CELEX: C2004/021/86
Language: en
Date: 2004-01-24 00:00:00
Title: Case T-382/03: Action brought on 17 November 2003 by Izar Construcciones Navales SA against Commission of the European Communities

C 21/42                EN                          Official Journal of the European Union                                          24.1.2004
Pleas in law and main arguments                                                  incompatible with the common market merely because it
                                                                                 constitutes aid in addition to that authorised for the
                                                                                 Spanish shipyards by the aforementioned 1997 decision.
The applicant in this case, a subsidiary of the Spanish public             Finally, the applicant alleges breach of the principle of
holding headed by the Sociedad Estatal de Participaciones                  proportionality and of the duty to state reasons for acts, in
Industriales (SEPI), which owns all the Spanish shipyards                  particular as regards, in the present case, the existence of State
belonging to the State, challenges the decision by which the               aid.
defendant institution has initiated the formal investigation
procedure under Article 88(2) of the EC Treaty with regard to
three cases of alleged aid consisting in the grant by SEPI to the          (1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
civil shipyards in Cádiz and Juliana and to the Manises engines                down detailed rules for the application of Article 93 of the EC
factory of loans amounting to EUR 194.4 million, a capital                     Treaty, OJ 1999 L 83, p. 1.
injection from SEPI to AESA (Astilleros Españoles SA) of                   (2) Council Regulation (EC) No 1013/97 of 2 June 1997 on aid to
EUR 252.4 million and compensation for losses paid by SEPI                     certain shipyards under restructuring, OJ 1997 L 148 , p. 1.
to the shipyards in Cádiz and Juliana and to the Manises
engines factory amounting to EUR 68.2 million. The same
decision also questions, according to the applicant, whether
certain aid authorised in 1997 in the same sector, in relation
to which the abovementioned aid ought to be considered
additional aid, is compatible with Community law.
                                                                           Action brought on 17 November 2003 by Izar Construc-
                                                                           ciones Navales SA against Commission of the European
In support of its claims, the applicant alleges:                                                      Communities
                                                                                                    (Case T-382/03)
—     Infringement of Article 88 of the EC Treaty and of
      Regulations 659/1999 (1) and 1013/1997 (2), inasmuch
      as the contested decision, using as its legal basis Article 16                                 (2004/C 21/86)
      of Regulation No 659/1999, states that, were the aid
      authorised in 1997 to be considered illegal, steps must                                 (Language of the case: Spanish)
      be taken for its recovery. The applicant submits in that
      respect that the Commission has unlawfully failed to
      apply to the aid in issue the procedure for existing aid
      provided for by Article 88(1) and Article 17 et seq of
      Regulation No 659/1999.                                              An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 17 November 2003 by Izar
                                                                           Construcciones Navales SA, whose registered office is at
—     Breach of the principle that legitimate expectations must            Madrid, represented by Jaime Folguera Crespo, Edurne Navarro
      be protected, inasmuch as the contested decision does                Varona and Alfonso Gutiérrez Hernández, lawyers.
      not meet the applicant’s expectations regarding the
      legality and irrevocability of the aid authorised in 1997.
                                                                           The applicant claims that the Court should:
—     Breach of the principle of legal certainty as a result of            —     Annul, pursuant to Article 230 of the EC Treaty, the
      the Commission’s having acted out of time and the                          decision of the Commission of 27 July 2003 on the
      retrospective application of a provision to a situation                    suspected aid granted to the Spanish State shipyards, and
      arising prior to its entry into force. In the view of the
      applicant, the power to recover the 1997 aid could only
      have been exercised within the period prescribed therefor,           —     Order the Commission to pay the costs incurred by IZAR
      that is to say before October 1999. That is so because                     in these proceedings.
