
mission’s contested decision in which the Commission
requires the Netherlands Government to adopt all necess-
ary measures in order to recover aid from the recipients
— with the exception of aid paid before 12 September
1990;

3. Order the Commission to pay the costs.