Case T-317/04: Action brought on 3 August 2004 by the Kingdom of Denmark against the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: Denmark, European Commission, State aid, action for annulment (EU), broadcasting, control of State aid, quasi-fiscal charge, television

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.

C 262/48

EN

Official Journal of the European Union

23.10.2004

The Danish Government states in support of its action that the
Commission's decision of 19 May 2004:

Action brought on 27 July 2004 by Port Support Customs
Rotterdam B.V. against the Commission of the European
Communities

— fails to comply with essential procedural requirements;

— infringes Article 295 EC,

the provisions of

the Treaty
concerning State aid contained in Article 87(1) EC and
Article 86(2) EC and the Communication from the
Commission on the application of State aid rules to public
service broadcasting; and

— infringes Council Regulation (EC) No 659/1999 (1) and

Commission Directive 80/723/EEC. (2)

(Case T-319/04)

(2004/C 262/90)

(Language of the case: Dutch)

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 Port Support
Customs Rotterdam B.V., established in Rotterdam (Nether-
lands), represented by A.T.M. Jansen.

The Danish Government puts forward the following in support
of its principal action for annulment:

The applicant claims that the Court should:

— that the principle that both sides must be heard has been
disregarded, which has deprived the Danish Government of
the opportunity to defend itself,
thereby affecting the
outcome in the Commission's decision;

— that neither the licence-fee resources transferred to TV2 nor
the advertising revenue, which was transferred to TV2
through the TV2 fund until it was abolished in 1997, are
State aid, since they are not State resources within the
meaning of Article 87;

— that the capital built up in TV2 from 1995 to 2002 consti-
tutes reasonable earnings in the performance of its public
service obligations and that, accordingly,
it is not 'excess
compensation' constituting State aid contrary to the EC
Treaty;

— that the Commission's calculation of ‘excess compensation’

is incorrect;

— that there is no State aid, even though the transferred funds
exceed TV2's net costs inherent in the performance of its
public service obligations, since the funds have in fact not
been used to cross-subsidise commercial activities and
therefore do not distort competition;

— that any State funds transferred to TV2 must be considered
to have been transferred in accordance with the criterion of
the private investor in a market economy and that it is
therefore not State aid.

(1) Council Regulation (EC) No 659/1999 of 22.3.1999 laying down
detailed rules for the application of Article 93 of the EC Treaty (OJ
1999 L 83, p. 1).

(2) Commission Directive 80/723/EEC of 25.6.1980 on the transpar-
ency of financial relations between Member States and public under-
takings (OJ 1980 L 195, p. 35).

— annul the defendant's decision of 18 May 2004;

— order the defendant to make the information available to
the applicant and to supply it with a copy of the requested
documents.

Pleas in law and main arguments:

The applicant requested access to the OLAF mission report on
footwear and textile products from Cambodia. The applicant
was granted only partial access to that report and therefore
requested access to those parts of the report which had not
been disclosed. The applicant was not granted such access.

In support of its application, the applicant alleges infringement
of Article 8 of 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. (1) The applicant submits that
the Commission
failed to reply to its confirmatory application.

(1) OJ 2001 L 145, p. 43.

Action brought on 29 July 2004 by Air Bourbon against
the Commission of the European Communities

(Case T-321/04)

(2004/C 262/91)

(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 29 July 2004 by Air Bourbon, a
company established in Sainte-Marie, La Réunion (France),
represented by Sauveur Vaisse, lawyer.