Case C-553/03 P: Appeal brought on 30 December 2003 by the Panhellenic Union of Cotton Ginners and Exporters against the judgment delivered on 16 October 2003 by the Fifth Chamber (Extended Composition) of the Court of First Instance of the European Communities in case T-148/00 between the Panhellenic Union of Cotton Ginners and Exporters and the Commission of the European Communities, supported by the Hellenic Republic
Date: 2004-03-06
Institutions: Court of Justice
Subjects: European Commission, Greece, State aid, action for annulment (EU), aid system, cotton

C 59/14

EN

Official Journal of the European Union

6.3.2004

Commission of the European Communities, was brought
before the Court of Justice of the European Communities on
29 December 2003 by Unilever Bestfoods (Ireland) Ltd,
formerly HB Ice Cream Ltd, established in Dublin (Ireland),
represented by M. Nicholson, M. Rowe, M. Biesheuvel and
M. de Grave, lawyers, with an address for service in Luxem-
bourg.

adequate reasons as to why Bronner is not relevant to the
present case.

(1) OJ C 234, 25.07.1998, p. 28.

The Appellant claims that the Court should:

(a)

(b)

set aside — in its entirety or partially — the judgment of
the Court of First Instance (Fifth Chamber) of 23 October
2003 in case T-65/98, excluding paragraph 3 of the
operative part of the judgment; and

annul — in its entirety or partially — the Commission
Decision in Case Nos. IV/34.073, IV/34.395 and IV/
35.946 relating to a proceeding under Articles 81
(formerly 85) and 82 (formerly 86) of the Treaty (Van
den Bergh Foods Ltd) or, alternatively, refer the case back
to the Court of First Instance; and

(c)

order the Commission to pay the Applicant’s costs at first
instance and in this Application on appeal.

Pleas in law and main arguments

The Appellant submits that the Court of First Instance erred in
law by concluding that the distribution agreements of Van den
Bergh Foods Ltd (formerly HB Ice Cream Ltd) are liable to have
an appreciable effect on competition for the purposes of
Article 81(1) of the Treaty and contribute significantly to a
foreclosure of the market.

The Appellant also submits that the Court of First Instance
erred in law when applying Article 81(3) of the Treaty. It
wrongly applied the relevant burden and standard of proof
and, in so doing, rendered its judgment inadequatly reasoned.

Finally, it is submitted that the Court of First Instance erred in
law in two respects when applying Article 82 of the Treaty:

— it drew legal inferences which were unwarranted and
inadequately reasoned and cannot, therefore, support a
conclusion as to the abusive nature of the inducement;
and

Appeal brought on 30 December 2003 by the Panhellenic
Union of Cotton Ginners and Exporters against the
judgment delivered on 16 October 2003 by the Fifth
Chamber (Extended Composition) of the Court of First
Instance of the European Communities in case T-148/
00 (1) between the Panhellenic Union of Cotton Ginners
and Exporters and the Commission of the European
Communities, supported by the Hellenic Republic

(Case C-553/03 P)

(2004/C 59/24)

An appeal against the judgment delivered on 16 October 2003
by the Fifth Chamber (Extended Composition) of the Court of
First Instance of the European Communities in case T-148/00
between the Panhellenic Union of Cotton Ginners and
Exporters and the Commission of the European Communities,
supported by the Hellenic Republic, was brought before the
Court of Justice of the European Communities on 30 December
2003 by the Panhellenic Union of Cotton Ginners and
Exporters, established in Thessaloniki (Greece), represented by
K. Adamantopoulos and J. Gutiérrez Gisbert, lawyers, with an
address for service in Luxembourg.

The Appellant claims that the Court should:

1.

2.

set aside the judgment of the Court of First Instance of
16 October 2003 in case T-148/00 which dismissed the
original application of the Appellant before the Court of
First Instance as inadmissible and ordered the Appellant
to bear its own costs and those of the European Com-
mission in relation to the action before the Court of First
Instance;

as requested originally before the Court of First Instance,
annul Article 1 of the Commission Decision (2000/206/
EC) (2) on an aid scheme applied in Greece to cotton by
the Greek Cotton Board, in so far as it only declares
Article 30(3) of Law 2040/92 of 17/23.4.1992, and not
Article 30(1) as well, incompatible with the common
market; and

— it failed to apply the legal principles advanced by the
Court in Bronner or, in the alternative, failed to give

3.

order that the costs of and occasioned by these proceed-
ings, and those before the Court of First Instance, be
borne by the European Commission.

