Case T-81/07: Action brought on 14 March 2007 — KG Holding (in liquidation) v Commission
Date: 2007-05-26
Institutions: Court of First Instance
Subjects: Netherlands, State aid, action for annulment (EU), aid for restructuring, control of State aid, liquidation

26.5.2007

EN

Official Journal of the European Union

C 117/23

— in any event,

that regulation should not be applied as

against the applicant;

— in any event, Decision 2006/1008/EC of 21 December

2006 (OJ 2006 L 379, p. 123) should be annulled;

— the Council should be ordered to pay the costs.

Pleas in law and main arguments

The pleas and main arguments raised by the applicant are the
same as in Case T-75/07 Hamdi v Council, apart from the last
plea, which is not raised by the applicant in the present case.

Action brought on 14 March 2007 — KG Holding (in liqui-
dation) v Commission

(Case T-81/07)

(2007/C 117/37)

Language of the case: Dutch

Parties

Applicant: Jan Rudolf Maas, acting in his capacity as receiver in
relating to K.G. Holding N.V.
the liquidation proceedings
(Rotterdam, Netherlands) (represented by: G. van der Wal and
T. Boesman, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul

the Commission's decision of 19 July 2006 in

Case C 30/2005;

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

Pleas in law and main arguments

applicant

The
Decision
2006/939/EC of 19 July 2006 on the aid measure notified by
the Netherlands for KG Holding NV (1).

Commission

challenging

is

The aid measure mentioned related to restructuring aid which
the Netherlands wished to grant
to KG Holding NV by
converting a previously approved rescue loan and the interest
due thereon into equity capital. In the contested decision, the
Commission declares the aid measure, in the form of restruc-
turing aid, to be incompatible with the common market.

The Commission also ruled that the Netherlands had to recover
from KG Holding NV and its subsidiary Kliq BV that portion of
the aid which KG Holding NV had transferred to Kliq BV as a
rescue loan and which had been converted into equity capital,
and that the Netherlands were required to register with the
receiver their claim against KG Holding NV and/or Kliq Reïnte-
gratie as a creditor in the liquidation proceedings.

In support of his application, the applicant submits, first, that
the Commission committed errors of appraisal, as a result of
which the contested decision is inadequately reasoned and at
variance with Article 87(1) EC. The applicant claims in particu-
lar that the Commission erred in deciding that the Netherlands
had to register with the receiver their claim in the amount of
EUR 35.75 million against KG Holding and Kliq Reïntegratie as
a creditor in the liquidation proceedings. It is, the applicant
contends, unclear whether the Commission concluded in the
contested decision,
in regard to KG Holding, that there was
unlawful aid in the amount of EUR 35.75 million that had to
be claimed back by the Netherlands or whether what was in
issue was rescue aid which the Commission approved in the
contested decision on the basis of point 23(d) of the Com-
munity Guidelines on State aid for rescuing and restructuring
firms in difficulty (2). Further, it is alleged that the Commission,
in its decision of 16 December 2003 (3), had agreed that this
amount was to be used to finance the redundancies of staff
members and the redemption of the redundant contracts of Kliq
Reïntegratie, and that Kliq Reïntegratie was thereafter to be
placed in liquidation.

The applicant submits, second, that the Commission erred in its
claim regarding the full payment of KG Holding's shares in Kliq
BV through set-off of
the obligation to make full payment
against KG Holding's claim against Kliq BV under the loan agree-
ment. That, it is claimed, did not form any part of the decision
of 5 August 2005 (4) which initiated the proceedings. The
Commission,
it is alleged, misused its powers and acted in a
manner contrary to the rights of the defence and the principle
of audi alteram partem.

Third, it is alleged that the Commission wrongly failed to estab-
lish that the alleged aid might be liable to have an adverse effect
on competition and trade between Member States; at any rate,
the Commission's findings in this regard are not adequately
reasoned.

Fourth, the Commission is alleged to have erroneously deter-
mined that the alleged aid of EUR 9.25 million must be recov-
ered by the Netherlands from KG Holding and Kliq BV. It is
submitted that the Commission also erred in finding that the
alleged aid of EUR 35.75 million had to recovered from
KG Holding and/or Kliq Reïntegratie by registering those claims
in the liquidation proceedings. By reason of the liquidation of
the
KG Holding, Kliq Reïntegratie and Kliq BV, recovery of
amounts of alleged aid will, it is argued, be permanently impos-
sible and has in any event become pointless in the sense that
recovery through registration in the liquidation of those compa-
nies is unnecessary and, indeed, has become entirely superfluous
for the purpose of putting an end to the distortion of competi-
tion.

Fifth, it is argued that the Commission erred in its statements
and findings in law with regard to a current-account credit
facility of EUR 17 million already provided by the Netherlands
to KG Holding when the latter was established and in accord-
ance with the rules on State aid and which did not form part of
the measure under examination in the contested decision.

