Case C-334/07 P: Appeal brought on 18 July 2007 by the Commission of the European Communities against the judgment of the Court of First Instance (Fifth Chamber, Extended Composition) of 3 May 2007 in Case T-357/02 Freistaat Sachsen v Commission of the European Communities
Date: 2007-09-22
Institutions: Court of Justice
Subjects: European Commission, Germany, State aid, action for annulment (EU), aid system, appeal, development plan, liberal profession, small and medium-sized enterprises

C 223/6

EN

Official Journal of the European Union

22.9.2007

Appeal brought on 13 July 2007 by Bolloré SA against the
judgment delivered by the Court of First Instance (Fifth
Chamber) on 26 April 2007 in Joined Cases T-109/02
Bolloré v Commission, T-118/02 Arjo Wiggins Appleton v
Commission, T-122/02 Mitsubishi HiTec Paper Bielefeld v
Commission, T-125/02 Papierfabrik August Koehler v
Commission, T-126/02 M-real Zanders v Commission,
T-128/02 Papeteries Mougeot v Commission, T-129/02
T-132/02 Distribuidora
Torraspapel
Vizcaína de Papeles v Commission and T-136/02 Papelera
Guipuzcoana de Zicuñaga v Commission

v Commission,

(Case C-327/07 P)

(2007/C 223/06)

Language of the case: French

Parties

Appellant: Bolloré SA (represented by: C. Momège and P.
Gassenbach, lawyers)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— set aside the judgment under appeal

it
infringed the rights of defence of Bolloré SA and the prin-
ciple of the presumption of innocence and, second, distorted
the evidence in order to establish the duration of the infrin-
gement;

in so far as, first,

respect for the rights of the defence by not annulling the above
mentioned Commission decision even though it finds,
in the
judgment under appeal, that the statement of objections did not
enable the appellant to acquaint itself with the objection based
on its direct involvement in the infringement, or even with the
facts established by the Commission in support of that objec-
tion, so that the appellant was unable properly to defend itself
during the administrative procedure.

Second, the rights of the defence were also infringed in so far as
the Court of First Instance held that the fact that the Commis-
sion erred in law cannot justify annulment of the contested deci-
sion since it could not have had a decisive effect on the opera-
tive part of that decision. In the appellant's submission, the
statement of objections plays such a fundamental role in Com-
munity competition law that failure to comply with the rules
governing the statement of objections relating to the identifica-
tion and determination of responsibility should have led irreme-
diably to the annulment of the contested decision.

the infringement and set

By its second plea, the appellant submits further that, in order
to establish the duration of
the
amount of the fine payable by Bolloré accordingly, the Court of
First Instance, first, infringed the principle of the presumption
of innocence by relying on mere indications which are substan-
tiated and, second, distorted the evidence relating to the value
placed on the statements of another company (Arjo Wiggins
Appleton) and to the alleged anti-competitive object of an offi-
cial meeting of the Association of European Manufacturers of
Carbonless Paper held in Zürich on 23 January 1992.

(1) OJ 2004 L 115, p. 1.

— give final judgment in Case T-109/02, in accordance with
Article 61 of the Rules of Procedure of the Court, and
annul Commission Decision 2004/337/EC of 20 December
2001 relating to a proceeding pursuant to Article 81 of the
EC Treaty and Article 53 of
(Case
COMP/E-1/36.212 — Carbonless paper) (1) in so far as it
relates to Bolloré SA or,
in any event, reduce the fine
imposed on Bolloré SA by the Commission and confirmed
by the Court of First Instance;

the EEA Agreement

— in the event that the Court does not itself decide on the
case, reserve the costs and refer the case back to the Court
of First Instance for reconsideration in accordance with the
Court's judgment;

— finally, in accordance with Article 69 of the Rules of Proce-
dure of the Court, order the Commission to pay the costs
both before the Court of First Instance and before the Court
of Justice.

