CELEX: C2000/247/26
Language: en
Date: 2000-08-26 00:00:00
Title: Case C-241/00 P: Appeal brought on 15 June 2000 by Kish Glass Company Limited against the judgment delivered on 30 March 2000 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-65/96 between Kish Glass Company Ltd and the Commission of the European Communities, supported by Pilkington United Kingdom Ltd

26.8.2000             EN                      Official Journal of the European Communities                                     C 247/19
Action brought on 15 June 2000 by the Commission                         Appeal brought on 15 June 2000 by Kish Glass Company
of the European Communities against the Republic of                      Limited against the judgment delivered on 30 March 2000
                             Finland                                     by the Fourth Chamber of the Court of First Instance of
                                                                         the European Communities in case T-65/96 between Kish
                                                                         Glass Company Ltd and the Commission of the European
                        (Case C-240/00)                                  Communities, supported by Pilkington United Kingdom
                                                                                                         Ltd
                        (2000/C 247/25)
                                                                                                 (Case C-241/00 P)
An action against the Republic of Finland was brought before                                      (2000/C 247/26)
the Court of Justice of the European Communities on 15 June
2000 by the Commission of the European Communities,
represented by Esa Paasivirta and Richard Wainwright, of its             An appeal against the judgment delivered on 30 March 2000
Legal Service, acting as Agents, with an address for service in          by the Fourth Chamber of the Court of First Instance of the
Luxembourg at the office of Carlos Gómez de la Cruz, Wagner             European Communities in case T-65/96 between Kish Glass
Centre, Kirchberg.                                                       Company Ltd and the Commission of the European Communi-
                                                                         ties, supported by Pilkington United Kingdom Ltd, was brought
                                                                         before the Court of Justice of the European Communities on
The Commission claims that the Court should:                             15 June 2000 by Kish Glass Company Ltd, represented by
                                                                         Mr Maurice Byrne, solicitor, with an address for service in
                                                                         Luxembourg at the office of Arendt & Medernach, 8-10 rue
1.    Declare that the Republic of Finland, which has not                Mathias Hardt, B.P. 39.
      adequately or definitively classified special protection
      areas as required by Article 4(1) and (2) of Council
      Directive 79/409/EEC of 2 April 1979 on the conser-                The Appellant claims that the Court should:
      vation of wild birds (1), has failed to fulfil its obligations
      under that directive;
                                                                         —      quash the decision of the Court of First Instance and
                                                                                annul the Decision of the Commission dated 21 February
2.    Order Finland to pay the costs.                                           1996 in Case IV/34.193 — Kish Glass;
                                                                         —      order the Commission to pay Kish’s costs in connection
                                                                                with this appeal, and in connection with Kish’s appli-
Pleas in law and main arguments                                                 cation to the Court of First Instance.
Article 4(1) of the Birds Directive requires Member States to            Pleas in law and main arguments
classify as special protection areas for conservation of the
species mentioned in Annex I the most suitable territories in
number and size for the conservation of those species. Under             This appeal, which is based on three grounds of law, illustrates
Article 4(2) Member States must take similar measures for                that the Court of First Instance has infringed the principles of
regularly occurring migratory species not listed in Annex I,             Community law in three important respects. The grounds of
bearing in mind their need for protection. Under Article 4(3)            appeal are as follows:
Member States must send the Commission all relevant infor-
mation concerning the sites classified, so that the Commission
may take measures to form a coherent network.                            First ground: incorrect interpretation of the requirements of
                                                                         Article 11(3) of Regulation 17 of 1962 (1).
Since there are no derogations or transitional provisions
concerning the Birds Directive in the Act of Accession of                The Court of First Instance incorrectly interpreted the require-
Finland, the obligations concerning the directive in question            ments of Article 11 of Regulation 17 of 1962, in holding that
should have been fulfilled by 1 January 1995.                            the Commission may obtain evidence by means of oral
                                                                         requests followed by requests in the proper form. The Court
                                                                         has addressed this issue in a contradictory manner.
(1) OJ L 103 of 25.4.1979, p. 1.
                                                                         Second ground: misapplication of the case law of the Court of
                                                                         Justice, in particular BAT & Reynolds v. Commission, and the
                                                                         consequent failure to vindicate the rights of the applicant as a
                                                                         complainant, while holding that nine days was sufficient for
                                                                         Kish to provide comments.
