Case C-80/05 P: Appeal brought on 18 February 2005 (by fax/email on 16 February 2005) by Glunz AG and OSB Deutschland GmbH against the judgment of the Court of First Instance (Fourth Chamber, Extended Composition) of 1 December 2004 in Case T-27/02 Kronofrance S.A. v Commission of the European Communities, supported by Glunz AG and OSB Deutschland GmbH
Date: 2005-04-30
Institutions: Court of Justice
Subjects: General Court (EU), State aid, action for annulment (EU), competition law

C 106/16

EN

Official Journal of the European Union

30.4.2005

The appellant claims that the Court of Justice should:

1. set aside in its entirety the judgment of the Court of First
Instance (Fourth Chamber, Extended Composition) of 1
December 2004 in Case T-27/02 (1);

Finally, the contested judgment also infringes Article 64 of the
Rules of Procedure of the Court of First Instance in that the
Court failed to investigate of its own motion facts which were
relevant to its decision and which would have enabled it to
determine the issue of locus standi. This applies, in particular, to
the degree of competition between the applicant and the reci-
pient of the aid.

2. give a final decision in the case and dismiss the application

as inadmissible, but in any event as unfounded;

(1) OJ C 31 of 5.2.2005.

3.

join these proceedings, for the purposes of the procedure
and the judgment, with the parallel appeal brought by
Glunz AG;

4. order the applicant in the main proceedings to pay the costs
of these appeal proceedings as well as the costs of the
proceedings at first instance in Case T-27/02.

Pleas in law and main arguments

The contested judgment
the fourth
infringes,
paragraph of Article 230 EC, Article 87(3)(c) EC and Article 64
of the Rules of Procedure of the Court of First Instance.

in particular,

First, the applicant lacked locus standi. Individual concern for
the purposes of the fourth paragraph of Article 230 EC does
not flow directly from the status of ‘interested party’ within the
meaning of Article 1(h) of Regulation No 659/1999. Rather, it
depends only on the substance of the disputed act and the
applicant's competitive situation. A competitor who objects to
a grant of aid in preliminary proceedings must make out a case
for and,
if necessary, prove that he has been ‘appreciably’
affected by the aid granted. Even if being only ‘simply’ affected
is considered sufficient, a detailed case to that effect must be
made out. The application at first instance should, therefore,
have been dismissed as inadmissible, as the applicant had not
made out a case for being simply,
let alone appreciably,
affected.

Furthermore, the contested judgment infringes points 3.3, 3.4,
3.10 and 3.10.1 of the 1998 multisectoral framework, in that
the Court requires the Commission to analyse consumption
and any possible decline in the relevant market, even where
sufficient data on relevant capacity utilisation is available. In
doing so, the Court is also in breach of Article 87(3)(c) EC,
having substituted its own assessments for those which only
the Commission is entitled to make.

Appeal brought on 18 February 2005 (by fax/email on 16
February 2005) by Glunz AG and OSB Deutschland
GmbH against the judgment of the Court of First Instance
(Fourth Chamber, Extended Composition) of 1 December
2004 in Case T-27/02 Kronofrance S.A. v Commission of
the European Communities, supported by Glunz AG and
OSB Deutschland GmbH

(Case C-80/05 P)

(2005/C 106/31)

(Language of the case: German)

An appeal against the judgment of the Court of First Instance
(Fourth Chamber, Extended Composition) of 1 December 2004
in Case T-27/02 Kronofrance S.A. v Commission of the Euro-
pean Communities, supported by Glunz AG and OSB Deutsch-
land GmbH, was brought before the Court of Justice of the
European Communities on 18 February 2005 (by fax/email 16
February 2005) by Glunz AG and OSB Deutschland GmbH,
represented by Dr Hans-Jörg Niemeyer, Rechtsanwalt, Hengeler
Mueller, with an address for service in Luxembourg.

The appellants claim that the Court should:

1. set aside the judgment of the Court of First Instance (Fourth
Chamber, Extended Composition) of 1 December 2004 in
Case T-27/02 (1) and dismiss the application;

2.

in the alternative, set aside the contested judgment and refer
the case back to the Court of First Instance;

3. order the applicant at first instance to pay the costs.

30.4.2005

EN

Official Journal of the European Union

C 106/17

Pleas in law and main arguments

The contested judgment of the Court of First Instance should
be set aside on the following grounds:

interpreted incorrectly the multisectoral

— The Court of First Instance infringed Article 87(3) EC, since
it
regional aid
framework for large investment projects, and thereby disre-
garded the discretion enjoyed by the Commission in
drawing up and applying that Community framework.
Moreover, the Court of First Instance's economic assess-
ment, namely that aid in a shrinking market is known to
create substantial risks of distortions of competition even if
there is no overcapacity in the sector concerned, is wrong.

— The Court of First Instance found, as a result of an incorrect
interpretation of the fourth paragraph of Article 230 EC,
that the applicant at first instance had locus standi and the
application was therefore admissible. The applicant is not
directly and individually concerned by the contested aid,
since there is no relationship of competition between it and
the appellants.

— The Court of First Instance infringed Article 64 of the Rules
of Procedure. It should have clarified the facts further by
means of measure of organisation of procedure, in order to
ascertain the facts which were said to justify the applicant's
locus standi.

— The Court of First Instance infringed the second paragraph
of Article 230 EC, since in its judgment it went beyond the
complaints raised in the application.

(1) OJ No C 31 of 5.2.2005.

Reference for a preliminary ruling from the the House of
Lords by order of that court of 3 November 2004 in
United Utilities plc v Commissioners of Customs and
Excise

(Case C-89/05)

(2005/C 106/32)

(Language of the case: English)

on 18 February 2005, for a preliminary ruling in the proceed-
ings between United Utilities plc and Commissioners of
Customs and Excise on the following question:

1. Does the exemption for betting laid down in Article 13B(f)
of
the EC Sixth Council Directive of 17th May 1977
(Directive 77/388/EEC) (1) apply where a person (‘the
Agent’) provides services on behalf of another person (‘the
Principal’) of accepting bets from customers and communi-
cating their acceptance by the Principal to customers where:
(a) the actions of the Agent perform a necessary step in
creating the legal relationship of a bet between the Principal
and its customer and thereby consummate the betting trans-
action; but (b) the Agent makes no decisions as to the
setting of odds, the odds being set by the Principal or in
some cases determined by third parties under the rules of
the sport in question; and (c) the Agent decides whether or
not to accept bets on behalf of the Principal in accordance
with criteria laid down by the Principal so that the Agent
has no discretion?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nization of the laws of the Member States relating to turnover taxes
- Common system of value added tax: uniform basis of assessment
(OJ L 145, 13.06.1977, p. 1).

Reference for a preliminary ruling from the Verwaltungs-
gericht Darmstadt by order of that court of 25 January
2005 in the proceedings between Mohamed Gattoussi and
the Municipality of Rüsselsheim

(Case C-97/05)

(2005/C 106/33)

(Language of the case: German)

(Darmstadt Administrative Court)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Verwaltungsgericht Darm-
stadt
(Germany) of 25
January 2005, received at the Court Registry on 23 February
2005, for a preliminary ruling in the proceedings between
Mohamed Gattoussi and the Municipality of Rüsselsheim on
the following questions:

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the the House of Lords (United
Kingdom) of 3 November 2004, received at the Court Registry

1. Does Article 64 of the Euro-Mediterranean Agreement with
Tunisia (OJ 1998 L 97, p. 2) have any effect on entitlement
to remain?