Case T-262/07: Action brought on 13 July 2007 — Lithuania v Commission
Date: 2007-07-13
Institutions: Court of First Instance
Subjects: European Commission, Lithuania, action for failure to fulfil an obligation, agricultural surplus, surplus stock

8.9.2007

EN

Official Journal of the European Union

C 211/53

the autonomy of

Nonetheless, in the opinion of the applicant, that judgment has
no effect on the guarantee issued by the Banca di Roma, since,
by virtue of
that guarantee, within the
meaning of Italian law (which is the law applicable to the facts
of
the Banca di Roma is obliged to execute the
guarantee upon mere request by the Commission, and no objec-
tion which may be raised by Ferrier Nord can justify refusal to
execute.

the case),

(1) OJ 1989 L 260, p. 1.
(2) Not yet published in ECR.

Action brought on 13 July 2007 — Lithuania v
Commission

(Case T-262/07)

(2007/C 211/100)

Language of the case: Lithuanian

Parties

Applicant: Republic of Lithuania (represented by: D. Kriaučiūnas
and E. Matulionytė)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision C(2007) 1979 final (1) of 4 May
2007 or, in the alternative, annul that decision in so far as it
is addressed to the Republic of Lithuania;

— order the Commission to pay the costs.

Pleas in law and main arguments

The contested decision sets out the quantities of agricultural
products in free circulation in the new Member States at the
date of accession exceeding the quantities which were to be
regarded as constituting a normal carryover of stock at 1 May
2004, and the amounts to be charged to the new Member
States in consequence of the expense of elimination of those
excess quantities.

The applicant considers the contested decision to be unlawful. It
relies on four pleas in law in support of its action.

1. Lack of power

The applicant states that paragraph 4 of Chapter IV of Annex IV
to the Act of Accession does not confer upon the Commission
power to impose on the Member States payments to the Com-
munity budget that are in the nature of penalties, in particular
where it has not proved expenditure incurred by the Com-

munity in eliminating surplus stocks; also,
the Commission
exceeded the prescribed three-year period for adoption of the
decision under Article 41 of the Act of Accession, which alone
could be an appropriate legal basis for the decision.

2. Infringement of European Community law

Infringement of the principle of legal certainty: the contested deci-
sion infringes the principle of legal certainty because the metho-
dology and criteria for calculating surplus stocks were not
known when determining built up stocks at the time of acces-
sion, which would have allowed Member States to prevent
surplus stocks from arising or to eliminate them at the expense
of the economic operators who had built up the stocks. More-
over, the contested decision laid down different criteria — and
extended the list of products assessed — compared with
Article 4 of Regulation No 1972/2003, under which the States
scrutinise the building up of surplus stocks.

Infringement of the principle of non-discrimination: unlike Commis-
sion Regulation (EC) No 144/97 on surplus stocks of agri-
cultural products in Austria, Sweden and Finland, the contested
decision assessed not only products which were granted export
refunds or to which intervention measures were applied, but
also stocks of other products. This principle has also been
infringed by treating the different situations of new Member
States in the same way and by failing, without justification, to
have regard to the specific circumstances in which their stocks
arose.

Infringement of the principle of good administration and the principle
of transparency: the contested decision does not disclose compre-
hensively the criteria for calculating the payments and, more-
over, the criteria continually change. Also, although the Member
States themselves assessed stocks in accordance with measures
of Community law, the Commission, without giving reasons as
to why that assessment is inappropriate and without disputing
it, conducted another assessment of the same stocks on the
basis of its own criteria.

Infringement of provisions of the Act of Accession: first, the decision
is not an appropriate means of achieving the objectives of the
elimination of surplus stocks which is required by paragraph 2
of Chapter IV of Annex IV to the Act of Accession, in particular
because it was not even attempted in the decision to link the
penalties imposed with expenditure on the elimination of stocks
actually incurred by the Community. Second, the decision was
adopted after expiry of the period, laid down in Article 41 of
the Act of Accession, of three years from the date of accession
during which the Commission could adopt
transitional
measures.