 ---pagebreak--- C 247/20                EN                      Official Journal of the European Communities                                        26.8.2000
The Court of First Instance based its conclusions on the extent            2.    order the defendant to pay the costs.
of the rights of a complainant on a misapplication of the BAT
& Reynolds case, and Matra Hachette v. Commission. The
Court should have focussed on the fact that the Commission,
having granted access to the file, failed to give Kish sufficient
time to comment on documents in its file, contrary to the
principles set out in Guérin Automobiles v. Commission. As a
                                                                           Pleas in law and main arguments
result, the Court is in breach of Community law.
Third ground: incorrect application of Article 253 of the EC
                                                                           —     Infringement of Article 87(3) and Article 3(1)(g) of the
Treaty, and misinterpretation of the evidence before the Court
                                                                                 EC Treaty, the principle of equal treatment and the
in the judgment.
                                                                                 principle of proportionality.
In concluding that the contested decision was adequately
reasoned pursuant to Article 253 (ex Article 190) of the
Treaty, the Court misinterpreted the facts as established at the                 —     In the context of its investigation into the potential
oral hearing. Pursuant to established case law, the extent of the                      amount of development aid to disadvantaged econ-
obligation to state reasons is a question of law reviewable by                         omic areas based on existing regional disparities
the Court of Justice on appeal.                                                        within Article 87(3)(c) of the EC Treaty, the Com-
                                                                                       mission established, on the basis of income and
                                                                                       unemployment levels, the extent to which areas
                                                                                       are disadvantaged measured against the overall
(1) EEC Council Regulation No. 17 of 6 February 1962, First Regu-                      economic situation in each Member State. For
    lation implementing Articles 85 and 86 of the Treaty, OJ 013,                      Germany, it calculated that 23,4 % of the population
    21.2.1962, p. 204 (OJ, English Special Edition 1959-1962, p. 87).                  live in areas where the economic situation is so bad
                                                                                       compared to the economic situation in Germany as
                                                                                       a whole that aid under Article 87(3)(c) of the EC
                                                                                       Treaty is in principle justified. Germany applied for
                                                                                       aid under Article 87(3)(c) of the EC Treaty in respect
                                                                                       of areas whose size exactly reflects the figure of
                                                                                       23,4 % of the German population calculated by the
                                                                                       Commission. The Commission’s curtailing of the
                                                                                       parameters of the areas eligible for aid to just 17,6 %
                                                                                       of the German population is not based on sufficient
                                                                                       grounds nor is it justifiable on the basis that trading
Action brought on 16 June 2000 by the Federal Republic                                 conditions would otherwise be affected to an extent
of Germany against the Commission of the European                                      contrary to the common interest. Germany’s rela-
                           Communities                                                 tively strong economic situation is in any event
                                                                                       already taken account of, because regions in rela-
                                                                                       tively strong countries economically have to show a
                         (Case C-242/00)                                               bigger divergence from national averages (unem-
                                                                                       ployment, per capita GDP measured according to
                                                                                       purchasing power standard) than regions in econ-
                         (2000/C 247/27)                                               omically weaker countries, in order to be considered
                                                                                       for the method of apportionment. In fact the
                                                                                       Commission’s approach even has the result that
An action against the Commission of the European Communi-
                                                                                       Ireland and Portugal, for example, may grant
ties was brought before the Court of Justice of the European
                                                                                       regional aid to areas where income levels are clearly
Communities on 16 June 2000 by the Federal Republic of
                                                                                       above the national average, thereby further magnify-
Germany represented by Wolf-Dieter Plessing, Ministerialrat in
                                                                                       ing national disparities.
the Federal Ministry for Finances, Graurheindorfer Str. 108,
D-53117 Bonn and Dr Rainer M. Bierwagen of Kemmler Rapp
Böhlke & Crosby, Brussels.
                                                                                 —     The Commission treated similar facts differently in
                                                                                       determining the maximum amount of regional
The applicant claims that the Court should:
                                                                                       assistance for the Member States. That is because the
                                                                                       Commission, using an objective method, increases
1.     declare the Commission’s decision of 14 March 2000,                             the basic maxima arrived at in respect of some
       K(2000)809 final (1) null and void in so far as proposed                        Member States, but significantly reduces them in
       regional aid notified for Germany for areas within the                          respect of other Member States. The Commission
       meaning of Article 87(3)(c) of the EC Treaty is found to                        therefore affords the favoured Member States oppor-
       be incompatible with the common market on the basis                             tunities to grant aid in amounts which go beyond
       of the figure of 23,4 % of the German population;                               actual regional-political commercial needs. On the