Case T-391/08: Action brought on 15 September 2008 — Ellinika Nafpigia v Commission
Date: 2008-09-15
Institutions: Court of First Instance
Subjects: European Commission, Greece, action for annulment, action for annulment (EU), financing, fine, military equipment, navy, shipbuilding

20.12.2008

EN

Official Journal of the European Union

C 327/29

Pleas in law and main arguments

The appeal is directed against the judgment of the Civil Service
Tribunal delivered on 8 July 2008 in Case F-76/07 annulling
the decision of the Settlements Office, in the form of a decision
on a complaint, not to reimburse the costs of acquiring a new
wheelchair two years after the last acquisition, on the grounds
of lack of necessity.

C 16/2004 (formerly NN 29/2004, CP 71/2002 and
CP 133/2005) granted by Greece to the undertaking Ellinika
Nafpigia A.E.;

— order the Commission to pay the applicant's costs in the

present proceedings.

The appellant submits in support of
first,
contrary to the applicable provisions of Community law, the
judgment redefines the margin of discretion of
the Medical
in that, according to the
Officer and of the Medical Council
judgment, only independent medical bodies may have such a
margin of discretion.

its appeal

that,

Second, the judgment disavows any significance in the opinions
of the Medical Council — which, in practice, are important in
the examination of the necessity of costs — by stating that it is
merely an advisory body whose opinions are not published.
This is contrary to settled case-law on the Joint Rules on sick-
ness insurance for officials of the European Communities, as
applicable on 22 March 2004. Furthermore, those opinions
have the status of a rebuttable presumption in relation to the
necessity of costs.

In addition, the appellant alleges a distortion of the facts or
errors in the legal characterisation of
the
subject-matter of the dispute, and an infringement of the obliga-
tion to state the reasons for the judgment, since an essential
the decision on the complaint was declared to be
part of
non-existent.

the facts and of

Action brought on 15 September 2008 — Ellinika Nafpigia
v Commission

(Case T-391/08)

(2008/C 327/55)

Language of the case: Greek

Parties

Applicant: Ellinika Nafpigia (Skaramagkas, Greece) (represented
by: I. Drosos, K. Loukopoulos, A. Khiotellis, K. Panagoulea, P.
Tzioumas, A. Balla, B. Voutsakis and X. Gkousta, lawyers)

Defendant: Commission of the European Communities

Pleas in law and main arguments

The applicant, Ellinika Nafpigia A.E (Hellenic Shipyards; ‘ENAE’),
challenges 12 of the 16 measures imposed in Commission Deci-
sion C(2008) 3118 final of 2 July 2008 concerning Aid
C 16/2004 (formerly NN 29/2004, CP 71/2002 and
CP 133/2005), and puts forward nine pleas in law in support of
its claim for annulment.

By its first plea, the applicant submits that the Commission did
not apply Article 298 EC notwithstanding the acceptance in the
contested decision that ENAE is a military shipyard.

By its second plea, the applicant contends that the contested
decision failed to apply, or misapplied, Article 296 EC.

By its third plea, the applicant asserts that the contested decision
contains a manifest error of assessment, or otherwise an insuffi-
cient statement of reasons, in finding that ENAE's creditworthi-
ness standing was reduced from 1997 to June 1999 and there-
after non-existent. In particular, the contested decision (a) did
not assess ENAE's creditworthiness in relation to the specific
feature that it is a military industrial unit, (b) disputed without
justification ENAE's economic parameters and also the entirely
acceptable guarantees which it was in a position to provide in
order to be financed by any private bank and (c)
ignored
without justification and misappraised the interest of Elliniki
Trapeza Viomikhanikis Anaptixis (Hellenic Industrial Develop-
ment Bank;
in the
value of, and return from, that commercial stake held by it.

‘ETVA’) as majority shareholder in ENAE,

By its fourth plea, relating to the wrongful implementation of
the aid which took the form of the writing-off of debts of
EUR 160 million, the applicant submits that approval decision
C 10/1994 did not lay down conditions and was not wrongly
implemented, and in the alternative that ENAE was not granted
the whole of the foregoing amount and, therefore, that sums
not granted cannot be recovered. The applicant further submits
that Article 296 EC must be applied both when assessing the
possible existence of aid and when calculating any recoverable
benefit. Finally, recovery of the aid infringes the principle of
proportionality, the principle of legal certainty and the principle
that the legitimate expectations of a recipient of aid should be
protected.

Form of order sought

— annul Articles 1(2), 2, 3, 5, 6, 8(2), 9, 11 to 16, 18 and 19
of the contested decision of 2 July 2008 concerning Aid

By its fifth plea, relating to wrongful implementation of the aid
approved in 2002 of EUR 29,5 million for the closure of facil-
ities, by reason of a supposed failure to observe the counter-
vailing condition restricting the applicant's repair capacity, the
applicant submits that approval decision N 513/2001 was
misapplied.

