CELEX: C2000/006/54
Language: en
Date: 2000-01-08 00:00:00
Title: Case T-233/99: Action brought on 12 October 1999 by Land Nordrhein-Westfalen against the Commission of the European Communities

C 6/30                 EN                    Official Journal of the European Communities                                      8.1.2000
— order the Commission to pay the costs of this application.            Action brought on 12 October 1999 by Land Nordrhein-
                                                                        Westfalen against the Commission of the European Com-
                                                                                                    munities
                                                                                                (Case T-233/99)
Pleas in law and main arguments
                                                                                                  (2000/C 6/54)
The applicant states that on 3 February 1998, pursuant to
Article 19(3) of Regulation No 17/62 the Commission gave                                  (Language of the case: German)
notice (1) that it intended to take a favourable position in
respect of certain agreements notified to it by Bass, by granting
retroactive exemption pursuant to Article 81(3) EC. The                 An action against the Commission of the European Communi-
agreements in question were a standard form of lease, the               ties was brought before the Court of First Instance of the
subject of which is a fully fitted-out, on-licensed public house        European Communities on 12 October 1999 by Land Nor-
in England and Wales with a tie for beer, together with certain         drhein-Westfalen, represented by Dr Michael Schütte, of
related agreements, and the standard agreements for Scotland.           Bruckhaus Westrick Heller Löber, Berlin, with an address for
Before taking a final decision on this matter, the Commission           service in Luxembourg at the Chambers of Bonn & Schmitt,
invited all interested parties to submit their observations.            7 Val Ste Croix.
                                                                        The applicant claims that the Court should:
On 31 March 1999, the applicant submitted observations
together with an expert’s report to the Commission. In those            1. Annul Commission Decision C(1999) 2265 fin. of 8 July
observations objection was made to the proposal to grant Bass                1999;
an exemption.
                                                                        2. Order the Commission to pay the costs.
On 16 June 1999, the Commission took a Decision relating to
a proceeding pursuant to Article 81 EC (Case IV/36.081/F3 —             Pleas in law and main arguments
Bass) (the contested decision) (2). In its decision the Com-
mission, overriding the objections made in the said obser-
vations, it granted Bass retroactive exemption in respect               The subject-matter of the application is Commission Decision
the notified agreements with effect from 1 March 1991 to                C(1999) 2265 fin. (‘the Decision’) of 8 July 1999 concerning
31 December 2002.                                                       a measure taken by the Federal Republic of Germany in favour
                                                                        of Westdeutsche Landesbank Girozentrale (‘WestLB’), notified
                                                                        to the Federal Republic of Germany on 4 August 1999 by
                                                                        letter of the Commission SG (99) D/6112 of 4 August 1999.
The applicant seeks relief from the Court of First Instance on
the grounds that in granting exemption to the notified                  The acting Commission had no jurisdiction to make the
agreements the Commission:
                                                                        Decision, since because of its extent and importance it was
                                                                        not current business of the Commission, nor would the
                                                                        non-adoption of the Decision have run counter to the interests
(a) failed properly to evaluate the facts and law which establish       of the Community or of individuals.
    that the notified agreements do not fulfil the conditions
    set out in Article 81(3);
                                                                        The Commission was irregularly composed as a result of the
                                                                        ’suspension’ of acting Commissioner Bangemann.
(b) failed to give adequate reasons for its decision that
    the notified agreements fulfil the conditions set out in
                                                                        The Commission omitted to make available to the applicant
    Article 81(3).                                                      essential documents which were material to the defence, in
                                                                        particular a report by consultants First Consulting, and thereby
                                                                        restricted the applicant’s ability to defend itself.
(1) OJ 1999 C 36, p. 5.
(2) OJ 1999 L 186, p. 1.                                                The facts were stated incompletely and manifestly incorrectly
                                                                        on essential points, such as the structure of WestLB’s business
                                                                        activity and its performance of public duties. WestLB is not a
                                                                        ’restructuring’ case but a profitably operating undertaking. For
                                                                        that reason the Commission wrongly applied to WestLB the
                                                                        criteria of assessment developed for capital injections in
                                                                        undertakings in economic difficulties.
