CELEX: C1997/199/72
Language: en
Date: 1997-06-28 00:00:00
Title: Action brought on 14 April 1997 by Kneissl Dachstein Sportartikel AG against the Commission of the European Communities (Case T-110/97)

No C 199/26            EN                 Official Journal of the European Communities                                    28 . 6 . 97
by Molkerei Großbraunshain GmbH, whose registered                    In this action, the applicants challenge the entry
office is at Harta bei Altenburg, Thüringen ( Germany),              of the designation 'Altenburger Ziegenkäse ', with an
and Bene Nahrungsmittel GmbH, whose registered office                excessively widely-drawn geographical area pursuant to
is at Lumpzig bei Altenburg, Thüringen ( Germany ),                  the notification given by the Federal Republic of Germany,
represented by Michael Loschelder, Rechtsanwalt,                     in the register of designations which are protected
Cologne, with an address for service in Luxembourg at the            designations of origin under Article 17 of Regulation
Chambers of Marc Loesch, 11 Rue Goethe .                             ( EEC ) No 2081/92 . Such registration would lead to
                                                                     undertakings not established in the Altenburg Land being
The applicants claim that the Court should :                         able to use that designation for their products, thereby
                                                                     causing continual damage to the applicants such as to
— annul Commission Regulation ( EC ) No 123/97 of                    threaten their existence . Through the use of the simplified
     23 January 1997 supplementing the Annex to                      procedure under Article 17 of Regulation ( EEC ) No 2081 /
     Commission Regulation ( EC ) No 1107/96 on the                  92 , which the applicants maintain was an erroneous
     registration of geographical indications and                    choice in both substantive and procedural law, the
     designations of origin under the procedure laid down            applicants were unlawfully deprived of their right to a
     in Article 17 of Regulation ( EEC ) No 2081 /92 in so           proper hearing. They were also unlawfully discriminated
     far as, in respect of the product 'Altenburger                  against, since the facts in this case reveal similar treatment
     Ziegenkäse ( PDO )' referred to in Part A of the Annex          being unjustifiably given to dissimilar situations and also a
     to the regulation, the notification by the Federal              misleading of consumers incompatible with Article 2 ( 1 )
     Republic of Germany of 26 January 1994, as                      ( a ) of Directive ( EEC ) No 79/ 112 .
     supplemented on 7 August 1 996 , includes in the
     designation of the relevant geographical area under
     para . 5 (c ) of such notification the Landkreise ( rural       The applicants maintain that the question at issue is not
     districts ) of Gera, Zeitz, Geithain, Grimma, Wurzen,           whether the designation ' Altenburger Ziegenkäse ' had
     Borna and the City of Gera ( or, to use the                     become ' normal' for the competition 'through use', since
     nomenclature arising from the redrawing of                      that designation was not registered under the trade mark
     boundaries and renaming of districts pursuant to                law of the former German Democratic Republic.
     administrative reforms in the relevant Bundesländer of           Regulation ( EEC ) No 2081 /92 protected only designations
     Thüringen, Sachsen and Sachsen-Anhalt, in so far as              or statements of geographical origin and not trademarks
     it includes the Landkreise Greiz and Muldentalkreis,             or generic names .
     parts of the Kreise Leipziger Land and Burgenlandkreis
     and the City of Gera );
                                                                      Finally, the applicants argue that the adoption of
     or, in the alternative                                           Regulation ( EC ) No 123/97 constitutes a misuse of powers
                                                                      by the Commission, since, by simply adopting the
     annul Commission Regulation ( EC ) No 123/97 of                  notification by the Federal Republic of Germany, the
     23 January 1997 supplementing the Annex to                       Commission thereby adopted the extraneous consideration
     Commission Regulation ( EC ) No 1107/96 on the                   in that notification, allowing an undertaking outside the
     registration     of geographical       indications    and        area to use the designation. The decision was also legally
     designations of origin under the procedure laid down             erroneous since the Commission clearly made no use of its
     in Article 17 of Regulation ( EEC ) No 2081 /92 in so            discretion provided for in Article 15 of Regulation ( EEC )
                                                                      No 2081 /92 .
      far as the product 'Altenburger Ziegenkäse ( PDO )' is
      named in Part A of the Annex to the regulation, with
     the proviso that, until such time as the register is
      altered pursuant to an application by the Federal
      Republic of Germany to alter the designation on
      account of a fresh delimination of the geographical
      area, the description of the geographical area in the
      notification by the Federal Republic of Germany of              Action brought on 14 April 1997 by Kneissl Dachstein
      26 January 1994, as supplemented on 7 August 1996,              Sportartikel AG against the Commission of the European
      is to be retained in relation to the Landkreise of                                         Communities
      Altenburg and Schmolln ( or, under the new
                                                                                                Case T-l 10/97 )
      nomenclature, in relation to the Landkreis Altenburger
      Land ) and in relation to the description of the product                                  ( 97/C 199/72 )
      in other respects,
 — order the Commission to pay the costs.                                             (Language of the case: German)
 Pleas in law and main arguments adduced in support:
                                                                       An action against the Commission of the European
 Großbraunshain GmbH is the only undertaking in the                    Communities was brought before the Court of First
 Altenburger Land region which produces 'Altenburger                   Instance of the European Communities on 14 April 1997
 Ziegenkäse' ( Altenburg goats' cheese ) on an industrial              by Kneissl Dachstein Sportartikel AG, whose registered
 basis . Bene Nahrungsmittel GmbH holds all the shares in              office is at Molln, Austria, represented by Georg Diwok,
 Großbraunshain GmbH .                                                 Rechtsanwalt, Vienna .
