Case C-75/05 P: Appeal brought on 16 February 2005 (by fax/email on 11 February 2005) by the Federal Republic of Germany against the judgment delivered on 1 December 2004 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Case T-27/02 between Kronofrance SA and the 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), Germany, State aid, action for annulment (EU), competition law

30.4.2005

EN

Official Journal of the European Union

C 106/15

(iii) wrongly interpreted and applied (the Community case-law
establishing)
the principle that widest possible access
should be granted to documents held by the Community
from this principle
institutions and that derogations
should be construed as restrictively as possible;

(iv) misinterpreted and misapplied (the Community case-law
establishing) the principle that requests for access to docu-
ments should be assessed on a case-by-case basis;

(v) misinterpreted and misapplied the concept of ‘overriding
public interests’ and committed an error in law by placing
the burden of proof in this respect on the Appellant;

(vi) violated the Community law principle that the Communi-

ty's legal order is based on the rule of law; and

(vii) did not provide sufficient

reasoning and omitted to
respond to specific arguments put forward by the Appel-
lant.

(1) OJ C 112, 10/05/2003, p. 38.
(2) OJ L 145, 31/05/2001, p. 43.

Action brought on 11 February 2005 by the Commission
of the European Communities against the Grand Duchy of
Luxembourg

(Case C-69/05)

(2005/C 106/29)

(Language of the case: French)

Pleas in law and main arguments

(2000/C/28/02), which state that

Article 21(1) of Council Regulation (EC) No 659/1999 of 22
March 1999 laying down detailed rules for the application of
Article 93 of the EC Treaty (now Article 88 of the EC Treaty)
provides that ‘Member States shall submit to the Commission
annual reports on all existing aid schemes with regard to which
no specific reporting obligations have been imposed in a condi-
tional decision’. The submission of those reports in the agri-
cultural sector is governed by the ‘Guidelines for State aid in
the agriculture sector’
‘a
single report should be presented to the Commission, for the
first time before 1 July 2001, and thereafter no later than 30
June each year, covering all aid schemes for the agricultural
sector in the Member State concerned’. The binding nature of
guidelines in the field of State aid which have been accepted as
appropriate measures by a Member State has been confirmed
by the case-law of the Court of Justice. The guidelines for State
aid in the agricultural sector were accepted by the Grand
Duchy of Luxembourg, since it never stated in writing that it
contested the appropriate measures in those guidelines. Conse-
quently, by failing to communicate the reports in question for
the years 2000 and 2001, the Grand Duchy of Luxembourg
has failed to fulfil its obligations.

(1) OJ L 83 of 27.3.1999, p. 1.

Appeal brought on 16 February 2005 (by fax/email on 11
February 2005) by the Federal Republic of Germany
against the judgment delivered on 1 December 2004 by
the Court of First Instance of the European Communities
(Fourth Chamber, Extended Composition) in Case T-27/02
between Kronofrance SA and the Commission of the
European Communities, supported by Glunz AG and OSB
Deutschland GmbH

An action against
the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Commu-
nities on 11 February 2005 by the Commission of the Euro-
pean Communities, represented by Florence Clotuche-Duvieu-
sart and Agnieszka Stobiecka-Kuik, acting as Agents, with an
address for service in Luxembourg.

(Case C-75/05 P)

(2005/C 106/30)

The Commission claims that the Court should:

(Language of the case: German)

1. declare that, by failing to communicate, before 1 July 2001
and no later than 30 June 2002, annual reports on all
existing State aid schemes during 2000 and 2001 in the
agricultural sector, the Grand Duchy of Luxembourg has
failed to fulfil its obligations under Article 88(1) of the EC
Treaty and Article 21 of Council Regulation (EC) No
659/1999 of 22 March 1999 laying down detailed rules for
the application of Article 93 of the EC Treaty (1)
(now
Article 88 of the EC Treaty), as implemented by the Guide-
lines for State aid in the agriculture sector (2000/C/28/02);

2. order the Grand Duchy of Luxembourg to pay the costs.

An appeal against the judgment delivered on 1 December 2004
by the Court of First Instance of the European Communities
in Case T-27/02
(Fourth Chamber, Extended Composition)
between Kronofrance SA and the Commission of the European
Communities, supported by Glunz AG and OSB Deutschland
GmbH, was brought before the Court of Justice of the Euro-
pean Communities on 16 February 2005 (by fax/email on 11
February 2005) by the Federal Republic of Germany, repre-
sented by W.-D. Plessing and C. Schulze-Bahr, of the Federal
Ministry of Finance, Berlin, Germany, acting as Agents, as well
as by Dr. M. Núñez Müller, Rechtsanwalt, Hamburg, Germany.

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.