Case T-316/04: Action brought on 2 August 2004 by Wam SpA against the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for annulment (EU), control of State aid, industrial equipment, interest rate subsidy

C 262/46

EN

Official Journal of the European Union

23.10.2004

the imminent

further amendment

The applicant also submits that the Commission breached its
duty of care towards the applicant by failing to inform it in
good time of
to the
Combined Nomenclature. The Commission also proceeded,
when issuing the contested decision, on the basis of circum-
stances which did not objectively obtain. By so doing, the
Commission exceeded the scope of the discretionary power
which it enjoys in this context, thereby adversely affecting the
applicant. The applicant concludes by stating that it did not act
in a patently negligent manner or with any deceitful intention.

(1) Commission Regulation (EC) No 3009/95 of 22 December 1995
amending Annex I to Council Regulation (EEC) No 2658/87 on the
tariff and statistical nomenclature and on the Common Customs
Tariff (OJ 1995 L 319, p. 1).

(2) Council Regulation (EC) No 3093/95 of 22 December 1995 laying
down the rates of duty to be applied by the Community resulting
from negotiations under GATT Article XXIV.6 consequent upon the
accession of Austria, Finland and Sweden to the European Union
(OJ 1995 L 334, p. 1).

(3) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff
and statistical nomenclature and on the Common Customs Tariff
(OJ 1987 L 256, p. 1).

Action brought on 27 July 2004 by the Federal Republic
of Germany against the Commission of the European
Communities

(Case T-314/04)

(2004/C 262/87)

(Language of the Case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 27 July 2004 by the Federal
Republic of Germany, represented by Claus-Dieter Quassowski
and Christoph von Donat.

The applicant claims that the Court should:

— annul the Commission decision notified by letter of the
Directorate-General for Regional Policy of 17 May 2004 in
so far as the Community assistance from the European
Regional Development Fund for the Objective 2 Programme
1997-1999
No
97.02.13.005/ARINCO No 97.DE.16.005) was reduced to
EUR 319 046 236.76 and payment to the German authori-
ties of the balance amounting to EUR 5 488 569.24 was
refused;

Rhine-Westphalia

(ERDF

North

of its discretion and that there are mistakes in the contested
decision's reasoning.

By the contested decision the Commission reduced the Com-
munity assistance from the structural
fund (the European
Regional Development Fund) for the Objective 2 Programme
1997-1999 North Rhine-Westphalia to EUR 319 046 236.76
and refused to pay to the German authorities the balance
amounting to EUR 5 488 569.24. The background to the
reduction is that, compared with the indicative financing plan,
recourse to the programme was lower in the case of certain
measures and higher in the case of others. The balancing out
did not take place within the programme's respective priorities,
but at the level of the programme as a whole.

The Commission is of the view that only a transfer between
measures, and not a transfer between programme priorities, is
possible, or that the latter would have required the Commission
first to have taken a fresh decision. In its view, this also applies
to expenditure under the approved programme that turns out
higher and is not linked to an application for an increase in
ERDF assistance.

The German Government considers the transfers to be objec-
tively justified. It submits that the transfers, which are insignifi-
cant in amount, help to achieve the Community's assistance
objectives. There are no grounds for a reduction. In particular,
the reduction in the approved ERDF assistance cannot be justi-
fied on the basis that the competent authorities and agencies in
the Land North Rhine-Westphalia administered in a flexible
manner the indicative financing plan for the programme for
Community structural interventions in the areas falling within
Objective 2 in respect of the period from 1 January 1997 to
31 December 1999. In this regard, the reduction of the balance
to be paid infringes Community law.

The German Government further submits that, by not allowing
any flexibility at the level of priorities even where, at the end of
a reference period, formal Commission approval can no longer
be attained, the Commission inexpediently restricts the freedom
of action of the Member State or the competent local authori-
ties and agencies.

Action brought on 2 August 2004 by Wam SpA against
the Commission of the European Communities

(Case T-316/04)

(2004/C 262/88)

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

(Language of the case: Italian)

Pleas in law and main arguments:

The applicant complains, pursuant to Article 230 EC, that
secondary Community law and general principles of law have
been infringed, that the Commission has erred in the exercise

An action was a brought before the Court of First Instance of
the European Communities on 2 August 2004 against the
Commission of
the European Communities by Wam SpA,
represented by Ernesto Giuliani, lawyer.