3. Inadequate statement of reasons

it

In the applicant's submission, the contested decision has an
inadequate statement of reasons or entirely lacks reasons; in par-
(and in what
ticular,
amount) the European Community actually incurred, by reason
of elimination of the alleged surplus stocks, expenditure which
Member States should meet.

is not shown in the decision that

C 211/54

EN

Official Journal of the European Union

8.9.2007

4. Manifest errors of assessment

In support of its action, the applicant submits the following
pleas in law:

The applicant asserts that the Commission made manifest errors
of assessment in that, first, it selected a method at macroeco-
nomic level and did not assess the stocks that had actually
arisen in the Member States and, second, when assessing specific
arguments of the parties it did not have regard to the specific
and objective circumstances obtaining in the Republic of
Lithuania in which national stocks arose in the milk sector.

(1) Commission Decision 2007/361/EC of 4 May 2007 on the
determination of surplus stocks of agricultural products other than
sugar and the financial consequences of their elimination in relation
to the accession of
the Czech Republic, Estonia, Cyprus, Latvia,
Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2007
L 138, p. 14).

Action brought on 9 July 2007 — Air One SpA v
Commission

(Case T-266/07)

(2007/C 211/101)

Language of the case: Italian

— Manifest error of appreciation and illogical and contradictory
statement of reasons. The applicant submits first of all that
the Commission — by requiring the Italian Government to
allow all air carriers who intend to respect the PSO to
operate the routes in question, regardless of the period in
which they notified their intention to commence service
provision and whether or not notification was sent during
or after the 30-day period set in the Decrees — has erred in
its assessment of
the scheme introduced by the Italian
Government in the light of the reasoning and objectives of
the relevant Community rules. In particular the applicant
claims that Article 4 of Regulation No 2408/92 obliges
Member States to achieve the objective of territorial conti-
nuity by means of the imposition of public service obliga-
tions which, although they represent an exception to the
principle of free access for Community carriers to intra-com-
munity routes, nonetheless respect the principle of propor-
tionality and therefore restrict as far as possible the conces-
sion of exclusive rights and/or financial compensation. In
the applicant's opinion, the Italian Government has fully
complied with the spirit of the Community legislation, given
that setting a mandatory period for the ‘first phase’ of the
procedure of imposing public service obligations:

— encourages the submission of offers from carriers and
the allocation by the State of the relevant public service
obligations in the course of that ‘first phase’, and

Parties

Applicant: Air One SpA (represented by: M. Merola and P. Ziotti,
lawyers)

Defendant: Commission of the European Communities

— restricts the possibility of passing to the ‘second phase’
in which the Government would be obliged to grant, by
means of invitation to tender, exclusive rights, with the
possibility of taking responsibility for the relevant finan-
cial compensation.

Form of order sought

to the extent

— Annul Commission Decision C (2007 1712) of 23 April
2007 on public service obligations on certain routes to and
from Sardinia,
it requires the Italian
Government to allow all air carriers who accept the relevant
public service obligations (PSO) to operate routes between
Sardinia and the mainland,
irrespective of whether their
acceptance is made before or after expiry of the period of
30 days laid down in the national legislation (Article 1(a) of
that Decision);

that

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

Pleas in law and main arguments

the

applicant

requests, under

The
fourth paragraph of
Article 230 EC, the annulment of Article 1(a) of Commission
Decision C (2007 1712) of 23 April 2007 on public service
obligations on certain routes to and from Sardinia, under
Article 4 of Council Regulation No 2408/92 on access for Com-
munity air carriers to intra-Community air routes.

— It is moreover obvious — notwithstanding what is implicitly
claimed by the Commission — that competition between air
carriers on routes burdened by public service obligations
cannot be carried on in the same way as that found on
routes free of such obligations. In as much as PSO schemes
presuppose that problems of profitability are a feature of the
routes in question,
that no carrier would
choose to operate such routes, in a manner which met the
public
is
in normal market
therefore necessary to introduce safeguard mechanisms for
law-abiding and diligent carriers.

to the extent

conditions:

interest,

it

— The applicant claims further that the regulatory framework
prescribed by the Commission is discriminatory, since the
elimination of
the mandatory period for acceptance of
public service obligations in the ‘first phase’ is to the advan-
tage principally of carriers which have significant market
power, allowing them to offer for the PSO routes after
expiry of
the period, when competitors have submitted
offers, with the primary objective of taking market share
from those competitors.