CELEX: C2001/303/39
Language: en
Date: 2001-10-27 00:00:00
Title: Case T-197/01: Action brought on 14 August 2001 by Société Coopérative Agricole GIPAM against Commission of the European Communities

C 303/24                EN                    Official Journal of the European Communities                                    27.10.2001
The Commission has now decided to open a procedure under                 18 and 23 years after the amendments in question, would
Article 88(2) EC, qualifying the legislation in question as              violate the principle of legal certainty and the legitimate
non-notified new aid. According to the Commission, the                   expectations of the applicant. The time-limit set in
amendments made to the legislation in 1979 and 1983,                     Article 1(b)(iv) of Regulation No 659/1999 for regarding state
following the United Kingdom’s accession to the European                 aid as new aid expired long ago. This principle should,
Communities, were substantial modifications, so that the entire          according to the applicant, also apply in equity to the
scheme had to be qualified as new aid. That decision is now              Commission’s review of alterations to existing aid schemes, as
contested by the applicant.                                              is the case here.
                                                                         Finally, the applicant states that the Commission’s investigation
According to the applicant, the Commission has violated                  prior to the decision was too lengthy, and therefore constitutes
Gibraltar’s rights of defence, by providing an insufficient              a breach of the Commission’s duty to exercise due diligence
statement of the reasons for the contested decision and by               and of the principle of good administration.
insufficiently hearing the Government of Gibraltar as the party
directly and individually concerned by the decision. In addition,
the Commission has violated the United Kingdom’s rights of
defence, in so far as they constitute essential procedural
requirements.
                                                                         Action brought on 14 August 2001 by Société Coopéra-
Further, the applicant claims that the decision is incompatible          tive Agricole GIPAM against Commission of the European
with Article 88 of the EC Treaty and that the Commission has                                       Communities
violated the principle of proportionality and the principles of
legal certainty and legitimate expectations, as well as failing to
fulfil its duty to exercise due diligence.                                                        (Case T-197/01)
                                                                                                  (2001/C 303/39)
According to the applicant, the legislation in question cannot
be qualified as new aid since that legislation already existed                              (Language of the case: French)
prior to the accession of the United Kingdom to the European
Community, and because the later 1976 and 1983 amend-
ments did not alter the legislation substantially. It should             An action against the Commission of the European Communi-
therefore rather be considered as existing aid under Article 88          ties was brought before the Court of First Instance of the
(1) EC.                                                                  European Communities on 14 August 2001 by Société
                                                                         Coopérative Agricole GIPAM, whose registered office is at
                                                                         Ducos (France), represented by Alain Lorang, Hubert Mazingue
                                                                         and Patrick Leroyer Gravet, lawyers, with an address for service
                                                                         in Luxembourg.
To proceed now under Article 88(2) EC in respect of new aid
would be to impose an unjustified burden with possibly
grave consequences, especially since an investigation under              The applicant claims that the Court should:
Article 88(1) EC Treaty would, for the applicant, constitute a
measure having a comparable effect and less severe conse-
quences. In addition, having regard to the time which has                —     annul Commission Regulation No 896/2001 of 7 May
elapsed since the amendments in question were adopted, the                     2001;
applicant finds the decision disproportionate. In this respect,
the applicant also points out that the amendments in question            —     order the defendant to pay the costs.
are severable from the rest of the tax system and that there is
therefore no need to call in question the entire system.
                                                                         Pleas in law and main arguments
The applicant further claims that since the accession of the
United Kingdom to the European Communities, and since the                In support of its arguments, the applicant claims that the
time when the amendments in question were made, the                      regulation at issue (1) does not comply with Council Regulation
interpretation of ‘state aid’ under EC law has evolved, especially       No 404/1993 (2) for whose application the contested regu-
in relation to fiscal measures. At that time, that type of measure       lation lays down detailed rules. According to the applicant,
was, according to the applicant, not generally regarded as               those rules adversely affect the rights acquired by the applicant
falling within the rules of the EC Treaty concerning state aid.          under the earlier regulations adopted to implement Regulation
There was therefore no reason to notify the legislation at that          No 404/1993. Under those earlier regulations, the applicant
time. To regard that legislation as new aid now, respectively            was characterised as a traditional importer, which is no longer
 ---pagebreak--- 27.10.2001             EN                     Official Journal of the European Communities                                      C 303/25
the case under the present regulation. Thus the Commission               the applicant obtained three of the twelve production lines of
has distorted competition and discriminated between those                that company. A condition of the transfer of ownership was
undertakings able to satisfy the references laid down in the             the agreement by the German Federal State Thüringia to grant
new implementing regulation and the remaining undertakings.              an additional investment subsidy of DEM 4 000 000 in the
                                                                         framework of the ‘joint Federal Government/Länder scheme
                                                                         for improving regional economic structures’, whereby the
(1) Commission Regulation (EC) No 896/2001 of 7 May 2001                 burden on the applicant owing to the purchase price would be
    laying down detailed rules for applying Council Regulation (EEC)     reduced by that amount. The promise was not fulfilled.
