Case T-42/08: Action brought on 24 January 2008 — Shetland Islands Council v Commission
Date: 2008-01-24
Institutions: Court of First Instance
Subjects: European Commission, Scotland, State aid, United Kingdom, action for annulment (EU), control of State aid, fishing industry, fishing vessel

12.4.2008

EN

Official Journal of the European Union

C 92/35

Form of order sought

— To declare this application admissible;

— to annul the unreasoned decision of the European Commis-
sion of 6 December 2007 (Reference No A3 TF TCC(2007)
106233) not to invite the consortium led by Vakakis Inter-
national SA to be interviewed in respect of
the service
tender procedure ‘Technical Assistance to Support Rural
Development Policy’ number EuropeAid/125241/C/SER/CY;

Action brought on 24 January 2008 — Shetland Islands
Council v Commission

(Case T-42/08)

(2008/C 92/71)

Language of the case: English

— to annul

the decision of

the European Commission of
21 December 2007 (Reference No A3 TF TCC(2007)
106667) to reject the tender submitted by Vakakis Interna-
tional SA on the basis that it did not meet the technical
requirements;

Instance,

to request

— pursuant to Article 65(b) of the Rules of Procedure of the
Court of First
the Commission to
provide certain documents in relation to the activities of the
evaluation committee established to review the tenders
submitted in respect of
the EuropeAid/125241/C/SER/CY
tender procedure as well as the establishment of the short
list of tenderers;

Parties

E.
Islands Council
Applicant:
Whiteford, Barrister, R. Murray, Solicitor and R. Thompson, QC)

(represented

Shetland

by:

Defendant: Commission of the European Communities

Form of order sought

— to make any additional order which the Court considers

— Annulment of Articles 1(2), 3, 4 and 5 of the decision; and

necessary;

— to order the Commission to pay the costs.

Pleas in law and main arguments

The applicant claims that the Commission's letter of 6 December
2007 informing the applicant it would not be invited to inter-
view constitutes a decision which lacks sufficient reasoning in
breach of Article 253 EC. Moreover, the applicant submits that
this stage is an essential element of the tender procedure to
which all tenderers, even those failing to meet the technical
standard required, should be invited in order to maintain a
competitive environment. Furthermore,
the applicant argues
that the said decision is legally flawed since it is based on non-
compliance with the administrative criteria instead of non-
compliance to the technical standard required. This amounts,
according to the applicant, to a misuse of powers conferred to
the Commission in the framework of the tenders' evaluation
procedure.

In addition, and with regards to both the above-mentioned deci-
sion and the decision of 21 December 2007, the applicant
submits that they are incompatible with the terms of the Prac-
tical Guide to Contract Procedures for EC External actions.
Finally, the applicant claims that the Commission decision of
21 December 2007 purported to justify an unreasoned earlier
decision excluding the applicant from the tender and therefore
is legally flawed.

— the costs of this application.

Pleas in law and main arguments

The applicant is a public authority that made payments to the
fisheries sector under the scope of two general aid measures,
named ‘Aid to Fish Catching and Processing Industry’ and ‘Aid
to the Fish Farming Industry’ consisting of different types of aid
schemes. The Commission found that the aid which the United
Kingdom implemented on the basis of
the ‘Fishing Vessel
Modernisation Scheme’ was incompatible with the common
market, in so far as it concerned aid granted for the modernisa-
tion projects concerning capacity in terms of tonnage or power.

By means of its application, the applicant seeks partial annul-
ment pursuant
to Article 230 EC of Commission Decision
C 37/2006 (ex NN 91/2005) of 13 November 2007 concerning
the Fishing Vessel Modernisation Scheme implemented in the
United Kingdom. In particular, the applicant seeks annulment of
Article 1(2), 3, 4, and 5 of the contested decision on two
grounds:

(1) The Commission allegedly erred in law in finding that
payments for replacement or improvement of engines that
do not affect the gross tonnage or power of any vessel
‘concern capacity in terms of tonnage or power’ within the
meaning
(EC)
9(1)(c)(i)
No 2792/1999 (1), and are thus incompatible with the
common market;

of Article

Regulation

of

(2) The Commission erred in law in finding that recovery of

payments would be compatible with:

(a) Article

14(1)

of

Council

Regulation

(EC)

No 659/1999 (2);

C 92/36

EN

Official Journal of the European Union

12.4.2008

(b) the general principles of legal certainty and the protec-
tion of legitimate expectations and of equality of treat-
ment.