      exercise of the abovementioned power is contingent on
      the result of the monitoring programmes provided for by
      Regulation No 1013/1997 and the 1997 decision, which
      came to an end on the abovementioned date.                           Pleas in law and main arguments
—     Manifest error of law, inasmuch as the contested decision            The applicant in this case, the same as that in Case T-381/03
      maintains that the alleged aid concerned thereby is                  IZAR, challenges the decision of the defendant by which it:
 ---pagebreak--- 24.1.2004              EN                          Official Journal of the European Union                                           C 21/43
—     initiated the formal investigation procedure under                   Pleas in law and main arguments
      Article 88(2) of the EC Treaty with regard to three cases
      of alleged aid consisting in an increase of capital of EUR
      736 million, with an issue premium of EUR 586 million,
      and of two subsequent injections of EUR 105 million and              The applicant seeks the annulment of Council Regulation
      EUR 50 million respectively by way of issue premia;                  1480/2003 of 11 August 2003 imposing a definitive
                                                                           countervailing duty and collecting definitively the provisional
—     rejects the arguments of the Kingdom of Spain, based on              duty imposed on imports of certain electronic microcircuits
      Article 296 of the EC Treaty, thus ruling out the specific           known as DRAMs (dynamic random access memories) orig-
      procedures provided for by Article 198(1) and (2);                   inating in the Republic of Korea (1).
—     questions, according to the applicant, whether certain aid
      authorised in 1997 in the same sector, in relation to
                                                                           With its first two pleas, the applicant contests the finding that
      which the abovementioned aid ought to be considered
                                                                           it failed to cooperate. According to the applicant, the defendant
      additional aid, is compatible with Community law.
                                                                           disregarded the Arthur Andersen report determining the
                                                                           applicant’s liquidation value and the affidavit submitted by
                                                                           Citibank. The applicant invokes in that regard a violation of
The pleas and main arguments are similar to those relied upon              Article 28 of Council Regulation 2026/97 (2), Articles 12 and
in Case T-381/03 IZAR.                                                     22 of the WTO Agreement on Subsidies and Countervailing
                                                                           Measures, the principle of proportionality and a manifest error
                                                                           of assessment.
In particular, the applicant alleges infringement of Articles 88,
296 and 298 of the EC Treaty inasmuch as, since the Kingdom
of Spain had previously and expressly invoked the exception
provided for in Article 296(1)(b) of the Treaty, the Commission            The applicant furthermore submits that the findings of the
had power to initiate not the procedure under Article 88(2)                defendant that several specific measures conferred a benefit on
but only certain of the specific procedures under Article 298.             the applicant infringe Article 2 of Regulation 2026/97,
                                                                           Article 1 of the WTO Agreement on Subsidies and
                                                                           Countervailing Measures and amount to a manifest error of
                                                                           assessment of the relevant facts.
                                                                           The applicant also claims that the findings that the KDB
                                                                           debenture programme (3) was specific to the applicant infringe
Action brought on 14 November 2003 by Hynix Semicon-                       Article 3 of Regulation 2026/97, Articles 1.2 and 2 of the
  ductor Inc. against the Council of the European Union                    WTO Agreement on Subsidies and Countervailing Measures
                                                                           and amount to a manifest error of assessment of the relevant
                                                                           facts.
                         (Case T-383/03)
                          (2004/C 21/87)
                                                                           The applicant continues by submitting that in calculating the
                                                                           amount of the benefit of several specific measures, the
                                                                           defendant infringed Articles 1, 2, 5, 6 and 7 of Regulation
                                                                           2026/97, the Guidelines on the calculation of the amount of
An action against the Council of the European Union was                    the subsidy in countervailing duty proceedings, Articles 14, 22
brought before the Court of First Instance of the European                 and annex I(j) of the WTO Agreement on Subsidies and
Communities on 14 November 2003 by Hynix Semiconductor                     Countervailing Measures. In this respect, the applicant also
Inc., Kyoungi-Do, Korea represented by Marco Bronckers, Yves               claims that the defendant committed a manifest error of
Van Gerven, Axel Gutermuth and Axel Desmedt lawyers with                   assessment and infringed Article 253 EC.
an address for service in Luxembourg.
The applicant claims that the Court should:                                The applicant also contests the defendant’s findings that
                                                                           subsidised imports from the Republic of Korea caused material
                                                                           injury to the Community’s industry of DRAM producers.
—     declare the Definitive Regulation annulled in its entirety,          According to the applicant, these findings infringe Articles 1,
      or at least partially, in so far as it concerns imports into         8, 11 and 15 of Regulation 2026/97, Articles 15, 19 and 22
      the European Community of products manufactured by                   of the WTO Agreement on Subsidies and Countervailing
      Hynix Semiconductor Inc.;                                            Measures and amount to manifest errors of assessment. The
                                                                           applicant also claims that the defendant committed a violation
—     order the Council to pay the costs of the proceedings.               of Article 253 EC in this regard.