CELEX: C2003/031/29
Language: en
Date: 2003-02-08 00:00:00
Title: Case T-357/02: Action brought on 4 December 2002 by Freistaat Sachsen against the Commission of the European Communities

C 31/20                   EN                          Official Journal of the European Union                                               8.2.2003
The applicant also submits that the application of                            efficiency of enterprises’. These guidelines were first notified
Article 87(1) EC is not excluded by Directive 92/81/EEC. That                 to, and approved by, the Commission in 1992. The purpose
directive does not create any exemption from the law on State                 of the notification which gave rise to the contested decision
aid, the directive being based exclusively on Article 93 EC but               was to acquire a renewed extension of the approval with effect
not also on Article 88(2) EC or Article 87(3)(e) EC. The                      from 1 January 2001 for a five-year period until 31 December
Commission’s view disregards the principles of the primacy of                 2006.
the Treaty over provisions of secondary law and leads to an
incorrect application of Articles 87 and 88 EC.
( 1) Council Directive 92/81/EEC of 19 October 1992 on the harmon-            In its application the applicant complains that the Commission
     isation of the structures of excise duties on mineral oils (OJ 1992      found that the four part-programmes ‘coaching’, ‘participation
     L 316, p. 12).                                                           in trade fairs’, ‘cooperation’ and ‘promotion of product design’
                                                                              of the above guidelines were not compatible with the common
                                                                              market inasmuch as they exceeded the scope and the intensity
                                                                              of aid laid down in Regulation (EC) No 70/2001 (1). Moreover,
                                                                              the applicant challenges the finding that the part-programme
                                                                              ‘cooperation’ provides for operating aid that is incompatible
                                                                              with the common market and that Germany may implement
                                                                              the four abovementioned part-programmes only when they
                                                                              have been brought into conformity with the contested
Action brought on 4 December 2002 by Freistaat Sachsen                        decision.
   against the Commission of the European Communities
                            (Case T-357/02)
                                                                              The applicant submits that the Commission’s findings are in
                                                                              many respects incorrect both substantively and also pro-
                            (2003/C 31/29)                                    cedurally. It claims that, the Commission, in breach of its
                                                                              Communication on the accelerated clearance of aid schemes
                     (Language of the case: German)                           for SMEs and of amendments of existing schemes (2), reached
                                                                              its decision under the normal procedure and wrongly based its
                                                                              conclusions as to the compatibility of the aid measure notified
                                                                              by the applicant exclusively on Regulation (EC) No 70/2001.
                                                                              The Commission ought to have based its decision on the
An action against the Commission of the European Communi-                     Community guidelines on State aid for small and medium-
ties was brought before the Court of First Instance of the                    sized enterprises (3) applicable at the time of the notification,
European Communities on 4 December 2002 by the Freistaat                      under which the notified aid measure is compatible with the
Sachsen (Germany), represented by T. Lübbig, lawyer.                          common market.
The applicant claims that the Court should:
                                                                              In the alternative, the applicant submits that the Commission
—       annul Article 2(2), Article 3 and Article 4 of Commission
                                                                              ought to have authorised the notified aid measure even if this
        Decision C(2002) 2606 of 24 September 2002 on
                                                                              had been examined on the basis of Regulation (EC) No 70/
        Germany’s intended aid rules ‘Guidelines on the pro-
        motion of small and medium-sized businesses —                         2001, which entered into force only after the notification.
        Improvement of efficiency of enterprises in Sachsen’;
—       order the defendant to pay the costs.
                                                                              Finally, the applicant claims that the Commission has not
                                                                              adequately shown the existence of a restriction of competition.
Pleas in law and main arguments
                                                                              (1 ) Commission Regulation (EC) No 70/2001 of 12 January 2001 on
In the context of its promotion of small businesses, the                           the application of Articles 87 and 88 of the EC Treaty to State aid
                                                                                   to small and medium-sized enterprises (OJ 2001 L 10, p. 33).
applicant grants members of the professions and small and
                                                                              (2 ) OJ 1992 C 213, p. 10.
medium-sized enterprises with a registered office or place of                 (3 ) OJ 1996 C 213, p. 4.
business in Sachsen, on application, subsidies by way of the
promotion of projects in order to promote the economy. This
promotion is based on the ‘Guidelines of the Sachsen State
Ministry for the Economy and Labour on the promotion of
small and medium-sized businesses — Improvement of the