Case T-375/04: Action brought on 17 September 2004 by Grandits GmbH and five others against the Commission of the European Communities
Date: 2004-12-04
Institutions: Court of First Instance
Subjects: Austria, European Commission, State aid, action for annulment (EU), administrative procedure, control of State aid, quality label

4.12.2004

EN

Official Journal of the European Union

C 300/45

— annul any decision which may be taken during the proceed-

ings;

language books, implemented by France between 1980 and
2001, as State aid within Article 87(1) EC;

— order the defendant to pay the compensation for 30 days
of annual leave not used up or paid, pursuant to the second
paragraph of Article 4 of Annex V to the Staff Regulations
of Officials, together with interest at 5.25 % from the date
of this action;

— order payment of damages for non-material damage and
detriment
to his career, assessed ex æquo et bono at €
12 500, subject to any increase or reduction during the
course of the proceedings;

— order the defendant to pay the costs.

Pleas in law and main arguments:

The applicant challenges the decision not to allow him to carry
over his days of leave to 2004. In support of his application,
he pleads infringement of Articles 24 and 57 of the Staff Regu-
lations, infringement of Article 4 of Annex V to the Staff Regu-
lations laying down the detailed rules for the granting of leave
and disregard of the principles of proper administration, equal
treatment and protection of
legitimate expectations, and a
manifest error of assessment.

Action brought on 15 September 2004 by Coopérative
d'Exportation du Livre Français against the Commission of
the European Communities

(Case T-372/04)

(2004/C 300/88)

(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 15 September 2004 by the
Coopérative d'Exportation du Livre Français, established in
Paris, represented by Olivier Schmitt, lawyer.

The applicant claims that the Court should:

— annul the decision of the Commission of the European
Communities No C (2004) 1361 final of 20 April 2004
concerning aid implemented by France in favour of
Coopérative d'Exportation du Livre Français (CELF) in so far
as the first sentence of Article 1 thereof categorises the aid
benefiting CELF for handling small orders of French-

— order the Commission of the European Communities to

pay EUR 5 000.00 in respect of costs.

Pleas in law and main arguments

The applicant's business is directly handling orders from abroad
for books, brochures and all communications media and, more
generally, carrying out any transactions for the purpose of
furthering the promotion of French culture throughout the
world. The applicant states that in carrying out that general-
interest activity, it has benefited from various subsidies paid by
the French State. The subsidy at issue in these proceedings is
an operating subsidy granted to the applicant for the purpose
of offsetting the extra costs involved in handling small orders
from booksellers abroad.

In support of its action, the applicant argues, first, that the
statement of reasons in the contested decision is inadequate.
Second, the applicant relies on infringements of Article 86(2)
EC and Article 87(1) EC.

The applicant submits that, as an undertaking operating a
service of general economic interest, it was made responsible
for performing clearly defined public-service obligations. Thus,
the sums paid by the State are excluded from the State aid at
which Article 87(1) EC is targeted.

Action brought on 17 September 2004 by Grandits GmbH
and five others against the Commission of the European
Communities

(Case T-375/04)

(2004/C 300/89)

(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 17 September 2004 by Grandits
GmbH, Kirchschlag (Austria), Scheuer-Fleisch GmbH, Unger-
dorf (Austria), Tauernfleisch Vertriebs-GmbH, Flattach (Austria),
Glanegg
Wech-Kärntner
(Austria), Wech-Geflügel GmbH, St. Andrä (Austria) and
Johann Zsifkovics, Vienna (Austria), represented by J. Hofer and
T. Humer, lawyers, with an address for service in Luxembourg.

Truthahnverarbeitung

GmbH,

C 300/46

EN

Official Journal of the European Union

4.12.2004

The applicants claim that the Court should:

The applicant claims that the Court should:

— annul the Commission's decision of 30 June 2004 (C(2004)
2037 final), concerning State Aid NN 34A 2000/Österreich
‘Qualitätsprogramme und das AMA-Biozeichen und das
AMA-Gütesiegel’;

— order the Commission to pay the costs.