C 117/24

EN

Official Journal of the European Union

26.5.2007

In conclusion, the applicant alleges that the Commission erred
in its decision that the Netherlands had to take all necessary
measures to recover an amount of EUR 9.25 million from
KG Holding, including interest from the date on which the indi-
vidual portions of that amount had been made available to the
recipients up to the date on which the money was actually
repaid. That requirement,
is at variance with
national bankruptcy law.

is argued,

it

(1) OJ 2006 L 366, p. 40.
(2) OJ 1999 C 288, p. 2.
(3) Aid measure N 510/2003 — Rescue aid for Kliq Holding NV

(OJ 2004 C 33, p. 8).

(4) State aid No C 30/2005 (ex N 78/2004) — Restructuring aid to
KG Holding N.V. — Invitation to submit comments pursuant to
Article 88(2) of the EC Treaty (OJ 2005 C 280, p. 2).

Action brought on 14 March 2007 — Kliq (in liquidation)
v Commission

(Case T-82/07)

(2007/C 117/38)

Language of the case: Dutch

Parties

Applicants: Jan Rudolf Maas and Cornelis Van den Bergh, acting
in their capacity as receivers in the liquidation proceedings
relating to Kliq B.V., a private company with limited liability
(Apeldoorn, Netherlands) (represented by: G. van der Wal and
T. Boesman, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul

the Commission's decision of 19 July 2006 in

Case C 30/2005;

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

Pleas in law and main arguments

applicants

The
Commission Decision
challenging
2006/939/EC of 19 July 2006 on the aid measure notified by
the Netherlands for KG Holding NV (1).

are

That aid measure related to restructuring aid which the Nether-
lands wished to grant
to KG Holding NV by converting a
previously approved rescue loan and the interest payable
the
thereon into equity capital.
Commission declares the aid measure, in the form of restruc-
turing aid, to be incompatible with the common market.

In the contested decision,

The Commission also rules that the Netherlands must recover
from KG Holding NV and its subsidiary Kliq BV that portion of
the aid which KG Holding NV had transferred to Kliq BV as a

rescue loan and which had been converted into equity capital,
and that the Netherlands are required to register with the recei-
vers their claim against KG Holding NV and/or Kliq Reïntegratie
as a creditor in the liquidation proceedings.

In support of their application, the applicants submit, first, that
the Commission erred in its claim regarding the full payment of
KG Holding's shares in Kliq BV through set-off of the obligation
to make full payment against KG Holding's claim against Kliq BV
under the loan agreement. That, it is claimed, did not form any
part of the decision of 5 August 2005 (2) which initiated the
proceedings. The Commission, it is alleged, misused its powers
and acted in a manner contrary to the rights of the defence and
the applicants' right to be heard. Second, the Commission, it is
alleged, was wrong to find that Kliq B.V. was to be regarded as a
recipient of State aid in the amount of EUR 9.25 million. In its
appraisal, the Commission wrongly failed to take account of the
fact that the ‘conversion of the rescue loan into equity capital’,
as referred to in points (43) to (46) of the contested decision,
cannot in any wise whatsoever be attributed to the Member
State of the Netherlands and therefore cannot be classified as
State aid within the terms of Article 87(1) EC. In this connec-
the Commission committed errors in its
it
tion,
appraisal of
the
contested decision is therefore legally and/or factually incorrect,
or at any rate incomprehensible and/or incorrect or inadequately
reasoned and at
variance with Article 87 EC and/or
Article 253 EC.

In the view of

the applicants,

is argued,

the facts.

Third, it is alleged that the Commission wrongly failed to estab-
lish that the alleged aid might be liable to have an adverse effect
on competition and trade between Member States; at any rate,
the Commission's findings on this point are not adequately
reasoned.

Fourth, the Commission is alleged to have erred in its determin-
ation that the alleged aid in the amount of EUR 9.25 million
must be recovered by the Netherlands from KG Holding and
Kliq BV. By reason of the liquidation of KG Holding, Kliq Reïnte-
gratie and Kliq BV, recovery of amounts of alleged aid will, it is
argued, be definitively impossible and has in any event become
pointless in the sense that recovery through registration in the
liquidation proceedings relating to those companies is unneces-
sary and, indeed, entirely superfluous for the purpose of putting
an end to the distortion of competition.

Fifth, it is submitted that the Commission erred in its decision
that the amount to be recovered from KG Holding and Kliq BV
also includes interest from the date on which the individual
portions of that amount were made available to the recipients
up to the date on which the money is actually repaid. That
requirement, it is argued, is at variance with national bankruptcy
law.

(1) OJ 2006 L 366, p. 40.
(2) State aid No C 30/2005 (ex N 78/2004) — Restructuring aid to
KG Holding N.V. — Invitation to submit comments pursuant to
Article 88(2) of the EC Treaty (OJ 2005 C 280, p. 2).