CELEX: C2000/079/16
Language: en
Date: 2000-03-18 00:00:00
Title: Case C-499/99: Action brought on 22 December 1999 by the Commission of the European Communities against the Kingdom of Spain

C 79/8                 EN                  Official Journal of the European Communities                                     18.3.2000
Appeal brought on 21 December 1999 by the Com-                        being that the Court of First Instance asserted that the
mission of the European Communities against the judg-                 Commission may not alter the terms of payment, and yet at
ment delivered on 14 October 1999 by the Second                       the same time stated that the Commission ought to have
Chamber of the Court of First Instance of the European                issued a new invitation to tender, which would have meant
Communities in Joined Cases T-191/96 and T-106/97 in                  changing the terms of payment of the successful tenderers
so far as it relates to Case T-191/96 between C.A.S. Succhi           which had already fulfilled their contractual obligations).
di Frutta SpA, established in Borgonovo, Castagnaro di
Verona, and the Commission of the European Communi-                   The third ground of challenge is that the Court of First Instance
                               ties                                   misinterpreted Community law relating to the concept of
                                                                      individual concern when it held that C.A.S. Succhi di Frutta
                        (Case C-496/99 P)                             SpA was individually concerned by the contested decision.
                                                                      The fourth plea is that the Court of First Instance misinter-
                          (2000/C 79/15)
                                                                      preted the concept of an interest in bringing proceedings and
                                                                      in particular the scope of Article 176 of the Treaty (now
An appeal against the judgment delivered on 14 October 1999           Article 233 EC) and consequently found that C.A.S. Succhi di
by the Second Chamber of the Court of First Instance of               Frutta had such an interest.
the European Communities in Joined Cases T-191/96 and
T-106/97 in so far as it relates to Case T-191/96 between             The fifth plea concerns misinterpretation of the rules relating
C.A.S. Succhi di Frutta SpA and the Commission of the                 to the withdrawal of fruit provided for by the common
European Communities was brought before the Court of                  organisation of the markets in the fruit and vegetable sector
Justice of the European Communities on 21 December 1999               which led the Court of First Instance to treat as available fruit
by the Commission of the European Communities, represented            withdrawn on dates prior to that on which payment was
by Francesco P. Ruggeri Laderchi, of its Legal Service, acting as     possible.
Agent, assisted by Alberto Dal Ferro of the Vicenza Bar, with
an address for service in Luxembourg at the office of Carlos
Gómez de la Cruz, Wagner Centre, Kirchberg.                          (1) Judgment of 14 October 1999 in Joined Cases T-191/96 and
                                                                          T-196/97.
                                                                      (2) C.A.S. Succhi di Frutta SpA.
The appellant claims that the Court should:
— set aside the judgment under appeal and declare the
    application brought by C.A.S. Succhi di Frutta SpA in Case
    T-191/96 (1) inadmissible;
— in the alternative, set aside the judgment under appeal on
                                                                      Action brought on 22 December 1999 by the Commission
    substantive grounds and declare the application brought by
                                                                      of the European Communities against the Kingdom of
    C.A.S. Succhi di Frutta SpA in Case T-191/96 unfounded;
                                                                                                      Spain
— in the further alternative, set aside the judgment under
                                                                                                (Case C-499/99)
    appeal and remit the case to the Court of First Instance so
    that it may give a ruling on the merits in the light of such
    information as the Court may wish to provide;                                                (2000/C 79/16)
— order the applicant (2) to pay the costs of the present             An action against the Kingdom of Spain was brought before
    proceedings and of the proceedings at first instance relating     the Court of Justice of the European Communities on
    to Case T-191/96.                                                 22 December 1999 by the Commission of the European
                                                                      Communities, represented by Gérard Rozet et Ramón Vidal
                                                                      Puig, acting as Agents, with an address for service in Luxem-
                                                                      bourg at the office of Carlos Gómez de la Cruz, of its Legal
Pleas in law and main arguments                                       Service, Wagner Centre, Kirchberg.
