CELEX: C2002/169/68
Language: en
Date: 2002-07-13 00:00:00
Title: Case T-135/02: Action brought on 25 April 2002 by Greencore Group plc against the Commission of the European Communities

C 169/38                 EN                     Official Journal of the European Communities                                    13.7.2002
applicant’s view, the competitive factor should have been 1.               European Communities on 23 April 2002 by Travelex Global
The German Government therefore applied for an increase of                 and Financial Services Limited and Interpayment Services
the notified aid and requested a corrective adjustment of the              Limited, represented by Mr Claude Delcorde of Dechert Price
factor from 0,75 to 1. The Commission refused that appli-                  & Rhoads, London (United Kingdom).
cation and informed the German Government that it did not
regard it as possible to make the requested adjustment.
                                                                           The applicant claims that the Court should:
In its application, the applicant submits that, in adopting its            —     order that, pursuant to the second paragraph of
decision of 5 February 2002, the Commission failed to observe                    Article 288 EC, the Commission make good the damage
the principle of collegiality and the duty to state reasons, acted               caused to the applicants by paying them the sum of
in breach of, first, essential formal and procedural requirements                £ 25,5 million;
and, second, a provision to be applied in implementing the EC
Treaty and made improper use of its discretion.                            —     order that the Commission pay the costs of this appli-
                                                                                 cation.
The failure to comply with essential formal requirements
consists in, first, the insufficient reasons on which the decision
was based. Furthermore, the Commission made improper use                   Pleas in law and main arguments
of its discretion by misinterpreting the underlying facts in such
a way that it avoided opening the investigation procedure even
though it should, at least, have conducted a preliminary                   The terms of this application are substantially similar to those
examination. Thus, the Commission failed to comply with the                of the application lodged in Case T-195/00 Thomas Cook and
procedural requirements laid down in Regulation No 659/                    Interpayment Services -v- Commission (1).
1999, which are intended to safeguard the rights of the
Member States and of the applicant. The applicant’s right to a
hearing was restricted.                                                    (1) OJ C 302, of 21.10.00, p. 24.
Moreover, the applicant submits that the Commission failed
to observe and/or misapplied the content of the provisions of
the multisectoral framework on regional aid and that it
wrongly and incompletely assessed the underlying facts. This
is shown, in particular, by the fact that the Commission failed            Action brought on 25 April 2002 by Greencore Group
to recognise the possibility of amending approved aid without              plc against the Commission of the European Communities
withdrawing it.
                                                                                                   (Case T-135/02)
Finally, the applicant contends that this is a case of unequal
treatment because, in another decision adopted at the same                                         (2002/C 169/68)
time on planned aid in the same sector, the capacity utilisation
rate of the relevant NACE class was correctly taken into
account whereas it was wrongly disregarded in the contested                                  (Language of the case: English)
decision.
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 25 April 2002 by Greencore
                                                                           Group plc, represented by Mr Alexander Böhlke of Kemmler
                                                                           Rapp Böhlke, Brussels (Belgium).
Action brought on 23 April 2002 by Travelex Global and
Financial Services Limited and Interpayment Services
Limited against the Commission of the European Com-                        The applicant claims that the Court should:
                               munities
                                                                           —     annul Commission Decision BUDG/C-2/RVT/49076 of
                          (Case T-131/02)                                        11 February 2002;
                                                                           —     order the Commission to pay the costs.
                          (2002/C 169/67)
                    (Language of the case: English)
                                                                           Pleas in law and main arguments
An action against the Commission of the European Communi-                  By the current action, the applicant challenges the Decision to
ties was brought before the Court of First Instance of the                 refuse to pay interest on part of the competition fine imposed
 ---pagebreak--- 13.7.2002              EN                    Official Journal of the European Communities                                         C 169/39
on Irish Sugar plc. The applicant would point out in this               —     in the alternative, partially annul Decision C (2001) 4447
regard that, as a result of the judgment of the Court of First                final of the Commission of the European Communities
instance of 7 October 1999 in Case T-228/97 Irish Sugar -v-                   of 15 January 2002 to the extent that the claim for
Commission (1), the fine imposed on Irish Sugar by Com-                       repayment established by the Commission in Article 1
mission Decision 97/624/EC of 14 May 1997, relating to a                      exceeds EUR 2 808 319,95;
proceeding pursuant to Article 86 of the EC Treaty, was
reduced by 916 674 Euros. The defendant refused to pay                  —     order the defendant to pay all the costs.
interest on this amount.
According to the Commission, the implied Decision not to                Pleas in law and main arguments
pay interest, i.e. the payment of the principal sum without
interest on 4 January 2000, has become definitive, the
applicant not having contested it within the two month time             In Article 1 of the contested decision, the Commission found
limit, as provided by Article 230 of the EC Treaty.                     that the aid amounting to EUR 3 650 860 granted by Germany
                                                                        to Pollmeier GmbH, Malchow, was incompatible with the
                                                                        common market. The applicant is challenging that decision
The applicant submits in this regard that this reasoning is             and claims that the declaration of partial incompatibility with
materially wrong. Firstly, the initial request was not for actual       the common market of the aid granted to it infringes
payment but for confirmation that interest would be paid; for           Community law. All the grounds on which the decision is
advice as to the amount thereof and for assistance in this              founded are based on errors of law or on a manifestly incorrect
matter. Secondly, there is no rule in EC Law according to               assessment of the facts.
which silence must be taken to mean a refusal, unless provision
is specifically made for this. Thirdly, not only is payment of
the refund of 916 674 Euros not a refusal of the initial request        The applicant claims that it satisfied the SME criteria defined
for confirmation regarding interest, it is also, within the             in the Commission’s Recommendation of 3 April 1996
meaning of Article 230 EC, not an actionable act. It follows            concerning the definition of small and medium-sized enter-
that the Commission’s contention that the applicant should              prises (1) at the time when the aid was granted. Moreover, the
have challenged it at the time is legally erroneous.                    applicant did not circumvent those criteria.
                                                                        Furthermore, the applicant submits that a review of the
(1) [1999] ECR II-2969.
                                                                        economic integration in individual cases which is not based
                                                                        on the SME criteria is illegal because it is precisely those criteria
                                                                        which must be used to determine whether or not there is
                                                                        economic integration. In any event, there is no economic
                                                                        integration.
                                                                        Alternatively, the applicant submits that the claim for repay-
Action brought on 29 April 2002 by Pollmeier Malchow                    ment is too high and that its calculation is unclear.
GmbH & Co. KG against the Commission of the European
                          Communities
                                                                        (1) OJ 1996 L 107, p. 4.
                         (Case T-137/02)
                        (2002/C 169/69)
                  (Language of the case: German)
                                                                        Action brought on 26 April 2002 by Nanjing Metalink
                                                                        International Co. Ltd. against the Council of the European
                                                                                                       Union
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                       (Case T-138/02)
European Communities on 29 April 2002 by Pollmeier
Malchow GmbH & Co., Malchow (Germany), represented by
S. Völcker and J. Heithecker, lawyers.                                                           (2002/C 169/70)
                                                                                            (Language of the case: English)
The applicant claims that the Court should:
—     annul in its entirety Decision C (2001) 4447 final of the
      Commission of the European Communities of 15 January              An action against the Council of the European Union was
      2002;                                                             brought before the Court of First Instance of the European