CELEX: C2001/275/31
Language: en
Date: 2001-09-29 00:00:00
Title: Case T-167/01: Action brought on 17 July 2001 by Schmitz-Gotha Fahrzeugwerke GmbH against the Commission of the European Communities

C 275/16               EN                     Official Journal of the European Communities                                     29.9.2001
The applicant states in that respect that, in Case C-257/98              Pleas in law and main arguments
P Lucaccioni v Commission, the damages sought were exam-
ined by the Court of Justice only in the context of the Staff
Regulations and with regard to occupational diseases. Despite
the fact that the Medical Committee’s report had given the
diagnosis date as January 1990, the Court took the view that             By its decision of 28 March 2001, the Commission ordered
payment of the compensation/interest should be dated from                the Federal Republic of Germany to recover aid totalling
April 1994, the date on which the proceedings were brought               DEM 34 978 000 from Lintra Beteiligungsholding GmbH
to a close. It is therefore evident that the Court did not take          and/or its subsidiaries, including Gothaer Fahrzeugwerke
into account the non-material and biological damage suffered             GmbH.
by the applicant and unquestionably caused by the European
Commission from September 1967 until April 1994, or at
least until November 1980, in accordance with the legal rules
currently in force, the Charter of fundamental rights of the
European Union and the Convention on Human Rights.                       Gotha Fahrzeugwerke GmbH’s main activity was in the vehicle
                                                                         construction business. The company’s assets in that area were
                                                                         transferred to the applicant. According to the applicant, the
                                                                         Commission may be acting on the assumption that the
(1) Case T-165/95 Lucaccioniv Commission [1998] ECR FP-IA-               applicant is the (partial) legal successor to Gothaer Fahr-
    203,II-67.
                                                                         zeugwerke GmbH, thereby establishing liability for repayment
                                                                         on the part of the applicant even though only assets were
                                                                         acquired.
                                                                         According to the applicant, Gothaer Fahrzeugwerk GmbH,
                                                                         which is currently in liquidation, repaid its share of the total
Action brought on 17 July 2001 by Schmitz-Gotha                          amount of aid to be repaid. If, however, that company were to
                                                                         be declared insolvent, that repayment might be called back
Fahrzeugwerke GmbH against the Commission of the
                                                                         into question and the corresponding amount partially or
                     European Communities
                                                                         wholly included in the general insolvency mass. For that
                                                                         reason, the applicant has a legal interest in Commission’s
                         (Case T-167/01)                                 decision being annulled.
                        (2001/C 275/31)
                                                                         The applicant argues that there has been an infringement of
                   (Language of the case: German)                        essential procedural requirements on account of inadequate
                                                                         reasoning for the decision, inasmuch as the Commission holds
                                                                         that the decision enables a requirement for repayment to be
                                                                         established against the applicant. The applicant submits that,
An action against the Commission of the European Communi-                if the Commission orders in a decision that aid should be
ties was brought before the Court of First Instance of the               reclaimed from certain undertakings named in that decision,
European Communities on 17 July 2001 by Schmitz-Gotha                    that decision is limited solely to those particular undertakings.
Fahrzeugwerke GmbH, Gotha (Germany), represented by                      If, however, the Commission takes the view that other, third-
Martin Matzat, Rechtsanwalt.                                             party, undertakings, which are legally independent and have
                                                                         merely had assets transferred to them, may also be held liable
                                                                         for repayment of the aid, such a view requires that those
The applicant claims that the Court should:                              undertakings be specifically named in the decision itself and
                                                                         that a detailed justification be provided as to why the factual
                                                                         requirements for such liability are present.
—     annul Commission Decision No C 41/99 (ex N 49/95) of
      28 March 2001 in so far as it holds the applicant liable
      in respect of the portion of aid due for repayment
      attributable to Gothaer Fahrzeugwerk GmbH;
                                                                         The applicant further argues that, by assuming or declaring
—     in the alternative, should the Commission’s decision not           the applicant to be liable, the Commission has infringed the
      be open to a challenge in part, annul the above decision           Treaty. It maintains, inter alia, that to hold the acquirers of
      in its entirety;                                                   assets unrestrictedly liable is not compatible with Community
                                                                         principles. In particular, such comprehensive liability infringes
                                                                         the principle of proportionality. Moreover, the claims for
—     order the Commission to pay the costs.                             repayment bore no relation to the assets taken over.
