CELEX: C1996/095/07
Language: en
Date: 1996-03-30 00:00:00
Title: Action brought on 22 December 1995 by the Federal Republic of Germany against the Commission of the European Communities (Case C-404/95)

No C 95/4               EN                  Official Journal of the European Communities                                    30 . 3 . 96
                  ORDER OF THE COURT                                   Pleas in law and main arguments adduced in support:
                        of 2 February 1996
                                                                       — Infringement of essential procedural requirements, first
in Case C-257/95 ( reference for a preliminary ruling from                paragraph of Article 33 of the ECSC Treaty:
the Tribunal Administratif, Clermont-Ferrand ( France )
Gérard Bresle v. Préfet de la Région Auvergne and Préfet du               — inaccurate, incomplete finding of the facts on which
                          Puy-de-Dôme ( 1 )                                   the Commission's decision is based,
   (Reference for a preliminary ruling — Inadmissibility)
                                                                          — infringement of the duty to state reasons and of the
                              96/C 95/06 )                                    principle audi alteram partem :
                (Language of the case: French)                                — the Commission has not dealt with the argument
                                                                                  put forward in the alternative by the Federal
(Provisional translation; the definitive translation will be                      Government to the effect that the closure of
         published in the European Court Reports)                                 capacity undertaken by the purchaser of the
                                                                                  privatized undertaking justified the aid of the
In Case C-257/95 : reference to the Court under Article 177
                                                                                  amount declared according to the practice
of the EC Treaty from the Tribunal Administratif                                  adopted by the Commission ( see 1993 Report on
( Administrative Court ), Clermont-Ferrand (France ) for a                        Competition Policy ),
preliminary ruling in the proceedings pending before that
court between Gerard Bresle and Préfet de la Region                           — the Commission did not deal with the essential
Auvergne and Préfet du Puy-de-Dome — on the                                       arguments put forward by the applicant with
interpretation of Article 95 of the EC Treaty — the Court,                        regard to the commercial considerations
composed of: G. C. Rodriguez Iglesias, President, C. N.                           connected with the loan decision of December
Kakouris, D. A. O. Edward, J. -P. Puissochet and G. Hirsch                         1993 ,
(Presidents of Chambers ), G. F. Mancini, F. A.
Schockweiler, J. C. Moitinho de Almeida, P. J. G. Kapteyn,                    — the Commission omitted to examine to what
C. Gulmann, J. L. Murray, P. Jann, H. Ragnemalm, L. Sevón                         extent a bank acting in the private sector, and not
and M. Wathelet ( Rapporteur ), Judgess; G. Cosmas,                               in a position akin to a shareholder, would have
Advocate-General ; R. Grass, Registrar, made an order on                          acted in the actual situation obtaining in
2 February 1996 , the operative part of which is a                                December 1993 . The assumption that no private
follows :                                                                         bank would have granted a loan replacing capital
                                                                                  does not in any event constitute sufficient reason
The reference for a preliminary ruling submitted by the                           for refraining from discussing other financing
Tribunal Administratif de Clermont-Ferrand by judgment                            possibilities,
of 27 June 1995 is inadmissible.
                                                                      — infringement of the substantive law on aid ( Article 4 ( c )
(') OJ C 248 , 23 . 9 . 1995 .                                            of the ECSC Treaty and Article 1 ( 2 ) of Commission
                                                                          Decision 3855/91 /ECSC — the Steel Aid ( Code ):
                                                                          — Article 1 of the contested decision wrongly describes
                                                                              the loan of DM 20 million granted in 1984 by
Action brought on 22 December 1995 by the Federal                             Hamburgische Landesbank Girozentrale ( HLB ) on
Republic of Germany against the Commission of the                             behalf of Hamburg to the shareholders of the
                    European Communities                                      successor company in order to raise the share capital
                          Case C-404/95                                       of the Neue Hamburger Stahlwerke Gmbh ( HSW ) as
                            ( 96/C 95/07 )                                    a subsidy within the meaning of Article 4 (c ) of the
                                                                              ECSC Treaty. Given the state of knowledge at the
An action against the Commission of the European                              material time, the City of Hamburg had a substantial
Communities was brought before the Court of Justice of the                    financial interest in the undertaking's continuing in
European Communities on 22 December 1995 by the                               being through a successor company, the actual
Federal Republic of Germany, represented by Ernst Röder,                      course of events confirmed this assessment,
Ministerialrat in the Federal Ministry for Economic Affairs,
D-53107 Bonn, Michael Schütte, Rechtsanwalt at the                            Even if the Commission regards the DM 20 million
Kammergericht Berlin, 99— 10 Rue de la Loi, B-1040                            loan as an aid authorized in 1984/85 , the applicant,
                                                                              as a Member State, is entitled to contest the
Brussels, and Wolfgang Mueller-Stöfen, Rechtsanwalt at the
Oberlandesgericht Hamburg.                                                    erroneous interpretation of the concept of aid by an
                                                                              action for annulment pursuant to Article 33 ( 1 ) of
The applicant claims that the Court should:                                   the ECSC Treaty,
1 . annul Commission Decision C(95 ) 2754 final of                        — the Commission wrongly regards the DM 20 million
     31 October 1995 on aid from the Freie and Hansestadt                     increase in December 1992 in the credit line made
    Hamburg to the ECSC steel undertaking Hamburger                           available to HSW by HLB — under a credit contract
    Stahlwerke Gmbh;                                                          subscribed by the City of Hamburg — as an aid
                                                                              within the meaning of Article 4 ( c ) of the ECSC
2 . order the Commission to pay the costs .                                   Treaty: in the circumstances prevailing at the
 ---pagebreak--- 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 .