CELEX: C1999/001/33
Language: en
Date: 1999-01-04 00:00:00
Title: Action brought on 31 October 1998 by Georgsmarienhütte Holding GmbH against the Commission of the European Communities (Case T-181/98) (1999/C 1/33)

C 1/16                EN                  Official Journal of the European Communities                                     4.1.1999
     in the alternative declare Article 3 of that directive to       in the Community legal order such as for example the
     be null and void in so far as the ban it lays down              right to property and the right to freedom of expression.
     includes advertising whose effects do not extend
     beyond the territory of the Member State in question,
                                                                     Finally, it is alleged that the duty to state reasons provided
                                                                     for in Article 190 of the EC Treaty has been infringed
     further in the alternative declare Article 3 of that            since, first, no or insufficient grounds were given for
     directive to be null and void in so far as it bans the          regulating essential aspects and, secondly, non of the
     use, in advertising for non-tobacco products, of brand          necessary details as to the principles of subsidiarity and
     names, trade marks and emblems used for tobacco                 proportionality were provided, neither were the real
     products;                                                       reasons for issuing the directive ascertainable.
Ð Order the defendant to pay the costs of the action.
Pleas in law and main arguments adduced in support:
                                                                     Action brought on 31 October 1998 by Georgsmarienhütte
The applicant is a distributor of cinema advertising,                Holding GmbH against the Commission of the European
exclusively in Austrian cinemas. It is the market leader in                                    Communities
Austria in the distribution of cinema advertisements for
tobacco products. Its only client for tobacco-related                                        (Case T-181/98)
advertising is Austria Tabak. Since it is also Austria
                                                                                              (1999/C 1/33)
Tabak's only contractor for tobacco-related products, the
applicant is the sole coordinator for the distribution of all
cinema advertisements for tobacco products in Austria.
                                                                                     (Language of the case: German)
The applicant considers that it will be particularly hard hit
by the economic consequences of the ban on tobacco                   An action against the Commission of the European
advertising because of its position in the market since not          Communities was brought before the Court of First
only will cinema advertisement income for tobacco-related            Instance of the European Communities on 31 October
products dry up immediately but indirect advertising' (as           1998 by Georgsmarienhütte Holding GmbH, whose
it is referred to in the directive) will also be affected, and       registered office is in Georgsmarienhütte (Germany),
these two areas of advertising represent a large part of the         represented by Walter Klosterfelde, Thomas Jestaedt and
applicant's turnover.                                                Martin Sura, Rechtsanwälte, Brussels, with an address for
                                                                     service in Luxembourg at the Chambers of Arendt and
                                                                     Medernach, 8Ð10 Rue Mathias Hardt.
The legal arguments relied on by the applicant are as
follows:
                                                                     The applicant claims that the Court should:
The directive which, according to its preamble, is based
on Articles 57(2), 66 and 100A of the EC Treaty has no
legal basis in Community law. The principle of limited               1. annul Commission Decision K(1998) 2556 of 29 July
specific authority has thus been infringed. Nor can the                  1998, concerning aids paid by the Land Niedersachsen
disputed directive be based on either Article 129 or                     to Georgsmarienhütte GmbH;
Article 235 of the EC Treaty. Even if Articles 57(2), 66
and 100A of the EC Treaty are to be considered as
appropriate and sufficient legal bases for the disputed              2. order the Commission to pay the costs.
directive, it was none the less adopted in breach of the
principle of subsidiarity established in the second
paragraph of Article 3B of the EC Treaty. In any event,
                                                                     Pleas in law and main arguments adduced in support:
the directive infringes the principle of proportionality
established in the third paragraph of Article 3B of the EC
Treaty.
                                                                     The applicant, a medium-sized steel undertaking, belonged
                                                                     to the Klöckner steel group until the beginning of 1993,
The applicant further alleges infringement of the freedom            and was established following a management buy-out as
of movement of goods and services within the internal                part of composition proceedings opened in respect of that
market and in particular incompatibility with Articles 30            group. At that time, the applicant still owned a number of
et seq. and 59 et seq. of the EC Treaty.                             pieces of land that were not necessary for its business and
                                                                     were therefore to be sold. One piece of land (known as
                                                                     Westerkamp') had previously been used for many years
In addition, the applicant is of the opinion that the                by undertakings of the Klöckner steel group as a dumping
disputed directive infringes certain basic rights protected          ground for blast furnace wastes and converter steel dusts.
