Case T-55/07: Action brought on 23 February 2007 — Kingdom of the Netherlands v Commission of the European Communities
Date: 2007-04-14
Institutions: Court of First Instance
Subjects: EAGGF Guarantee Section, EU financing, European Commission, Netherlands, action for annulment (EU), agricultural expenditure

C 82/52

EN

Official Journal of the European Union

14.4.2007

Action brought on 19 February 2007 — Vtesse Networks
v Commission

(Case T-54/07)

(2007/C 82/107)

Language of the case: English

Finally, the applicant contends that the Commission did not
sufficiently reason the contested decision with regard to the
competition actually occurring between the applicant and BT
plc.

(1) Commission Decision of 12 October 2006 — the United Kingdom's
application of the tax on non-domestic property to telecommunica-
tions infrastructure in the United Kingdom (No C 4/2005 (ex
NN 57/2004, ex CP 26/2004) — notified under document number
C(2006) 4378) (OJ 2006 L 383, p. 70).

Parties

Applicant: Vtesse Networks Ltd. (St. Albans, United Kingdom)
(represented by: H. Mercer, Barrister)

Action brought on 23 February 2007 — Kingdom of the
Netherlands v Commission of the European Communities

Defendant: Commission of the European Communities

Form of order sought

(Case T-55/07)

(2007/C 82/108)

Language of the case: Dutch

— Annul Article 1 of the decision insofar as it determined that
the application by the United Kingdom of the tax on non-
domestic property to BT plc from 1995 to the end of 2005
does not constitute aid within the meaning of Article 87(1)
EC;

Parties

Applicant: Kingdom of the Netherlands (represented by: H.G.
Sevenster and D.J.M. de Grave, acting as Agents)

— order the Commission to pay Vtesse's costs of this action.

Defendant: Commission of the European Communities

Pleas in law and main arguments

Form of order sought

The applicant seeks the annulment of Commission Decision
2006/951/EC (1) of 12 October 2006 finding that the applica-
tion by the United Kingdom of the tax on non-domestic prop-
erty to BT plc and Kingston Communications plc from 1995
until
the end of 2005 does not constitute aid within the
meaning of Article 87(1) EC.

The applicant alleges that the Commission failed to consider
and/or to investigate the competitive disadvantage suffered by
the applicant vis-à-vis BT plc at the margin when bidding along-
side BT plc for contracts with customers for high capacity retail
leased lines using optical fibres.

The applicant submits that the Commission erred in law in the
application of Article 87(1) EC in particular by failing to define
the relevant market and thereby failing to identify the advantage
in fact granted by business rates to BT plc in relation to compe-
tition at the margin.

the

that

claims

applicant

the Commission
Furthermore,
committed a manifest error of appraisal of the significance and
relevance of the class of contracts where the applicant competed
with BT plc and failed to investigate sufficiently the facts of
competition at the margin leading to the Commission's reliance
on a market share for BT plc of 12 % when the most relevant
market share for BT plc was, according to the applicant, 78 %.

— Annul

in part the Commission Decision of 14 December
2006 excluding from Community financing certain expendi-
ture incurred by the Member States under the Guarantee
Section of the European Agricultural Guidance and Guar-
antee Fund (EAGGF) in so far as it relates to the Netherlands
and more particularly with regard to the financial correction
applied in it regarding payment requested for non-subsidi-
sable expenditure in the framework of the EAGGF, Guar-
antee Section,
the year 2002 in the amount of
EUR 5.67 million;

for

— order the Commission to pay the costs.

Pleas in law and main arguments

its application the Netherlands alleges,

In support of
first,
breach of Article 4 of Regulation No 2603/1999 (1), by incor-
rectly interpreting and applying the concept of
‘multiannual
expenditure’ within the meaning of that article.

Secondly, the applicant complains of breach of Article 44(2) of
Regulation 1257/1999 (2), and also the principle of the protec-
legitimate expectations through the application of a
tion of
financial correction of the full amount of the sum concerned, as
a consequence of the procedure followed by the Netherlands
authorities, when the Commission had previously approved the
declaration under the Guarantee section pursuant to the proce-
the Netherlands
dure in the framework of
programme document for rural development 2000-2006.

the approval of

14.4.2007

EN

Official Journal of the European Union

C 82/53

the applicant complains of breach of
In the alternative,
Article 7(4) of Regulation No 1258/1999 (3) and of Article 5(2)
(c) of Regulation No 729/90 (4), by virtue of the incorrect appli-
cation of those articles in the contested decision, the Com-
munity not having suffered any financial damage as a result of
the procedure followed by the Netherlands authorities.

In the further alternative, the applicant alleges breach of the
principle of proportionality because a correction was applied in
the full amount of the sum concerned, when those EAGGF
monies, as is undisputedly the case, were correctly used by the
Netherlands authorities in the sense that the Community did
not suffer any financial damage as a result of the procedure
followed by the Netherlands authorities.

Lastly, the applicant alleges breach of the obligation to state
reasons because a correction was applied in the full amount of
the sum concerned without any reasons being given and
contrary to the findings of the conciliation body, when those
EAGGF monies, as is undisputedly the case, were correctly used
by the Netherlands authorities in the sense that the Community
did not suffer any financial damage as a result of the procedure
followed by the Netherlands authorities.

(1) Commission Regulation (EC) No 2603/1999 of 9 December 1999
laying down rules for
the transition to the rural development
support provided for by Council Regulation (EC) No 1257/1999
(OJ 1999 L 316, p. 26).

(2) Council Regulation (EC) No 1257/1999 of 17 May 1999 on the
from the European Agricultural
support of
Guidance and Guarantee Fund (EAGGF) and amending and repealing
certain regulations (OJ 1999 L 160, p. 80).

rural development

(3) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the
the common agricultural policy (OJ 1999 L 160,

financing of
p. 103).

(4) Council Regulation (EEC) No 729/70 of 21 April 1970 on the finan-

cing of the common agricultural policy (OJ 1970 L 94, p. 13).

Order of the Court of First Instance of 8 February 2007 —
Banca Intesa Banca Commerciale italiana v Commission

(Case T-39/02) (1)

(2007/C 82/110)

Language of the case: Italian

The President of the Fourth Chamber Extended Composition
has ordered that the case be removed from the register.

(1) OJ C 109, 4.5.2002.

Order of the Court of First Instance of 8 February 2007 —
Capitalia, formerly Banca di Roma v Commission

(Case T-40/02) (1)

(2007/C 82/111)

Language of the case: Italian

The President of the Fourth Chamber Extended Composition
has ordered that the case be removed from the register.

(1) OJ C 109, 4.5.2002.

Order of the Court of First Instance of 8 February 2007 —
Banca Sanpaolo Imi v Commission

(Case T-37/02) (1)

(2007/C 82/109)

Language of the case: Italian

The President of the Fourth Chamber Extended Composition
has ordered that the case be removed from the register.

(1) OJ C 109, 4.5.2002.

Order of the Court of First Instance of 8 February 2007 —
MCC v Commission

(Case T-41/02) (1)

(2007/C 82/112)

Language of the case: Italian

The President of the Fourth Chamber Extended Composition
has ordered that the case be removed from the register.

(1) OJ C 109, 4.5.2002.