Case T-402/06: Action brought on 27 December 2006 — Spain v Commission
Date: 2006-12-27
Institutions: Court of First Instance
Subjects: Catalonia, Cohesion Fund, European Commission, Spain, action for annulment (EU), aid system, project evaluation

24.2.2007

EN

Official Journal of the European Union

C 42/35

Pleas in law and main arguments

By the present application, the applicants are seeking annulment
of the contested regulation to the extent that it imposes anti-
dumping duties on their exports to the European Union. The
application is based on the following grounds:

— A breach of Articles 2(7)(b) and (9)(5) of Council Regulation
(EC) No 384/96 on protection against dumped imports (the
‘Basic Regulation’), Article VI of the GATT, as well as princi-
ples of non-discrimination, nemo auditur and legitimate
expectations, with regard to the failure of the Community
institutions to examine each Market Economy Treatment
(‘MET’) and Individual Treatment (‘IT’) request individually;

— a violation of Articles 18 and 20 of the Basic Regulation,
and a breach of the applicants' rights of defence with regard
to the Community's Institutions' failure to inform the appli-
cants of the treatment accorded to MET and IT requests;

the standing of

the Community producers

— a manifest error of assessment as well as a breach of Arti-
cles 5(4) of the Basic Regulation with regard to the evalua-
tion of
in
supporting the investigation, Article 1(4) of the Basic Regu-
lation with regard to the definition of the product scope,
Article 17 of the Basic Regulation and Article 253 EC with
regard to the selection of the sample of exporting producers,
Article 3(2) of the Basic Regulation and Article 253 EC with
regard to the injury of determination, Article 3(2) of the
Basic Regulation with regard to the assessment of the causal
link between dumped imports and injury, and,
finally,
Article 9(4) of the Basic Regulation in the calculation of the
injury elimination level.

Action brought on 27 December 2006 — Spain v Commis-
sion

(Case T-402/06)

(2007/C 42/62)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by:
Cárcamo)

J.M. Rodríguez

Defendant: Commission of the European Communities

Form of order sought

— annulment of Commission decision C(2006) 5105 of
20 October 2006 reducing the assistance granted by the

Cohesion Fund for eight projects under way in the territory
of the Autonomous Community of Catalonia;

— an order that the Commission should pay the costs.

Pleas in law and main arguments

This action challenges Commission decision C(2006) 5105 of
20 October 2006 reducing the assistance granted by the Cohe-
sion Fund for the eight projects under way in the territory of
the Autonomous Community of Catalonia (‘the contested deci-
sion’), viz:.

— No 2001.ES.16.C.PE.058 (project for extension of biological

treatment at the Besos treatment station)

— No 2003.ES.16.C.PE.005 (project for waste-water disposal

infrastructures in small towns in Catalonia)

— No 2001.ES.16.C.PE.054 (project for treatment of sludge

and reuse of urban waste water in Catalonia)

— No 2000.ES.16.C.PE.112 (project

for drainage and water
treatment in the Ebro Basin: Monzón, Caspe and inland
river basins of Catalonia)

— No 2002.ES.16.C.PE.006 (project for a desalination [of sea-

water] plant in the Tordera delta)

— No 2001.ES.16.C.PE.055 (project

for construction and
improvement of the infrastructures for treating municipal
solid waste in Catalonia)

— No 2001.ES.16.C.PE.057 (project for municipal waste-treat-
ment plants in the districts of Urgell, Pallars Jussa and Conca
de Barberá)

— No 2002.ES.16.C.PE.041 (project for the establishment and
improvement of the network of infrastructures for the treat-
ment of municipal waste in Catalonia).

In the contested decision the defendant made a correction of
2 % of the Community assistance (85 %) granted for the project
2001.ES.16.C.PE.058, because the management company had
charged ineligible expenditure.

So far as concerns the other projects, the Commission, having
regard to the use of the ‘average prices’ system and the ‘experi-
ence of previous works’ criterion, has decided to apply a finan-
cial correction to 100 % of the Community difference in terms
of Community assistance between the tenders selected and
those recalculated contract by contract.

In support of its claims, the applicant State alleges, principally,
misinterpretation of Article 30(1) of Directive 93/37/EEC (1)
and of Article 36(1) and (2) of Directive 92/50/EEC (2), in so far
as the contested decision concludes that application of
the
average prices system used in the analysis of ‘the most econom-
ically advantageous tender’ in the projects awarded infringes the
principle of equal treatment, by discriminating against tenders
which are too low compared with other more costly tenders.

