CELEX: C1999/299/36
Language: en
Date: 1999-10-16 00:00:00
Title: Case T-148/99: Action brought on 18 June 1999 by Daewoo Electronics Manufacturing España S.A (DEMESA) against the Commission of the European Communities

16.10.1999             EN                     Official Journal of the European Communities                                      C 299/25
Nutrition Animale (Fefana), established in Brussels, represented         Article 185 of the EC Treaty (now Article 242 EC) of enforce-
by Denis Waelbroeck and Dirk Brinckman, of the Brussels Bar,             ment of Article 2(a) of Commission Decision 98/653/EC of
with an address for service in Luxembourg at the Chambers of             18 November 1998 concerning emergency measures made
Ernest Arendt, 8-10 Rue Mathias Hardt, and Hedwig Kerckhove              necessary by the occurrence of bovine spongiform encepha-
and Paul Lambert, residing in Wingene (Belgium), represented             lopathy (BSE) in Portugal (OJ 1998 L 311, p. 23) inasmuch as
by Jacques Bourgeois, of the Brussels Bar, and Nina Köhncke,             it prohibits the despatch from Portugal to Spain and France of
Rechtsanwältin, Düsseldorf, with an address for service in               fighting bulls intended for cultural and sporting events held in
Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,                  those Member States, and, second, for the grant of authoris-
v Council of the European Union (Agents: John Carbery and                ation pursuant to Article 186 of the EC Treaty (now
Moyra Sims), supported by Commission of the European                     Article 243 EC), subject to certain conditions, for the despatch
Communities (Agents: Peter Oliver, Theofanis Christoforou                of those animals from Portugal to Spain and France — the
and Francesco Ruggeri Laderchi), Kingdom of Denmark (Agent:              President of the Court of First Instance made an order on
Jørgen Molde), Kingdom of Sweden (Agent: Anders Kruse) and               9 August 1999, the operative part of which is as follows:
Republic of Finland (Agents: Holger Rotkirch and Tuula Pynnä)
— application for suspension of the operation of Council                 1. The application for interim measures is dismissed.
Regulation (EC) No 2821/98 of 17 December 1998 amending,
as regards withdrawal of the authorisation of certain anti-              2. The costs are reserved.
biotics, Directive 70/524/EEC concerning additives in feeding-
stuffs (OJ 1998 L 351, p. 4) or for other interim measures —
the President of the Court of First Instance made an order on
30 June 1999, the operative part of which is as follows:
1. The application for interim measures is dismissed.                    Action brought on 18 June 1999 by Daewoo Electronics
                                                                         Manufacturing España S.A (DEMESA) against the Com-
2. The costs are reserved.                                                           mission of the European Communities
                                                                                                  (Case T-148/99)
                                                                                                 (1999/C 299/36)
                                                                                           (Language of the case: Spanish)
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                             An action against the Commission of the European Communi-
                           INSTANCE                                      ties was brought before the Court of First Instance of the
                                                                         European Communities on 18 June 1999 by Daewoo Elec-
                        of 9 August 1999                                 tronics Manufacturing España S.A. (DEMESA), established in
                                                                         Alava (Spain), represented by Antonio Creus Carreras and
                                                                         Begoña Uriarte Valiente, lawyers, with an address for service
in Joined Cases T-38/99 R, T-39/99 R, T-40/99 R, T-41/99 R,              c/o Cuatrecasas Abogados, 78 Avenue d’Auderghem, Brussels.
T-42/99 R, T-45/99 R and T-49/99 R: Sociedade Agrı́cola
dos Arinhos Lda and Others v Commission of the                           The applicant claims that the Court should:
                    European Communities
                                                                         — annul the Commission’s decision of 24 February 1999
    (Procedure for interim measures — Urgency — None)                         concerning State aid granted by Spain to Daewoo Elec-
                                                                              tronics Manufacturing España S.A. (DEMESA);
                         (1999/C 299/35)                                 — order the Commission to pay the costs.
                                                                         Pleas in law and main arguments
                 (Language of the case: Portuguese)
                                                                         The pleas in law and main arguments are similar to those
In Joined Cases T-38/99 R, T-39/99 R, T-40/99 R, T-41/99 R,              advanced in Case T-127/99 Territorio Histórico de Alava,
T-42/99 R, T-45/99 R and T-49/99 R: Sociedade Agrı́cola dos              Arabako Foru Aldundia - Diputación Foral de Alava v Com-
Arinhos Lda, established in Lisbon, Sociedade Agrı́cola do               mission of the European Communities and in Case T-129/99
Monte da Aldeia Lda, established in Lisbon, António José da             Comunidad Autónoma del Paı́s Vasco and Gasteizco Industria
Veiga Teixeira, residing at Coruche (Portugal), Sociedade                Lurra v Commission.
