CELEX: C2003/304/28
Language: en
Date: 2003-12-13 00:00:00
Title: Case C-455/03: Action brought on 29 October 2003 (fax 24.10.2003) by the French Republic against the Commission of the European Communities

13.12.2003              EN                       Official Journal of the European Union                                         C 304/19
            —    the arrangements under which the Member                 (2)     Breach of the EA Treaty:
                 State of the parent company takes account of
                 the losses of UK resident companies apply
                 regardless of whether the losses are also relieved      —     Article 42 EA: under the procedure established by the
                 in another Member State?                                      contested regulation, the Commission de facto alters the
                                                                               three-month period laid down by this provision of the
      (c)   Would it make any difference if there were evidence                EA Treaty, which the Council alone had the power to
            that relief had been obtained for the losses in the                alter.
            Member State in which the subsidiary was resident
            and, if so, would it matter that the relief was
            obtained subsequently by an unrelated group of               —     Article 43 EA: in adopting the contested regulation, the
            companies to which the subsidiary was sold?                        Commission exceeded the powers conferred upon it by
                                                                               this provision. The Commission has established, by
                                                                               means of an instrument of general application that is
                                                                               mandatory in its entirety and directly applicable in
                                                                               every Member State, a procedure truly entailing detailed
                                                                               examination of investment projects, which is quasi-
                                                                               suspensory in nature.
                                                                         —     Article 44 EA: under the contested regulation, publication
Action brought on 29 October 2003 (fax 24.10.2003) by
                                                                               of investment projects communicated to the Commission
the French Republic against the Commission of the
                                                                               becomes mandatory and automatic in nature, whereas it
                     European Communities
                                                                               is merely optional under this article. Nor does the
                                                                               contested regulation specify that such publication may
                         (Case C-455/03)                                       occur only with the prior consent of the Member States,
                                                                               persons and undertakings concerned.
                         (2003/C 304/28)
                                                                         —     The first subparagraph of Article 194(1) EA: the Com-
                                                                               mission has failed to have regard to the obligation of
                                                                               confidentiality contained in the first subparagraph of
                                                                               Article 194(1) EA by allowing third party access to
An action against the Commission of the European Communi-                      investment projects notified by the persons and under-
ties was brought before the Court of Justice of the European                   takings concerned, when those projects contain confiden-
Communities on 29 October 2003 (fax 24.10.2003) by the                         tial information that is covered in particular by the trade
French Republic, represented by F. Alabrune, G. de Bergues                     secrecy of those persons and undertakings.
and C. Lemaire, acting as Agents, with an address for service
in Luxembourg.
                                                                         (3) Breach of the principle of legal certainty: under the
The French Republic claims that the Court should:                        contested regulation, the persons or undertakings concerned
                                                                         are ‘recommended’ not to put the investment project into
—     annul Commission Regulation (Euratom) No 1352/2003                 effect before the Commission has issued its recommendation
      of 23 July 2003 amending Regulation (EC) No 1209/                  on that project or it is deemed to be in compliance with the
      2000 determining procedures for effecting the communi-             objectives and provisions of the EA Treaty. The Commission
      cations prescribed under Article 41 of the Treaty estab-           also fails to have regard to the requirement for legal certainty
      lishing the European Atomic Energy Community (1);                  by providing that, where the Commission has opened a
                                                                         detailed examination procedure, it ‘shall as far as possible
                                                                         endeavour’ to adopt a recommendation within a period of six
—     order the Commission to pay the costs.                             months. The persons or undertakings concerned do not
                                                                         know within what period the Commission will adopt its
                                                                         recommendation should a detailed examination procedure be
                                                                         opened.
Pleas in law and main arguments
                                                                         (1) OJ L 192, 31.7.2003, p. 15.
(1) The Commission lacks competence to adopt the contest-
ed regulation: neither Articles 41 EA to 44 EA nor Council
Regulation (Euratom) No 2587/1999, which are the legal
bases cited by the Commission in the contested regulation,
constitute a legal basis enabling it to adopt that regulation.