    No 404/93 as regards the arrangements for importing bananas
    into the Community (OJ L 126, 08/5/2001, p. 6).
(2) Council Regulation (EEC) No 404/93 of 13 February 1993 on the
    common organization of the market in bananas (OJ L 47,
    25/2/1993, p. 1).
                                                                         Subsequently the applicant acquired a fourth production
                                                                         line. In February 1998, because of the applicant’s liquidity
                                                                         problems, the German Treuhandanstalt waived payment of
                                                                         DEM 4 000 000 of the purchase price under the 1994
                                                                         contract. In December 1998 Germany notified the Com-
                                                                         mission of various measures whose aim was the financial
                                                                         consolidation and long-term profitability of the applicant, and
Action brought on 28 August 2001 by Technische Glas-                     included the purchase price waiver, which the Commission
werke Ilmenau GmbH against the Commission of the                         has declared incompatible with the common market in the
                    European Communities                                 contested decision.
                         (Case T-198/01)
                         (2001/C 303/40)                                 The applicant claims that the purchase price waiver was not
                                                                         aid. The purpose of the purchase price waiver was to put the
                  (Language of the case: German)                         applicant in the position it would have been in if the full
                                                                         amount promised had been paid. That promise founded a
                                                                         claim for payment and a legitimate expectation. Moreover, it
                                                                         would not have infringed the aid rules if the Treuhandanstalt
An action against the Commission of the European Communi-
                                                                         had agreed with the applicant in 1994 on a purchase price
ties was brought before the Court of First Instance of the
                                                                         that was lower by DEM 4 000 000. The argument that the loss
European Communities on 28 August 2001 by Technische
                                                                         of the additional aid of DEM 4 000 000 is legally irrelevant,
Glaswerke Ilmenau GmbH, Ilmenau (Germany), represented by
                                                                         because the Treuhandanstalt and the Federal State of Thüringia
G. Schohe, lawyer, with an address for service in Luxembourg.
                                                                         are different legal persons, is not a sound one.
The applicant claims that the Court should:
—     Annul the Commission Decision of 12 June 2001 on
      German State aid to Technische Glaswerke Ilmenau                   Moreover, the applicant claims that the Commission wrongly
      GmbH, Germany — K(2001) 1549;                                      applied the private investor test. It ought to have examined
                                                                         whether the purchase price waiver could have led in the long-
—     Order the defendant to pay the costs of the proceedings.           term to the applicant’s profitability. Furthermore, the purchase
                                                                         price waiver has not led to a further, additional loss of State
                                                                         assets, but is merely a method chosen by Germany to fulfil its
                                                                         1994 promise.
Pleas in law and main arguments
The action concerns the Commission’s decision declaring State
aid of DEM 4 000 000 by Germany to the applicant to be                   In the alternative, the applicant submits that the determination
incompatible with the common market.                                     of the amount of the aid element is incorrect. The Commission
                                                                         failed to determine the amount by reference to positive
                                                                         findings of fact. Germany has also avoided losses which would
The application states that the Werk für Technisches Glas                have arisen without the purchase price waiver, because the
Ilmenau, a State-owned company, was the centre of glass                  applicant would have become bankrupt if the Treuhandanstalt
manufacture in the GDR and after unification of the Federal              had claimed the full amount of the purchase price. Further-
Republic of Germany and the German Democratic Republic                   more, the Commission estimated the amount of the aid
was converted into the Ilmenauer Glaswerke GmbH. In 1994                 element at a sum which contradicts its own findings.