Case T-378/02: Action brought on 17 December 2002 by Technische Glaswerke Ilmenau GmbH against the Commission of the European Communities
Date: 2003-03-08
Institutions: Court of First Instance
Subjects: European Commission, Germany, State aid, action for annulment (EU), control of State aid, glass industry

C 55/30

EN

Official Journal of the European Union

8.3.2003

Pleas in law and main arguments

Action brought on 17 December 2002 by Technische
Glaswerke Ilmenau GmbH against the Commission of the
European Communities

The applicants, the main producers of the cow-milk feta
produced in Germany, seek the annulment of Commission
Regulation (EC) No 1829/2002 (1).

The applicants submit first of all that the information in
Greece’s notification of 17 January 1995 does not satisfy the
formal requirements for the inclusion of ‘Feta’ in the list of
protected designations of origin. That is so because Greece’s
application was out of time, precluding the Commission from
registering ‘Feta’ under the shortened procedure pursuant to
Article 17 of Regulation (EEC) No 2081/92 (2). Furthermore, it
is not possible for the name ‘Feta’ to be protected under
Article 17 since Greece did not introduce protection of feta at
national level until 11 January 1994, that is to say almost six
months after Regulation (EEC) No 2081/92 entered into force.

The applicants further submit that the contested regulation
does not comply in the slightest with the grounds of the
decision of the Court of Justice of 16 March 1999 (3), according
to which the Commission must accord decisive importance to
the markets which, at
the time of Greece’s application,
had already lawfully developed in the Member States and
throughout the world. Moreover, the product ‘feta’
is not
capable of being protected since it is not a protected desig-
nation of origin but rather a generic name. Under Article 3(1)
of Regulation No 2081/92 generic names cannot be registered.
Furthermore, feta is a product which originates not just from
Greece, but from the Mediterranean and Balkan region. Feta
has been produced and consumed in considerable quantities
for decades in six Member States. In addition, the burden rests
with Greece to prove that feta is not a generic name; it has not
adduced evidence discharging this burden.

The applicants also argue that the requirements of Articles 2
and 4 of Regulation No 2081/92 are not met. Feta is not a
traditional geographic name. The name ‘feta’ comes from
Italian and means ‘slice’, and was a generic name before the
adoption of Regulation No 2081/92 and thus allowed to be
used in intra-Community trade between Member States. Finally
the registration of ‘Feta’ infringes the Community-law funda-
mental rights to protection of property and of exercise of a
profession, nor is the injury to property justified by Article 30
EC.

( 1) Commission Regulation (EC) No 1829/2002 of 14 October 2002
amending the Annex to Regulation (EC) No 1107/96 with regard
to the name ‘Feta’ (OJ 2002 L 277, p. 10).

( 2) Council Regulation (EEC) No 2081/92 of 14 July 1992 on the
protection of geographical indications and designations of origin
for agricultural products and foodstuffs (OJ 1992 L 208, p. 1).
( 3) Judgment of the Court of Justice in Joined Cases C-289/96, C-293/
96 and C-299/96 Denmark and Others v Commission [1999]
ECR I-1541.

(Case T-378/02)

(2003/C 55/81)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 December 2002 by Technische
Glaswerke Ilmenau GmbH, whose registered office is in
Ilmenau (Germany), represented by G. Schohe and C. Arhold,
Rechtsanwälte, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the Commission’s decision of 2 October 2002,
C(2002) 2147 endg., on State aid by Germany in favour
of Technische Glaswerke Ilmenau GmbH;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant acquired four glass production lines from
Ilmenauer Glaswerke GmbH, in liquidation, an undertaking of
the German Bundesanstalt
für vereinigungsbedingte Son-
deraufgaben (Federal Institution for Special Tasks arising from
Unification) (‘BvS’). In the contested decision, the Commission
classified two measures by Germany in connection with that
acquisition as State aid: There was a guarantee in favour of BvS
for a remaining purchase price balance of DEM 1,8 million.
BvS had declared itself willing to replace that guarantee by a
land charge. In addition, Thüringer Aufbaubank (Thüringen
Bank for Reconstruction) (‘TAB’) had granted the applicant a
loan of DEM 2,0 million. The Commission held these measures
incompatible with the common market.

