CELEX: C1996/336/64
Language: en
Date: 1996-11-09 00:00:00
Title: Action brought on 13 September 1996 by Volkswagen AG and Volkswagen Sachsen GmbH against the Commission of the European Communities (Case T-143/96)

No C 336/30          EN                  Official Journal of the European Communities                                      9 . 11 . 96
Action brought on 12 September 1996 by Bergpracht                   Instance of the European Communities on 13 September
Milchwerk GmbH & Co. KG, Hochland Reich, Summer &                    19 96 by Volkswagen AG, Wolfsburg ( Federal Republic of
Co. KG, Milchwerk Crailsheim eG, Milchwerk Geislingen               Germany ), and Volkswagen Sachsen GmbH, Mosel
eG, Wendelstein Käsewerk Molkerei Ziegenhain GmbH &                 ( Federal Republic of Germany ), represented by Michael
Co. KG and Zentral-Molkerei Aurich GmbH against the                 Schütte and Martina Maier, Rechtsanwälte, of Messrs
        Commission of the European Communities                      Bruckhaus Westrick Stegemann, Brussels , with an address
                      ( Case T-141 /96 )                            for service in Luxembourg at the Chambers of Messrs Bonn
                                                                    & Schmitt, 62 Avenue Guillaume .
                         ( 96/C 336/63 )
              (Language of the case: German)                        The applicant claims that the Court should :
                                                                    — annul Article 2 of Decision COM(96 ) 1844 final of the
An action against the Commission of the European                         Commission of 26 June 1996 ,
Communities was brought before the Court of First
Instance of the European Communities on 12 September                — annul Article 3 ( 2 ) of Decision COM(96 ) 1844 final of
 1996 by Bergpracht Milchwerk GmbH & Co . KG, Tettnang                   the Commission of 26 June 1996 in so far as the
( Federal Republic of Germany ), Hochland Reich, Summer
                                                                         combined effective aid intensity, expressed in terms of
& Co . KG, Heimenkirch ( Federal Republic of Germany ),
                                                                         the gross subsidy equivalent, is limited to 22,3 % for
Milchwerk Crailsheim eG, Crailsheim ( Federal Republic of                Mosel II and 20,8 % for Chemnitz II ,
Germany ), Milchwerk Geislingen eG, Geislingen/Steige
( Federal Republic of Germany ), Wendelstein Käsewerk               — annul Article 1 of Decision COM(96 ) 1844 final of the
Molkerei Ziegenhain GmbH & Co . KG, Bad Aibling
                                                                         Commission of 26 June 1996 in so far as the amount of
( Federal Republic of Germany ) and Zentral-Molkerei
                                                                         the direct investment grants declared compatible with
Aurich GmbH, Aurich ( Federal Republic of Germany ),
                                                                         the common market is limited to DM 418,7 million,
represented by Jürgen Salzwedel and Michael Loschelder,
Rechtsanwälte , of Messrs Gaedertz Vieregge Quack Kreile ,
                                                                    — order the Commission to pay the costs .
Cologne, with an address for service in Luxembourg at the
Chambers of Marc Loesch , of Messrs Loesch & Wolter, 1 1
Rue Goethe .                                                        Pleas in law and main arguments adduced in support:
The applicant claims that the Court should :                        1 . Erroneous and incomplete findings of fact
— annul the registration of the name ' feta ' in the list of        The decision did not take into account the initial situation
    protected designations of origin pursuant to Article 1 of       which Volkswagen AG found to exist with regard to the
    Commission Regulation ( EC ) No 1107/96 of 12 June              'green-field ' investments in Mosel II and Chemnitz II . The
    1996 on the registration of geographical indications and        findings of fact were erroneous in so far as they concerned
    designations of origin under the procedure laid down by         the drawbacks          associated with new investment in a
    Article 17 of Council Regulation ( EEC ) No 2081 /92 ,          less-favoured region, particularly as regards suppliers, the
                                                                    training of the workforce, the setting-up of the logistics
— order the Commission of the European Communities to               needed for the commercial production of vehicles and an
    pay the costs.                                                  efficient infrastructure . As a result, the Commission
                                                                    wrongly assumed that what was involved was investment in
Pleas in law and main arguments adduced in support:                 extensions to the paint-shop and final assembly plants in
                                                                    Mosel II and the extension of Chemnitz II .
The pleas in law and main arguments are the same, in
general terms, as those in Case T-l 39/96 MD Foods Amba             Consequently, the decision was adopted in breach of
and Others v. Commission and Case T-140/96 Societe
                                                                    essential procedural requirements within the meaning of the
Anonyme des Caves et Producteurs Réunis de Roquefort                second paragraph of Article 173 of the EC Treaty .
( Aveyron ) and Others v. Commission .
