Case T-5/06: Action brought on  9 January 2006  — Denmark v Commission
Date: 2006-03-25
Institutions: Court of First Instance
Subjects: Denmark, European Commission, action for annulment (EU), dangerous substance, electrical equipment, electronic equipment, polymer

C 74/28

EN

Official Journal of the European Union

25.3.2006

Pleas in law and main arguments

The applicant seeks a declaration of invalidity in respect of
Article 2 of Regulation No 1686/2005, which sets the produc-
tion levies and the coefficient for the additional
levy in the
sugar sector for the 2004/05 marketing year with a view to
covering the outstanding balance of the overall loss, in accord-
ance with Article 16 of Council Regulation (EC) No
1260/2001 (1). The disputed article of the regulation sets out
different coefficients for the additional
levy for, on the one
hand, the States constituting the Community prior to 1 May
2004 and, on the other, the ‘new’ Member States.

In support of its action, the applicant sets out the following
heads of complaint:

in the view of

— lack of competence on the part of the European Commis-
sion and breach of Article 16 of Council Regulation (EC)
No 1260/2001, which,
the applicant,
empowers the European Commission to establish only one
coefficient in a set amount for the entire Community, a fact
is confirmed by the
which, according to the applicant,
various unequivocal
concordant
in this
language versions of the provisions contained in the regu-
lation. The applicant further submits that the principles of
the common organisation of the markets within the sugar
sector not only cannot amount to justification for a depar-
ture from the textual
interpretation of the provisions of
Regulation (EC) No 1260/2001 but also rule out any such
departure;

regard,

and,

— inadequate grounds given for the contested measure by
reason of the European Commission's failure to indicate
either the circumstances which could justify the differentia-
tion in the coefficient or the objectives which such a differ-
entiation ought to serve;

— breach of an essential procedural requirement, inasmuch as
Regulation (EC) No 1686/2005 was adopted in a manner
contrary to the requirements of Article 3 of the Rules of
Procedure of the Management Committee for Sugar and
Article 3 of Council Regulation (EEC) No 1 determining the
languages to be used by the European Economic Com-
munity (2) by reason of the fact that the European Commis-
sion, according to the applicant's contentions, did not
submit during the 'comitological' procedure, a Polish-
language version of
the contested
measure. The applicant submits that this infringement is
particularly flagrant in nature inasmuch as it relates to the
draft version of a legal measure and reflects a consistent
practice of the European Commission within the framework
of the Management Committee for Sugar.

the draft version of

(1) Council Regulation (EC) No 1260/2001 of 19 June 2001 on the
common organisation of the markets in the sugar sector (OJ 2001
L 178 of 30.06.2001, p. 1).

(2) OJ, English Special Edition 1952-1958, p. 59, as amended.

— infringement of the principle of immediate and full accep-
the acquis communautaire by the new Member
tance of
States; according to the applicant, the differential coefficient
for the additional
levy is in fact a transitional measure
which has no basis in the Act of Accession or in the
measures adopted pursuant thereto. The applicant refers in
this regard to Article 2 of the Act of Accession, which is
the basis for the adoption by the Republic of Poland of the
full rights and obligations flowing from membership, and
which, in the view of the applicant, is also linked to the
assumption of entitlement to benefit from overpayments
and the obligation to make good losses on the market in
sugar which have arisen over the preceding marketing
years;

— infringement of the principle of non-discrimination; the
applicant criticises the Commission on the ground that the
sole criterion for the differentiation in the coefficient in the
regulation under challenge is the date on which Member
States acceded to the European Union. In the applicant's
view, the consequences of accession were exhaustively regu-
lated in the Act of Accession and the measures adopted on
the basis of that Act, and the date on which the European
Union was enlarged cannot be an objective criterion
capable of providing justification for the differentiation thus
introduced;

— infringement of the principle of solidarity; according to the
applicant, the differentiation in the coefficient vis-à-vis the
other Member States amounts to an arbitrary and dispro-
portionate distribution of the costs of financing the sugar
market and one which highlights a dearth of solidarity;

Action brought on 9 January 2006 — Denmark v Commis-
sion

(Case T-5/06)

(2006/C 74/53)

Language of the case: Danish

Parties

Applicant: Kingdom of Denmark (Copenhagen, Denmark)
(represented by: Jørgen Molde, Agent)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul Commission Decision 2005/717/EC of 13 October
2005 amending for the purposes of adapting to the tech-
nical progress the Annex to Directive 2002/95/EC of the
European Parliament and of the Council on the restriction
of the use of certain hazardous substances in electrical and
electronic equipment (1), so far as points 1 and 2 of the
Annex relating to DecaBDE in polymeric applications are
concerned;

— order the Commission to pay the costs of the proceedings.

