Case C-408/04 P: Appeal brought on 23 September 2004 (Fax: 16.9.04) by the Commission of the European Communities against the judgment delivered on 1 July 2004 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Case T-308/00 between Salzgitter AG, supported by the Federal Republic of Germany, and the Commission of the European Communities
Date: 2004-12-18
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), Germany, State aid, action for annulment (EU), control of State aid, iron and steel industry, sanction (EU)

18.12.2004

EN

Official Journal of the European Union

C 314/3

G. Amorelli and D. Ciano) — the Court (Third Chamber),
composed of A. Rosas (Rapporteur), President of the Chamber,
J.-P. Puissochet, A. Borg Barthet, J. Malenovský, U. Lõhmus,
Judges, Advocate General: F. G. Jacobs, Registrar: R. Grass, has
given a judgment on 27 September 2004, in which it:

1) Dismisses the appeal.

2) Orders the Union européenne de radio-télévision (UER) to pay the

costs.

(1) OJ C 55 of 8.3.2003.

ORDER OF THE COURT

(Sixth Chamber)

of 28 September 2004

Appeal brought on 23 September 2004 (Fax: 16.9.04) by
the Commission of the European Communities against the
judgment delivered on 1 July 2004 by the Court of First
Instance of the European Communities (Fourth Chamber,
Extended Composition)
in Case T-308/00 between
Salzgitter AG, supported by the Federal Republic of
the Commission of
European
Germany,
Communities

and

the

(Case C-408/04 P)

(2004/C 314/06)

Instance of

An appeal against the judgment delivered on 1 July 2004 by
the European Communities
the Court of First
(Fourth Chamber, Extended Composition)
in Case T-308/00
between Salzgitter AG, supported by the Federal Republic of
Germany, and Commission of the European Communities was
brought before the Court of Justice of the European Commu-
nities on 23 September 2004 (Fax: 16.9.04) by the Commis-
sion of
the European Communities, represented by Viktor
Kreuschitz and Michael Niejahr, with an address for service in
Luxembourg.

The applicant claims that the Court should:

in Case C-115/03 (request for a preliminary ruling from
the Tribunale Civile di Genova [Genoa District Court]):
Eco Eridiana S.r.l. v Presidenza del Consiglio di Ministri
and Ministero dell'Ambiente

1. Set aside the judgment of the Court of First Instance of 1
July 2004 in Case T-308/00 (1) between Salzgitter AG and
the Commission of the European Communities;

(Article 104(3) of the Rules of Procedure — Management of
waste — Hazardous waste — Directive 91/689/EEC —
Article 4 — Meaning of ‘producer of waste’ — Whether or
not natural persons are included)

2. Refer the case back to the Court of First Instance;

3. Order Salzgitter AG to pay the costs.

(2004/C 314/05)

(Language of the case: Italian)

In Case C-115/03: request
for a preliminary ruling under
Article 234 EC from the Tribunale Civile di Genova (Italy),
made by decision of 10 March 2003, received at the Court on
17 Mar 2003, in proceedings between Eco Eridiana S.r.l. and
Presidenza del Consiglio di Ministri and Ministero dell'Am-
biente, the Court (Sixth Chamber), composed of J.-P. Puissochet,
President of the Chamber, S. von Bahr (Rapporteur), and A.
Borg Barthet,
Judges; Advocate General: M. Poiares Maduro;
Registrar: R. Grass, made an order on 28 September 2004, the
operative part of which is as follows:

The obligation to keep a record of hazardous waste pursuant
to
Article 4 of Council Directive 91/689/EEC of 12 December 1991
on hazardous waste applies to all producers of such waste, including
dental surgeons' practices, and not only to producers of hazardous
waste which carry on their business in the form of an undertaking or
institution.

Pleas on appeal and main arguments:

By the judgment under appeal, the Court of First Instance
annulled Articles 2 and 3 of Decision 2000/797/ECSC on State
aid granted by the Federal Republic of Germany to Salzgitter
AG, Preussag Stahl AG and the group's steel-industry subsidi-
aries. By means of the repealed provisions, the Commission
ordered the Federal Republic of Germany to recover illegal and
incompatible aid from the beneficiary.

Pursuant to Article 1 of that decision, the special depreciation
allowances and the tax-free reserves, which the applicant was
the Zonenrandförderungsgesetz
granted under Article 3 of
(German law on the development of the border zone between
the former German Democratic Republic and the former
Czechoslovak Socialist Republic, the ‘ZRFG’) and of which the
applicant had been the recipient in respect of eligible bases of
DEM 484 million and DEM 367 million respectively, were
declared by the Commission as incompatible with the common
market, but were not annulled. The Zonenrandförderungsgesetz
was approved by the Commission under Article 92(2)(c) of the
EC Treaty — now Article 87(2)(c) EC. The ECSC Treaty does
not contain a comparable provision. Thus although the aid
granted to Salzgitter AG is incompatible with the common
market, it cannot be recovered.