                                                                    2 . Incorrect application of Article 92 ( 2 ) ( c ) of the EC
                                                                         Treaty
                                                                    The decision is illegal inasmuch as the Commission failed to
Action brought on 13 September 1996 by Volkswagen AG                apply Article 92 ( 2 ) ( c ) of the EC Treaty . The Commission 's
and Volkswagen Sachsen GmbH against the Commission of               view that the exceptional factors referred to by
                the European Communities                            Article 92 ( 2 ) ( c ) of the Treaty must be strictly construed,
                        Case T-143/96 )                             and that they should not be applied to regional aid for new
                                                                    investment projects, is wrong in law, in two respects . First,
                        ( 96/C 336/64 )                             the Commission wrongly failed to apply Article 92 ( 2 ) ( c ) of
                                                                    the Treaty at all , without providing a statement of reasons
              (Language of the case: German)                        for this in a manner corresponding to the requirements of
                                                                    Article 190 of the EC Treaty . Second , had the Commission
An action against the Commission of the European                    applied Article 92 ( 2 ) ( c ), it would necessarily have
Communities was brought before the Court of First                   concluded that the conditions laid down by that provision
 ---pagebreak--- 9 . 11 . 96                EN                     Official Journal of the European Communities                                  No C 336/31
were fulfilled in the present case and, therefore, that the aid              be based on a uniform assessment of all operational
provided was wholly compatible with the common                               disadvantages over a five-year period .
market .
                                                                             It was only in the light of the Commission's classification of
                                                                             Mosel II and Chemnitz II for aid purposes as new
3 . Infringements of the law and absence of reasons in the                   investments that VW initiated and carried on its investment
     application of Article 92 ( 3 ) of the EC Treaty                        plans in the form previously notified and assigned
                                                                             substantial funds of its own thereto .
Furthermore, the Commission has also infringed
Article 92 ( 3 ) of the EC Treaty, which it regards as                       Overall conclusion
applicable . Consequently, the decision should be annulled
even if it is held that Article 92 ( 2 ) ( c ) is inapplicable and that
                                                                             To sum up, the decision is therefore illegal, inasmuch as the
the compatibility of the aid should have been examined by
                                                                             aid compatible with the common market is limited in its
the Commission in the light of Article 92 ( 3 ).
                                                                             amount to the sums fixed by the Commission in the
                                                                             decision, the aid specific in Article 2 is stated to be
Since Saxony is a development region within the meaning of                   incompatible with the common market, the amount of the
Article 92 ( 3 ) ( a ) of the EC Treaty, the Commission should               aid for direct investment grants is limited by Articles 1 and
in any event have examined the compatibility of the aid                      3 ( 2 ) to DM 418,7 million and the combined effective aid
with the common market primarily in the light of                             intensity, expressed in terms of the gross subsidy equivalent,
Article 92 ( 3 ) ( a ) of the Treaty. The Commission unlawfully              is limited by Article 93 ( 2 ) to 22,3 % for Mosel II and 20,8 %
applied the second alternative in Article 92 ( 3 ) (c ) of the               for Chemnitz II .
Treaty instead of Article 92 ( 3 ) ( a ), despite the fact that
Article 92 ( 3 ) ( c ) is superseded by the latter provision and is
thus not applicable to the regional aid at issue in the present
case .
If Article 92 ( 3 ) ( a ) of the Treaty had been applied, the aid            Action brought on 18 September 1996 by Monika Kawicki
would necessarily have been found compatible with the                                       against the European Parliament
common market, without there being any need for
                                                                                                     Case T-145 /96 )
considerations relating specifically to the sector in issue .
                                                                                                      ( 96/C 336/65 )
Moreover, in applying Article 92 ( 3 ) ( c ) of the Treaty, the
Commission based its findings on a cost-benefit analysis in                                  (Language of the case: French)
which the Mosel II and Chemnitz II projects were wrongly
regarded not as wholly 'green-field' investments, despite                    An action against the European Parliament was brought
their having been treated as such over a period of several                   before the Court of First Instance of the European
years , but only in segments as investments in expansion . The               Communities on 18 September 1996 by Monika Kawicki,
Commission failed to see that, from the standpoint of                        residing in Luxembourg, represented by Marc Kleyr, of the
Volkswagen, as the investor, the typical drawbacks                           Luxembourg Bar, with an address for service in
associated with 'green-field ' investments applied . As a                    Luxembourg at his Chambers .
result of that incorrect classification, the disadvantages
which were to be offset by aid were substantially                            The applicant claims that the Court should :
underestimated .
                                                                             — annul :
4 . Breach of the principle of the protection of legitimate                       — the decision of the Invalidity Committee of
     expectations                                                                      31 January 1996
Lastly, on the basis of its previous handling of the aid                          — the decisions of the Head of the Personnel Division of
procedure in respect of the Mosel II/Chemnitz II project, in                           9 February 1996 and 7 May 1996
particular by reason of the cost-benefit analyses previously
carried out during the procedure from 1992 to 1994 , the                          — the decision of the Secretary-General of the
Commission prompted VW to entertain expectations                                       European Parliament of 20 June 1996
meriting protection . By altering its position immediately                        — the decision of the Director-General for Personnel,
before the adoption of its decision and thereby abandoning                             the Budget and Finance of 23 August 1996
its longstanding approach to the matter, without providing
any reasons or detailed explanation therefor, the                            — order the European Parliament to pay to the applicant
Commission violated expectations on the part of VW which                          the outstanding balance of her salary as an official from
merited protection .                                                              29 April 1996 , together with default interest from the
                                                                                  date when each monthly salary payment respectively fell
The Commission should have found, on the basis of its                             due until final settlement,
handling of the matter over a number of years , that the
Mosel II and Chemnitz II projects fell to be regarded , in                   — order the European Parliament to pay to the applicant
terms of the law relating to aid, as wholly 'green-field'                         the sum of Bfrs 500 000 or such other sum, including
investments, and thus that the cost-benefit analysis was to                       any greater sum, as the Court may regard as fair and