CELEX: C1999/160/22
Language: en
Date: 1999-06-05 00:00:00
Title: Case C-111/99 P: Appeal brought on 30 March 1999 by Lech-Stahlwerke GmbH against the judgment delivered on 21 January 1999 by the Fifth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Joined Cases T-129/95, T-2/96 and T-97/96 between Neue Maxhütte Stahlwerke GmbH and Lech-Stahlwerke GmbH supported by the Federal Republic of Germany against the Commission of the European Communities in Cases T-2/96 and T-97/96 supported by the United Kingdom of Great Britain and Northern Ireland

C 160/10               EN                   Official Journal of the European Communities                                        5.6.1999
6. In the circumstances of this case, is the National Authority        Pleas in law and main arguments
     obliged to pay the export refunds which the undertaking
     would have applied for at the time of export and would
                                                                       Under the third paragraph of Article 189 of the EC Treaty, a
     have been payable if the sugar described as C Sugar and
                                                                       directive is to be binding, as to the result to be achieved, upon
     exported under C Sugar Licences had been designated as A
                                                                       each Member State to which it is addressed.
     and B quota sugar, on the grounds that:
     (a) the National Authority can retrospectively accept an          Although the prescribed time-limit expired on 31 December
          export declaration under Article 3 of Commission             1996, the Portuguese Republic has still not submitted to the
          Regulation (EEC) No. 3665/87 of 27 November 1987             Commission the report on the experience gained in the light
          laying down common detailed rules for the application        of Directive 90/313/EEC, as required by Article 8 thereof.
          of the system of export refunds on agricultural prod-
          ucts (5) and the circumstances of the present case
          constitute a reason of force majeure entitling it to         (1) OJ L 158, 23.6.1990, p. 56.
          extend the period for the furnishing of proof under
          Article 4 of Commission Regulation (EEC)
          No 3665/87?
          And/or on the grounds that:
     (b) a refusal to pay such export refunds would constitute
          a breach of the principles of Legitimate Expectations        Appeal brought on 30 March 1999 by Lech-Stahlwerke
          and/or Legal Certainty and/or Proportionality and/or         GmbH against the judgment delivered on 21 January 1999
          Proper Use of Powers?                                        by the Fifth Chamber (Extended Composition) of the
                                                                       Court of First Instance of the European Communities in
                                                                       Joined Cases T-129/95, T-2/96 and T-97/96 between Neue
( 1) OJ L 177, 1.7.1981, p. 4.                                         Maxhütte Stahlwerke GmbH and Lech-Stahlwerke GmbH
( 2) OJ L 258, 11.9.1981, p. 16.                                       supported by the Federal Republic of Germany against
( 3) OJ L 144, 28.6.1995, p. 14.                                       the Commission of the European Communities in Cases
( 4) OJ L 262, 16.9.1981, p. 181.                                      T-2/96 and T-97/96 supported by the United Kingdom of
( 5) OJ L 351, 14.12.1987, p. 1.                                                     Great Britain and Northern Ireland
                                                                                               (Case C-111/99 P)
                                                                                                (1999/C 160/22)
                                                                       An appeal against the judgment delivered on 21 January 1999
Action brought on 26 March 1999 by the Commission                      by the Fifth Chamber (Extended Composition) of the Court of
of the European Communities against the Portuguese                     First Instance of the European Communities in Joined Cases
                               Republic                                T-129/95, T-2/96 and T-97/96 between Neue Maxhütte
                                                                       Stahlwerke GmbH and Lech-Stahlwerke GmbH supported by
                                                                       the Federal Republic of Germany against the Commission of
                         (Case C-106/99)                               the European Communities in Joined Cases T-2/96 and
                                                                       T-97/96 supported by the United Kingdom of Great Britain
                         (1999/C 160/21)                               and Northern Ireland was brought before the Court of
                                                                       Justice of the European Communities on 30 March 1999 by
                                                                       Lech-Stahlwerke GmbH, Meitingen-Herbertshofen, Germany,
An action against the Portuguese Republic was brought before           represented by Rainer Bierwagen of Kemmler Rapp Böhlke &
the Court of Justice of the European Communities on 26 March           Crosby, Rond Point Schuman 9, Bte 9, B-1040 Brussels.
1999 by the Commission of the European Communities,
represented by Francisco de Sousa Fialho, of its Legal Service,
acting as Agent, with an address for service in Luxembourg at          The appellant claims that the Court should:
the office of Carlos Gómez de la Cruz, Wagner Centre.
                                                                       — set aside the judgment of the Court of First Instance of the
                                                                           European Communities of 21 January 1999 in Joined
The applicant claims that the Court should:                                Cases T-129/95, T-2/96 and T-97/96 Neue Maxhütte
                                                                           Stahlwerke GmbH and Lech-Stahlwerke GmbH v. Com-
— declare that, by failing to submit to the Commission within              mission of the European Communities(1) to the extent that
     the prescribed period the report provided for by Article 8            it relates to the appellant,
     of Council Decision 90/313/EEC of 7 June 1990 on the
     freedom of access to information on the environment (1),          — itself give final judgment in the case and declare null and
     the Portuguese Republic has failed to fulfil its obligations          void, to the extent it relates to the appellant, Commission
     under the third paragraph of Article 189 of the EC Treaty             Decision 95/422/ECSC of 4 April 1995 concerning State
     and Article 8 of Directive 90/313/EEC,                                aid that the Freistaat Bayern intends to grant to the ECSC
                                                                           steel undertaking Neue Maxhütte Stahlwerke GmbH and
— order the Portuguese Republic to pay the costs.                          Lech-Stahlwerke GmbH (OJ L 253, 21.10.1995, p. 22),
 ---pagebreak--- 5.6.1999               EN                    Official Journal of the European Communities                                        C 160/11
— order the Commission to pay the costs of both the first               — In relation to the third plea in law (infringement of essential
    instance and the appeal proceedings,                                    procedural requirements), the Court of First Instance also
                                                                            fails to bring the facts of the case in regard to the appellant
— in the alternative, in the event that the Court declines to               under any particular legal provision.
    give final judgment, refer the case back to the Court of
    First Instance and reserve costs.
                                                                        — The Court of First Instance errs in law in its application of
                                                                            the private investor test. Contrary to its view, it follows
Pleas in law and main arguments                                             neither from the case-law, nor from the State Aid Code,
                                                                            nor from economic practice that the investor has to realise
— The Court of First Instance failed to examine the factual                 a profit in the long term.
    and legal requirements for the prohibition under Article
    4(c) of the ECSC Treaty with respect to the financial               — Procedural irregularities: The Court of First Instance failed
    compensation for the appellant, Lech-Stahlwerke GmbH.                   to rule on the application to inspect the documents to be
    The appellant did not receive or require any financial                  transmitted by the Commission to the Court of First
    assistance from public funds to carry on its business. There            Instance under Article 23 of the ECSC Statute of the Court
    is nothing in the judgment to justify the conclusion that               of Justice.
    the reasoning concerning Neue Maxhütte (NMH) also
    applies to the appellant. The payment in view was not               — Breach of the principle of proportionality: The Court of
    intended to compensate for losses but for the reduction in              First Instance failed, in the contested Decision, to deal with
    the value of the appellant’s business as a result of the                the question of the allegedly anti-competitive effects of the
    commitment vis-à-vis NMH.                                               planned compensation payment on the common market.
— The grounds for rejecting the first plea in law (legally
    incorrect classification as State aid) are defective so far as
    the appellant is concerned.                                         (1) OJ C 86, 27.3.1999, p. 15.