Appeal brought on 18 July 2007 by the Commission of the
European Communities against the judgment of the Court
of First Instance (Fifth Chamber, Extended Composition) of
3 May 2007 in Case T-357/02 Freistaat Sachsen v Commis-
sion of the European Communities

(Case C-334/07 P)

(2007/C 223/07)

Language of the case: German

Pleas in law and main arguments

Parties

The appellant puts forward two pleas in support of its appeal.

Appellant: Commission of the European Communities (repre-
sented by: Kilian Gross, acting as Agent)

By its first plea, which is in two parts, it claims, first, that the
Court of First Instance infringed the fundamental principle of

Other party to the proceedings: Freistaat Sachsen

22.9.2007

EN

Official Journal of the European Union

C 223/7

Form of order sought

— Annul the contested judgment of the Court of First Instance
of 3 May 2007 in Case T-357/02 Freistaat Sachsen v Commis-
sion of the European Communities in its entirety;

— give final judgment on the matter and dismiss the action as

unfounded;

— order the applicant at first instance to bear the costs of the
appeal proceedings and the costs incurred at first instance in
Case T-357/02.

Pleas in law and main arguments

Appeal brought on 20 July 2007 by Distribuidora Vizcaína
de Papeles, S.L. against the judgment of the Court of First
Instance (Fifth Chamber) of 26 April 2007 in Joined Cases
T-109/02 Bolloré v Commission, T-118/02 Arjo Wiggins
Appleton v Commission, T-122/02 Mitsubishi HiTec Paper
Bielefeld v Commission, T-125/02 Papierfabrik August
Koehler v Commission, T-126/02 M-real Zanders v Commis-
sion, T-128/02 Papeteries Mougeot v Commission, T-129/02
Torraspapel v Commission, T-132/02 Distribuidora Vizcaína
Papelera
de

T-136/02
Guipuzcoana de Zicuñaga v Commission

v Commission,

Papeles

and

(Case C-338/07 P)

(2007/C 223/08)

Language of the case: Spanish

According to the Commission, the contested judgment infringes
Articles 88(2) and (3) EC, the second paragraph of Article 249,
Article 254(2) EC, Article 3 et
seq. of Regulation (EC)
No 659/1999 (1) and Article 10(1) of the Regulation exempting
SMEs, since the Court of First Instance failed to recognise that
the examination of
the contested decision
(2003/226/EC) (2) was to be carried out solely in accordance
with the provisions of the Regulation exempting SMEs (Regu-
lation (EC) No 70/2001) (3).

the legality of

Parties

Appellant: Distribuidora Vizcaína de Papeles, S.L.
by: E. Pérez Medrano, lawyer)

(represented

Other party to the proceedings: Commission of
Communities

the European

The Regulation exempting SMEs entered into force before the
contested decision was issued and was thus directly applicable.
Consequently,
framework.
it was the only applicable legal
According to the Commission, the Court wrongly denies the
applicability of the Regulation exempting SMEs since it erro-
neously assumed that the Regulation exempting SMEs would
have to be applied retroactively in the case of the contested deci-
sion.

The Commission claims, in the alternative, that the contested
judgment also infringes Article 2(2) and Article 4(5) of Regu-
lation (EC) No 659/1999 because the Court misconceived the
criterion of assessment and the requirements of completeness of
a notification.

(1) OJ 1999 L 83, p. 1.
(2) OJ 2003 L 91, p. 13.
(3) OJ 2001 L 10, p. 33.

Form of order sought

— Declare the present action admissible and well founded;

— annul the contested judgment in full or in part on the
ground of all, or some, of the legal grounds set out below is
so far as it affects the appellant, and draw from the annul-
ment of that judgment all legal consequences, whether the
Court rules expressly on the substance or refers the case
back to the Court of First Instance;

— declare the annulment or reduction of the fine imposed by
Commission Decision 2004/337/EC of 20 December
2001 relating to a proceeding pursuant to Article 81 of the
EC Treaty and Article 53 of
(Case
COMP/E-1/36.212 — Carbonless paper) (1), which is being
appealed against;

the EEA Agreement

— order the Commission to pay the whole of the costs of the

proceedings;

— order the Commission to pay the costs of the action for
annulment proceedings relating to the contested judgment.