CELEX: C2003/055/81
Language: en
Date: 2003-03-08 00:00:00
Title: Case T-378/02: Action brought on 17 December 2002 by Technische Glaswerke Ilmenau GmbH against the Commission of the European Communities

C 55/30                  EN                           Official Journal of the European Union                                         8.3.2003
Pleas in law and main arguments                                               Action brought on 17 December 2002 by Technische
                                                                              Glaswerke Ilmenau GmbH against the Commission of the
                                                                                                  European Communities
The applicants, the main producers of the cow-milk feta
produced in Germany, seek the annulment of Commission                                                  (Case T-378/02)
Regulation (EC) No 1829/2002 (1).
                                                                                                        (2003/C 55/81)
The applicants submit first of all that the information in                                      (Language of the case: German)
Greece’s notification of 17 January 1995 does not satisfy the
formal requirements for the inclusion of ‘Feta’ in the list of
protected designations of origin. That is so because Greece’s
application was out of time, precluding the Commission from                   An action against the Commission of the European Communi-
registering ‘Feta’ under the shortened procedure pursuant to                  ties was brought before the Court of First Instance of the
Article 17 of Regulation (EEC) No 2081/92 ( 2). Furthermore, it               European Communities on 17 December 2002 by Technische
is not possible for the name ‘Feta’ to be protected under                     Glaswerke Ilmenau GmbH, whose registered office is in
Article 17 since Greece did not introduce protection of feta at               Ilmenau (Germany), represented by G. Schohe and C. Arhold,
national level until 11 January 1994, that is to say almost six               Rechtsanwälte, with an address for service in Luxembourg.
months after Regulation (EEC) No 2081/92 entered into force.
                                                                              The applicant claims that the Court should:
The applicants further submit that the contested regulation                   —     annul the Commission’s decision of 2 October 2002,
does not comply in the slightest with the grounds of the                            C(2002) 2147 endg., on State aid by Germany in favour
decision of the Court of Justice of 16 March 1999 (3), according                    of Technische Glaswerke Ilmenau GmbH;
to which the Commission must accord decisive importance to
the markets which, at the time of Greece’s application,                       —     order the Commission to pay the costs.
had already lawfully developed in the Member States and
throughout the world. Moreover, the product ‘feta’ is not
capable of being protected since it is not a protected desig-
nation of origin but rather a generic name. Under Article 3(1)                Pleas in law and main arguments
of Regulation No 2081/92 generic names cannot be registered.
Furthermore, feta is a product which originates not just from
Greece, but from the Mediterranean and Balkan region. Feta                    The applicant acquired four glass production lines from
has been produced and consumed in considerable quantities                     Ilmenauer Glaswerke GmbH, in liquidation, an undertaking of
for decades in six Member States. In addition, the burden rests               the German Bundesanstalt für vereinigungsbedingte Son-
with Greece to prove that feta is not a generic name; it has not              deraufgaben (Federal Institution for Special Tasks arising from
adduced evidence discharging this burden.                                     Unification) (‘BvS’). In the contested decision, the Commission
                                                                              classified two measures by Germany in connection with that
                                                                              acquisition as State aid: There was a guarantee in favour of BvS
                                                                              for a remaining purchase price balance of DEM 1,8 million.
The applicants also argue that the requirements of Articles 2                 BvS had declared itself willing to replace that guarantee by a
and 4 of Regulation No 2081/92 are not met. Feta is not a                     land charge. In addition, Thüringer Aufbaubank (Thüringen
traditional geographic name. The name ‘feta’ comes from                       Bank for Reconstruction) (‘TAB’) had granted the applicant a
Italian and means ‘slice’, and was a generic name before the                  loan of DEM 2,0 million. The Commission held these measures
adoption of Regulation No 2081/92 and thus allowed to be                      incompatible with the common market.
used in intra-Community trade between Member States. Finally
the registration of ‘Feta’ infringes the Community-law funda-
mental rights to protection of property and of exercise of a                  The applicant argues that the loan by TAB to the applicant
profession, nor is the injury to property justified by Article 30             was not an aid, because it corresponded to market conditions,
EC.                                                                           was covered by a general aid regulation approved by the
                                                                              Commission, and served to compensate for a claim for
                                                                              damages of the applicant against the Land Thüringen which
( 1) Commission Regulation (EC) No 1829/2002 of 14 October 2002
                                                                              was justified from the standpoint of State liability. The
     amending the Annex to Regulation (EC) No 1107/96 with regard             replacement of the guarantee in respect of the residual
     to the name ‘Feta’ (OJ 2002 L 277, p. 10).                               purchase price for three production lines by a land charge was
( 2) Council Regulation (EEC) No 2081/92 of 14 July 1992 on the               also no aid.
     protection of geographical indications and designations of origin
     for agricultural products and foodstuffs (OJ 1992 L 208, p. 1).
