CELEX: C2000/063/26
Language: en
Date: 2000-03-04 00:00:00
Title: Case C-480/99 P: Appeal brought on 20 December 1999 by Gerry Plant and 16 others against the order made on 29 September 1999 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-148/98 between J.G. Evans and others and the Commission of the European Communities and T-162/98 between South Wales Small Mines Association and the Commission of the European Communities

4.3.2000               EN                    Official Journal of the European Communities                                        C 63/13
The Commission considers that the list in the annex to                  Appeal brought on 20 December 1999 by Gerry Plant
Directive 93/13 is designed to establish a functioning internal         and 16 others against the order made on 29 September
market and to improve consumer protection, based inter alia             1999 by the Second Chamber of the Court of First
on information for consumers. This is to be achieved by                 Instance of the European Communities in joined cases
amplifying and specifying the general criteria indicated in             T-148/98 between J.G. Evans and others and the Com-
Article 3(1) of the Directive. This increases legal certainty for       mission of the European Communities and T-162/98
both Swedish and foreign economic agents and consumers                  between South Wales Small Mines Association and the
whilst at the same time the various authorities apply the law                    Commission of the European Communities
in a more uniform way. The Commission also believes that the
list is of invaluable assistance for traders when they draw up
their standard terms and conditions and that the number of                                      (Case C-480/99 P)
possible disputes can be reduced in this way. In the Com-
mission’s view, these aims, and the particular argument                                            (2000/C 63/26)
concerning clarity and information, can only be achieved if
the list in the annex to the Directive is made generally known
by being published as a part of the legal act by which the              An appeal against the order made on 29 September by the
directive is implemented.                                               Second Chamber of the Court of First Instance of the European
                                                                        Communities in joined cases T-148/98 (1) between J.G. Evans
                                                                        and others and the Commission of the European Communities
(1) OJ 1993 L 95, p. 29.                                                and T-162/ 98 (2) between South Wales Small Mines Associ-
                                                                        ation and the Commission of the European Communities,
                                                                        was brought before the Court of Justice of the European
                                                                        Communities on 20 December 1999 by Gerry Plant and
                                                                        16 others, established in the United Kingdom, represented by
                                                                        Barbara Hewson, of the Bar of England and Wales, and Thomas
                                                                        Graham, Solicitors, with an address for service in Luxembourg
Reference for a preliminary ruling by the Finanzgericht                 at the Chambers of Nathan & Noesen, 18, rue des Glacis.
Düsseldorf by order of that court of 8 December 1999 in
the case of Vobis Microcomputer AG against Haupt-
                         zollamt Aachen                                 The Appellants claim:
                         (Case C-479/99)                                1. that the judgment of the Court of First Instance of
                                                                            29 September 1999 be set aside;
                          (2000/C 63/25)
                                                                        2. that the Application to annul is admissible and that the
Reference has been made to the Court of Justice of the                      Court of First Instance should deal with the substance of
European Communities by order of the Finanzgericht Düssel-                  the Application;
dorf (Düsseldorf Finance Court) of 8 December 1999, received
at the Court Registry on 16 December 1999, for a preliminary
                                                                        3. alternatively, that the issue of admissibility should be
ruling in the case of Vobis Microcomputer AG against
                                                                            referred back to a freshly constituted Court of First
Hauptzollamt Aachen on the following questions:
                                                                            Instance, and that the Appellants should first have the
1.      Is the Combined Nomenclature, as amended by Annex I                 opportunity to have knowledge of, and to comment on,
to Commission Regulation (EC) No 1153/97 of 24 June                         all evidence adduced or observations filed by SWSMA;
1997 (1) amending Annex 1 to Council Regulation (EEC)
No 2658/87 on the tariff and statistical nomenclature and on            4. that the Commission pay the costs of this appeal and the
the Common Customs Tariff, to be interpreted as meaning that                application below.
electronic assemblies which enable automatic data-processing
equipment and units thereof to process audio signals (sound
cards) must be classified under heading 8471, 8473 or 8543?
                                                                        Pleas in law and main arguments
2.      Are Commission Regulation (EC) No 1153/97 of 24 June
1997 and Commission Regulation (EC) No 2086/97 of
4 November 1997 (2) amending Annex I to Council Regulation              The Appellants bring this appeal against the contested order
(EEC) No 2658/87 on the tariff and statistical nomenclature             on the basis of a breach of the procedure before the Court of
and on the Common Customs Tariff valid in so far as, in                 First Instance which adversely affects the interest of the
accordance with them, the sound cards described at 1 are                Appellants and/or infringements of Community law by the
covered by heading 8543 of the Combined Nomenclature?                   Court of First Instance, in particular:
                                                                        1. The Court of First Instance failed to apply the relevant law
(1) OJ 1997 L 168, p. 35.
(2) OJ 1997 L 312, p. 1.
