CELEX: C1998/007/69
Language: en
Date: 1998-01-10 00:00:00
Title: Action brought on 10 November 1997 by Regione Autonoma Friuli Venezia Giulia against the Commission of the European Communities (Case T-288/97)

10. 1. 98             EN                Official Journal of the European Communities                                   C 7/25
the Merger Regulation. As regards, specifically, the               Pleas in law and main arguments adduced in support:
geographical allocation of turnover, the applicant states
that a substantial part of the bank's loan portfolios
comprised loans made to Finnish borrowers that were                The applicant, who has also brought in Cases T-235/95 (1)
denominated in foreign currencies and were payable as to           and T-262/97 (2), challenges the inaction of the
interest and capital outside Finland.                              Commission in relation to a complaint, concerning the
                                                                   alleged anti-competitive practices on the part of the
                                                                   General Medical Council (GMC), a statutory body which
                                                                   regulates the medical profession in the territory of the
In relation to the calculation of aggregate turnover for the       United Kingdom. On August 1993 the applicant, a
undertakings concerned for the purposes of the two-thirds          community medical specialist in rheumatology, submitted
rule, the applicant submits that the branches or                   to the Commission pursuant to Article 3 (2) of Council
subsidiaries of UBF and KOP in London, Luxembourg and              Regulation No 17 an application for a finding that the
Zurich should be regarded as separate undertakings so              GMC had infringed Articles 85 and 86 of the EC Treaty.
that, unless they also derived two-thirds of their turnover        According to the applicant's complaint, the GMC:
from Finland, the two-thirds test would not be satisfied by
each of the undertakings concerned'.
                                                                   Ð restricts persons holding a Community Medical
                                                                       Specialist Diploma issued pursuant to Council
                                                                       Directive 93/16/EC from having their specialist status
The applicant finally submits that the time taken to
                                                                       publicized in the Medical Register, and
submit the complaint is not unreasonable. First, the
concentration has not been communicated. Secondly, the
Commission's approach disregards the fact that until early         Ð has rules which inhibit direct access to the status of
in 1997 the applicant had no reason to suspect that the                Community Medical Specialist and inhibit advertising
concentration might have a Community dimension.                        by Community Medical Specialists to the public.
(1) OJ L 395, 30. 12. 1989, p. 1.                                  By letter dated 28 November 1995 the applicant sent the
                                                                   Commission a notice pursuant to Article 175 of the EC
                                                                   Treaty. By letter dated 6 December 1995 the Commission,
                                                                   declared that it was unable to take a formal position
                                                                   within the prescribed period of two months and stated
                                                                   that it preferred to work towards such a position without
                                                                   any specific framework. By letter dated 1 August 1997 the
                                                                   applicant formally requested the Commission to define its
Action brought on 5 November 1997 by Anthony
                                                                   position with regard to its complaint within two months.
Goldstein against the Commission of the European
                         Communities
                        (Case T-286/97)                            It follows, according to the applicant, that the conditions
                                                                   laid down in Article 175 were satisfied and that the
                          (98/C 7/68)                              Commission was required within that provision to take a
                                                                   definitive position on the request within two months.
                                                                   Since no reply has been received from the Commission, it
                                                                   must be considered that this obligation was not complied
               (Language of the case: English)
                                                                   with.
                                                                   (1) OJ C 64, 2. 3. 1996, p. 19.
An action against the Commission of the European                   (2) OJ C 370, 6. 12. 1997, p. 8.
Communities was brought before the Court of First
Instance of the European Communities on 5 November
1997 by Anthony Goldstein, represented by Raymond St
John Murphy, solicitor, of Merriman White, 3 King's
Bench Walk, Inner Temple, London.