25.3.2006

EN

Official Journal of the European Union

C 74/29

Pleas in law and main arguments

By the contested decision the Commission exempted the mate-
rial DecaBDE in polymeric applications from the prohibition
contained in Directive 2002/95/EC of the European Parliament
and of the Council of 27 January 2003 on the restriction of the
use of certain hazardous substances in electrical and electronic
equipment (2) (‘the basic directive’).

The Danish Government submits that the contested decision is
defective in law inasmuch as DecaBDE in polymeric applica-
tions is exempted from the prohibition in the basic directive,
contrary to the conditions laid down therein, on the grounds
that

— such an exemption is not necessary in the light of scientific

and technical progress;

— the Commission did not exempt a specific application of
the material from the prohibition but in practice introduced
an across-the-board exemption for all polymeric applica-
tions;

— the Commission failed to record that no possibilities for
substituting or eliminating DecaBDE in polymeric applica-
tions have been found, which the Danish Government
submits it ought to have done; and

— the Commission did not carry out an assessment to deter-
mine whether the negative burden in terms of environment,
health and/or consumer protection which would result
from substitution would be greater
than the potential
advantages
environment, health and/or
in terms of
consumer protection.

The Danish Government also submits that the Commission
attached weight to an unlawful criterion, namely a general risk
assessment of the exempted material DecaBDE, and that the
decision is vitiated by a fundamental formal defect inasmuch as
the Commission failed to provide adequate reasons as to why it
took the view that the conditions for exempting DecaBDE in
polymeric applications from the prohibition in the basic direc-
tive had been satisfied.

(1) OJ 2005 L 271, p. 48.
(2) OJ 2003 L 37, p. 19.

Action brought on 13 January 2006 — Mopro-Nord
GmbH v Commission

(Case T-6/06)

(2006/C 74/54)

Language of the case: German

— annul paragraphs 25 to 27 of the defendant's decision on
State aid No N 363/2004 of 6 September 2005 (OJ 2005
C 262, p. 5) in so far as they are based on assertions made
by the German authorities that expenditure incurred before
the Commission approved this individually notifiable aid,
relating to the investment premium (investment subsidy), is
not eligible for aid;

— in the alternative, annul the defendant's decision on State
aid No N 363/2004 of 6 September 2005 (OJ 2005 C
262, p. 5) in its entirety;

— order the defendant to pay the costs.

Pleas in law and main arguments

In the contested decision,

The applicant contests Commission Decision C(2005) 3310
final of 6 September 2005 relating to State aid No N 363/
2005 for the construction of a whey refining plant. The benefi-
that aid is Mopro-Nord GmbH in Mecklenburg-
ciary of
Vorpommern.
the Commission
informed the Federal Republic of Germany that the aid notified
by it is EC-compatible. The applicant contests the decision in
particular in so far as it is based on assertions made by the
German authorities
incurred before the
that expenditure
Commission approved this individually notifiable aid, relating
to the investment premium (investment subsidy), is not eligible
for aid.

In support of its claim the applicant submits that the defen-
dant's determination of the facts is erroneous. It also complains
of a breach of the obligation to give reasons under Article 253
EC and infringement of the principles of legal security and
certainty. Moreover, by the contested decision, the Commission
has infringed Article 4(3) of Regulation (EC) No 659/1999 (1)
and the principle of sound administration. The contested deci-
sion is also in breach of Article 87(3)(c) EC in conjunction with
the Community framework for State aid in the agricultural
sector (2). Finally, the applicant submits that the Commission's
decision infringes the principle of protection of
legitimate
expectations and the prohibition of discrimination.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty (OJ L 83, 27.3.1999, p. 1).

(2) OJ 2000 C 28, p. 2, and OJ 2000 C 232, p. 19.

Action brought on 23 January 2006 — Giant (China) v
Council

(Case T-17/06)

(2006/C 74/55)

Language of the case: English

Parties

Applicant: Mopro-Nord GmbH (Altentreptow, Germany) (repre-
sented by: L. Harings and C.H. Schmidt)

Defendant: Commission of the European Communities

Parties

Form of order sought

The applicant claims that the Court should:

Applicant: Giant (China) Co., Ltd (Kunshan City, China) [repre-
sented by: P. De Baere, lawyer]