(2) the general principles of legal certainty and the protection
of legitimate expectations and of equality of treatment.

(1) Council Regulation (EC) No 2792/1999 of 17 December 1999
laying down the detailed rules and arrangements regarding Com-
munity structural assistance in the fisheries sector (OJ L 337, p. 10).
(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC Treaty
(OJ L 83, p. 1).

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC Treaty
(OJ L 83, p. 1).

Action brought on 24 January 2008 — Shetland Islands
Council v Commission

(Case T-43/08)

(2008/C 92/72)

Language of the case: English

Parties

Shetland

Applicant:
by:
E. Whiteford, Barrister, R. Murray, Solicitor and R. Thompson
QC)

(represented

Council

Islands

Action brought on 29 January 2008 — Transportes
Evaristo Molina v Commission

(Case T-45/08)

(2008/C 92/73)

Language of the case: Spanish

Parties

Applicant: Transportes Evaristo Molina S.A.
Águila, Spain)
Ezquerra and M.C. Flores Hernández, lawyers)

(Santa María del
(represented by: A. Hernández Pardo, L. Ruiz

Defendant: Commission of the European Communities

Defendant: Commission of the European Communities

Form of order sought

Form of order sought

— Annulment of Articles 3, 4 and 5 of the decision; and

— the costs of this application.

Pleas in law and main arguments

The applicant is a public authority that made payments to the
fisheries sector under the scope of two general aid measures,
named ‘Aid to Fish Catching and Processing Industry’ and ‘Aid
to the Fish Farming Industry’ consisting of different types of aid
schemes. The Commission found that the aid which the United
Kingdom implemented on the basis of
the ‘Fish Factory
Improvement Scheme’ was incompatible with the common
market, in so far as it concerned the amount of GBP 92 007,
granted on 13 August 1997, 7 January 1999, 25 February
1999, 10 December 1999, 19 January 2001 and 15 December
2004.

By means of its application, the applicant seeks partial annul-
ment pursuant
to Article 230 EC of Commission Decision
C 38/2006 (ex NN 93/2005) of 13 November 2007 concerning
the ‘Fish Factory Improvement Scheme’
implemented in the
United Kingdom. In particular, the applicant seeks annulment of
Articles 3, 4 and 5 of the contested decision on the ground that
the Commission erred in finding that recovery of payments
would be compatible with:

(1) Article 14(1) of Council Regulation (EC) No 659/1999 (1);

and

— annul Commission Decision of 12 April 2006 relating to a
Treaty

under Article

proceeding
81
COMP/B-1/38.348 Repsol CPP, and

the

EC

of

— order the Commission to pay the costs.

Pleas in law and main arguments

This application was brought against
the
Commission of 12 April 2006 because it accepted the commit-
ments proposed by REPSOL CPP in accordance with the provi-
sions of Article 9(1) of Regulation (EC) 1/2003 (1).

the decision of

That decision concerns the procedure initiated following the
request by REPSOL CPP for negative clearance or, failing that, an
individual exemption with respect to the standard agreements
and/or contracts by means of which it carried out its fuel distri-
bution activities for motor vehicles through service stations in
Spain.

In the offer of commitments accepted by the Commission,
to increase the annual
REPSOL CPP undertook,
inter alia,
number of service stations which may change supplier,
for
which it undertook to offer the bare owners/operators of the
service stations the possibility of recovery of the right in rem to
the usufruct or over the buildings subject, however, to compli-
ance with a series of conditions by the operator.