Case T-117/04: Action brought on 24 March 2004 by the Vereniging Werkgroep Commerciële Jachthavens Zuidelijke Randmeren and Others against the Commission of the European Communities
Date: 2004-04-30
Institutions: Court of First Instance
Subjects: European Commission, Netherlands, action for annulment (EU), aid to undertakings, control of State aid, harbour installation, non-profit organisation

C 118/46

EN

Official Journal of the European Union

30.4.2004

— annul the Commission's decision in Case COMP/E-1/38.240

– Industrial Pipes;

Action brought on 24 March 2004 by the Vereniging
Werkgroep Commerciële Jachthavens Zuidelijke Rand-
meren and Others against the Commission of the Euro-
pean Communities

— in the alternative, reduce the fine imposed in the decision;

— order the Commission to pay the applicant's costs.

(Case T-117/04)

(2004/C 118/100)

(Language of the case: Dutch)

Pleas in law and main arguments:

By the contested decision the Commission found that the appli-
cant and five other undertakings had, by their participation in a
series of agreements and concerted practices in the form of
price-fixing and market sharing in the industrial pipe sector,
infringed Article 81(1) EC and, as from 1 January 1994, Article
53(1) of the EEA Agreement. The Commission fined the rele-
vant undertakings.

The applicant argues that the Commission did not take into
account proportionally the size of the undertakings concerned
in fixing the fine. The fine imposed on the applicant was
disproportionately high relative to its total
turnover. That
constitutes an infringement of the principle of proportionality
and contravenes the Commission's own guidelines. Further-
more, that method places small and medium-sized undertakings
at a disadvantage and therefore infringes the general principle
of equality and the principle of imposing penalties on a case-
by-case basis.

The applicant further argues that in setting the fine sufficient
account was not taken of the economic significance of the
infringement as the Commission did not correctly calculate
market volumes. Furthermore, the increase of 10 % per year set
by the Commission based on the duration of the infringement
was not properly reasoned.

economic

The applicant also argues that the Commission's method for
setting fines does not satisfy the requirement of certainty neces-
sary for the rule of law. In particular, the calculation of the
basic amount, which is made entirely without reference to the
undertaking
circumstances
individual
concerned, and the economic significance of the infringement
does not allow for any practical unlimited discretion on the
part of the Commission. Article 15 of Regulation No 17/62 is
not compatible with the requirement of certainty and thus
superior Community law. Finally, the Commission, in applying
the leniency notice of 1996, disadvantaged the applicant
without any discernible reason relative to other undertakings.

the

of

(Netherlands),

in Zeewolde

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 24 March 2004 by the Vereniging
Werkgroep Commerciële Jachthavens Zuidelijke Randmeren,
Jachthaven Zijl
established
Zeewolde B.V., established in Zeewolde (Netherlands), Wolder-
wijd II BV, established in Zeewolde (Netherlands), Jachthaven
Strand-Horst BV, established in Ermelo (Netherlands), Recreatie-
gebied Erkemederstrand V.O.F., established in Zeewolde (Neth-
erlands), Jachthaven and Campingbedrijf Nieuwboer B.V., estab-
lished in Bunschoten-Spakenburg (Netherlands) and Jachthaven
Naarden B.V., established in Naarden (Netherlands), represented
by T.R. Ottervanger and A.S. Bijleveld.

The applicants claim that the Court of First Instance should:

— annul Commission Decision C(2003)3890fin of 17
December 2003 concerning aid measures implemented by
the Netherlands in favour of non-profit making marinas in
the Netherlands and deem the aid granted to be unlawful
aid;

— order the Commission to pay the costs.

Pleas and main arguments

In the contested decision the Commission is of the opinion
that, in regard to the marinas concerned, there is no State aid
within the meaning of Article 87(1) EC. According to the
Commission, in regard to the Wieringermeer marina, there is
no benefit and that, in regard to the Nijkerk and Enkhuizen
marinas, trade between the Member States is not adversely
affected by the aid measure.

In support of their application, the applicants submit that the
Commission misapplied and misconstrued Article 87(1) EC.
They maintain first that the Commission manifestly erred in its
assessment in accepting that the aid measure in regard to the
marinas
trade
between the Member States. According to the applicants, the
marinas are active in an international tourist sector and do not
have a strictly local function.

in Enkhuizen and Nijkerk does not affect

They further submit that the Commission also manifestly erred
in its assessment in regard to the calculation of the amount of
State aid in favour of the marina in Nijkerk. According to the
applicants, the Commission wrongly proceeded on the basis
that the estimation was based on an unpolluted and well-main-
tained marina.

According to the applicants, there is also State aid in the case
of the Wieringermeer marina.