CELEX: C2007/183/45
Language: en
Date: 2007-08-04 00:00:00
Title: Case C-290/07 P: Appeal brought on 14 June 2007 by Commission of the European Communities against the judgment of the Court of First Instance (First Chamber) delivered on 29 March 2007 in Case T-366/00: Scott S. A, supported by the French Republic v Commission of the European Communities

4.8.2007   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 183/25
            
         Appeal brought on 14 June 2007 by Commission of the European Communities against the judgment of the Court of First Instance (First Chamber) delivered on 29 March 2007 in Case T-366/00: Scott S. A, supported by the French Republic v Commission of the European Communities
   (Case C-290/07 P)
   (2007/C 183/45)
   Language of the case: English
   Parties
   
      Appellant: Commission of the European Communities (represented by: J. Flett, Agent)
   
      Other parties to the proceedings: Scott SA, French Republic
   Form of order sought
   The appellant claims that the Court should:
   
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               quash the contested the contested judgment
            
         
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               give final judgement in the matters that are subject of this appeal. Failing which, for any matter with respect to which the Court considers that the state of the proceedings does not permit final judgment, the Commission respectfully requests the Court to refer the case back to the CFI for reassessment.
            
         
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               Order the applicant bear its own costs and to pay those incurred by the Commission relating to the proceedings before this Court and before the Court of First Instance; and order the French Republic to bear its own costs relating
            
         Pleas in law and main arguments
   The first four grounds of appeal relate to legal errors in the contested judgment concerning the procedural rights of third parties and the procedural obligations of the Commission in State aid proceedings:
   
                
            
            
               The first ground of appeal concerns the exclusion from the administrative file of Scott's additional comments of 24.12.1999, sent 13 months after the prescribed time limit.
            
         
                
            
            
               The second ground of appeal concerns the contested judgment's finding that the Commission was under a procedural obligation to provide France with a further opportunity to produce the alleged valuations.
            
         
                
            
            
               The third ground of appeal concerns the contested judgment's finding that the Commission was under procedural obligation to give Scott a further opportunity to submit comments.
            
         
                
            
            
               The fourth ground of appeal concerns the contested judgement's finding that the Commission was under a procedural obligation to use an ‘outside expert’.
            
         In relation to these matters, the Commission submits that the contested judgment neither sets out nor applies the correct legal standard: did the Commission infringe an essential procedural requirement. In addition, the contested judgment could not lawfully rule on these matters since Scott's application did not include any such grounds of annulment. In any event; the Commission submits that there was no infringement of an essential procedural requirement. No such requirements are provided for the Procedural Regulation; and the contested judgment was not entitled to ‘grant’ such rights or impose such obligations based on the erroneous considerations set out in the contested judgment. Finally, there was no breach of an essential procedural requirement:
   
                
            
            
               Scott's excluded additional comments were in re-submitted by France on 21.2.2000, included in the administrative file, and assessed in the contested decision.
            
         
                
            
            
               Given the four information requests and the information injunction the Commission was not obliged to give France a further opportunity to produce the alleged valuations.
            
         
                
            
            
               Scott had ample opportunity to submit comments, and in particular participated in the response to the information injunction.
            
         
                
            
            
               Both France and Scott had ample opportunity to produce a grant-date valuation, but failed to do so.
            
         The fifth to eighth grounds of appeal group together what the Commission has termed for convenience only ‘preliminary issues’, and relate to legal errors in the contested judgment concerning: the absence from Scott's application of any ground of annulment relating to the alleged valuations; the Court of First Instance's standard of review (the Commission is said to have no margin of appreciation); the contested judgment's reliance on speculation instead of evidence; and the reversal of the burden of proof in State aid proceedings and proceedings before the Court of First Instance.
   The ninth and tenth grounds of appeal relate to substantive legal errors concerning the factory.
   The ninth ground of appeal concerns the method for assessing the amount of State aid in transfers in kind. Contrary to what the contested judgment finds, absent a grant-date valuation or open tender, the Commission is lawfully entitled to use cost as proxy for value. This was particularly reasonable in the present case because the factory was tailored to Scott's requirements. The contested judgment's reasoning regarding the alleged sale price 11 years after grant is dependent on alleged procedural irregularities and other legal errors; and is in any event substantively erroneous.
   The tenth ground of appeal concerns supposed errors by the Commission in the application of the cost-based method. The contested judgment's findings are dependent on alleged procedural irregularities and other legal errors. The Commission's conservative estimate of the costs was the lowest possible; and there is no basis for annulling the contested decision on the grounds that the State aid might have been higher.
   The eleventh to thirteenth grounds of appeal relate to substantive legal errors concerning the land.
   The eleventh ground of appeal relates to the contested judgment's dismissal of the conservative valuations in Orléans Council Minutes of 27.5.1994 as ‘a very brief summary without detailed explanation’.
   The twelfth ground of appeal concerns the method for assessing the amount of State aid transfers in kind, and is similar to the ninth ground of appeal. Absent a grant-date valuation or open tender the Commission is lawfully entitled to use cost as a proxy for value. This was particularly reasonable in the present case because the third land purchase was tailored to Scott's requirements. The contested judgment's reasoning regarding the alleged tax audit dependent on alleged procedural irregularities and other legal errors; and is in any event substantively erroneous.
   The thirteenth ground of appeal concerns supposed errors by the Commission in the application of the cost-based method. The contested judgment's findings are dependent on alleged procedural irregularities and other legal errors. The Commission used the lowest possible land value as asserted by both France and Scott. The facts and evidence supporting the Commission are: the Offer Document; the alleged Galtier and Commissaire aux Apports valuations; the Orléans Council Minutes of 27.5.1994; and the average price of the three land parcel purchases. There is no basis for annulling the contested decision on the grounds that the State aid might have been higher.
   The fourteenth ground of appeal concerns the information injunction, particularly with respect to the land, the cost-based method for assessing the amount of State aid, and the three land parcel purchases. This is a procedural matter, but is dealt with at the end because it is linked to thirteenth ground of appeal.
   By the fifteenth ground of appeal the Commission requests the Court to quash the contested judgment because of the distortion by the Court of First Instance of the clear sense of the evidence before it, in particular because the Court of First Instance has substituted its own reasoning for that of the contested decision.