CELEX: C1999/160/43
Language: en
Date: 1999-06-05 00:00:00
Title: Case T-36/99: Action brought on 11 February 1999 by Lenzing Aktiengesellschaft against the Commission of the European Communities

C 160/22               EN                    Official Journal of the European Communities                                       5.6.1999
Action brought on 11 December 1998 by Ettlin Gesell-                    Hootz Hirsch Rechtsanwälte, Brussels, with an address for
schaft für Spinnerei und Weberei AG and others against                  service in Luxembourg at the Chambers of Loesch & Wolter,
              the Council of the European Union                         11, rue Goethe.
                         (Case T-195/98)
                                                                        The applicant claims that the Court should:
                        (1999/C 160/42)
                                                                        1. annul article 1 of the Decision of the Commission of
                                                                            28 October 1998 [State aid in favour of Sniace Spain —
                  (Language of the case: English)                           No C 68/97 (ex NN 118/97)], in so far as it contains
                                                                            findings by the Commission that
An action against the Council of the European Union was
brought before the Court of First Instance of the European                  — the non-recovery by the social insurance institution of
Communities on 11 December 1998 by Ettlin Gesellschaft für                       debts due, default surcharges and interest, and the debt
Spinnerei und Weberei AG and others, represented by Clive                        rescheduling agreements concluded between Sniace
Stanbrook QC and Professor Alan Dashwood with an address                         and the Social Insurance Institution on 8 March 1996,
for service in Luxembourg at the Chambers of Arsène Krons-                       7 May 1996 and 30 September 1997, together with
hagen, 22, rue Marie Adélaïde.
                                                                            — the non-recovery by the wage guarantee fund, Fogasa,
The applicant claims that the Court should:                                      of debts due and default interest, and the agreements
                                                                                 concluded between Sniace and Fogasa on 5 November
— declare void, pursuant to articles 173 and 174 EC, the                         1993 and 31 October 1995
    Council’s decision to reject the Commission’s proposal for
    a Regulation (1) imposing definitive anti-dumping duties            do not constitute — apart from the charging of interest at
    on imports of unbleached cotton fabric from India,                  below market rates — State aid within the meaning of article
    Indonesia, Pakistan, Turkey, China and Egypt, and (2)               92(1) of the EC Treaty;
    collecting the provisional duties imposed by Regulation
    (EC) No 773/98 of 7 April 1998,
                                                                        2. order the Commission to pay the costs,
— determine, pursuant to articles 178 and 215 (2) EC, that
    the Council is liable to make good the damage caused to the         3. order the defendant, pursuant to article 21 if the EC Statute
    applicants by its unlawful rejection of the Commission’s                of the Court of Justice and article 65 of the Rules of
    proposal for a Regulation imposing anti-dumping duties,                 Procedure of the Court of First Instance, to produce the
    and                                                                     following documents:
— order that the costs of the proceedings be borne by the
    Council.                                                                — the Spanish Government’s statement of views on the
                                                                                 applicant’s complaints dated 4 July 1996, 26 Novem-
                                                                                 ber 1996 and 9 December 1996,
Pleas in law and main arguments
                                                                            — the Spanish Government’s statement of views on the
The grounds and arguments are similar to those invoked in                        applicant’s response dated 17 April 1997,
Case T-213/97 (1).
                                                                            — all statements of views issued by the Spanish Govern-
(1) OJ C 318, 18.10.1997, p. 23.                                                 ment in the proceeding under article 93(2) of the EC
                                                                                 Treaty.
                                                                        Pleas in law and main arguments
Action brought on 11 February 1999 by Lenzing Aktien-                   By the contested decision, State aid granted by the Spanish
gesellschaft against the Commission of the European                     authorities in favour of the viscose fibre producer Sociedad
                           Communities                                  Nacional de Industrias y Aplicaciones de Celuloso Española
                                                                        SA (Sniace) was declared to be incompatible with the common
                          (Case T-36/99)                                market; however, following examination of the measures
                                                                        referred to in the form of order sought by the applicant, those
                        (1999/C 160/43)                                 measures were assessed as not constituting unlawful aid.