6.3.2004

EN

Official Journal of the European Union

C 59/15

Pleas in law and main arguments

The present appeal is based on the following two grounds of
law:

(i) Manifest error in that the judgment of the Court of First
Instance states that the Appellant’s principal objection
relates to the validity of the Commission’s finding that
the Compensatory levy is compatible with the common
market organisation for cotton and therefore the original
Application of the Appellant is inadmissible — should
this finding be upheld it would inevitably result in an
infringement of the rights to access to justice of the
Appellant.

This is because the Appellant did not have any other
option but to challenge the deficient finding of the
operative part of Article 1 of the contested Decision,
which implicitly refers to the last paragraph of Section IV
of the contested Decision which states that the Com-
pensatory levy of Article 30(1) of Law 2040/92 is
‘consonant with the market organisation’. The contested
Decision is deficient in that the Commission failed to
fulfil its duty to analyse the activities of the Greek Cotton
Board financed by the compensatory levy of Article 30(1)
of Law 2040/92 under the EC State aid rules; and

(ii) The judgment of the Court of First Instance is erroneous
in law and contrary to the case-law of the Court of Justice
of the European Communities.

The Appellant submits that the judgment of the Court of
First Instance is contrary to the case-law of the Court of
Justice of the European Communities in that the judgment
states that (i) ‘it is obvious’ that the Compensatory levy of
Article 30(1) of Law 2040/92 neither constitutes State
aid nor contains a State aid component — the reason
being that in the Court of First Instance’s opinion the
Compensatory levy of Article 30(1) of Law 2040/92 is
‘merely one of two State aid financing methods granted
by the Greek Cotton Board’; and (ii) that it is erroneous
to equate the Compensatory levy of Article 30(1) of Law
2040/92 ‘with State aid’. This is because the Compensa-
tory levy of Article 30(1) of Law 2040/92 constitutes
State aid within the meaning of the Enirisorse and Van
Calster case-law.

(1) OJ C 259, 09.09.2000, p. 24.
(2) OJ 2000, L 63, p. 27.

Reference for a preliminary ruling by the Rechtbank
Utrecht, Sector kanton, Locatie Utrecht, by order of that
Court of 10 December 2003 in the case of POSEIDON
CHARTERING B.V. against 1. V.O.F. Marianne Zeeschip,
2. ALBERT MOOIJ, 3. SJOERDTJE SIJSWERDA, 4. GER-
RIT DANIEL SCHRAM

(Case C-3/04)

(2004/C 59/25)

Reference has been made to the Court of Justice of the
European Communities by order of the Rechtbank Utrecht,
Sector kanton, Locatie Utrecht, of 10 December 2003, received
at the Court Registry on 5 January 2004, for a preliminary
ruling in the case of POSEIDON CHARTERING B.V. against 1.
V.O.F. Marianne Zeeschip, 2. ALBERT MOOIJ, 3. SJOERDTJE
SIJSWERDA, 4. GERRIT DANIEL SCHRAM on the following
questions:

1.

Is a self-employed intermediary, who has arranged (not
several but) one contract (a charter for a ship) which is
renewed every year and pursuant to which, in respect of
the renewal of the charter, the annual freight negotiations
(except, during the period from 1994 to 2000, in 1999)
are conducted between the owner of the ship and a third
party and the outcome of those negotiations is recorded
by the intermediary in an addendum, to be regarded as a
commercial agent within the meaning of Council Direc-
tive 86/653/EEC (1) of 18 December 1986 on the coordi-
nation of the laws of the Member States relating to self-
employed commercial agents?

2. Does it make any difference to the answer to Question 1
that the intermediary works for two principals because
the intermediary already knew the third party between
1987 and 1994 and transacted business in respect of the
abovementioned charter for the same ship? If an agency
contract must be held to exist, does it make any
difference to the answer to Question 1 that an indemnity
(commission) of 2,5 % of the charter has been paid over
many years and/or that Article 7(1) of the Directive
refers to ‘commercial transactions concluded’ and to the
existence of an entitlement to (the) commission ‘where
the transaction is concluded with a third party whom he
has previously acquired as a customer for transactions of
the same kind’?

3. Does is make any difference to the answer to Question 1
that Article 17 of the Directive refers to ‘customers’
instead of customer?

(1) OJ L 382 of 31.12.1986, p. 17.