— Annul the Commission Decision in the form of a letter
dated 12 July 2004 and received by the applicant on 16
July 2004 refusing to the latter access to the main contract,
the sub-contracts, the costs of the construction items, the
invoices and the final report relating to the construction of
the Spata airport;

Pleas in law and main arguments

— Order that the costs of, and occasioned by these proceed-

ings be borne by the defendant.

The applicants first claim infringement of procedural rules. The
Commission treated the measures which formed the subject-
matter of
the contested decision as notified aid, although
Austria had given no such notification. The Commission
infringed Article 4(4) of Regulation 659/1999, as it had no
discretion and should have instituted the formal investigation
procedure. The Commission infringed the duty to state reasons
because it did not carefully and impartially examine all the
legal and factual considerations brought to its notice by the
applicants. A period of 52 months was disproportionate in the
context of the preliminary investigation procedure and consti-
tuted an infringement of the general principle that proceedings
should be of a reasonable duration.

The applicants further claim infringement of Article 87(3)(c) of
the EC Treaty. The Commission assumed, on the basis of insuf-
ficient enquiries and factual findings, that the requirements for
the exception under Article 87(3)(c) EC were fulfilled.

Finally, the applicants claim that there has been infringement
of the prohibition on implementation in accordance with the
third sentence of Article 88(3) EC and Article 3 of Regulation
No 659/99. There is, they maintain, a prohibition on imple-
menting aids that have not been notified, and retrospective
curing of the defect by the final decision is not permissible.

Action brought on 22 September 2004 by Ioannis Tere-
zakis against the Commission of the European Commu-
nities

(Case T-380/04)

(2004/C 300/90)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 22 September 2004 by Ioannis
Terezakis, Brussels
represented by L. Defalque,
lawyer.

(Belguim),

Pleas in law and main arguments:

Regarding the Commission's refusal to allow him access to the
main contract, the applicant invokes first of all a manifest error
in law and fact, in that the Commission did not make clear
whether the author of
the document, Athens International
Airport, is a third party other than a Member State or whether
it is an authority of the Greek State and consequently whether,
paragraph 4 of Article 4 of Regulation 1049/2001 (1) or para-
graph 5 of the same article should apply. The applicant also
submits that the Commission provided no evidence that it has
considered granting access without consulting the third party.
He also considers that by opting for an extensive interpretation
of
the
Commission has violated the principle of the widest possible
access to documents, set out in Article 1 (a) of Regulation
1049/2001.

the notion of protection of commercial

interests

In connexion with the same document,
the applicant also
claims that the Commission has violated Article 4 paragraph 4
of Regulation 1049/2001 and Articles 5 paragraphs 3 and 4 of
Decision 2001/937 (2) by failing to assess the justification
advanced by the third party for refusing to consent to disclo-
sure, and failing to reveal to the applicant elements of that
assessment. The applicant also argues that the Commission
violated Article 4 paragraph 6 of Regulation 1049/2001 by
failing to consider the possibility of granting partial access and
that, finally, it has violated its duty to state reasons for its deci-
sion.

By its contested decision the Commission also refused access to
the invoices and final report on the completion of the airport
on the grounds that they are examined in the framework of an
audit commissioned by DG Regional Policy and not yet
completed. Concerning this part of the Commission's Decision
the applicant submits that
the Commission misinterpreted
Article 4 paragraph 2 of Regulation 1049/2001 and committed
a manifest error of fact in considering that the audit in question
falls under this provision. He also invokes a violation of the
principle of the widest possible access as well as violation of
Annex V to the Commission decision granting assistance from
that Member States
the Cohesion Fund, which provides
concerned shall ensure open and easy access to relevant infor-
mation requested by the public. He also submits that
the
Commission failed to consider partial access.