Case C-92/08: Action brought on 28 February 2008 — Commission of the European Communities v Kingdom of Belgium
Date: 2008-02-28
Institutions: Court of Justice
Subjects: Belgium, European Commission, European cooperative, action for failure to fulfil an obligation, legal status, national implementing measure, worker participation

9.5.2008

EN

Official Journal of the European Union

C 116/13

By its second plea, the appellant alleges that the Court of First
Instance breached the general principles of audi alteram partem
and respect for the rights of the defence, since it raised of its
own motion a plea which had never been argued, nor even
touched upon, in the course of the proceedings at first instance.

claims

By its third plea, which is comprised of three parts, the appel-
lant
infringed
Articles 230 EC and 253 EC in conjunction with Article 88 EC
and the rules governing procedure for State aid cases.

the Court of

Instance

First

that

In that regard, the appellant claims, first, that the classification
of the disputed measures as ‘new’ aid cannot be called into ques-
tion in an action brought against the final decision of
the
Commission, as the Member States and the other interested
parties could have contested, in relation to that point, the deci-
sion to open the formal investigation procedure. As the decision
to open that procedure was not contested, it became definitive
and, the final decision therefore constitutes, on that point, a
merely confirmatory act which is not actionable.

The appellant maintains, second, that the legality of an act
should be assessed by reference to the factual and legal situation
existing at the date on which the act was adopted.
In the
present case, nothing in the case-file suggests that the disputed
national measures did not constitute aid at the time when they
were introduced.

in any case,

is for the
Third,
the appellant claims that,
interested third
Member State and, where appropriate,
parties — and not for the Commission — to prove that the aid
is existing.
the Commission
cannot be required to provide a statement of reasons in that
regard.

In the absence of such proof,

for

it

fourth plea,

the appellant alleges

By its
infringement of
Article 253 EC, in conjunction with Articles 87(1) EC and 88(1)
EC, in so far as the Court of First Instance found a failure to
state reasons in respect of the applicability of Article 1(b)(v) of
Regulation No 659/1999, even though that article can apply
only to measures which did not constitute aid at the time of
their coming into force and that the Commission, in the deci-
sion which was contested at first instance, showed that the
disputed measures have constituted aid ever since they were
introduced. Moreover, none of the parties had shown that the
common market had evolved so that measures which did not
constitute aid at the time they came into force would become
aid thereafter.

By its fifth plea, the appellant alleges infringement of the same
rules, and of Article 1(b)(v) of Regulation No 659/1999, in so
far as the Court of First Instance imposed a specific obligation
on the Commission to state reasons as regards the application
of that article on account of statements made by the Council
shown,
and the Commission. However,
unequivocally, that in the light of the settled case-law of the
Court, such statements cannot have any impact on the assess-
ment of national measures regarding Community rules on State

the appellant has

aid, the concepts of aid and existing aid being strictly objective
concepts.

By its sixth plea, the appellant claims, finally, that the Court of
First Instance infringed Articles 88(1) and (2), and 253 EC, and
Articles 4(4) and 6(1) of Regulation 659/1999 in so far as it
annulled the decision of
the Commission in its entirety,
including that part of the decision which extended the formal
investigation period beyond 31 December 2003. However, the
Court of First Instance in no way explained how the alleged lack
of reasoning in relation to the application of Article 1(b)(v) of
Regulation No 659/1999 was sufficient to invalidate that aspect
of the decision. Moreover, the Court of First Instance failed to
have regard to the principle that, where a Member State does
not provide any evidence to suggest that the disputed measures
constitute existing aid,
those
measures as new aid, within the procedural context laid down
in Article 88(2) and (3) EC.

the Commission must

treat

(1) OJ 1999 L 83, p. 1.

Action brought on 28 February 2008 — Commission of
the European Communities v Kingdom of Belgium

(Case C-92/08)

(2008/C 116/23)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Rozet and J. Enegren, Agents)

Defendant: Kingdom of Belgium (represented by: D. Haven,
Agent)

Form of order sought

— Declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Council
Directive 2003/72/EC of 22 July 2003 supplementing the
Statute for a European Cooperative Society with regard to
the involvement of employees (1), or by not ensuring that
management and labour introduce the required provisions
by way of agreement, or, in any case, by failing to communi-
cate those measures to the Commission,
the Kingdom
its obligations under
of Belgium has
Article 16(1) of that directive;

failed to fulfil

— order the Kingdom of Belgium to pay the costs.

