Case T-368/05: Action brought on  26 September 2005  — Austria v Commission
Date: 2005-11-26
Institutions: Court of First Instance
Subjects: Austria, EAGGF Guarantee Section, EU financing arrangements, European Commission, action for annulment (EU)

C 296/34

EN

Official Journal of the European Union

26.11.2005

In support of its claims, the applicant argues that the Commis-
sion:

Form of order sought

— by having failed to initiate the formal investigation proce-
dure when, once it had received the Italian Government's
proposal for reformulation of the applications in respect of
the third invitation to tender under the previous scheme, it
incompatible with the common
considered that proposal
market, has infringed Article 88(2) of the Treaty and the
principle of protection of the right to a fair hearing;

— has breached the principle of legal certainty;

— has committed an error of assessment.

According to the applicant, by making the compatibility with
the common market of the proposal to allow undertakings
taking part in the third tender procedure to reformulate their
tender and by concluding, without the least discussion with the
parties concerned,
the
Commission has altered its decision to approve the 1997
scheme, which presupposed a previous investigation under
Article 87 of the Treaty.

the proposal was incompatible,

that

The applicant claims, subject to all procedural reservations, that
the Court should declare that, by having acted unlawfully as set
out in the application, the Commission has seriously and mani-
festly infringed Community law, and has caused the applicant
financial damage and must therefore be ordered to pay the
applicant compensation:

(a) of EUR 387 700,00,

revalued in accordance with the
ISTAT (Italian Central Statistical Office) indices of 26 June
2001 until the date of judgment;

(b) of EUR 387 700,00,

revalued in accordance with the
ISTAT indices of 26 June 2002 until the date of judgment;

(c) of EUR 387 700,00,

revalued in accordance with the
ISTAT indices of 26 June 2003 until the date of judgment;

(d) interest on those revalued sums,

and that the Court should order the defendant to pay the costs,
including those of the party's technical consultancy.

Furthermore, the applicant alleges that, by affecting and putting
an end to pre-existing legal situations, the defendant has in fact
revoked the authorisation decision of 1997, without observing
the procedural guarantees provided by Regulation EC No
659/99 for cases of revocation of aid.

Pleas in law and main arguments

The pleas in law and main arguments are those put forward in
Case T-362/05 Nuova Agricast v Commission.

(1) Order of the Court of First Instance of 8 June 2005, not published.
(2) Order of the Court of First

Instance of 8 June 2005, not yet

published in the ECR.

(3) Order of the Court of First Instance of 15 June 2005, not published.

Action brought on 26 September 2005 — Austria v
Commission

Action brought on 21 September 2005 — COFRA s.r.l. v
Commission of the European Communities

(Case T-368/05)

(2005/C 296/71)

Language of the case: German

(Case T-363/05)

(2005/C 296/70)

Parties

Applicant(s): Republic of Austria (represented by: H. Dossi)

Language of the case: Italian

Defendant(s): Commission of the European Communities

Form of order sought

Parties

The applicant(s) claim(s) that the Court should:

Applicant(s): COFRA s.r.l.
Michele Arcangelo Calabrese, lawyer)

(Barletta (Italy))

(represented by

Defendant(s): Commission of the European Communities

— annul Commission Decision C(2005)2685 of 15 July 2005
excluding from Community financing certain expenditure
incurred by the Member States under the Guarantee Section
of the European Agricultural Guidance and Guarantee Fund
(EAGGF), and order the Commission to bear the costs of
the proceedings;

26.11.2005

EN

Official Journal of the European Union

C 296/35

— alternatively, annul Decision C(2005)2685 of 15 July 2005
excluding from Community financing certain expenditure
incurred by the Member States under the Guarantee Section
of the European Agricultural Guidance and Guarantee Fund
(EAGGF)
in so far as it concerns the calculation and
amount of the financial correction, and order the Commis-
sion to bear the costs of the proceedings;

— in the alternative, annul Decision C(2005)2685 of 15 July
2005 excluding from Community financing certain expen-
diture incurred by the Member States under the Guarantee
Section of the European Agricultural Guidance and Guar-
antee Fund (EAGGF) in so far as it concerns the expenditure
of the accredited paying agency Agricultural Market Austria
in the animal premia sector for the regions of Steiermark
and Kärnten; or, in the further alternative, annul the Deci-
sion in relation to Steiermark and Kärnten in so far as it
concerns the calculation and the amount of the financial
correction, and order the Commission to bear the costs of
the proceedings.

Action brought on 23 September 2005 — Kingdom of
Spain v Commission of the European Communities

(Case T-369/05)

(2005/C 296/72)

Language of the case: Spanish

Parties

Applicant(s): Kingdom of Spain (represented by: D. Fernando
Diez Moreno)

Defendant(s): Commission of the European Communities

Pleas in law and main arguments

In the contested decision the Commission excluded from Com-
munity financing the expenditure itemised in the annex to the
Decision because it does not comply with Community rules.

Form of order sought

The applicant basis its action on two pleas. First of all, it claims
that,
in adopting its decision, the Commission infringed the
Treaty and the norms applicable when implementing it. In par-
ticular, it alleges in this respect, infringement of Article 5(2)(c)
of Regulation (EEC) No 729/70 (1) and Article 7(4) of Regu-
lation (EC) No 1258/1999 (2) since a financial correction at the
expense of the Republic of Austria would only have been
admissible if the Republic of Austria had not complied with its
obligations arising from Community law as regards controlling
EAGGF expenditure and if this had had financial consequences
for the EAGGF. According to the Republic of Austria, such
cumulative conditions should not be applied in the present
case. Moreover, with the contested decision, the Commission is
in breach of its duty to cooperate in good faith with the
Member States, as laid down in Article 10 EC.

The second plea alleges infringement of essential procedural
requirements. The applicant claims that, with the contested
decision, the Commission did not comply on important points
with its duty to give reasons and it based the underlying argu-
ments for its decision on statements based on insufficient fact
finding.

(1) Regulation (EEC) No 729/70 of the Council of 21 April 1970 on

the financing of the common agricultural policy.

(2) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the

financing of the common agricultural policy.

The applicant(s) claim(s) that the Court should:

— annul Commission Decision of 15 July 2005 (2005/555/
2685) in so far as it refers to the financial corrections made
in respect of Spain in relation to the conversion and
restructuring of vineyards and the measures
the
improvement of the production and marketing of honey;
and

for

— order the Commission to pay the costs.

Pleas in law and main arguments

This action is brought against the Commission Decision of 15
July 2005 (2005/555/EC) excluding from Community financing
certain expenditure incurred by the Member States under the
Guarantee Section of
the EAGGF. Among the exclusions
contained in that decision are financial corrections which affect
the Kingdom of Spain and apply to the fruit and vegetable
the milk sector, public storage, wine and tobacco,
sector,
animal premiums and the honey sector.

This action refers exclusively to the correction of the amounts
paid by way of compensation for loss of income in the wine
sector (EUR 4 790 799,61) and the correction made for the
inclusion of VAT in the EAGGF financing in the honey sector
(EUR 58 315,34). The applicant
the
Commission bases its arguments on a restrictive interpretation
of Regulation (EC) No 1493/1999 of 17 May 1999 on the
common organisation of the market in wine (1). The Kingdom
of Spain also challenges the VAT rules on the improvement of
the production and marketing of honey.

the view that

takes