 ---pagebreak--- 4.1.1999            EN                  Official Journal of the European Communities                                     C 1/17
At the beginning of 1994, the Niedersächsische Landesent-          The applicant claims that the Court should:
wicklungsgesellschaft mbH (Nileg), which is wholly
owned by the Land Niedersachsen, acquired Westerkamp
along with other pieces of land, but insisted on the               Ð annul the implicit decision of the Commission
removal of the converter steel dusts. The applicant was                 rejecting the applicant's complaint of 6 April 1998;
therefore assigned the task under a business management
contract between it and Nileg of ensuring the appropriate
recycling or disposal of those filter dusts, for which it          Ð declare that complaint admissible and well founded,
received the sum of DEM 61 640 000.                                     and confirm that the applicant is entitled to sickness
                                                                        cover, to have his pension recalculated, to the transfer
                                                                        of his additional retirement pension entitlement
                                                                        acquired by voluntary contributions in France and to
In the contested decision, the Commission regarded the                  an invalidity pension;
payment of that amount to the applicant, inter alia, as aid
incompatible with the ECSC Treaty and the common
market, which was improperly paid without prior                    Ð order the defendant to pay all the costs.
notification to the Commission in accordance with
Article 6 of Decision No 2496/96/ECSC. It further
required the Federal Republic of Germany to annul that             The applicant further claims that the Court should:
aid and demand its repayment.
                                                                   Ð award compensation for the damage suffered by him,
The applicant maintains that the Commission has                         the amount of which he reserves the right to quantify;
misinterpreted Article 4(c) of the ECSC Treaty, and
wrongly assumed in its decision that the payments by
Nileg of DEM 61 640 000 constituted aids.                          Ð order the Commission to pay the sum of FRF 50 000
                                                                        in respect of irrecoverable expenses which it would be
                                                                        inequitable for him to have to bear.
The Commission gave no explanation in the contested
decision as to why the amount paid on the basis of a               Pleas in law and main arguments adduced in support:
bilateral contract between the applicant and Nileg
constituted aid. On the contrary, the payments were made
pursuant to a bilateral business management contract               The applicant, a former official of the Commission,
containing no aid elements. Even in the course of the              contests the defendant's refusal to allow his claim
implementation of the exchange contract, no facts arose            concerning, in particular:
which were relevant to aids. In reality, the expenditure
incurred by the applicant in fulfilment of the exchange
contract was significantly higher than the consideration           Ð the transfer to the Community scheme of the
stipulated and paid under the contract.                                 additional pension rights acquired by way of voluntary
                                                                        contributions in France in respect of the period from
                                                                        1972 to 1974, when he worked abroad;
                                                                   Ð the need to recalculate his pension on the basis of his
                                                                        present age;
Action brought on 9 November 1998 by Jean-FrancËois
Ferrandi against the Commission of the European                    Ð his loss of entitlement to national social security cover;
                       Communities                                      and
                     (Case T-183/98)
                      (1999/C 1/34)                                Ð non-payment of an invalidity pension.
                                                                   He states, with regard to his situation, that he was
               (Language of the case: French)
                                                                   removed from his post and then subsequently reinstated
                                                                   pursuant to a judgment delivered by the Court of Justice
                                                                   in January 1985. Upon his falling ill following his
An action against the Commission of the European                   reinstatement and applying for the benefits payable under
Communities was brought before the Court of First                  Articles 73 and 78 of the Staff Regulations, only Article 73
Instance of the European Communities on 9 November                 was applied to him. In 1993 he applied for early
1998 by Jean-FrancËoise Ferrandi, residing in Ajaccio              retirement; that application was ultimately granted.
(France), represented by Jean-Baptiste Giuseppi, of the            Finally, the Commission re-employed him on a contractual
Ajaccio Bar, with an address for service in Luxembourg at          basis for a period of five years, but its financial controller
the Chambers of J. L. Biancarelli, 18 Rue J. P. Brasseur.          did not validate that contract.