Agrı́cola Monte da Senhora do Carmo SA established at
Almeirim (Portugal), Sociedade Agrı́cola de Perescuma SA,                The applicant pleads, in particular:
established al Almeirim, José de Barahona Núncio, residing at
Evora (Portugal), and Francisco Luı́s Pinheiro Caldeira, residing        — infringement of the rights of defence of the applicant
at Campo Maior (Portugal), represented by Carlos Botelho                      undertaking as the recipient of the alleged State aid in
Moniz and Júlia Rôla Roque, of the Lisbon Bar, with an address               issue, on account of the defendant’s failure to notify the
for service in Luxembourg at the Chambers of Aloyse May, 31                   applicant of any of the steps taken in the administrative
Grand-Rue, v Commission of the European Communities                           procedure or to seek the applicant’s views concerning
(Agents: Ana Maria Alves Vieira, Gérard Berscheid and Vasco                   matters of great importance, whereas the contested
Airão) — application, first, for suspension pursuant to                      decision was indeed notified to it; and
 ---pagebreak--- C 299/26              EN                     Official Journal of the European Communities                                   16.10.1999
— failure to comply with the obligation to provide a state-             C. Further in the alternative
    ment of reasons.
                                                                             Annul the Commission’s letter of 29 April 1999, B/51839,
                                                                             DG IV-H-3/Kso D (99), refusing the applicants access to
                                                                             the files.
                                                                        Pleas in law and main arguments
Action brought on 5 July 1999 by Thermenhotel Stoiser                   The applicants are hotel undertakings in the spa town of
GmbH & Co. KG, Vier-Jahreszeiten Hotel-Betriebs-                        Loipersdorf (Steiermark).
gesmbH & Co. KG, Franz Kowald and Thermalhotel
Leitner GmbH against the Commission of the European
                         Communities                                    In the contested decision, an aid of EUR 1 703 873 by the
                                                                        Land Steiermark was declared compatible with the EC Treaty
                        (Case T-158/99)                                 on regional development grounds. The aid consists of a costs
                                                                        subsidy for a hotel construction project in Loipersdorf by a
                                                                        subsidiary of Siemens AG Österreich, and the equivalent of a
                        (1999/C 299/37)                                 subsidy in the form of a property transaction (a site for the
                                                                        hotel project is being acquired at a favourable price from the
                                                                        state-owned Thermalquelle Loipersdorf GmbH & Co. KG and
                                                                        the Land Steiermark). The hotel is to be of international 5-star
                  (Language of the case: German)                        level with over 300 rooms (600 beds). A contract has also
                                                                        been concluded between the hotel company and Thermalquelle
An action against the Commission of the European Communi-               Loipersdorf, in which the latter undertakes, inter alia, to book
ties was brought before the Court of First Instance of the              50 rooms daily for a period of three years, to extend the rest
European Communities on 5 July 1999 by Thermenhotel                     room in a particular section to 200 lying places for the use of
Stoiser GmbH & Co. KG and others, Loipersdorf (Austria),                hotel guests only, and not to allow any other hotel to construct
represented by Georg Eisenberger, Rechtsanwalt, Graz, with              a direct link to the spa until 1 January 2003. In return, the
an address for service in Luxembourg at the offices of Gerry            hotel undertakes to book at least the 200 lying places daily.
Osch, 49 Boulevard Royal.
                                                                        The applicants consider that the contested decision should be
The applicants claim that the Court should:                             set aside as void because:
A. Main plea                                                            — in the main investigation proceedings pursuant to
                                                                             Article 88(2) EC [ex Article 93(2)], they were not given
                                                                             any opportunity to express an opinion;
    1. Declare the action admissible and well founded;
    2. Consequently:                                                    — the Commission is in breach of its duty to state reasons;
                                                                             and
        (a) Annul Commission Decision SG(99) D/1523 of
            2 March 1999, declaring state aids to Siemens AG            — the applicants’ right to be informed and to inspect the files
            Österreich in connection with the hotel project in              has been disregarded.
            Loipersdorf, Austria, compatible with the common
            market pursuant to Article 92(3)(c) [now Article
            87(3)(c)] of the EC Treaty;                                 They submit that there has been a breach of primary Com-
                                                                        munity law because the Commission classified only the project
                                                                        costs subsidy and the property transaction which took place
        (b) Order the Commission to pay the costs;                      as state aid within the meaning of Article 87 EC (ex Article 92),
                                                                        but did not so classify the granting of the occupancy guarantee,
B. In the alternative                                                   the provision without charge of 200 lying places in the spa,
                                                                        and the exclusive direct link to the spa for a period of
                                                                        five years until 1 January 2003 inclusive. The Commission
    1. Declare the action admissible;                                   therefore wrongly took the gross subsidy equivalent to be
                                                                        merely 4.5 %, whereas, applying the ‘market investor rule’, it
    2. Before deciding whether the action is well founded,              actually amounted to 25.4 %. In its incorrect legal assessment
        require the Commission to produce the studies of HVS            of these hidden subsidies, the Commission also committed a
        International, Pannell Kerr Forster Associates and the          misuse of powers.
        Institut für Technologie- und Regionalpolitik, referred
        to in its decision, and allow the applicants a period
        within which to state their position in writing and
        present a counter-report on the same factual level;