CELEX: C1996/095/08
Language: en
Date: 1996-03-30 00:00:00
Title: Action brought on 18 January 1996 by the Kingdom of Spain against the Commission of the European Communities (Case C-11/96)

30 . 3 . 96             EN                  Official Journal of the European Communities                                        No C 95/5
         material time, the increase in that credit line was                 Directive 90/388/EEC with regard to the abolition of the
         consistent with the conduct of private investor in                  restrictions on the use of cable television networks for
         HSW acting on market economy principles, who had                    the provision of already liberalized telecommunications
         to   consider   that   his   substantial  loan   to  this           services ( 1 ),
         undertaking in liquidation would be regarded as
         replacing equity capital . In particular, the extent of       — order the defendant institution to pay the costs .
         the commitment to the company which was the
         predecessor of the new one is completely unsuited for         Pleas in law and main arguments adduced in support:
         use as a yardstick for assessing the nature as aid of the
         increase in the credit line granted in 1992 . A private       — lack of competence of the Commission : the Commission
         investor assesses whether in a crisis he should realize             is not specifying obligations already in existence under
         a large loss by terminating a large commitment or                   Article 90 ( 1 ), rather it is a new obligation to liberalize
         buy himself, by making a further limited capital                    the market outwith the relevant legislation in existence
         injection, a realistic prospect of avoiding or reducing             at that time, in turn giving rise to areas as yet unregulated
         his loss, still in the light of the circumstances at                which seriously affects the universal provision of
         the time . It always turns on which decision is the                 services, which may only be supervised by means of the
         most reasonable one commercially in the actual                      proper exercise of the Community's legislative power,
         circumstances . There is, however, no commercial                    that is, by means of the system of harmonization, which
         law which states that a successor company founded                   is a matter solely for the Council and the European
         to avoid the liquidation of a company should                        Parliament both under the Treaty ( specifically
         invariably be financed only to the extent to which the              Articles 87 and 100a of the EC Treaty ) and under
         company which became insolvent was financed,                        the resolutions adopted in this sphere . This is an
                                                                             encroachment of powers which may in no way be
    — the Commission further wrongly assumes that the                        considered to be sanctioned by Article 90 ( 3 ) or the
         extension and increase of the credit line in December               case-law of the Court of Justice interpreting it,
         1993 constitutes an aid : the measure is based on a
         recommendation of an independent firm of business             — misuse           of   powers :     by      imposing   the  direct
         consultants and had the aim of supporting HSW by                    interconnection of cable television networks, the
         means of a further, relatively small increase in the                Commission is in fact implementing a harmonization
         credit line until the business was sold and hence of                measure in breach of the principles of interinstitutional
         substantially reducing the losses feared in the event               balance enshrined in the Treaty and in the case-law.
         of   the  termination      of  the  commitment .    The
         subsequent actual sale shows that the overall loss            f 1 ) OJ No L 256 , 26 . 10 . 1995 , p . 49 .
         resulting from the privatization was markedly less
         than it would have been had the commitment been
         terminated in December 1993 .
— In the alternative : incorrect calculation of the amount of
    the aid .
                                                                       Action brought on 18 January 1996 by the Portuguese
                                                                       Republic against the Commission of the European
                                                                                                   Communities
                                                                                                   Case C-12/96
                                                                                                    ( 96/C 95/09 )
Action brought on 18 January 1996 by the Kingdom                       An action against the Commission of the European
of Spain against the Commission of the European                        Communities was brought before the Court of Justice of
                           Communities
                                                                       the European Communities on 18 January 1996 by the
                          Case C-ll /96 )                              Portuguese Republic, represented by Dr Paulo de Pitta e
                           ( 96/C 95/08 )                              Cunha, Dr Nuno Ruiz and Dr Luis Fernandes, acting as
                                                                       Agents, with an address for service in Luxembourg at the
                                                                       Portuguese Embassy, 33 Allee Scheffer.
An action against the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 18 January 1996 by the                         The applicant claims that the Court should :
Kingdom of Spain, represented by Gloria Calvo Diaz,
                                                                       — annul Article 1 ( 2 ) and Article 2 of Commission
Abogado del Estado, with an address for service in
Luxembourg at the Spanish Embassy, 4 and 6 Boulevard                         Directive 95/5 1 /EC of 18 October 1995 amending
E. Servais .                                                                 Directive 90/388/EEC with regard to the abolition of the
                                                                             restrictions on the use of cable television networks for
                                                                             the provision of already liberalized telecommunications
The applicant claims that the Court should :                                 services (');
— annul the second indent of Article 1 ( 2 ) of Commission             — order the Commission to pay all the costs of the
    Directive 95/5 1 /EC of 18 October 19 95 amending                        proceedings .