C 327/30

EN

Official Journal of the European Union

20.12.2008

By its sixth and seventh pleas, relating to wrongful implementa-
tion of the investment aid of EUR 22,9 million and the alleged
unlawful participation of ETVA in the increases in share capital
the applicant submits that
to bring about
approval
that
Article 87(1) EC was infringed as the Commission wrongly
found that measure E10 constituted unlawful State aid, that the
principle of
legitimate expectations was
infringed and that Article 296 EC was not applied.

decision N 401/1997 was misapplied,

the protection of

investment,

that

creditworthiness — the

the misappraisal of
applicant

By its eighth plea, relating to the loans and guarantees which
the applicant received in the relevant period of 1997 to 2001
— which is in addition to the third plea which applies to the
loans and guarantees as
the
regards
applicant's
pleads:
(a) misapplication of the test of a private investor in a market
economy; (b) misapplication of Article 87(2) EC, Article 3 of
Regulation (EC) No 1540/1998 (1) and Article 4 of Directive
90/684/EEC (2); (c) infringement of the principle of proportion-
ality and manifest error of assessment as regards ENAE's credit-
worthiness after its complete privatisation in June 2002, in rela-
tion to calculation of the amounts to be recovered in respect of
the measures under examination, since the contested decision
did not reduce the applicable reference interest rate; and (d) a
mistake of fact in relation to the loans and guarantees which
ETVA granted the applicant, since the contested decision did not
following ETVA's privatisation the
take into account
measures under examination did not include elements of State
aid.

that

(a)

financing of ENAE's
By its ninth plea, relating to unlawful
the applicant
non-military business by its military business,
pleads:
infringement of Articles 296, 298 and 88(1) EC;
(b) misapplication of the private investor test with regard to
military contracts and (c) a failure to state reasons and misap-
praisal as regards determination of the sums to be recovered.

(1) Council Regulation (EC) No 1540/98 of 29 June 1998 establishing

new rules on aid to shipbuilding (OJ 1998 L 202, p. 1).

(2) Council Directive 90/684/EEC of 21 December 1990 on aid to ship-

building (OJ 1990 L 380, p. 27).

Action brought on 15 September 2008 — Freistaat Sachsen
and Land Sachsen-Anhalt v Commission

(Case T-396/08)

(2008/C 327/56)

Language of the case: German

Parties

Applicants: Freistaat Sachsen and Land Sachsen-Anhalt (repre-
sented by: T. Müller-Ibold and T. Graf, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the first paragraph of Article 1 of Commission Deci-
sion C(2008) 3178 final of 2 July 2008 in State aid case
C 18/2007; and

— order the Commission to pay the costs.

Pleas in law and main arguments

This application for annulment relates to Commission Decision
C(2008) 3178 final of 2 July 2008 in State aid case C 18/2007,
in so far as a large part of the training aid notified, which the
intended to
Freistaat Sachsen and the Land Sachsen-Anhalt
grant to the express courier services company, DHL, is declared
to be incompatible with the common market.

In particular, the Freistaat Sachsen and the Land Sachsen-Anhalt
rely on the following pleas in law in support of their claims.

‘necessary’

the applicants object

to the Commission's refusal

First,
to
approve a large part of the notified aid, since the training aid is
not
for the training measures in question to be
implemented. By introducing a general test of necessity in indi-
vidual cases as a prerequisite for approval of the notified aid, the
Commission contravenes the binding effect of Regulation (EC)
No 68/2001 (1) and infringes the principles of equal treatment
and the protection of legitimate expectations. The assessment
criteria laid down by the Regulation are binding also in respect
of aid above the exemption threshold.

Second, the Commission's approach, which makes approval of
the notified training aid dependent on its necessity,
is also
wrong in law because it unlawfully ignores the positive market
externalities of the training measures supported by the notified
training aid. Such market externalities are in themselves suffi-
cient to justify the compatibility of the notified training aid with
the common market.

Third, the Commission wrongly concludes that the necessary
incentive effect of the aid for the chosen location is lacking. In
fact the training aid is necessary because it was a contributory
factor in DHL's decision on Leipzig/Halle as its choice of loca-
tion and DHL would not otherwise have undertaken any
training there. Moreover,
the Commission's assertion that
comparable training costs would also have arisen in alternative
locations is unfounded.

Fourth, the Commission relied on inappropriate criteria in its
assessment of necessity. In particular, the Commission relies on
subjective criteria, which go beyond objective necessity. More-
over, the Commission carries out its assessment on the basis of
statutory provisions on training measures, which significantly
disadvantages those Member States in which training content is
regulated by law.