Case C-455/03: Action brought on 29 October 2003 (fax 24.10.2003) by the French Republic against the Commission of the European Communities
Date: 2003-12-13
Institutions: Court of Justice
Subjects: EAEC Treaty, European Commission, France, action for annulment (EU), disclosure of information, investment project, professional secret

13.12.2003

EN

Official Journal of the European Union

C 304/19

— the arrangements under which the Member
State of the parent company takes account of
the losses of UK resident companies apply
regardless of whether the losses are also relieved
in another Member State?

(c) Would it make any difference if there were evidence
that relief had been obtained for the losses in the
Member State in which the subsidiary was resident
and,
the relief was
obtained subsequently by an unrelated group of
companies to which the subsidiary was sold?

if so, would it matter that

Action brought on 29 October 2003 (fax 24.10.2003) by
the French Republic against the Commission of the
European Communities

(Case C-455/03)

(2003/C 304/28)

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 29 October 2003 (fax 24.10.2003) by the
French Republic, represented by F. Alabrune, G. de Bergues
and C. Lemaire, acting as Agents, with an address for service
in Luxembourg.

The French Republic claims that the Court should:

— annul Commission Regulation (Euratom) No 1352/2003
of 23 July 2003 amending Regulation (EC) No 1209/
2000 determining procedures for effecting the communi-
cations prescribed under Article 41 of the Treaty estab-
lishing the European Atomic Energy Community (1);

— order the Commission to pay the costs.

Pleas in law and main arguments

The Commission lacks competence to adopt the contest-
(1)
ed regulation: neither Articles 41 EA to 44 EA nor Council
Regulation (Euratom) No 2587/1999, which are the legal
bases cited by the Commission in the contested regulation,
constitute a legal basis enabling it to adopt that regulation.

(2)

Breach of the EA Treaty:

— Article 42 EA: under the procedure established by the
contested regulation, the Commission de facto alters the
three-month period laid down by this provision of the
EA Treaty, which the Council alone had the power to
alter.

— Article 43 EA: in adopting the contested regulation, the
Commission exceeded the powers conferred upon it by
this provision. The Commission has established, by
means of an instrument of general application that is
mandatory in its entirety and directly applicable in
every Member State, a procedure truly entailing detailed
examination of
investment projects, which is quasi-
suspensory in nature.

— Article 44 EA: under the contested regulation, publication
of investment projects communicated to the Commission
becomes mandatory and automatic in nature, whereas it
is merely optional under this article. Nor does the
contested regulation specify that such publication may
occur only with the prior consent of the Member States,
persons and undertakings concerned.

— The first subparagraph of Article 194(1) EA: the Com-
mission has failed to have regard to the obligation of
confidentiality contained in the first subparagraph of
Article 194(1) EA by allowing third party access to
investment projects notified by the persons and under-
takings concerned, when those projects contain confiden-
tial information that is covered in particular by the trade
secrecy of those persons and undertakings.

(3)
Breach of the principle of legal certainty: under the
contested regulation, the persons or undertakings concerned
are ‘recommended’ not to put the investment project into
effect before the Commission has issued its recommendation
on that project or it is deemed to be in compliance with the
objectives and provisions of the EA Treaty. The Commission
also fails to have regard to the requirement for legal certainty
by providing that, where the Commission has opened a
it ‘shall as far as possible
detailed examination procedure,
endeavour’ to adopt a recommendation within a period of six
months. The persons or undertakings concerned do not
know within what period the Commission will adopt its
recommendation should a detailed examination procedure be
opened.

(1) OJ L 192, 31.7.2003, p. 15.