Case C-525/04 P: Appeal brought on 27 December 2004 by the Kingdom of Spain against the judgment delivered on 21 October 2004 by the Court of First Instance (Fifth Chamber, Extended Composition) in Case T-36/99 between Lenzing AG and the Commission of the European Communities, supported by the Kingdom of Spain
Date: 2005-03-19
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), Spain, State aid, action for annulment (EU), control of State aid, textile industry

C 69/4

EN

Official Journal of the European Union

19.3.2005

ORDER OF THE COURT

(Third Chamber)

of 14 December 2004

in Case C-1/04 SA Tertir-Terminais de Portugal SA v
Commission of the European Communities (1)

(Application for authorisation to serve a garnishee order on
the Commission of the European Communities)

(2005/C 69/08)

(Language of the case: French)

In Case C-1/04 SA: application for authorisation to serve a
garnishee order on the Commission of the European Commu-
nities brought on 15 March 2004 by Tertir-Terminais de
Portugal SA, established in Terminal do Freixieiro (Portugal),
(represented by G. Vandersanden, C. Houssa, L. Lévi and F.
lawyers) against Commission of the Euro-
Gonçalves Pereira,
pean Communities (Agents: I. Martinez del Peral Cagigal and F.
Clotuche-Duvieusart) – the Court (Third Chamber), composed
of A. Rosas, President of the Chamber, A. Borg-Barthet, S. von
Bahr (Rapporteur), J. Malenovský and A. Ó Caoimh, Judges; D.
Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar;
has made an order on 14 December 2004, the operative part
of which is as follows:

1. The action is dismissed.

2. Tertir-Terminais de Portugal SA shall pay the costs.

(1) OJ C 106 of 30.04.2004.

Reference for a preliminary ruling from the College van
Beroep voor het bedrijfsleven by order of that court of 15
December 2004 in Visserijbedrijf D.J. Koornstra Zn. V.o.f.
v Productschap Vis

(Case C-517/04)

(2005/C 69/09)

(Language of the case: Dutch)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the College van Beroep voor het
for Trade and Industry)
bedrijfsleven (Administrative Court

(Netherlands) of 15 December 2004 received at
the Court
Registry on 20 December 2004, for a preliminary ruling in the
proceedings between Visserijbedrijf D.J. Koornstra Zn. V.o.f.
and Productschap Vis (Fish Marketing Board) on the following
questions:

1. Is a charge, such as that in the present proceedings, levied
on an operator in a Member State for landing shrimp with a
fishing vessel registered in that Member State and used to
finance shrimp sieves and peelers in that Member State
consistent with Community law and,
in particular, with
if the charge is also payable on
Articles 25 and 90 EC,
shrimp landed by such an operator elsewhere in the Com-
munity?

2. Is the answer to this question affected by any of

the

following:

a. where the shrimps are caught;

b. whether, after being landed elsewhere in the Community,
the shrimps are transported to the Member State in
which the fishing vessel is registered;

c. whether, after the shrimps have been landed elsewhere in
for sieving and peeling is

the Community, payment
made in that place also?

Appeal brought on 27 December 2004 by the Kingdom of
Spain against the judgment delivered on 21 October 2004
by the Court of First Instance (Fifth Chamber, Extended
Composition) in Case T-36/99 between Lenzing AG and
the Commission of the European Communities, supported
by the Kingdom of Spain

(Case C-525/04 P)

(2005/C 69/10)

(Language of the case: German)

the European Communities

An appeal against the judgment of the Court of First Instance
of
(Fifth Chamber, Extended
Composition) of 21 October 2004 in Case T- 36/99 between
Lenzing AG and the Commission of the European Commu-
nities, supported by the Kingdom of Spain, was brought before
the European Communities on 27
the Court of
December 2004 by the Kingdom of Spain, represented by Juan
Manuel Rodríguez Cárcamo, Abogado del Estado, with an
address for service in Luxembourg.

Justice of

19.3.2005

EN

Official Journal of the European Union

C 69/5

The Kingdom of Spain claims that the Court should:

1. Set aside in full the judgment of the Court of First Instance
(Fifth Chamber, extended composition) of 21 October 2004
in Case T-36/99 between Lenzing AG and the Commission
of the European Communities, supported by the Kingdom
of Spain, which annulled Article 1(1) of Commission Deci-
sion 1999/395/EC (1) of 28 October 1998 on State aid
implemented by Spain in favour of Sniace SA, located in
Torrelavega, Cantabria, as amended by Commission Deci-
sion 2001/43/EC (2) of 20 September 2000;

2. In the new judgment to be delivered, grant all the forms of
order which it sought at
instance and accordingly
first
dismiss the action as inadmissible, or, in the alternative, as
unfounded;

3. Order the defendant to pay the costs under Article 69(2) of

the Rules of Procedure.

Pleas in law and main arguments:

1. According to the decision as amended in 2000, annulled by
the judgment, the rescheduling agreement between Sniace
and the General Social Security Fund and the rescheduling
agreements concluded in 1993 and 1995 between Sniace
and Fogasa did not constitute State aid.

2. The judgment appealed against alleges that

the General
Social Security Fund and Fogasa not only concluded resche-
duling agreements with Sniace, which was in financial diffi-
culties, but also, and in particular, that they tolerated Snia-
ce's failure to perform those agreements.

3. The grounds for the Kingdom of Spain's appeal against the

abovementioned judgment are as follows:

— Error in law, as the action was admitted on the assump-
tion that
the applicant was individually concerned,
contrary to case-law according to which the applicant's
position on the market must have
substantially
worsened.

— Error in law in the interpretation and application of the
private creditor test, since on the basis of the facts stated
to be proven it was assumed that the conduct of the
public institutions investigated did not fulfil the private
creditor test.

(1) OJ L 149 of 16.6.1999, p. 40.
(2) OJ L 11 of 16.1.2001, p. 46.

Reference for a preliminary ruling by the Court of Cassa-
tion, Commercial, Financial
and Economic Division,
France by order of that court of 14 December 2004 in the
case of Laboratoires Boiron S.A. against Agence centrale
des organismes de sécurité sociale (Central Agency for
Social Security Bodies)

(Case C-526/04)

(2005/C 69/11)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Court of Cassation,
Commercial, Financial and Economic Division, France, of 14
December 2004,
the Court Registry on 29
December 2004 for a preliminary ruling in the case of Labora-
toires Boiron S.A. against Agence centrale des organismes
de sécurité sociale on the following questions:

received at

1. Must Community law be interpreted as meaning that a
pharmaceutical laboratory liable to pay a contribution such
as that under Article 12 of Law No 97-1164 of 19
December 1997 on social security funding for 1998 is, in
order to obtain its repayment, entitled to plead that the fact
that wholesale distributors are not liable for that contribu-
tion constitutes State aid?

2. If the answer to question 1 is in the affirmative and since
the success of the claim for repayment may depend solely
on evidence produced by the claimant, must Community
law be interpreted as meaning that rules of national law,
which make that repayment subject to proof by the clai-
mant that the advantage received by the wholesale distribu-
tors exceeds the costs which they bear in discharging the
public service obligations imposed on them by the national
legislation or that the conditions laid down by the Court of
Justice in Altmark are not satisfied, constitute rules of
evidence which have the effect of making it practically
impossible or excessively difficult to secure repayment of a
mandatory contribution, such as that under Article 245-6-1
of the Social Security Code, which has been claimed before
the competent authority, on the ground that the exemption
from the contribution to which those wholesale distributors
are entitled constitutes State aid which has not been notified
to the Commission of the European Communities?