Case T-382/03: Action brought on 17 November 2003 by Izar Construcciones Navales SA against Commission of the European Communities
Date: 2004-01-24
Institutions: Court of First Instance
Subjects: European Commission, Spain, State aid, action for annulment (EU), shipbuilding

C 21/42

EN

Official Journal of the European Union

24.1.2004

Pleas in law and main arguments

The applicant in this case, a subsidiary of the Spanish public
holding headed by the Sociedad Estatal de Participaciones
Industriales (SEPI), which owns all the Spanish shipyards
belonging to the State, challenges the decision by which the
investigation
defendant institution has initiated the formal
procedure under Article 88(2) of the EC Treaty with regard to
three cases of alleged aid consisting in the grant by SEPI to the
civil shipyards in Cádiz and Juliana and to the Manises engines
factory of loans amounting to EUR 194.4 million, a capital
injection from SEPI to AESA (Astilleros Españoles SA) of
EUR 252.4 million and compensation for losses paid by SEPI
to the shipyards in Cádiz and Juliana and to the Manises
engines factory amounting to EUR 68.2 million. The same
decision also questions, according to the applicant, whether
certain aid authorised in 1997 in the same sector, in relation
to which the abovementioned aid ought to be considered
additional aid, is compatible with Community law.

In support of its claims, the applicant alleges:

— Infringement of Article 88 of the EC Treaty and of
Regulations 659/1999 (1) and 1013/1997 (2), inasmuch
as the contested decision, using as its legal basis Article 16
of Regulation No 659/1999, states that, were the aid
authorised in 1997 to be considered illegal, steps must
be taken for its recovery. The applicant submits in that
respect that the Commission has unlawfully failed to
apply to the aid in issue the procedure for existing aid
provided for by Article 88(1) and Article 17 et seq of
Regulation No 659/1999.

— Breach of the principle that legitimate expectations must
be protected, inasmuch as the contested decision does
not meet
the applicant’s expectations regarding the
legality and irrevocability of the aid authorised in 1997.

— Breach of the principle of legal certainty as a result of
the Commission’s having acted out of time and the
retrospective application of a provision to a situation
arising prior to its entry into force. In the view of the
applicant, the power to recover the 1997 aid could only
have been exercised within the period prescribed therefor,
that is to say before October 1999. That is so because
exercise of the abovementioned power is contingent on
the result of the monitoring programmes provided for by
Regulation No 1013/1997 and the 1997 decision, which
came to an end on the abovementioned date.

incompatible with the common market merely because it
constitutes aid in addition to that authorised for the
Spanish shipyards by the aforementioned 1997 decision.

the applicant alleges breach of

Finally,
the principle of
proportionality and of the duty to state reasons for acts, in
particular as regards, in the present case, the existence of State
aid.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty, OJ 1999 L 83, p. 1.

(2) Council Regulation (EC) No 1013/97 of 2 June 1997 on aid to
certain shipyards under restructuring, OJ 1997 L 148 , p. 1.

Action brought on 17 November 2003 by Izar Construc-
ciones Navales SA against Commission of the European
Communities

(Case T-382/03)

(2004/C 21/86)

(Language of the case: Spanish)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 November 2003 by Izar
Construcciones Navales SA, whose registered office is at
Madrid, represented by Jaime Folguera Crespo, Edurne Navarro
Varona and Alfonso Gutiérrez Hernández, lawyers.

The applicant claims that the Court should:

— Annul, pursuant to Article 230 of the EC Treaty, the
decision of the Commission of 27 July 2003 on the
suspected aid granted to the Spanish State shipyards, and

— Order the Commission to pay the costs incurred by IZAR

in these proceedings.