The applicant argues that the loan by TAB to the applicant
was not an aid, because it corresponded to market conditions,
was covered by a general aid regulation approved by the
Commission, and served to compensate for a claim for
damages of the applicant against the Land Thüringen which
was justified from the standpoint of State liability. The
replacement of
the residual
purchase price for three production lines by a land charge was
also no aid.

the guarantee in respect of

The applicant further argues that the Commission has not
demonstrated that the measures could affect trade between
Member States. Furthermore, refusal of authorisation under
Article 87(3)(c) EC was based on obvious errors of assessment
and reasoning. The Commission refused to take important
facts into account in the considerations which it took as the

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Official Journal of the European Union

C 55/31

basis for its assessment. The main competitor would obtain a
monopoly position if the applicant were to disappear. In
examining the applicant’s prospects of profitability, the Com-
mission overlooked the commitment of a private investor, the
applicant’s latest restructuring plan, essential testimony in
economic reports, and the positive development of the appli-
cant.

The applicant further argues that the Commission wrongly
made a preliminary decision in an earlier proceeding about the
adjustment of the purchase price (1), and thereby artificially
divided its examination, which related to the restructuring as a
whole. The opening of a further formal examination procedure,
relating only to the loan from TAB and the changing of the
security, was out of time. The principle of sound administration
required the Commission to assess the whole restructuring
plan as a unity and in its proper context.

The applicant argues that the Commission infringed its defence
rights. Because of the splitting of the procedure, the applicant
was able to adopt a position on only part of the measures, and
the Commission wrongly denied the applicant’s applications
for inspection of the files and a proper legal hearing. The
Commission infringed the principle of impartiality by not
giving the applicant and the German Government the oppor-
tunity to comment on the statement of a competitor, which
the Commission had obtained by putting questions to that
competitor.

Finally, the applicant submits that the Commission has not
proved that repayment of the alleged aid in this case would be
appropriate to restore the previous position. Repayment was a
sanction going beyond the limited powers of the Commission.

( 1) Commission Decision K(2001) 1549 of 12.6.2001 on State aid
by Germany in favour of Technische Glaswerke Ilmenau GmbH,
against which the applicant brought an action before the Court of
First Instance (Case T-198/01, OJ 2001 C 303, p. 25).

Action brought on 18 December 2002 by Confédération
générale des producteurs de lait de brebis et des industri-
els de roquefort against Commission of the European
Communities

(Case T-381/02)

(2003/C 55/82)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the

European Communities on 18 December 2002 by Confédé-
ration générale des producteurs de lait de brebis et des
industriels de roquefort, established in Millau (France), rep-
resented by Michel-Jean Jacquot and Olivier Prost, lawyers.

The applicant claims that the Court should:

— annul Commission Regulation No 1829/2002 of
14 October 2002 amending the Annex to Regulation
(EC) No 1107/96 with regard to the name ‘Feta’ (1);

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant is an inter-branch association which claims to
group together and represent the interests of all producers of
Feta made from ewe’s milk.

The contested regulation reserves the name ‘Feta’ — a protected
designation of origin — for Greek producers. The Court of
Justice of the European Communities had already annulled, in
1996, a Commission regulation on the same subject (2).

In support of its action for annulment, the applicant argues
that no justification or reasons are stated for the choice of the
‘simplified’ procedure laid down in Article 17 of Regulation
No 2081/92 (3). In order to have recourse to that procedure, it
is necessary, not only for an application by the national
authorities for a legally protected name in the applicant State
to exist before the entry into force of Regulation No 2081/92,
but also for that name to be neither legally protected in
countries other than the applicant Member State nor in use in
those countries. The term ‘Feta’ was not legally protected in
Greece — the applicant State — in the sense intended by the
legislation at the time of the entry into force of Regulation
No 2081/92. By contrast, not only was that same term legally
protected in Denmark before the entry into force of Regulation
No 2081/92, but also its use was widespread in France and
throughout the world.

it

The applicant also submits that the Commission failed to fulfil
its obligations in the analysis of whether the term ‘Feta’ is
infringed Article 3(1) of Regulation
generic and that
No 2081/92 by the fact that it once again did not take
sufficient account of certain factors: in particular, the existing
situation in the Member State in which the name originates,
the existing situation in other Member States, and the relevant
national and Community laws. In addition, the applicant is of
the opinion that the Commission infringed Article 2(3) of
Regulation No 2081/92.