CELEX: C1996/064/38
Language: en
Date: 1996-03-02 00:00:00
Title: Action brought on 24 December 1995 by Dr Anthony Goldstein against the Commission of the European Communities (Case T-235/95)

2 . 3 . 96          1 EN |                 Official Journal of the European Communities                                 No C 64/ 19
Action brought on 21 December 1995 by Hamburger                       from a commercial and entrepreneurial point of view, to
Stahlwerke GmbH against the Commission of the European                terminate a commitment when economic conditions are
                          Communities                                 good, rather than during a recession, and that the limited
                       ( Case T-234/95 )                              credit increase made in 1993 — with the express object of
                                                                      selling the applicant company — was therefore not merely
                           96/C 64/37
                                                                      the only economically appropriate measure to take but also
                                                                      the same measure as would have been taken by any private
              (Language of the case: German)                          entrepreneur in a comparable situation. The Commission
                                                                      did not dispute those arguments in its decision.
An action against the Commission of the European
Communities was brought before the Court of First                     Even on the incorrect assumption that the prolongation and
Instance of the European Communities on 21 December                   extension of the credit facility in December 1 993 constituted
1995 by Hamburger Stahlwerke GmbH, of Hamburg                         a grant of aid, it is clear in any event that this could only
( Federal Republic of Germany ), represented by Axel Lohde,           apply as regards an insignificant part.
Rechtsanwalt, Hamburg, with an address for service in
Luxembourg at the Chambers of Lucy Dupong of Messrs
Dupong & Associes, 14a Rue des Bains .
The applicant claims that the Court should :
                                                                      Action brought on 24 December 1995 by Dr Anthony
— annul the decision of the Commission of 31 October
                                                                      Goldstein against the Commission of the European
     1995 concerning the grant of State aid by the Free and                                     Communities
     Hanseatic City of Hamburg to the ECSC steel
     undertaking Hamburger Stahlwerke GmbH, Hamburg                                          ( Case T-235/95 )
     — SG(95 ) D/14318/K(95 ) 2754 final,                                                       ( 96/C 64/38 )
— order the Commission to pay the costs .                                             (Language of the case: English)
Pleas in law and main arguments adduced in support:
                                                                      An action against the Commission of the European
                                                                      Communities was brought before the Court of First
The claim is founded on infringement of essential                     Instance of the European Communities on 24 December
procedural requirements, in the form of the decision having           1995 by Dr Anthony Goldstein, represented by Raymond St
been based on incorrect facts and in the form of a breach of
                                                                      John Murphy of Merriman White, Solicitors, 3 King's
the principle of the right to a fair hearing, on infringement of      Bench Walk , Inner Temple , London .
the ECSC Treaty and of the legal rules applicable to its
implementation, and on an error of assessment.
                                                                      The applicant claims that the Court should:
In particular:
                                                                      — annul the Commission's Decision of 16 October 1995
The loan made in December 1992 increasing the credit                       refusing, inter alia, to reconsider the Decision of
facility by DM 20 million did not constitute aid . The                     20 January 1994 in the light of the factual and legal
applicant considers in that regard that the Free and                       information submitted for its assessment in accordance
Hanseatic City of Hamburg and the Hamburgische                             with the principles laid down by the Treaty as
Landesbank must have taken into account the fact that the                  interpreted by the judgments of the Court of Justice,
total loans made by the Hamburgische Landesbank to the
applicant would be treated, in the event of the bankruptcy of         — order the Commission to pay the costs .
the applicant, as having replaced equity capital . The
Commission's view that the prolongation and extension of
the credit facility in December 1993 also constituted aid,            Pleas in law and main arguments adduced in support:
because the conduct of the Free and Hanseatic City of
Hamburg was not comparable with that of a normal                      On 10 August 1993 the applicant, a Community medical
commercial investor, is incorrect.                                    specialist in rheumatology submitted to the Commission
                                                                      under Article 3 ( 2 ) of Council Regulation No 17 an
By contrast, the Federal Government pointed out in its                application for a finding that the General Medical Council
communication to the Commission of 18 August 1995 that                ( GMC ), a statutory body which regulates the medical
the applicant's subsidiary company in Euskirchen, the                 profession in the territory of the United Kingdom, had
annual production capacity of which amounted to 80 000                infringed Articles 85 and 86 of the EC Treaty . According to
tonnes, had finally been closed down, and that that closure           the applicant's complaint, the GMC :
was to be taken into account as offsetting grants of aid, even
 outside the procedure laid down by Article 95 of the ECSC            — restricts persons holding a Community medical
Treaty, in accordance with the principle of equal treatment.               specialist diploma issued pursuant to Council Directive
In its communication of 7 February 1995 , the Federal                      93/1 6/EC from having their specialist status publicized
 Government further stated that it could only be reasonable,               in the medical register, and
 ---pagebreak--- No C 64/20            EN                 Official Journal of the European Communities                                      2 . 3 . 96
— has rules which inhibit direct access to Community                Pleas in law and main arguments adduced in support:
    medical specialists and inhibit advertising              by
    Community medical specialists to the public.