The first and second pleas are that the Court of First Instance       The applicant claims that the Court should:
erred in law when it applied the principle of equal treatment
between tenderers with reference to the differing positions of        — Declare that, by failing to adopt and bring into force
the unsuccessful and the successful tenderers after the award              within the prescribed period the laws, regulations and
of the contract. The incorrect application of that principle               administrative provisions necessary to comply with Com-
invalidates the judgment as regards both admissibility (the first          mission Decision of 20 December 1989 (91/1/EEC) (1) and
plea being that the situation of C.A.S. Succhi di Frutta                   of 14 October 1998 declaring certain aid to undertakings
SpA does not distinguish it from any other third parties;                  belonging to the Magefesa group to have been granted
consequently, it does not as such have standing to challenge               unlawfully and to be incompatible with the common
the decision on equivalence) and substance (the second plea                market, the Kingdom of Spain has failed to fulfil its
 ---pagebreak--- 18.3.2000              EN                   Official Journal of the European Communities                                         C 79/9
     obligations under the fourth paragraph of Article 249 EC          Appeal brought on 22 December 1999 by Conserve Italia
     and Articles 2 and 3 of the aforementioned decisions; and         Soc. Coop. arl, established at St Lazzaro di Savena, against
                                                                       the judgment delivered on 12 October 1999 by the Third
— Order the Kingdom of Spain to pay the costs.                         Chamber of the Court of First Instance of the European
                                                                       Communities in Case T-216/96 between Conserve Italia
                                                                       Soc. Coop. arl and Commission of the European Com-
Pleas in law and main arguments                                                                     munities
Pursuant to Article 249 EC, the 1989 and 1998 decisions are                                    (Case C-500/99 P)
binding in every respect upon the Member State to which they
were addressed, in this case the Kingdom of Spain, by virtue
                                                                                                 (2000/C 79/17)
of their having been notified on 5 March 1990 and 29 October
1998 respectively.
                                                                       An appeal against the judgment delivered on 12 October 1999
On 28 December 1998 the Kingdom of Spain brought an                    by the Third Chamber of the Court of First Instance of the
action for annulment under Article 173 of the EC Treaty                European Communities in Case T-216/96 between Conserve
(230 EC). That action brought before the Court against the             Italia Soc. Coop. arl and Commission of the European
1998 decision under Case Number C-480/98 has no suspen-                Communities was brought before the Court of Justice of the
sory effect (Article 242 EC).                                          European Communities on 22 December 1999 by Conserve
                                                                       Italia Soc. Coop. arl, formerly known as Massalombarda
                                                                       Colombani SpA, represented by Marina Averani and Andrea
The Commission considers that the Kingdom of Spain has                 Pisaneschi, of the Siena Bar, Paolo De Caterini, of the Rome
failed to fulfil its obligations under the fourth paragraph of         Bar, and Stefano Zunarelli, of the Bologna Bar, with an address
Article 249 EC and under Articles 2 and 3 of the 1989 and              for service in Luxembourg at the Chambers of Charles Turk,
1998 decisions, by failing to adopt all the measures necessary         13B Avenue Guillaume, Luxembourg.
to recover the aid. Moreover, even supposing that the measures
adopted to date by the Kingdom of Spain were to be deemed
sufficient to comply with Article 2 of the 1989 and 1998               The appellant claims that the Court should:
decisions, such measures were not adopted within the
two-month period following notification, so that the Kingdom
                                                                       — set aside or vary the contested judgment;
of Spain has nonetheless failed to fulfil its obligation under
Article 3 of each decision.
                                                                       — accordingly, annul Commission Decision C (96) 2760;
In order to comply with the 1989 decision, the Governments
of the Basque Country, Cantabria and Andalusia should have             — order the respondent to pay the costs.
sought the repayment of the aid by the actual beneficiaries,
namely Indosa, Cunosa, Gursa and Migsa, either directly or
through the intermediary companies Ficodesa, Gemacasa and
Damna, through which the aid had been channelled. However,             Pleas and main arguments
up to the initiation of these proceedings, the aforementioned
regional governments have at best done no more than ask for            1. According to the Court of First Instance, the irregularities
the return of the aid from the intermediary companies, which                relating to the project stem from the fact that it should be
have no assets of their own, so that the requests for repayment             regarded as having started when the contracts for machin-
have met with no success.                                                   ery were concluded — albeit subject to conditions —
                                                                            rather than when payment is made, invoices issued or even
                                                                            when they are actually performed.
So far as concerns the 1998 decision, the TSS and the Hacienda
Foral de Vizcaya account, together with the remaining public
creditors of Indosa, for 82.65 % of the amount of admitted                  That conclusion has no support in law but appears to be
debts and have therefore a large majority in the Indosa’s                   in conflict with the applicable legislation.
Committee of Inspection. However, the TSS has not adopted
any of the measures open to it, such as requesting the courts          2. In the appellant’s view, the Court of First Instance was
to call a creditors’ meeting or dismiss the receivers. In any               wrong to hold that the first subparagraph of Article 15(2)
event, the fact that it was not possible to reach an agreement              Regulation 4253/88 did not apply to the instant case,
among the creditors as a result of not being able to find a                 since all the expenditure was incurred during the six
buyer interested in acquiring the assets does not make it                   months preceding the beginning of the action.
‘absolutely impossible’ to comply with the 1998 decision,
since it would still be possible to wind up Indosa.
                                                                       3. The infringements complained of constituted only 28 % of
                                                                            the amount of the investment. In such circumstances, the
(1) OJ 1991 L 5, p. 18.                                                     legislation should possibly have provided for the reduction
                                                                            of the contribution rather than its withdrawal. The appel-
                                                                            lant is of the view that the legislation in force does not
                                                                            allow for the contribution to be withdrawn totally.