C 42/36

EN

Official Journal of the European Union

24.2.2007

the

alternative,

infringement of
applicant
In the
Article H(2) of Annex II to Regulation (EC) 1164/94 (3), by
reason of breach of the principles of proportionality and sound
administration.

alleges

With specific regard to the project for the Besos treatment
station, the applicant also alleges infringement of Article 17 of
Regulation (EC) No 1386/2002 (4), on the ground that there are
no real irregularities or, alternatively, on the ground of the prin-
ciple of subsidiarity laid down in that act.

(1) Council Directive 93/37/EEC of 14 June 1993 concerning the coor-
dination of procedures for the award of public works contracts (OJ
1993 L 199, p. 115).

(2) Council Directive 92/50/EEC of 18 June 1992 relating to the coordi-
nation of procedures for the award of public service contracts (OJ
1992 L 209, p. 1).

(3) Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a

Cohesion Fund (OJ 1994 L 130, p. 1).

(4) Commission Regulation (EC) No 1386/2002 of 29 July 2002 laying
down detailed rules for the implementation of Council Regulation
(EC) No 1164/94 as regards the management and control systems
for assistance granted from the Cohesion Fund and the procedure for
making financial corrections (OJ 2002 L 201, p. 5).

Action brought on 22 December 2006 — Belgium v
Commission

(Case T-403/06)

(2007/C 42/63)

Language of the case: French

Parties

Applicant: Kingdom of Belgium (represented by: L. Van den
Broeck, Agent, and J. Meyers, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul the contested decision pursuant to Article 230 EC;

— order the Commission (Eurostat) to pay the costs in connec-

tion with this action.

Pleas in law and main arguments

the applicant seeks the annulment of

the
By this action,
Commission's decision, contained in the letter of the Statistical
Office of the European Communities (Eurostat) of 18 October
2006, to amend the data relating to the government deficit and
the government debt of Belgium for 2005 and to provide the
data thus amended, pursuant to Article 8h(2) of Council Regu-
lation (EC) No 3605/93 of 22 November 1993 on the applica-

tion of the Protocol on the excessive deficit procedure annexed
to the EC Treaty (1), as amended. The applicant objects to two
amendments made by the Commission, namely the classifica-
tion of the Fonds de l'infrastructure ferroviaire (FIF) (Railway
Infrastructure Fund) in the public administration sector rather
than in the non-financial corporations sector for the application
of the European system of accounts 1995 (ESA 95) (2) and the
recording of a capital transfer of EUR 7 400 million on account
of the assumption by the State (FIF) in 2005 of the debts of the
Société nationale des Chemins de fer belges (SNCB).

The applicant relies on the following pleas in law in support of
its application for annulment.

As regards the classification of FIF in the public administration
sector, the applicant puts forward a plea alleging infringement
of Article 8h(2) of Regulation (EC) No 3605/93 and paragraphs
2.12, 3.19 and 3.27 to 3.37 of ESA 95. The applicant submits
that FIF must be categorised as an ‘institutional unit’ within the
meaning of paragraph 2.12 of ESA 95 and as a ‘market
producer’ under the criteria set out in paragraphs 3.19 and 3.27
to 3.37 of ESA 95, and must as such be classified outside the
public administration sector. The applicant therefore claims that
the contested decision is wrong to find that FIF does not satisfy
that twofold condition for 2005.

as

the

capital

alternative,

In the
transfer of
regards
EUR 7 400 million from the Belgian State to SNCB on account
of FIF's assumption in 2005 of SNCB's debts, the applicant
relies on three pleas. The first is based on infringement of
Article 8h(2) of Regulation (EC) No 3605/93 and of paragraphs
1.33, 1.44(c), 4.165(f) and 6.30 of ESA 95. The applicant
claims that the allocation of the debt in question to FIF does not
flow from a ‘transaction’ within the meaning of paragraph 1.33
of ESA 95 but from a ‘restructuring’ within the meaning of
paragraphs 1.44(c) and 6.30 of ESA 95. As an alternative plea,
the applicant submits that, even if the allocation of the debt to
FIF were to be analysed as a ‘transaction’ within the meaning of
paragraph 1.33 of ESA 95, it does not involve a capital transfer
for the purposes of paragraph 4.165(f) of ESA 95. The second
plea put
forward in connection with the objection to the
recording of the capital transfer of EUR 7 400 million from the
Belgian State to SNCB alleges breach of Article 253 EC in that,
according to the applicant, the Commission failed to give a
sufficient statement of reasons for the contested decision on
that point. Furthermore, the applicant claims that the contested
legitimate
decision infringes the principle of protection of
expectations in that it disregards the opinion expressed by the
Commission (Eurostat)
in
which a Commission expert agreed with the analysis submitted
by the applicant in this case.

in its email of 13 August 2004,

(1) OJ 1993 L 332, p. 7.
(2) Approved by Council Regulation (EC) No 2223/96 of 25 June 1996
on the European system of national and regional accounts in the
Community (OJ 1996 L 310, p. 1).