Case T-380/08: Action brought on 9 September 2008 — Kingdom of the Netherlands v Commission of the European Communities
Date: 2008-09-09
Institutions: Court of First Instance
Subjects: Netherlands, action for failure to fulfil an obligation, bituminous materials, disclosure of information, fine, legal person, principle of proportionality

8.11.2008

EN

Official Journal of the European Union

C 285/51

Action brought on 10 September 2008 — Portugal v
Commission

Action brought on 9 September 2008 — Kingdom of the
Netherlands v Commission of the European Communities

(Case T-378/08)

(2008/C 285/91)

Language of the case: Portuguese

(Case T-380/08)

(2008/C 285/92)

Language of the case: Dutch

Parties

Applicant: Portuguese Republic (represented by L.Inez Fernandes
and J. de Oliveira, Agents)

Defendant: Commission of the European Communities

Form of order sought

the notice of payment
— Principally, a declaration that
MARKT/C2/PMS/bmgD(2008)
the
Director-General of Directorate-General Internal Market and
Services of 15 July 2008 under the heading ‘demand for
payment of the periodic penalty payable by the Portuguese
Republic in compliance with the judgment given in Case
C-70/06 Commission v Portuguese Republic’ is invalid;

13692

issued

by

— alternatively, a declaration that that notice is invalid, in so

far as its effects extend beyond 29 January 2008;

— an order that the Commission of the European Commu-
nities should pay the costs or, if the Court of First Instance
should reduce the amount of the periodic penalty, an order
that each party should bear its own costs.

Pleas in law and main arguments

Parties

Applicant: Kingdom of
Wissels and M. de Mol, acting as Agents)

the Netherlands (represented by: C.

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission's Decision of 30 June 2008 under

reference SG.E3/MV/psi D(2008)5364;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the decision of 13 December 2006 in Case COMP/38.456
— Bitumen (Netherlands) (1) the Commission imposed fines on
a large number of undertakings, suppliers and purchasers of
road pavement bitumen for infringements of Article 81 EC. The
Commission did not publish all particulars in that decision.
Various legal persons, public and private, including the appli-
cant, have suffered serious losses as a result of the undertakings'
actions. As knowledge of that information would be extremely
in order to recover those losses, the applicant applied
useful
under Article 6(1) of Regulation No 1049/2001 (2) for access to
the
decision of
13 September 2006. By decision of 30 June 2008, the Commis-
sion rejected that application.

version of

uncensored

complete,

the

The Portuguese Republic claims that it has fully complied with
the judgments of
Justice by adopting Law
the Court of
No 67/2007 expressly repealing Decree-Law No 48051.

In support of
its application the applicant submits that the
contested decision is contrary to the right of access referred to
in Article 255 EC, read in conjunction with Articles 1 and 4 of
Regulation No 1049/2001.

The Portuguese Republic further claims that
the Director-
General of DG Internal Market and Services had no power to
adopt the contested measure, which failed to have regard to the
Portuguese Republic's rights of the defence, fails to state the
reasons on which it is based and was adopted in breach of
essential procedural requirements.

Secondly, the applicant submits that the Commission should
have provided partial access, as referred to in Article 4(6) of
Regulation No 1049/2001.

Thirdly, the contested decision is contrary to the principle of
proportionality.

Fourthly, the contested decision infringes Article 253 EC, as its
statement of reasons is defective.

C 285/52

EN

Official Journal of the European Union

8.11.2008

Fifthly, the contested decision is contrary to Article 10 EC, read
in conjunction with the principle of proportionality.

(1) Commission Decision 2007/534/EC of 13 September 2006 relating
to a proceeding under Article 81 of
the Treaty establishing the
European Community (Case No COMP/F/38.456 — Bitumen (NL))
(notified under document number C(2006) 4090) (OJ 2007 L 196,
p. 40).

(2) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents (OJ L 145, p. 43).

Action brought on 16 September 2008 — Regione
autonoma della Sardegna v Commission

(Case T-394/08)

(2008/C 285/93)

Language of the case: Italian

Parties

In support of its claims the applicant pleads infringement of
essential procedural requirements on account of
inconsistent
reasons, the alleged irrelevance of the award in the assessment
of the ‘incentive effect’ on the beneficiaries and therefore in the
assessment of the requirement of the ‘necessity of the aid’.

In particular it is considered in that regard that a correct assess-
ment of the beneficiaries' award ought, in fact, to have led the
Commission to give due weight to the fact that:

— the aid scheme in question was the ideal continuation of a
current lawful scheme in which the grant of aid took place
regardless of the assessment as to whether or not the invest-
ments had been started;

— the aid scheme in question was adopted by a regional law
approved without any actual likelihood that the Guidelines
on national
regional aid could influence the legislative
procedure,
inasmuch as the same was approved only one
day after the publication of those Guidelines in the Official
Journal;

— the beneficiary undertakings set up operations precisely in
reliance on the aid measures, which therefore absolutely had
an incentive effect.

The Commission errs, therefore, in seeking to assess the incen-
tive effect of the aid by taking as a basis the unproven assump-
tion that the beneficiary, given that it had not submitted the
application prior to starting, had made the investment regardless
of the aid.

Applicant: Regione autonoma della Sardegna (represented by: A.
Fantozzi, P. Carrozza and G. Mameli, lawyers)

Defendant: Commission of the European Communities

The incorrectness of the Commission's assessment is made clear
by the fact that it is impossible to argue that Regional Law
9/1998 is compatible from the outset with the Guidelines of
1998 cited above.

Form of order sought

— annul

the decision of

the Commission of

the European
Communities of 3 July 2008 (State aid C1/2004 Italy —
aid
SG-Greffe
scheme ‘Regional Law No 9 of 1998 — Misapplication of
aid N 272/98’.

D/204339)

concerning

(208)

the

Pleas in law and main arguments

Law No 9 of 11 March 1998 of the Region of Sardinia provided
for credit incentives for the reclassification and adaptation of
the hotel industry. The aid scheme thus set up was approved by
the Commission. In spite of that, on 3 July 2008 the defendant
communicated the contested decision in the present case to the
Italian Government. According to that decision,
in the aid
scheme in question investment inducements were granted in
respect of which no application for aid had been submitted
before work was started on the project, in breach of the Guide-
lines on national regional aid (1).

The defendant also errs in basing its assessment on a require-
ment which is not procedural but ‘substantive’, that of compat-
ibility of the aid on a presumption of absence of the incentive
effect where there was no application prior to the investment,
laid down for the first
time with reference to the national
regional aid of the ‘Guidelines’, and therefore not known and
not capable of being known in advance.

In addition,
the defendant's assessment appears to infringe
Article 88 of the Treaty and Regulation No 659/99/EC, in so far
as the reasons for which the aid in question is described as
unlawful rather than misuse of aid is completely omitted from
the contested decision, when the description of the measure as
misuse of aid excludes, in principle, the possibility of recovery.

(1) OJ C 74 of 10.3.1998, p. 9.