 ---pagebreak--- 28 . 6 . 97               EN                Official Journal of the European Communities                                No C 199/27
The applicant claims that the Court should :                           with the wording of the Treaty, rescue aids are
                                                                       incompatible with the common market.
— annul Commission Decision 97/8 1/EC of 30 July
     1996 ,                                                            The applicant further maintains that the Commission has
                                                                       misused its powers, since no sufficient reduction in
                                                                       capacity was required and the inadequate restructuring
                                                                       programme was being financed de facto by means of the
— order the Commission to pay the costs .
                                                                       aid. A private shareholder as seller would have required
                                                                       the purchaser to assume a significantly greater degree of
                                                                       risk and a significantly higher degree of performance on
Pleas in law and main arguments adduced in support:                    the purchaser's part.
In     the   contested        decision ('), subsidies   of   OS        Finally, the applicant argues that none of the conditions
1 590 000 000 ( ECU 118 000 000 ) in the form of capital               for exemption under Article 92 ( 3 ) (c ) of the EC Treaty
injections from the wholly state-owned company Austria                 have been fulfilled . The aid to HTM facilitates the
Tabakwerke ('AT') to the Austrian company Head Tyrolia                 development not of an economic activity but only of a
Mares ('HTM ') were described as State aid within the                  single undertaking; there is no question of facilitating the
meaning of Article 92 ( 1 ) of the EC Treaty, and yet                  development of a certain economic area, since HTM 's
regarded as compatible with the common market within                   production sites are located in various regions, and the
the meaning of Article 92 ( 3 ) ( c ), subject to the fulfilment       necessary common interest is lacking.
of certain requirements by the Austrian Government.
                                                                       (') OJ No L 25 , 28 . 1 . 1997, p . 26 .
                                                                       ( 2 ) OJ No C 368 , 23 . 12 . 1994 , p . 12 .
The applicant, which is one of HTM's fiercest
competitors, argues that the subsidy leads to an unjustified
improvement in HTM's position, distorts competition, and
is incompatible which the common market for violation of
Article 92 ( 3 ) ( c ) of the EC Treaty.
                                                                       Action brought on 14 April 1997 by Monsanto Company
Its first argument is that the Commission has infringed its                 against the Commission of the European Communities
own Guidelines on State Aid for Rescuing and                                                     ( Case T-l 12/97)
Restructuring Firms in Difficulty ( 2 ), in that it:
                                                                                                    ( 97/C 199/73 )
— ignored a shareholder contribution which should be
     regarded as a subsidy and other payments made by AT                                (Language of the case: English)
     to HTM as early as 1993 (which could in themselves
     also be regarded as an existing aid scheme for the
     purposes of Article 93 of the EC Treaty ), even though            An action against the Commission of the European
     the combined amount of the aids thereby exceeded the              Communities was brought before the Court of First
     bounds of what was appropriate . Furthermore, those               Instance of the European Communities on 14 April 1997
     payments infringed both the GATT and the free trade               by Monsanto Company, represented by Clive Stanbrook
     agreement between the EEC and Austria in force at                 QC, of the Inner Temple, and Dr. Robert MacLean ,
     the time,                                                         Scotland, both of Stanbook and Hooper, Brussels, with an
                                                                       address for service in Luxembourg at the offices of Arsene
                                                                       Kronshagen, Rue Marie-Adelaide 22, Luxembourg.
— tolerated the bringing forward of losses for tax
     purposes into 1994, despite receipt of the aid in 1993 ,
                                                                       The applicant claims that the Court should:
— wrongly assumed that the insolvency of HTM would
     contribute to the formation of a narrow oligopoly,                — annul the Commission Decision of 14 January 1997
                                                                              concerning a definition of a position, in accordance
                                                                              with Article 175 of the EC Treaty, on the referral of
                                                                              the applicant's application to the Committee for
— failed sufficiently to consider the question of an                          Adaptation to Technical Progress and on the inclusion
     appropriate minimum rate of interest.                                    of bovine somatotrophin in Annex II to Council
                                                                              Regulation ( EEC ) No 2377/90, and
Furthermore, the above guidelines themselves infringed
Article 92 ( 3 ) ( c ) of the EC Treaty, since, in accordance          — order the Commission to pay the costs .