 ---pagebreak--- 29.9.2001              EN                     Official Journal of the European Communities                                       C 275/17
Finally, the applicant argues that the Commission has misused            The Commission found that these terms and conditions of sale
its discretion in ordering repayment at Gothaer Fahrzeugwerk             were contrary to Article 81(1) of the EC Treaty since they
GmbH’s expense of aid totalling DEM 7 100 136. It argues                 restricted parallel imports and exports to other Member States.
that the Commission did not take account of Gothaer Fahr-                This decision is now contested by the applicant.
zeugwerk GmbH’s contribution to the overall result. It adds
that DEM 3300000 were undeniably used in accordance with
the initial objective, and that the remaining amount of                  In support of its Application, the applicant contests the
DEM 3800336 was determined on the basis of a distribution                applicability of Article 81(1) EC Treaty on the grounds that
ration arbitrarily adopted by the Commission, so that the                the conditions of sale do not constitute an agreement and they
contested decision is contrary to Community law and void.                have no restrictive object or effect. The applicant further claims
                                                                         that the conditions of sale compensate for a market irregularity
                                                                         caused by the setting of prices by the Spanish authorities. In
                                                                         the alternative, the applicant claims the conditions of sale are
                                                                         eligible for an exemption under Article 81(3) EC Treaty.
Action brought on 23 July 2001 by Glaxo Wellcome plc
  against the Commission of the European Communities
                                                                         Action brought on 3 August 2001 by Euroagri s.r.l. against
                        (Case T-168/01)                                           Commission of the European Communities
                        (2001/C 275/32)                                                           (Case T-180/01)
                   (Language of the case: English)                                                (2001/C 275/33)
                                                                                             (Language of the case: Italian)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 23 July 2001 by Glaxo Wellcome                   An action against the Commission of the European Communi-
plc, having its registered office in Middlesex (UK), represented         ties was brought before the Court of First Instance of the
by I.S. Forrester Q.C. and A.P. Schulz of White & Case                   European Communities on 3 August 2001 by Euroagri s.r.l.,
Brussels, F. Depoortere, T. Louko and I. Vandenborre of                  represented by Walter Masucci, lawyer.
Skadden, Arps, Slate, Meagher & Flom LLP, Brussels, and
S. Martinez Lage of Martinez Lage & Associados                           The applicant claims that the Court should:
                                                                         —     annul the decision of the Commission of the European
The applicant claims that the Court should:                                    Communities of 6 June 2001 C(2001)1274;
—      annul the Commission decision of 8 May 2001;                      —     in the alternative, annul in part the contested decision
                                                                               and reduce, in proportion with the actual investments
—      take such other or further steps as justice may require;                made, the financial contribution allocated to Euroagri
                                                                               s.r.l. by the Commission’s decision of 3 December 1992;
—      order the Commission to pay the costs.
                                                                         —     order the Commission of the European Communities to
                                                                               pay the costs.
Pleas in law and main arguments
                                                                         Pleas in law and main arguments
The applicant notified its new terms and conditions of sale to
the Commission pursuant to Regulation 17/62. The new terms               By this application, the applicant company seeks the annul-
and conditions of sale of the applicant consisted of two                 ment of the decision of the Commission of the European
different pricing systems for its pharmaceutical products. The           Communities of 6 June 2001 C(2001)1274 cancelling the
first one was used for products to be sold in Spain and financed         contribution allocated to the applicant itself by decision
by the Spanish Social Security system. In this case the prices           C(92)3124 of 3 December 1992, pursuant to Council Regu-
were, according to the applicant, all set by the Spanish                 lation (EEC) No 4256/88 of 19 December 1988, laying down
authorities at a low level. The second system applied to                 provisions for implementing Regulation (EEC) No 2052/88 as
products to be sold outside the scope of the Spanish price               regards the EAGGF Guidance Section (1) in the context of
setting system by wholesalers authorised according to Spanish            project No 92. IT.06.069 entitled ‘Pilot demonstration project
Law. In the latter system, the prices were set by the applicant.         for the use of new “Endovena” technology on fruit trees’.