Pleas in law and main arguments

— Manifest error of law, inasmuch as the contested decision
the alleged aid concerned thereby is

maintains that

The applicant in this case, the same as that in Case T-381/03
IZAR, challenges the decision of the defendant by which it:

24.1.2004

EN

Official Journal of the European Union

C 21/43

— initiated the formal

investigation procedure under
Article 88(2) of the EC Treaty with regard to three cases
of alleged aid consisting in an increase of capital of EUR
736 million, with an issue premium of EUR 586 million,
and of two subsequent injections of EUR 105 million and
EUR 50 million respectively by way of issue premia;

— rejects the arguments of the Kingdom of Spain, based on
Article 296 of the EC Treaty, thus ruling out the specific
procedures provided for by Article 198(1) and (2);

— questions, according to the applicant, whether certain aid
authorised in 1997 in the same sector, in relation to
which the abovementioned aid ought to be considered
additional aid, is compatible with Community law.

The pleas and main arguments are similar to those relied upon
in Case T-381/03 IZAR.

In particular, the applicant alleges infringement of Articles 88,
296 and 298 of the EC Treaty inasmuch as, since the Kingdom
of Spain had previously and expressly invoked the exception
provided for in Article 296(1)(b) of the Treaty, the Commission
had power to initiate not the procedure under Article 88(2)
but only certain of the specific procedures under Article 298.

Action brought on 14 November 2003 by Hynix Semicon-
ductor Inc. against the Council of the European Union

(Case T-383/03)

(2004/C 21/87)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 14 November 2003 by Hynix Semiconductor
Inc., Kyoungi-Do, Korea represented by Marco Bronckers, Yves
Van Gerven, Axel Gutermuth and Axel Desmedt lawyers with
an address for service in Luxembourg.

Pleas in law and main arguments

The applicant seeks the annulment of Council Regulation
1480/2003 of 11 August 2003 imposing a definitive
countervailing duty and collecting definitively the provisional
duty imposed on imports of certain electronic microcircuits
known as DRAMs (dynamic random access memories) orig-
inating in the Republic of Korea (1).

With its first two pleas, the applicant contests the finding that
it failed to cooperate. According to the applicant, the defendant
disregarded the Arthur Andersen report determining the
applicant’s liquidation value and the affidavit submitted by
Citibank. The applicant invokes in that regard a violation of
Article 28 of Council Regulation 2026/97 (2), Articles 12 and
22 of the WTO Agreement on Subsidies and Countervailing
Measures, the principle of proportionality and a manifest error
of assessment.

The applicant furthermore submits that the findings of the
defendant that several specific measures conferred a benefit on
infringe Article 2 of Regulation 2026/97,
the applicant
Article 1 of
the WTO Agreement on Subsidies and
Countervailing Measures and amount to a manifest error of
assessment of the relevant facts.

The applicant also claims that the findings that the KDB
debenture programme (3) was specific to the applicant infringe
Article 3 of Regulation 2026/97, Articles 1.2 and 2 of the
WTO Agreement on Subsidies and Countervailing Measures
and amount to a manifest error of assessment of the relevant
facts.

the benefit of several specific measures,

The applicant continues by submitting that in calculating the
amount of
the
defendant infringed Articles 1, 2, 5, 6 and 7 of Regulation
2026/97, the Guidelines on the calculation of the amount of
the subsidy in countervailing duty proceedings, Articles 14, 22
and annex I(j) of the WTO Agreement on Subsidies and
Countervailing Measures. In this respect, the applicant also
claims that the defendant committed a manifest error of
assessment and infringed Article 253 EC.

The applicant claims that the Court should:

— declare the Definitive Regulation annulled in its entirety,
or at least partially, in so far as it concerns imports into
the European Community of products manufactured by
Hynix Semiconductor Inc.;

— order the Council to pay the costs of the proceedings.

The applicant also contests the defendant’s findings that
subsidised imports from the Republic of Korea caused material
injury to the Community’s industry of DRAM producers.
According to the applicant, these findings infringe Articles 1,
8, 11 and 15 of Regulation 2026/97, Articles 15, 19 and 22
of the WTO Agreement on Subsidies and Countervailing
Measures and amount to manifest errors of assessment. The
applicant also claims that the defendant committed a violation
of Article 253 EC in this regard.