                                                                   Action brought on 10 November 1997 by Regione
The applicant claims that the Court should:                        Autonoma Friuli Venezia Giulia against the Commission
                                                                                   of the European Communities
                                                                                           (Case T-288/97)
Ð declare that contrary to Article 175 of the EC Treaty                                       (98/C 7/69)
    the Commission failed to define its position on the
    request submitted to it by the applicant pursuant to
    that provision,                                                                (Language of the case: Italian)
                                                                   An action against the Commission of the European
Ð order the Commission to pay the costs.                           Communities was brought before the Court of First
 ---pagebreak--- C 7/26               EN                 Official Journal of the European Communities                                          10. 1. 98
Instance on 10 November 1997 by Regione Autonoma                       question cannot qualify for the derogation provided
Friuli Venezia Giulia, represented by Renato Fusco and                 for by Article 3 (1) (d) of the abovementioned
Murizio Maresca, of the Trieste and Genoa Bars, with an                Regulation, since they do not form part of a
address for service in Luxembourg at the chambers of                   reorganization plan and are not a response to
Franco Colussi, 26, rue de Wiltz.                                      overcapacity in the sector. The defendant, first, takes
                                                                       no account of the fact that all the financing is linked
                                                                       with the implementation of restructuring projects and,
The applicant claims that the Court of First Instance                  second, attaches no importance to the existence of a
should:                                                                project previously notified, designed to achieve
                                                                       effective reorganization of the industry. Moreover,
                                                                       with regard to the absence of overcapacity, the
Ð annul in its entirety the Commission decision of                     Commission ignores the fact that the situation is
    30 July 1997 concerning aid granted to the Friuli                  characterized by the unavailability of licences and,
    Venezia Giulia Region in favour of road hauliers of                therefore, the impossibility of adding to the fleet
    that region, notified on 11 September 1997,                        vehicles of a gross weight exceeding 11,5 tonnes. As
                                                                       regards the part of the aid intended for the financing
                                                                       of containers and equipment for loading them onto
                                                                       vehicles and semi-trailers for international use, the
in the alternative:
                                                                       defendant made an incorrect assessment in identifying
                                                                       the aid attributable to the category qualifying for an
                                                                       exemption within the meaning of Article 3 (e) of the
Ð annul the decision as regards the part (Article 5)                   Regulation, by taking the view that only a part, set at
    which imposes the obligation to recover the aid                    between 10 % and 15 %, qualified for the exemption.
    granted as from 1 July 1990, plus interest,                        In that regard, the applicant states that Article 3 (e)
                                                                       refers without distinction to investments for fixed and
                                                                       mobile equipment necessary for transhipment,
Ð order the Commission to pay the costs.
Pleas in law and main arguments adduced in support:                Ð misapplication of the derogations provided for by
                                                                       Article 92 (3) (c) of the Treaty, in that the Commission
                                                                       considers that the measures in question are not
The applicant contests the Commission decision of 30 July              associated with any action in the common interest.
1997 which declared unlawful the aid paid as from 1 July               According to the applicant, on the basis of that
1990 by the Regional Administration to transport                       premiss, the defendant has disregarded that fact that
undertakings under Regional Laws No 28/1981 and No 4/                  the aid is regressive, of minimal amount and intended
1985, since it contravenes Article 92 of the EC Treaty.                for small and extremely small undertakings in order to
According to the defendant, the carriage of goods by road              promote the development of the transport business,
by way of cabotage was closed to competition until 1 July              both through the establishment of infrastructures and
1990, for which reason the aid in question constitutes new             through renewal of fleets, in compliance with
State aid as from that date.                                           environmental requirements and having regard to
                                                                       regional specificities,
In support of the forms of order which it seeks, the
Region relies on the following pleas in law:
                                                                   Ð the content of the decision is excessively vague.
                                                                       According to the Commission, the aid intended for the
                                                                       financing of equipment specifically suited to combined
Ð incorrect description of the measures as new' aid and
                                                                       transport operations and intended solely for that
    breach of essential procedural requirements. Being
                                                                       purpose constitutes State aid, but is compatible with
    measures deriving from a 1995 law, and thus ante-
                                                                       the common market by virtue of Article 3 (1) (e) of
    dating the Community legislation, those measures
                                                                       Regulation (EEC) No 1107/70. The applicant Region
    should be regarded as existing aid, with the result that
                                                                       maintains that, on the basis of that statement of
    any decision declaring them unlawful can take effect
                                                                       reasons, it is not easy to understand which aid is
    only as from the date of its adoption, and the
                                                                       lawful, with the result that it is difficult to distinguish
    obligation of recovery must be ruled out,
                                                                       such aid from aid which must be deemed excluded
                                                                       and thus covered by the obligation of recovery, giving
                                                                       rise to further difficulty in identifying exactly who is
Ð incorrect assessment as to whether the measures in                   required to repay the aid.
    question qualify for an exemption within the meaning
    of Council Regulation (EEC) No 1107/70 of 4 June
    1970 on the granting of aids for transport by rail road        (1) Official Journal English Special Edition 1970 (II), p. 360.
    and inland waterway (1). Without, in the applicant's
    view, taking the care to distinguish between the
    various forms of aid provided for by the regional
    rules, the Commission concludes that the measures in