( 3) Judgment of the Court of Justice in Joined Cases C-289/96, C-293/        The applicant further argues that the Commission has not
     96 and C-299/96 Denmark and Others v Commission [1999]                   demonstrated that the measures could affect trade between
     ECR I-1541.                                                              Member States. Furthermore, refusal of authorisation under
                                                                              Article 87(3)(c) EC was based on obvious errors of assessment
                                                                              and reasoning. The Commission refused to take important
                                                                              facts into account in the considerations which it took as the
 ---pagebreak--- 8.3.2003                  EN                         Official Journal of the European Union                                           C 55/31
basis for its assessment. The main competitor would obtain a                 European Communities on 18 December 2002 by Confédé-
monopoly position if the applicant were to disappear. In                     ration générale des producteurs de lait de brebis et des
examining the applicant’s prospects of profitability, the Com-               industriels de roquefort, established in Millau (France), rep-
mission overlooked the commitment of a private investor, the                 resented by Michel-Jean Jacquot and Olivier Prost, lawyers.
applicant’s latest restructuring plan, essential testimony in
economic reports, and the positive development of the appli-
cant.
                                                                             The applicant claims that the Court should:
The applicant further argues that the Commission wrongly
                                                                             —     annul Commission Regulation No 1829/2002 of
made a preliminary decision in an earlier proceeding about the
adjustment of the purchase price (1), and thereby artificially                     14 October 2002 amending the Annex to Regulation
                                                                                   (EC) No 1107/96 with regard to the name ‘Feta’ ( 1);
divided its examination, which related to the restructuring as a
whole. The opening of a further formal examination procedure,
relating only to the loan from TAB and the changing of the                   —     order the defendant to pay the costs.
security, was out of time. The principle of sound administration
required the Commission to assess the whole restructuring
plan as a unity and in its proper context.
The applicant argues that the Commission infringed its defence               Pleas in law and main arguments
rights. Because of the splitting of the procedure, the applicant
was able to adopt a position on only part of the measures, and
the Commission wrongly denied the applicant’s applications
for inspection of the files and a proper legal hearing. The                  The applicant is an inter-branch association which claims to
                                                                             group together and represent the interests of all producers of
Commission infringed the principle of impartiality by not
                                                                             Feta made from ewe’s milk.
giving the applicant and the German Government the oppor-
tunity to comment on the statement of a competitor, which
the Commission had obtained by putting questions to that
competitor.                                                                  The contested regulation reserves the name ‘Feta’ — a protected
                                                                             designation of origin — for Greek producers. The Court of
                                                                             Justice of the European Communities had already annulled, in
Finally, the applicant submits that the Commission has not                   1996, a Commission regulation on the same subject ( 2).
proved that repayment of the alleged aid in this case would be
appropriate to restore the previous position. Repayment was a
sanction going beyond the limited powers of the Commission.
                                                                             In support of its action for annulment, the applicant argues
                                                                             that no justification or reasons are stated for the choice of the
( 1) Commission Decision K(2001) 1549 of 12.6.2001 on State aid              ‘simplified’ procedure laid down in Article 17 of Regulation
     by Germany in favour of Technische Glaswerke Ilmenau GmbH,
                                                                             No 2081/92 (3). In order to have recourse to that procedure, it
     against which the applicant brought an action before the Court of
     First Instance (Case T-198/01, OJ 2001 C 303, p. 25).
                                                                             is necessary, not only for an application by the national
                                                                             authorities for a legally protected name in the applicant State
                                                                             to exist before the entry into force of Regulation No 2081/92,
                                                                             but also for that name to be neither legally protected in
                                                                             countries other than the applicant Member State nor in use in
                                                                             those countries. The term ‘Feta’ was not legally protected in
                                                                             Greece — the applicant State — in the sense intended by the
                                                                             legislation at the time of the entry into force of Regulation
Action brought on 18 December 2002 by Confédération                          No 2081/92. By contrast, not only was that same term legally
générale des producteurs de lait de brebis et des industri-                  protected in Denmark before the entry into force of Regulation
els de roquefort against Commission of the European                          No 2081/92, but also its use was widespread in France and
                             Communities                                     throughout the world.
                            (Case T-381/02)
                                                                             The applicant also submits that the Commission failed to fulfil
                                                                             its obligations in the analysis of whether the term ‘Feta’ is
                            (2003/C 55/82)
                                                                             generic and that it infringed Article 3(1) of Regulation
                                                                             No 2081/92 by the fact that it once again did not take
                      (Language of the case: French)                         sufficient account of certain factors: in particular, the existing
                                                                             situation in the Member State in which the name originates,
                                                                             the existing situation in other Member States, and the relevant
                                                                             national and Community laws. In addition, the applicant is of
An action against the Commission of the European Communi-                    the opinion that the Commission infringed Article 2(3) of
ties was brought before the Court of First Instance of the                   Regulation No 2081/92.