Case T-360/04: Action brought on 2 September 2004 by FG Marine S.A. against the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: EC Decision, EC action to establish liability, European Commission, France, State aid, aid for restructuring, control of State aid, indemnification, pleasure craft, privatisation

23.10.2004

EN

Official Journal of the European Union

C 262/59

Pleas in law and main arguments:

Action brought on 2 September 2004 by FG Marine S.A.
against the Commission of the European Communities

In support of its claims, the applicant argues that the refusal of
its request for access to documents is unlawful inasmuch as it
stems from misapplication by the Commission of the proce-
dural and substantive rules governing the subject-matter.
In
particular:

— the Commission infringed the procedural time-limits laid
down in Regulation (EC) No 1049/2001 (1) and Decision
2001/937 (2) and refused access on the basis of belated
opposition by certain Member States;

— the measure is manifestly contradictory in so far as the
delay was caused by the need to consult the Member States.
Yet the Commission itself maintains that, irrespective of the
opposition by those Member States, it would in any event
have refused access. Thus the Commission is also in breach
of the relevant rules which required it to reach an unfet-
tered decision, since it had already made up its mind as to
the final decision to be adopted;

— the Commission relied on one of the exceptions provided
for in Regulation No 1049/2001 to refuse access, without
putting forward any ground in that regard; in any event, as
to the exception relied on (protection of commercial
secrecy under Article 4(2) of Regulation No 1049/2001),
the applicant notes that the conditions for the application
of that exception do not exist since in the OCM banana
sector there cannot be said to be any commercial secrets to
be protected, in the terms stated by the Commission;

(Case T-360/04)

(2004/C 262/108)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 2 September 2004 by FG Marine
S.A., established in Roissy (France), represented by Marie-Aline
Michel, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

— order

the Commission, which incurred non-contractual
liability by adopting Decision 2000/513/EC of 8 September
1999 on aid granted by France to Stardust Marine
(OJ 1999 L 206, p. 6), to compensate the applicant and to
is legitimately
find that
entitled may not be
than FF 200 000 000
(EUR 30 489 803.44).

the compensation to which it

lower

Pleas in law and main arguments:

The applicant company in the present case, a majority partner
in Stardust Marine, submits that the Community incurred non-
contractual liability arising from the losses it claims to have
suffered as a result of
the Commission's decision of 8
September 1999, which declared incompatible with the
common market the capital
increases, advances on current
account and recapitalisations effected within Stardust Marine
by Consortium de Réalisation (CDR) as part of Crédit Lyonnais'
restructuring plans, and ordered recovery thereof.

— the Commission failed to rule in regard to a series of docu-
for access,

ments mentioned in the applicant's request
thereby infringing the principle of sound administration;

The recovery order contained in the aforementioned decision is
the reason for Stardust Marine's having tabled its balance sheet,
which deprived the applicant of the benefits of the restruc-
turing it effected.

— the Commission did not grant partial access in respect of
the documents from the States which did not oppose
disclosure.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ L 145 of
31.5.2001, p. 43).

(2) Commission Decision 2001/937/EC, ECSC, Euratom of 5 December
2001 amending its rules of procedure (OJ L 345 of 29.12.2001, p.
94).

FG Marine states in support of its contentions that the decision
contested in the present case disregarded the private investor
criterion and was annulled by the Court in its judgment of 16
May 2002 in Case C-482/99 French Republic v Commission. (1)
In addition, in adopting the decision, the Commission did not
place itself in the context as it existed at the time and did not
view Crédit Lyonnais and its subsidiaries as shareholders in
Stardust Marine, but rather as its bankers. Lastly, the decision
at issue here disregarded completely any prospects for recovery
which Stardust Marine might have.

(1) [2002] ECR I-4397.