CELEX: C2001/289/72
Language: en
Date: 2001-10-13 00:00:00
Title: Case T-176/01: Action brought on 31 July 2001 by Ferrieri Nord SPA against the Commission of the European Communities

C 289/32                EN                     Official Journal of the European Communities                                    13.10.2001
The contested regulation granted temporary authorisation for              Action brought on 31 July 2001 by Ferrieri Nord SPA
a limited period, that is to say from 1 June 2001 to 1 March                against the Commission of the European Communities
2002.
                                                                                                   (Case T-176/01)
The action is directed against the Commission’s regulation
limiting the temporary authorisation of ToyoCerin to the
period ending on 1 March 2002. The applicant claims that the                                       (2001/C 289/72)
brevity of that temporary authorisation following a period
during which no authorisation was extant means that ToyoCe-
                                                                                              (Language of the case: Italian)
rin will not be able to be distributed on the market even
though there is an authorisation. It is so short that the duration
of the authorisation only marginally exceeds the sales period
required by feedingstuff manufacturers. Accordingly, the prod-            An action against the Commission of the European Communi-
uct cannot in fact be used by the applicant’s purchasers for the          ties was brought before the Court of First Instance of the
manufacture of feedingstuffs.                                             European Communities on 31 July 2001 by Ferriere Nord
                                                                          SPA, represented by Wilma Viscardini and Gabriele Donà,
                                                                          lawyers, against the Commission of the European Communi-
The applicant submits that the contested regulation infringes             ties.
general principles of Community law and also is vitiated by
errors of form. First of all, the regulation infringes the
requirement to give reasons in so far as it does not clearly
show — even though the Commission has no further concerns                 The applicant claims that the Court should:
about renewing the temporary authorisation — why the
authorisation has to be limited to nine months. For example,
                                                                          —     annul, pursuant to Article 230 of the EC Treaty, Com-
two other micro-organisms of the Saccharomyces Cerevisiae
                                                                                mission Decision C(2001) 1010 final of 28 March 2001
type received temporary authorisation for four years under the
                                                                                finding incompatible with the common market the aid
same regulation. The regulation also therefore infringes the
                                                                                granted by the Regione Autonoma Friuli-Venezia Giulia
general principle of equality and discriminates significantly
                                                                                to Ferriere Nord SPA (worth ITL 1 650 000 000) for
against the applicant’s product — it metes out unequal
                                                                                environmental investments in a new plant for the pro-
treatment which is not justified on objective grounds.
                                                                                duction of electrically welded mesh;
The applicant furthermore claims that the regulation is not               —     order the Commission to pay compensation pursuant to
proportionate and that it does not constitute a measure that is                 Articles 235 and 288(2) of the EC Treaty for the damage
appropriate either to authorise or to prohibit the additive                     suffered by Ferriere Nord SPA as a consequence of the
ToyoCerin. Finally the regulation is contradictory and infringes                illegal decision (c(2001) 1010 final of 28 March 2001)
the principle of proper administration.                                         and the consequent delay in paying the aid illegally
                                                                                cancelled;
                                                                          —     order the Commission to pay all costs and fees.
(1) Commission Regulation (EC) No 937/2001 of 11 May 2001
    concerning the authorisation of new additive uses, new additive       Pleas in law and main arguments
    preparation, prolongation of provisional authorisations and the
    10 year authorisation of an additive in feedingstuffs (OJ 2001
    L 130, p. 25).
(2) Council Directive 70/524/EEC of 23 November 1970 concerning           The contested decision concerns a production plant, for which
    additives in feedingstuffs (OJ 1970 L 270 p. 1), most recently        the regional aid at issue was requested, capable of bypassing
    amended by Commission Regulation No 45/1999 of 11 Novem-              the cold rolling process (drawing the wire), the straightening
    ber 1999 (OJ 1999 L 6, p. 3).                                         of the wire and its cutting to measure. The new manufacturing
(3) Commission Regulation (EC) No 1411/1999 of 29 June 1999               process provided for the use of wire with special technical
    concerning the authorisation of new additives and a new additive      characteristics enabling it to be used directly as steel wire in
    usage in feedingstuffs (OJ 1999 L 164, p. 56).                        the process for assembling the mesh. The applicant maintains
(4) Commission Regulation (EC) No 2697/2000 of 27 November                that the aid should be regarded as an instance of the application
    2000 concerning the provisional authorisation of additives in         of the general aid scheme provided for by Friuli-Venezia Giulia
    feedingstuffs (OJ 2001 L 319, p. 1).                                  Regional Law No 47 of 3 June 1978, as amended by Regional
                                                                          Law No 2 of 20 January 1992. Following the adoption of a
                                                                          number of amendments, the Commission decided not to raise
                                                                          objections under Articles 92 or 93 of the EEC Treaty (now
                                                                          Articles 87 EC and 88 EC) with regard to the 1992 Law.
