Case T-144/03: Action brought on 28 April 2003 by Nadine Schmit against the Commission of the European Communities
Date: 2003-07-19
Institutions: Court of First Instance
Subjects: European Commission, European official, action for annulment (EU), psychological harassment

19.7.2003

EN

Official Journal of the European Union

C 171/33

European Communities on 14 April 2003 by Sniace, S.A.,
whose registered office is in Madrid, represented by José Luis
Baró Fuentes, lawyer.

The applicant claims that the Court should:

— annul Article 1 of the Decision of 11 December 2002 in
so far as it states Spain has granted aid to Sniace, S.A.
amounting to EUR 7 388 258;

3.

— in the alternative, maintain Article 1 of the Decision of
11 December 2002 in so far as it finds that the State aid
is compatible with the common market;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant company in these proceedings objects to the
description as ‘aid granted by a Member State or through State
resources’ of a contract for a subordinated convertible loan
with profit participation, amounting to EUR 12 020 242,
entered into with Caja Cantabria, together with a liquidity
agreement, which provided for the conversion into equity of
credits under the loan.

In support of its claims, the applicant relies on the following
pleas in law and main arguments:

1. Misinterpretation of the concept of ‘aid granted by a
Member State or through State resources’ laid down in
Article 87(1) EC. First, the applicant disputes that the
Commission has established in its final decision that the
funds used by Caja Cantabria to finance the loan with
profit participation made to Sniace were ‘State resources’.
It points out, in that regard, that Caja Cantabria is a
private credit institution and thus governed by private
law. Its funds are not State resources but are private funds
provided by private individuals and undertakings. In the
present case, Caja Cantabria acted as a private investor
which invests its capital by reference to relatively short-
term profitability. Secondly, the applicant states that the
decision to finance Sniace was a strictly commercial
decision adopted in accordance with criteria relating to
operational profitability and that the public authorities
played no part in the technical or commercial decision to
grant the loan.

2. Manifest error of assessment in the application of the rule
of ‘private investor in a market economy’. According
to the applicant, a detailed analysis of the conditions
together with a comparison of
governing the loan,

the conditions offered by Caja Cantabria against offers
received from other private credit institutions and their
adherence to the guidelines laid down by the Commission
in its Notice to the Member States of 13 November
1993, lead to the conclusion that the loan with profit
participation was granted under market conditions.

Infringement of the principles of legal expectations and
proportionality. The applicant claims in this regard, first,
that the lawfulness of
the general system in Spain
concerning the granting of loans with profit participation
to undertakings undergoing rationalisation, conformity
with the formal requirements laid down by the Director
de Ayudas de Estado (Director for State aid) (namely:
documentary evidence that the loan was granted under
market conditions), and the assurances provided by him
that no further action would be taken, gave rise to a
legitimate expectation on the part of the applicant that
the administrative procedure would be concluded either
by a decision that no further investigations would ensue
or by a finding that the loan could not be considered to
be State aid. Secondly, the applicant is of the view that
the duration of the investigation (58 months) and the
means invested by the Commission in enquiring into a
commercial transaction that was not at all technically
complicated go beyond the limits of what is normally
appropriate or necessary in this kind of operation.

4.

Finally, the applicant undertaking alleges breach of its
in particular, of professional
rights of defence and,
secrecy as protected by Article 287 EC inasmuch as the
Commission forwarded, at the first request, the replies
of
the Spanish authorities (including the applicant’s
comments) to the lawyers for the undertaking whose
complaint had given rise to the investigation.

Action brought on 28 April 2003 by Nadine Schmit
against the Commission of the European Communities

(Case T-144/03)

(2003/C 171/57)

(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 28 April 2003 by Nadine Schmit,
residing in Ispra (Italy), represented by Pierre-Paul Van
Gehuchten and Pierre Jadoul,
lawyers, with an address for
service in Luxembourg.

C 171/34

EN

Official Journal of the European Union

19.7.2003

The applicant claims that the Court should:

The applicants claim that the Court should:

— annul the explicit rejection of the Commission of 11 July
2002 BSS01 MS CDL/GS/MSG D (02) No 6779 in reply
to the request registered under No D/256/02 submitted
by the applicant pursuant to Article 90(1) of the Staff
Regulations;

— annul, in so far as necessary, the refusal to register the

applicant’s fresh complaint;

— order the Commission to pay the entire costs.

Pleas in law and main arguments

The applicant is an official working for the defendant. She is
bringing her action against the rejection of a request concern-
ing the inclusion of certain documents in her personnel file
and to be informed of alleged written defamatory statements
made in her regard. In support of her action, she alleges breach
of the protection of dignity and equality between men and
women at work, enshrined in Article 31 of the Charter of
Fundamental Rights of the European Union, as a result of the
fact that the defendant failed to take the necessary measures to
ensure the protection of the applicant against the alleged
denigration by other officials of the defendant institution,
which amounts, in her view, to harassment. She also alleges
infringement of Articles 25, 26 and 45 of the Staff Regulations,
of the obligation to provide reasons and of the rights of
defence.

Action brought on 15 April 2003 by the Asociación de
Empresarios de Estaciones de Servicio de la Comunidad
Autónoma de Madrid and the Federación Catalana de
Estaciones de Servicio against the Commission of the
European Communities

(Case T-146/03)

(2003/C 171/58)

(Language of the case: Spanish)

— annul the Commission Decision of 11 December 2002
which found that measures to support agricultural coop-
eratives, by virtue of which only such cooperatives are
able to distribute unlimited amounts of fuel to non-
member third parties whilst enjoying preferential tax
treatment and which are contained in Royal Decree
Law 10/2000 of 6 October on emergency support for
agriculture, fisheries and transport do not constitute State
aid within the meaning of Article 87(1) EC;

— order the European Commission to pay the costs.

Pleas in law and main arguments

The applicants in the present action, who have also brought
Case T-95/03 (Asociación de Empresarios de Estaciones de
Servicio de la Comunidad Autónoma de Madrid and the
Federación Catalana de Estaciones de Servicio) (1), are challeng-
to regard as State aid the
ing the Commission’s refusal
measures in Royal Decree Law 10/2000, which allow only
agricultural cooperatives, and not other cooperatives which
also benefit from special protection, to sell B diesel to non-
to any limit
member third parties without being subject
and without losing the tax advantages granted to specially
protected cooperatives. The contested decision concludes that
the measures at issue do not constitute State aid, since they are
justified by the nature or general scheme of the tax system.

In support of their claims, the applicants maintain that the
defendant has made various errors of fact and law:

— in exempting the Spanish Government from its duty to
provide an explanation for the measures at issue on the
basis of the nature of the tax system. The contested
decision is at odds with the arguments put forward by
the Government (need for further liberalisation in the fuel
sector as a structural measure responding to the increase
in the price of crude oil and the depreciation of the euro
against the dollar).

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 15 April 2003 by the Asociación
de Empresarios de Estaciones de Servicio de la Comunidad
Autónoma de Madrid and the Federación Catalana de Estacion-
es de Servicio, established in Madrid and Barcelona respectively,
represented by Raimundo Ortega Bueno, lawyer.

— in concluding that Royal Decree Law 10/2000 is consist-
ent with the nature of the tax system and in basing that
finding on an incomplete and incorrect analysis of the
tax system applicable to cooperatives.

— in finding that the contested measures do not constitute

State aid.