                  (Language of the case: German)                        The applicant, which is the largest producer of viscose and
                                                                        modal fibres in Europe and a competitor of Sniace, pleads the
An action against the Commission of the European Communi-               following infringements by the Commission:
ties was brought before the Court of First Instance of the
European Communities on 11 February 1999 by Lenzing                     — infringement of article 92(1) of the EC Treaty, in that the
Aktiengesellschaft, of Lenzing (Republic of Austria), represent-            contested decision limited the scope of the aid to the
ed by Hans-Jörg Niemeyer, Rechtsanwalt, of Messrs Gleiss Lutz               financial advantage accruing to Sniace from the charging
 ---pagebreak--- 5.6.1999               EN                    Official Journal of the European Communities                                     C 160/23
    of interest since 1991 at a rate below the market rate on           Action brought on 26 February 1999 by Albert Nardone
    the social insurance contributions due. A private creditor            against the Commission of the European Communities
    would have behaved completely differently from the social
    insurance authorities, and the non-recovery of the social                                    (Case T-57/99)
    insurance contributions therefore constitutes State aid,
                                                                                                (1999/C 160/44)
— infringement of article 92(1) of the EC Treaty, in that the
    non-recovery by the social security authorities of default
    surcharges was held not to constitute State aid,                                       (Language of the case: French)
                                                                        An action against the Commission of the European Communi-
— wrongful limitation of State aid to the financial advantage           ties was brought before the Court of First Instance of the
    accruing to Sniace as a result of the charging of interest by       European Communities on 26 February 1999 by Albert
    Fogasa on the sums due to it at a rate below the market             Nardone, residing at Piétrain (Belgium), represented by Georges
    rate. A private creditor faced with the acute liquidity             Vandersanden and Laure Levi, of the Brussels Bar, with an
    problems of Sniace would not have tolerated that compa-             address for service in Luxembourg at Fiduciare Myson SARL,
    ny’s failure, for years on end, to comply with the redemp-          30 rue de Cessange.
    tion plan contained in the repayment agreements; instead,
    it would have foreclosed the mortgage provided as security          The applicant claims that the Court should:
    and would, in view of Fogasa’s prior-ranking position in
    the event of the bankruptcy of Sniace, have simply                  — order the defendant to pay damages assessed provisionally
    accepted Sniace’s insolvency. The non-recovery of the                    at BEF 25 000 000 by way of compensation for material
    outstanding sums due to Fogasa therefore constitutes State               damage and at BEF 7 500 000 by way of compensation
    aid, as does                                                             for non-material damage,
                                                                        — annul, in so far as necessary, the implied decision of the
— the fact that Fogasa refrained from enforcing its entitlement              appointing authority rejecting the applicant’s request of
    to default interest,                                                     16 October 1997 as well as the explicit decision of the
                                                                             appointing authority rejecting the applicant’s complaint of
— manifest error of assessment in the application of article                 30 November 1998,
    92(1) of the EC Treaty, in that the element of aid was
    limited to the difference between the interest rate actually        — order the defendant to pay the costs.
    agreed and the market rate on the ground that the scope
    of the unlawful aid was difficult to determine,
                                                                        Pleas in law and main arguments
— failure to comply with the obligation to provide a state-             The applicant has already brought an action (1) seeking the
    ment of reasons under article 190 of the EC Treaty, in that         annulment of the decision taken by the appointing authority
                                                                        following a request for recognition of an occupational disease
                                                                        (asbestosis) allegedly contracted during his employment in the
    — no reasons have been given as to why the non-recovery             Berlaymont building in Brussels and, in so far as necessary, the
        of sums due to the social security institution and              annulment of the implied decision rejecting the complaint
        Fogasa were regarded as corresponding to market                 lodged by the applicant against that decision.
        conditions,
                                                                        The present action seeks compensation for the damage suffered
    — the decision is in itself contradictory, because, in              by the applicant as a result of the Commission’s misconduct,
        the part of the decision dealing with the law, the              irrespective of whether or not the social security scheme
        Commission assessed the conditions of the debt                  organised by Article 73 of the Staff Regulations and by
        rescheduling agreements concluded with the social               the Rules on the Insurance of Officials of the European
        insurance authorities and with Fogasa as not corre-             Communities against the Risk of Accident and of Occupational
        sponding to market conditions, yet in the operative             Disease is applied.
        part of the decision it limited the element of aid to the
        interest rate difference, and                                   The applicant is of the view that, by operation of the ordinary
                                                                        law relating to liability, he may claim damages despite the
                                                                        services received by him under Article 73, following the
    — the reasons contained in the part of the decision                 decision of 29 May 1997 concerning his occupational disease.
        dealing with the law did not contain any examination
        of the question whether, in the context of the third
                                                                        In his view, the Commission was guilty of illegal misconduct (2)
        debt rescheduling agreement, the social insurance
                                                                        which provides a ground for the Commission to be held liable
        authorities refrained from insisting on the repayment
                                                                        and for the payment of the damages sought.
        of social insurance contributions by 24 monthly
        instalments.
                                                                        (1) T-27/98 Nardone v. Commission (OJ C 94, 28.3.1998, p. 38).
                                                                        (2) See Case T-27/98.