Case T-80/06: Action brought on  3 March 2006  — Budapesti Erőmű v Commission
Date: 2006-03-03
Institutions: Court of First Instance
Subjects: European Commission, Hungary, State aid, accession to the European Union, action for annulment (EU), control of State aid, electrical energy, purchase

6.5.2006

EN

Official Journal of the European Union

C 108/25

— annul Decision C(2005) 4634 final, of 30 November 2005,
in Case COMP/F/38.354 — Industrial bags, alternatively
substantially reduce the amount of the fine imposed on
Plásticos Españoles S.A.;

— order the Commission to pay the costs.

Pleas in law and main arguments

This action seeks annulment of Decision C(2005) 4634 final, of
30 November 2005,
in Case COMP/F/38.354 — Industrial
bags. In the contested decision, the Commission declared that
the applicant, among other undertakings, had infringed Article
81 EC by having participated, between 1991 and 2002,
in
agreements and concerted practices in the industrial plastic bag
sector
the Netherlands, Luxemburg,
Spain and France. For those infringements, the Commission
imposed a fine on the applicant jointly and severally with the
undertaking Armando Álvarez S.A..

in Germany, Belgium,

In support of
following pleas:

its claims the applicant puts forward the

— error in the assessment of the facts by the Commission in
relation to the scale of the applicant's conduct, to the scope
of the product markets and geographic markets concerned
and the product quotas which serve as a basis for calcu-
lating the fines;

— violation of Article 81(1) EC and the principle of legal
certainty, on account of incorrect classification of the infrin-
gement as ‘single and continuous’ and incorrect determin-
ation of the responsibility of the undertakings sanctioned;

— in the alternative, violation of Article 81(1) EC and the prin-
ciple of legal certainty and equal treatment on account of
incorrect classification of the infringement as ‘single and
continuous’ with respect to the applicant, incorrect assess-
ment of the applicant's individual liability and discrimina-
tion as between itself and the undertaking Stempher B.V.
which, according to the Commission, had also participated
in the infringement in question;

— infringement of Article 15(2) of Regulation No 17/1962 (1)
and the Guidelines on the method of setting of fines on
account of manifest error in the calculation of the fine
imposed on the applicant and a manifest infringement of
the principle of equal
treatment and proportionality in
determining the amounts.

(1) EEC Council: Regulation No 17: First Regulation implementing Arti-
cles 85 and 86 of the Treaty (English special edition: Series I
Chapter 1959-1962 p. 87)

Action brought on 3 March 2006 — Budapesti Erőmű v
Commission

(Case T-80/06)

(2006/C 108/46)

Language of the case: English

Parties

Applicant: Budapesti Erőmű ‘Zártkörűen Működő Részvénytár-
saság’ (Budapest, Hungary) [represented by: M. Powell, Solicitor,
C. Arhold, K. Struckmann, lawyers]

Defendant: Commission of the European Communities

Form of order sought

— Annul the Decision of the European Commission to open
the formal
investigation procedure in Case State aid C
41/2005 (ex NN 49/2005) — Hungarian Stranded Costs —
of 9 November 2005, or in the alternative to annul the
Decision as
agreements
as
concluded by the applicant are concerned;

the power purchase

far

— to award the applicant the costs of the present action;

— to take such other or further action as justice may require.

Pleas in law and main arguments

is a district heating supplier and electricity
The applicant
generator in Hungary. In the contested decision, the Commis-
sion decided to open a formal
investigation procedure into
alleged new State aid in the form of power purchase agree-
ments concluded between Hungarian electricity generators and
the public Hungarian transmission operator (1).