                                                                            in that it failed to find that the Appellants were concerned
                                                                            by the Commission’s decision under Article 33 ECSC and
                                                                            were entitled to notification of the Decision as persons
                                                                            concerned by the Decision under Article 15 ECSC;
 ---pagebreak--- C 63/14                EN                     Official Journal of the European Communities                                       4.3.2000
2. The Court of First Instance erred in law in failing to find              the legal categorisation of the facts). In any event, the
     that the Commission should have notified the Appellants                Commission fails entirely to explain why it concluded that
     of its Decision when they formally requested notification              the mere finding that an undertaking is public in nature
     on 24 August 1998;                                                     suffices to establish that resources made available within
                                                                            the meaning of Article 87 of the Treaty must be public in
3. The Appellants’ rights of defence were infringed during                  origin (breach of the obligation to state reasons). Finally,
     the proceedings before the Court of First Instance, consti-            the Commission did not even examine whether or not the
     tuting a breach of procedure;                                          measures which it challenged were attributable to the State
                                                                            (error of law).
4. The Court of First Instance’s decision manifestly distorted
     the clear sense of the evidence, and amounted to an
     incorrect legal assessment of the facts.
                                                                         — (In the alternative): manifest error of assessment in
                                                                            determining whether SBT and Altus had acted prudently
(1) OJ C 358 of 21.11.1998, p. 19.                                          in providing funds to Stardust: it was not until the close of
(2) OJ C 174 of 19.6.1999, p. 6.                                            the accounts on 30 June 1995, when it was confirmed that
                                                                            there had been a considerable loss (FRF 362 million)
                                                                            attributable to the discovery and inclusion of the conse-
                                                                            quences of the fraudulent activities of the former directors,
                                                                            that the financial commitment made by SBT/Altus turned
                                                                            out to be of the disproportionate nature criticised by
                                                                            the Commission. Prior to that date, however, Stardust’s
                                                                            accounts reflected a situation which was acceptable for a
Action brought on 20 December 1999 by the French                            company just starting up. The Commission errs in refusing
Republic against the Commission of the European Com-                        to take account of the various cases of fraud in order to
                             munities                                       determine whether or not SBT acted prudently, on the
                                                                            ground in particular that, pending the decisions of the
                                                                            national courts seised of those cases, it cannot comment
                         (Case C-482/99)                                    on them.
                          (2000/C 63/27)
                                                                         — Internal contradictions in the grounds of the contested
An action against the Commission of the European Communi-                   decision, particularly with regard to the identification of
ties was brought before the Court of Justice of the European                the provider of the aid, since the Commission at times
Communities on 20 December 1999 by the French Republic,                     focuses its attention on Crédit Lyonnais and the CDR
represented by Kareen Rispal-Bellanger and Frédérik Million,                jointly, at times on Crédit Lyonnais alone, and at times on
acting as Agents, with an address for service in Luxembourg at              the CDR alone. The Commission’s entire reasoning appears
the French Embassy, 8B Boulevard Joseph II.                                 to be based on the supposition that the aid is attributable
                                                                            in its entirety to Crédit Lyonnais, including recapitalisations
The French Republic claims that the Court should:                           subsequent to debt restructuring which were only deferred
                                                                            to the charge of the CDR, whereas the actual operative
— Annul in its entirety the decision of 8 September 1999                    part of the decision, in contrast, focuses on the aid from
     adopted by the Commission of the European Communities                  the CDR to Stardust and orders it to be recovered.
     on the basis of Articles 87 EC and 88 EC concerning aid
     for the Stardust Marine undertaking;
                                                                         — Infringement of the principle of legal certainty: the contest-
— Order the Commission to pay the costs.                                    ed decision clearly overlooks important aspects of the
                                                                            Commission’s previous decisions on aid granted to Crédit
                                                                            Lyonnais. First, the Commission’s approach in the contest-
Pleas in law and main arguments                                             ed decision has the effect of excluding the possibility
                                                                            for the CDR to dispose of assets (if appropriate, after
— Breach of Article 87(1) EC: the contested decision miscon-                recapitalisation), even if this option is, as in the case of
     strues the concept of public resources inasmuch as the                 Stardust, the most rational from the economic point of
     Commission takes the view therein that the ostensibly                  view and thus corresponds to the task conferred on it.
     public nature of the resources made available by subsidia-             Second, the Commission refuses to accord any significance
     ries and subsubsidiaries of Crédit Lyonnais (Altus Finance             whatever to the care with which the CDR acted.
     and SBT) is a matter of fact not open to challenge. The
     public nature of the resources of an undertaking cannot be
     inferred merely from the fact that the undertaking belongs
     to the public sector (error of law). In this case, SBT and          — Breach of the French Government’s rights of defence:
     Altus (subsidiaries of Crédit Lyonnais) did not, at the time           within the context of the written administrative procedure,
     of the interventions for which they are criticised, have any           the Commission at no time indicated its intention to apply
     budgetary allocations or any other State resources (error in           the notion of continuity of State action, that is to say, to