C 314/4

EN

Official Journal of the European Union

18.12.2004

The judgment relies essentially on the concept that the situation
resulting from the adoption of the Second and Third Steel Aid
Codes was characterised by elements of uncertainty and lack of
clarity, which are attributable to the Commission.

certainty,
incompatible with the common market.

in order to avoid repayment of state aid which is

(1) OJ C 239 of 25.9.2004

Against this, the appellant puts forward the following four
pleas in law:

Firstly, by describing the legal situation resulting from the
adoption of the First, Second and Third Steel Aid Codes as
‘being characterised by uncertainty and lack of clarity’,
the
Court contradicts its own case-law. According to the judgment
in Case T-129/96 Preussag Stahl v Commission [1998] ECR II-
609, paragraph 43, the derogations laid down in the Codes to
the principle of the absolute prohibition of aid in Article 4(c)
of the ECSC Treaty can be granted only during a period which
those Codes determine. It follows from this case-law, which has
been confirmed by the European Court of Justice, that neither
the First nor the Second Steel Aid Codes could produce legal
effects after 31 December 1981 and 31 December 1985
respectively. Since the Third Steel Aid Code came into force, it
was perfectly clear that the Commission ‘shall be informed of
plans to grant aid to the steel
industry under schemes on
which it has already taken a decision under the EEC Treaty’
(Article 6(1) of
the Third Steel Aid Code, OJ L 340,
18.12.1985, p. 1). However, the first two State Aid Codes were
not applied in the contested decision and are not relevant to
the dispute. In any event, contrary to the finding of the Court
of First Instance in the contested judgment, the first two State
Aid Codes could not produce any effects outside the sphere of
the ESCS.

Secondly, the Court has not required any evidence of the fact
that the Commission actually had ‘awareness of the aid received
by the applicant’. Moreover, the Court has failed to examine
the question of whether the annual reports, which were regu-
larly submitted by the applicant, would have actually made it
possible to identify non-notified aid.

Thirdly, the Court seems to be of the view that the transmis-
sion of documents to the Commission outside of the procedure
laid down by Article 88 EC could exclude the duty to pay back
illegal aid by the mere reliance of the applicant on the principle
of legal certainty.

Finally, the judgment could be detrimental to the system of
control of aid by the Commission, as it deviates from the
consistent case-law of the Court, according to which an under-
taking which has benefited from aid may only in principle
entertain a legitimate expectation that the aid is lawful if it has
been granted in compliance with the procedure laid down in
that article. A diligent operator should normally be able to
determine whether that procedure has been followed (Case C-
5/89 Commission v Germany [1990] ECR I-3437, paragraph
14). In this judgment, the Court held that undertakings bene-
fiting from aid could not rely on the principle of the protection
legal
legitimate expectations, based on the principle of
of

Action brought on 6 October 2004 by the Commission of
the Republic of
the European Communities against

Austria

(Case C-428/04)

(2004/C 314/07)

Justice of

An action against the Republic of Austria was brought before
the Court of
the European Communities on 6
October 2004 by the Commission of the European Commu-
nities, represented by Nicola Yerrell and Horstpeter Kreppel,
with an address for service in Luxembourg.

The applicant claims that the Court should rule as follows:

I. The Republic of Austria has failed to fulfil its obligations
under Articles 2, 7, 11, 12, 13 and 18 of Council Directive
89/391/EEC of 12 June 1989 on the introduction of
measures to encourage improvements in the safety and
health of workers at work (OJ L 183, 29.6.1989, p. 1), by:

1. failing to adopt, to date, and notwithstanding the expiry
of the period for transposition, the following legislation,
by means of which the directive should have been trans-
posed into Austrian law, namely:

(a) the Landeslehrer-Dienstrechtsgesetz (LDG)
Rules applying to Teachers in the Länder)

(General

(b) the Beamten-, Kranken- und Unfallversicherungsge-
Insurance

setz (Law on Sickness and Accident
Schemes for Civil Servants)

(c) the Allgemeines Sozialversicherungsgesetz (ASVG)

(Law on General Sickness Insurance Schemes)

or in the event that these measures have since been
adopted, by failing to notify them to the Commission;

2. failing to transpose, or not properly transposing, the
the directive into Austrian law,

following Articles of
namely:

(a) Article 2(1), concerning teachers

in ‘öffentlichen

Pflichtschulen’ in the Tirol

(b) Article 7(3)

(c) Article 8(2)