In support of its application, the applicant submits that the
Commission lacked competence to take the contested decision.
According to the applicant, it follows from Annex 4, Chapter
3, Section 1 of the Accession Treaty (2) and Article 1(b) of
Council Regulation No 659/1999 (3) that the Commission only
has jurisdiction over aid measures which are still applicable
after the date of accession of a new Member State. The appli-
cant
the power purchase agreements were
concluded prior to accession and are not still applicable after
accession.

submits

that

C 108/26

EN

Official Journal of the European Union

6.5.2006

that

furthermore submits

The applicant
the Commission
committed a manifest error of law and appreciation by opening
the formal
investigation procedure without having objective
grounds for finding that the applicant's power purchase agree-
ments contain State aid. According to the applicant,
the
Commission failed to assess the nature of the applicant's power
purchase agreements in the light of the circumstances at the
time they were concluded, made an inadequate assessment of
the notion of economic advantage and of the notion of distor-
tion of competition and impact on trade within the meaning of
Article 87(1) EC.

fact represents a decision, which although in the form of a
regulation, is of direct and individual concern to the appli-
cant;

— annul Commission Regulation

(EC) No 2171/2005
concerning the classification of certain goods
in the
Combined Nomenclature (OJ L 346, p. 7) in so far as it
classifies the colour monitor of the liquid crystal device
type described in item 2 of the table in the annex to that
regulation under CN Code 8528 21 90;

The applicant also submits that the Commission has erred in
finding that the power purchase agreements contain new aid,
as they were concluded prior to the opening of the Hungarian
electricity market.

— declare that monitors meeting the technical specifications
contained in item 2 of the annex to the contested Regu-
lation are properly classified in heading 8471 of
the
Combined Nomenclature;

Finally,
reasoning is inadequate.

the applicant claims that

the contested decision's

— order the Commission of the European Communities to

bear the costs of the present proceedings.

(1) State aid — Hungary — State aid No C 41/2005 (ex NN 49/2005)
— Hungarian Stranded Costs — Invitation to submit comments
pursuant to Article 88(2) of the EC Treaty (Text with EEA relevance)
(OJ 2005 C 324, p. 12)

(2) Act concerning the conditions of accession of the Czech Republic,
the Republic of Estonia, the Republic of Cyprus, the Republic of
Latvia, the Republic of Lithuania, the Republic of Hungary, the
Republic of Malta, the Republic of Poland, the Republic of Slovenia
and the Slovak Republic and the adjustments to the Treaties on
which the European Union is founded - Annex IV: List referred to
in Article 22 of the Act of Accession - 3. Competition policy (OJ
2003 L 236, p. 797)

(3) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article [88] of the EC
Treaty (OJ L 83, p. 1)

Action brought on 14 March 2006 — Apple Computer
International v Commission

(Case T-82/06)

(2006/C 108/47)

Language of the case: English

Parties

Applicant: Apple Computer International (Cork, Ireland) [repre-
sented by: G. Breen, Solicitor, P. Sreenan, SC, B. Quigley, BL]

Defendant: Commission of the European Communities

Form of order sought

— Declare that the classification contained in item 2 of the
Annex to Commission Regulation (EC) No 2171/2005 in

Pleas in law and main arguments

The contested Regulation classifies four Liquid Crystal Displays
(LCDs) at two different CN codes in the Combined Nomencla-
ture. The applicant notes that, although the device referred to
at item 2 in the annex to the contested regulation (the device)
is not identified as the applicant's product, the technical charac-
teristics and description contained therein conclusively identify
the product as being the Apple 20″ LCD.

The applicant submits that by classifying its 20″ LCD at
heading 8528, the Commission has infringed Council Regu-
lation (EEC) No 2658/87 on the tariff and statistical nomencla-
ture and on the Common Customs Tariff (1) and committed a
manifest error in the interpretation of the Community rules on
tariff classification.

The applicant submits that the device satisfies, pursuant to
heading 8471, as interpreted in Legal Note 5 to Chapter 84 of
the Combined Nomenclature, the criteria for classification as a
‘unit’ of an automatic data-processing machine,
is of a kind
solely or principally used in an automatic data-processing
machine and, moreover, is not capable of performing a specific
function other than data processing. According to the appli-
cant, the classification under heading 8528 therefore consti-
tutes a manifest error of interpretation of the Community rules
on tariff classification.

Finally, the applicant claims that the contested classification is
in direct conflict with the Judgment of the European Court of
Justice in Case C-11/93 Siemens Nixdorf v Hauptzollamt Augsburg
[1994] ECR I-1945.

(1) OJ L 256, p. 1