 ---pagebreak--- 13.10.2001               EN                   Official Journal of the European Communities                                       C 289/33
In support of its application, the application submits:                        evironment in terms of reducing noise and atmospheric
                                                                               pollution;
—      The formal investigation procedure was initiated illegally,       —     the Commission failed to evaluate the investment in
       in so far as the aid granted to the applicant constitutes no            terms of the elimination of hazardous waste;
       more than the application in a particular case of the
       scheme set up by the 1978 Law, as subsequently                    —     the aims of the investment were evaluated in arbitrary
       amended, which had been approved by the Commission.                     fashion and the Community rules governing aid for
       The Commission assessed the aid directly in the light of                protection of the environment were misapplied.
       the provisions of the Treaty, as well as by reference to an
       aid scheme which had already been authorised.                     (1) OJ 2001, C 3, p. 3.
—      Both the initiation of the formal investigation and its
       findings exceeded the proper scope of such investigations;
—      Breach of the principle of legal certainty, the protection        Action brought on 2 August 2001 by Jego-Quéré & Cie
       of legitimate expectations and the rights of the defence.         S.A. against the Commission of the European Communi-
       In particular, it is submitted that the contested decision                                        ties
       (paragraph 3) is based on the Community rules governing
       State aid for the protection of the environment in                                         (Case T-177/01)
       2001 (1), whereas the investigation of the aid to Ferriere
       was conducted wholly by reference to the environmental                                     (2001/C 289/73)
       legislation for 1994. The decision to open the formal
       procedure under Article 88(2) of the EC Treaty and the                               (Language of the case: French)
       invitation to interested parties to submit observations
       were made with reference to the 1994 rules and it was
       on the basis of that legislation the applicant submitted its      An action against the Commission of the European Communi-
       observations. In consequence, Ferriere was unable to              ties was brought before the Court of First Instance of the
       exercise its rights of defence. The applicant contests, inter     European Communities on 2 August 2001 by Jego-Quéré &
       alia, the Commission’s statement that neither the Italian         Cie S.A., established at Lorient (France), represented by Antonio
       authorities nor the applicant produced adequate docu-             Creus Carreras, Begoña Uriarte Valiente and Albert Augustinoy
       mentary evidence of the environmental aims underlying             Guilayn, avocats.
       the grant of the aid in question.
                                                                         The applicant claims that the Court should:
—      Breach of the principle of sound administration, in so far        —     annul Articles 3(d) and 5 of the Commission Regulation
       as the Commission:                                                      of 14 June 2001 establishing measures for the recovery
                                                                               of the stock of hake in ICES sub-areas III, IV, V, VI and
                                                                               VII and ICES divisions VIII a, b, d, e and associated
       —     decided to open the formal procedure when this was                conditions for the control of activities of fishing vessels
             not permissible;                                                  (OJ 2001 L 159, p. 4);
                                                                         —     order the defendant to pay the costs.
       —     failed to choose the correct legal basis (whether
             under ECSC or EC law) for evaluating the aid;
                                                                         Pleas in law and main arguments
       —     constantly altered the reasons given for first suppos-
             ing and then confirming that the aid granted was            The applicant’s activities are concentrated on fishing for
             incompatible with the common market;                        whiting, with only incidental by-catches of hake, in the areas
                                                                         in which the contested regulation is applicable.
       —     conducted the investigation on the basis of the 1994
             environmental legislation but, upon the conclusion          In support of its application, the applicant pleads violation of
             of that enquiry, adopted a decision on the basis of         the principles of proportionality and of equality and a failure
             more recent legislation (the 2001 rules).                   to fulfil the obligation to provide a statement of reasons. The
                                                                         applicant claims that the Commission has failed to take its
                                                                         specific situation into account, whereas it has taken into
                                                                         account that of other fishermen making only incidental by-
It is also submitted that:                                               catches of hake, and has laid down exceptions and specific
                                                                         measures in relation to them. Those exceptions and specific
                                                                         measures do not relate to the applicant.
—      the aid was evaluated in arbitrary fashion as regards
       the benefits of the Ferriere investment in the working