                                                                    The applicant, a competitor company of Compagnie
                                                                    Nationale Air France in the international air lines market,
At the same time as the complaint the applicant requested
interim measures which the Commission rejected . The                challenges the Commission 's Decision authorizing the
applicant made further requests for interim measures in             second of the three tranches of Air France's capital increase,
several letters to the Commission, with which he provided           approved by the Commission on 27 July 1994, as a form of
                                                                    State aid .
supplementary factual and legal information in support of
his requests. These applications include, inter alia, a request
that the Commission reconsider its first refusal to grant
interim measures in the light of new factual and legal              The 1994 Decision subjects the payment of the second and
information . The Commission rejected the applicant's               third tranches of the capital increase to the fulfilment of 13
further requests for interim measures by letter dated               obligations. The applicant submits that the disputed
16 October 1995 , which constitutes the contested                   Decision has been taken without any consideration of the
decision .                                                          fact that three of the said obligations have not been
                                                                    respected by the French authorities .
The applicant alleges an infringement of Article 190 of the
EC Treaty. Concretely, the contested decision does not              The first obligation is aimed at preventing any transfer of the
contain any statement of reasons for which the part of the          aid to Air Inter by the setting up of a holding company which
applicant's complaint alleging unlawful anti-competitive            would have a majority shareholding in both companies . It is
conduct by the GMC, which prevents direct access by                 pointed out that as part of its strategy the Air France Group,
Community medical specialists to the market in medical              began the procedure which will lead to the merger on
services in the United Kingdom, was rejected in the light of        1 January 1997 of Air Inter with Air France's European
the principles established by the Court of Justice in its           profit centre immediately after the 1994 Decision. In fact,
judgment given on 10 May 1995 in Case C-384/93 Alpine               Air France and Air Inter continued to hold shares in the
Investments, as stated in paragraph 1 of the                        same undertaking and pursued their joint initiatives . In
abovementioned letter .                                             these circumstances Air . France and Air Inter form one
                                                                    economic unit, so that Air Inter must inevitably have
                                                                    benefited from the aid before the adoption of the
                                                                    Decision .
                                                                    Secondly, Air France has ignored the second obligation,
                                                                    aimed at preventing it from applying tariffs below those of
                                                                    its competitors for an equivalent supply on the routes which
Action brought on 27 December 1995 by TAT European                  it operates, by deviating by between 15 % and 74 % relative
Airlines against the Commission of the European                     to other fares on some routes in which Air France takes
                          Communities
                                                                    advantage of a price leadership.
                       ( Case T-236/95 )
                          ( 96/C 64/39
                                                                    The applicant submits that the French authorities have not
                                                                    complied with the obligation aimed at ensuring that the
               (Language of the case: English)                      traffic distribution rules for the Paris airport system should
                                                                    be modified, as soon as possible after the adoption of 1994
                                                                    Decision, in accordance with the Commission's Decision of
An action against the Commission of the European                    27 April 1994 on the opening of the Orly-London link .
Communities was brought before the Court of First
Instance of the European Communities on 27 December
1995 by TAT European Airlines, represented by Antoine               Finally, the French authorities have taken no measure to
Winckler and Romano Subiotto, of Cleary, Gottlieb, Steen            ensure that the work required to adapt the two terminals at
& Hamilton, with an address for service in Luxembourg at            Orly carried out by Aeroports de Paris and a possible
the Chambers of Elvinger & Hoss, 15 Cote d'Eich.                    saturation of one or other of those terminals, do not affect
                                                                    competitive conditions to the detriment of the companies
                                                                    operating there . On the contrary, the circumstances and
The applicant claims that the Court should :                        timing of the decisions relating to this question leave no
                                                                    doubt that the adaptation of the Orly terminal was
— annul Commission Decision C 23/94 of 21 June 1995 ,               organized precisely in such a way as to discriminate against
    concerning the payments of the second tranche of aid in         competitors of the Air France Group .
    favour of Air France approved by Commission Decision
    of 27 July 1994,
— order the Commission to pay the costs .