C 116/14

EN

Official Journal of the European Union

9.5.2008

Pleas in law and main arguments

The time-limit
expired on 18 August 2006.

for

transposition of Directive 2003/72/EC

(1) OJ 2003 L 207, p. 25.

Action brought on 29 February 2008 — Commission of
the European Communities v Grand-Duchy of Luxembourg

(Case C-95/08)

(2008/C 116/24)

Language of the case: French

Stein-Lambert,

Reference for a preliminary ruling from the Cour de
Cassation, Luxembourg lodged on 5 March 2008 —
Audiolux S.A., BIP Investment Partners SA,
Jean-Paul
Joseph Weyland, Luxiprivilège SA, Foyer SA,
Felten,
Christiane
Investas ASBL,
Claudie
Worre-Lambert, Baron Antoine de Schorlemer,
Jacques
Funck, Marc Meyer et Jean Petitdidier v Groupe Bruxelles
Lambert SA (GBL), RTL Group SA, Juan Abello Gallo,
Jocelyn
Didier Bellens, André Desmarais, Gérald Frère,
Lefebvre, Onno Ruding, Gilles Samyn, Martin Taylor,
Bertelsmann AG, Siegfried Luther, Thomas Middelhoff,
Ewald Wagenbach, Rolf Schmidt-Holz, Erich Schumann,
WAZ Finanzierungs-GmbH, Westdeutsche Allgemeine
Zeitungsverlagsgesellschaft E. Brost & J. Funke GmbH &
Co (WAZ) — Interveners: Dexia Luxpart SA e.a.

(Case C-101/08)

(2008/C 116/25)

Language of the case: French

Parties

Referring court

Cour de Cassation

Applicant: Commission of the European Communities (repre-
sented by: G. Rozet and P. Oliver, acting as Agents)

Parties to the main proceedings

Defendant: Grand-Duchy of Luxembourg

Form of order sought

— Declare that, by not putting in place the authorities able to
verify the implementation of the principles of good labora-
tory practice (GLP), the Grand-Duchy of Luxembourg has
failed to fulfil
its obligations under Article 3 of Directive
2004/9/EC of the European Parliament and of the Council
of 11 February 2004 on the inspection and verification of
good laboratory practice (GLP) (1);

— Order the Grand-Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The time-limit for the implementation of Directive 2004/9/EC
expired on 12 March 2004. The defendant is still not equipped
with authorities having the competences necessary to inspect
the laboratories and to audit the studies carried out by those
laboratories to assess compliance with good laboratory practice.

(1) Directive 2004/9/EC of the European Parliament and of the Council
of 11 February 2004 on the inspection and verification of good
laboratory practice (GLP) (OJ 2004 L 50, p. 28).

Applicants: Audiolux S.A., BIP Investment Partners SA, Jean-Paul
Felten,
Investas
Joseph Weyland, Luxiprivilège SA, Foyer SA,
ASBL, Claudie Stein-Lambert, Christiane Worre-Lambert, Baron
Antoine de Schorlemer, Jacques Funck, Marc Meyer et Jean Petit-
didier

Defendants: Groupe Bruxelles Lambert (GBL), RTL Group SA,
Juan Abello Gallo, Didier Bellens, André Desmarais, Gérald
Frère,
Jocelyn Lefebvre, Onno Ruding, Gilles Samyn, Martin
Taylor, Bertelsmann AG, Siegfried Luther, Thomas Middelhoff,
Ewald Wagenbach, Rolf Schmidt-Holz, Erich Schumann, WAZ
Finanzierungs-GmbH, Westdeutsche Allgemeine Zeitungsver-
lagsgesellschaft E. Brost & J. Funke GmbH & Co (WAZ)

Questions referred

1. Are the references to the equality of shareholders, and more

specifically, to the protection of minorities

(a) in Articles 20 and 42 of the Second Company Directive

77/91/EC of 13 December 1976 (1);

(b) in the Third General Principle and Supplementary Prin-
ciple 17 of the Commission Recommendation of 25 July
1977 concerning a European code of conduct relating to
transactions in transferable securities (2);

(c) in Schedule C, point 2(A) annexed to Council Directive
79/279/EEC of 5 March 1979 coordinating the condi-
tions for the admission of securities to official stock
exchange listing and carried over in the consolidating
directive of 28 May 2001 (3);