 ---pagebreak--- 8.1.2000              EN                      Official Journal of the European Communities                                        C 6/31
The Commission further infringed its duty to clarify the facts           Action brought on 15 October 1999 by P.C.P. van Oppen-
in a neutral and unprejudiced manner, by giving preference to            Veger, trading as Service Station formerly operating as
Bundesverband deutscher Banken over other parties concerned              J.P. Veger, against the Commission of the European
and presenting the facts in a biased way. The Decision infringes                                   Communities
the obligation to state reasons under Article 253 EC. A
central part of the Decision, the determination of ‘reasonable
                                                                                                  (Case T-238/99)
remuneration’ at 12 % after tax, is not comprehensible and
the bases of the calculation are not evident. The Commission
also fails to distinguish between the indicative figures for                                       (2000/C 6/55)
return on equity (RoE) and return on investment (RoI) and
confuses rates of return before tax with rates after tax. The
reference to the Crédit Lyonnais decision as a starting-point                               (Language of the Case: Dutch)
for the rate of return used does not satisfy the requirement to
state reasons. Finally, the Commission in the Decision fails
to address essential arguments of the Federal Republic of                An action against the Commission of the European Communi-
Germany.                                                                 ties was brought before the Court of First Instance of the
                                                                         European Communities on 15 October 1999 by P.C.P. van
                                                                         Oppen-Veger, trading as Service Station formerly operating
                                                                         as J.P. Veger, of Maria Hoop (Netherlands), represented by
                                                                         P.J.M. Brouwers, of the Meerssen Bar.
The Commission based the Decision on a fundamentally                     The applicant claims that the Court should:
incorrect approach by applying for the first time the criterion
of an ’average return’ as the minimum expected return to a               (a) annul, at least in part, the Commission’s decision (C(1999)
capital injection from public funds in a profitably operating                2539 final) (1) of 20 July 1999 concerning State aid granted
public undertaking. It thus exceeded its powers to control aid.              by the Netherlands to 633 service stations in the region
Article 295 EC protects the business activity of the public                  bordering Germany;
sector and thus restricts inter alia the Commission’s jurisdiction
with respect to the application of Article 87(1) EC. Business            (b) order the Commission to pay the costs.
activity of the State excludes the presence of ’aid granted
through State resources’ within the meaning of Article 87(1)
EC in the case of profitable undertakings. The Commission,               Pleas in law and main arguments
extending the concept of aid too far, wrongly applies the
criterion of the capital investor acting in market-economy
conditions to capital injections in profitably operating under-          The pleas in law and main arguments are the same as in Case
takings. The public sector as investor is allowed a broad margin         T-210/99.
of discretion for capital injections in profitably operating
undertakings.
                                                                         (1) OJ L 280 of 30.10.1999, p. 87.
The Commission impermissibly requires an average return as
a minimum expected return for capital injections from public
funds. In so doing the Commission disregards the particular
structure and business activity of WestLB and the particular             Action brought on 18 October 1999 by J.J.L. Alofs, trading
objectives and legal form of the Wfa assets. The Wfa assets              as Auto Service Center Alofs, against the Commission of
absorbed are not comparable with capital which may be freely                              the European Communities
invested but are earmarked for public house-building support
and are directed to the public good rather than to making a
profit. By integrating the Wfa into WestLB, considerable                                          (Case T-239/99)
synergy effects have been achieved.
                                                                                                   (2000/C 6/56)
                                                                                            (Language of the Case: Dutch)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 18 October 1999 by J.J.L. Alofs,
                                                                         trading as Auto Service Center Alofs, of Arnhem (Netherlands),
                                                                         represented by S.C. Struycken-Veenhoff, of the Nijmegen Bar.