CELEX: C1999/299/37
Language: en
Date: 1999-10-16 00:00:00
Title: Case T-158/99: Action brought on 5 July 1999 by Thermenhotel Stoiser GmbH & Co. KG, Vier-Jahreszeiten Hotel-BetriebsgesmbH & Co. KG, Franz Kowald and Thermalhotel Leitner GmbH against the Commission of the European Communities

C 299/26              EN                     Official Journal of the European Communities                                   16.10.1999
— failure to comply with the obligation to provide a state-             C. Further in the alternative
    ment of reasons.
                                                                             Annul the Commission’s letter of 29 April 1999, B/51839,
                                                                             DG IV-H-3/Kso D (99), refusing the applicants access to
                                                                             the files.
                                                                        Pleas in law and main arguments
Action brought on 5 July 1999 by Thermenhotel Stoiser                   The applicants are hotel undertakings in the spa town of
GmbH & Co. KG, Vier-Jahreszeiten Hotel-Betriebs-                        Loipersdorf (Steiermark).
gesmbH & Co. KG, Franz Kowald and Thermalhotel
Leitner GmbH against the Commission of the European
                         Communities                                    In the contested decision, an aid of EUR 1 703 873 by the
                                                                        Land Steiermark was declared compatible with the EC Treaty
                        (Case T-158/99)                                 on regional development grounds. The aid consists of a costs
                                                                        subsidy for a hotel construction project in Loipersdorf by a
                                                                        subsidiary of Siemens AG Österreich, and the equivalent of a
                        (1999/C 299/37)                                 subsidy in the form of a property transaction (a site for the
                                                                        hotel project is being acquired at a favourable price from the
                                                                        state-owned Thermalquelle Loipersdorf GmbH & Co. KG and
                                                                        the Land Steiermark). The hotel is to be of international 5-star
                  (Language of the case: German)                        level with over 300 rooms (600 beds). A contract has also
                                                                        been concluded between the hotel company and Thermalquelle
An action against the Commission of the European Communi-               Loipersdorf, in which the latter undertakes, inter alia, to book
ties was brought before the Court of First Instance of the              50 rooms daily for a period of three years, to extend the rest
European Communities on 5 July 1999 by Thermenhotel                     room in a particular section to 200 lying places for the use of
Stoiser GmbH & Co. KG and others, Loipersdorf (Austria),                hotel guests only, and not to allow any other hotel to construct
represented by Georg Eisenberger, Rechtsanwalt, Graz, with              a direct link to the spa until 1 January 2003. In return, the
an address for service in Luxembourg at the offices of Gerry            hotel undertakes to book at least the 200 lying places daily.
Osch, 49 Boulevard Royal.
                                                                        The applicants consider that the contested decision should be
The applicants claim that the Court should:                             set aside as void because:
A. Main plea                                                            — in the main investigation proceedings pursuant to
                                                                             Article 88(2) EC [ex Article 93(2)], they were not given
                                                                             any opportunity to express an opinion;
    1. Declare the action admissible and well founded;
    2. Consequently:                                                    — the Commission is in breach of its duty to state reasons;
                                                                             and
        (a) Annul Commission Decision SG(99) D/1523 of
            2 March 1999, declaring state aids to Siemens AG            — the applicants’ right to be informed and to inspect the files
            Österreich in connection with the hotel project in              has been disregarded.
            Loipersdorf, Austria, compatible with the common
            market pursuant to Article 92(3)(c) [now Article
            87(3)(c)] of the EC Treaty;                                 They submit that there has been a breach of primary Com-
                                                                        munity law because the Commission classified only the project
                                                                        costs subsidy and the property transaction which took place
        (b) Order the Commission to pay the costs;                      as state aid within the meaning of Article 87 EC (ex Article 92),
                                                                        but did not so classify the granting of the occupancy guarantee,
B. In the alternative                                                   the provision without charge of 200 lying places in the spa,
                                                                        and the exclusive direct link to the spa for a period of
                                                                        five years until 1 January 2003 inclusive. The Commission
    1. Declare the action admissible;                                   therefore wrongly took the gross subsidy equivalent to be
                                                                        merely 4.5 %, whereas, applying the ‘market investor rule’, it
    2. Before deciding whether the action is well founded,              actually amounted to 25.4 %. In its incorrect legal assessment
        require the Commission to produce the studies of HVS            of these hidden subsidies, the Commission also committed a
        International, Pannell Kerr Forster Associates and the          misuse of powers.
        Institut für Technologie- und Regionalpolitik, referred
        to in its decision, and allow the applicants a period
        within which to state their position in writing and
        present a counter-report on the same factual level;