23.10.2004

EN

Official Journal of the European Union

C 262/47

The applicant claims that Court of First Instance should:

— annul Decision C(2004) 1812 final of the Commission of
the European Communities of 19 May 2004 concerning
State aids granted by Italy to Wam SpA between 1995 and
2000, which Wam SpA considers and states to be compa-
tible with the common market;

— order the Commission of the European Communities to

pay the costs.

because of non-notification, and not on the basis of a
proper substantive assessment;

— that the Commission infringed Article 87 EC and Article
2(b) of Regulation (EEC) No 69/2001 by classifying as
export aid, and as such outside the scope of the de minimis
rules, aids that were not linked to a specific quantity of
exported products but were simply used for an attempt to
achieve market penetration outside the EU.

The applicant also alleges,
in several respects, breach of the
duty to state the reasons on which measures are based, and
also the principles of justice, equity and sound administration.

Pleas and main arguments adduced in support:

Following a complaint by the Morton Machine Co Ltd, the
Commission decided to commence a formal
investigation
procedure, as provided for by Article 88(2) EC concerning two
cases of subsidised financing granted by Italy to Wam SpA
the
between 1995 and 2000.
Commission decided to classify those measures as State aid and
declared them to be in breach of article 87 EC and thus incom-
patible with the common market.

In the contested decision,

In support of its claims, the applicant states:

fairness

autonomy,

independence,

— that the Commission infringed the general principles of
impartiality,
and
propriety in the exercise of its functions, having treated the
complaint from Morton Machine Ltd in a non-objective
manner and having rejected, in that context, and without
stating its reasons for doing so, the proposal from Wam
SpA that it should repay the difference between the open
market interest rate paid by Wam SpA when the individual
instalments were disbursed and the interest charged on the
two amounts of subsidised financing at issue;

— that the Commission infringed, or misapplied, Article 87
EC by considering to be incompatible with the common
market, in so far as they were liable to distort competition
in intra-Community relations, aids granted to Wam SpA
notwithstanding the absence of any competitive relation-
ship between Wam SpA and Morton Machine Ltd, since
Wam SpA did not produce or market industrial mixers and
Wam Engineering Ltd was not a subsidiary of Wam SpA,
an independent company which has its registered office in
England and is governed by English law;

— that the Commission infringed Article 88(2) EC by treating
as illegal State aid granted to Wam SpA in implementation
of an Italian law, namely Law No 394 of 29 July 1981,
which the Commission had declared to be compatible with
Community law, or, that it infringed the Community prin-
ciple of legal certainty, since it did not adopt any legislation
regarding any need far action to achieve market penetration
in countries outside the EU.

— that the Commission infringed, or misapplied, Articles 87
and 88 EC by taking the view that it had not been notified
of the legal basis for the aids disbursed, and by considering
them to be incompatible with the common market simply

Action brought on 3 August 2004 by the Kingdom of
the European
Denmark against

the Commission of

Communities

(Case T-317/04)

(2004/C 262/89)

(Language of the case: Danish)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 3 August 2004 by the Kingdom of
Denmark,
represented by Jørgen Molde, assisted by Peter
Biering and Kim Lundgaard Hansen, lawyers.

The applicant claims that the Court should:

— annul Commission Decision of 19 May 2004 concerning

Denmark's measures in favour of TV2/Danmark;

— in the alternative, annul Article 2 of Commission Decision
of 19 May 2004 concerning Denmark's measures in favour
of TV2/Danmark;

— in the alternative, annul Articles 2, 3 and 4 of Commission
Decision of 19 May 2004 concerning Denmark's measures
in favour of TV2/Danmark;

— order the Commission to pay the costs.

Pleas in law and main arguments:

By the contested decision, the Commission approved the aid
granted to TV2/DANMARK A/S from 1995 to 2002 in the
form of licence-fee resources and certain other measures as
compatible with the common market, except for an amount of
DKK 628.2 million which, in the Commission's view, consti-
tutes unlawful State aid which the Kingdom of Denmark is
obliged to recover from TV2/DANMARK A/S.