CELEX: C2000/006/50
Language: en
Date: 2000-01-08 00:00:00
Title: Case T-227/99: Action brought on 11 October 1999 by Kvaerner Warnow Werft GmbH against the Commission of the European Communities

8.1.2000              EN                     Official Journal of the European Communities                                        C 6/27
— order the Commission, pursuant to Articles 235 and 288                Action brought on 11 October 1999 by Kvaerner War-
    EC, to make good any damage, and interest thereon, caused           now Werft GmbH against the Commission of the Euro-
    to the applicants, by the wrongful adoption of Regulation                                  pean Communities
    No 1586/99;
                                                                                                 (Case T-227/99)
— declare that the Commission pay the cost incurred in the
    making of the application.                                                                    (2000/C 6/50)
                                                                                          (Language of the case: German)
Pleas in law and main arguments
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 11 October 1999 by Kvaerner
The present application concerns the administration by the              Warnow Werft GmbH, of Rostock-Warnemünde, Germany,
Commission of the rules governing the allocation of the annual          represented by Dr Michael Schütte, of Bruckhaus Westrick
licence entitlement to the applicants for the import of bananas         Heller Löber, Brussels, with an address for service in Luxem-
within the third country tariff rate quotas established by              bourg at the Chambers of Bonn & Schmitt, 7 Val Ste Croix.
Article 18 of Council Regulation (EEC) No 404/93 of 13 Feb-
ruary 1993 and as substantially amended by EC Regulation
No 1637/98 of 20 July 1998. The application arises actually             The applicant claims that the Court should:
out of the adoption, by the Commission, of a reduction
coefficient based on a pretended incorrect reference quantity           1. Annul the Commission’s decision of 8 July 1999,
figure which reduces the applicants’ licence entitlement for the
1999 marketing year.
                                                                            in the alternative: annul the Commission’s decision in so
                                                                            far as the Commission wrongly used as basis of the
                                                                            calculation of the demand for repayment a total amount
The applicants put forward the following submissions:                       of aid approved of DEM 1 246,9 million (less 27 million
                                                                            aid on closure) instead of the total amount of the operating
                                                                            aid actually granted;
— The definitive reference quantity for 1999 is incorrect. As
    a matter of fact, the Commission knew, when it adopted              2. Order the Commission to pay the costs.
    the definitive reduction coefficient for 1999, that the
    quantities of bananas actually imported or licences used
    were substantially lower than the reference quantities
                                                                        Pleas in law and main arguments
    claimed by the operators;
                                                                        In the contested decision, addressed to Germany, aid by
— Allowing double counting or overclaims of 4 % or 3 % to               Germany in favour of the applicant in the amount of EUR 41,5
    occur is not a case of Commission exercising a discretion.          million was declared to be incompatible with the common
    It has no discretion, only a duty to determine the reduction        market under Article 87(1) EC. In a number of previous
    coefficient in accordance with the law, and it has acted in         decisions the Commission had made a restriction of the
    breach of that duty;                                                applicant’s annual shipbuilding capacity a condition of the
                                                                        approval of the aid. It now reaches the conclusion that the
                                                                        applicant failed to comply with those restriction obligations.
— The Commission did not correctly apply the rules when it              To the extent that the approved capacity was exceeded,
    knowingly accepted a 4 % or 3 % overstatement of the                therefore, the aid is no longer consistent with Community law.
    reference quantity. Furthermore, the Commission cannot
    justify these errors by stating that it has difficulties in
    establishing the precise quantities of bananas which had            The applicant contests the decision on the following grounds:
    been imported. The calculation of the 1999 reduction
    coefficient no longer refers to quantities of bananas                   Breach of essential procedural require-
    marketed during the years preceding the common organi-                  ments
    sation of the market but on the basis of the bananas
    actually imported or on the basis of the licences used
    during 1994, 1995 and 1996.                                         — At the time when the contested decision was voted on, the
                                                                            Commission was irregularly composed, since there was no
                                                                            legal basis for the ’suspension’ of Mr Bangemann. In
                                                                            addition, two members of the Commission, namely Com-
                                                                            mission President Santer and Mrs Bonino, had already
                                                                            been elected to the European Parliament, that being
                                                                            incompatible with their membership of the Commission.
 ---pagebreak--- C 6/28                 EN                    Official Journal of the European Communities                                       8.1.2000
— Moreover, the Commission made inadequate findings of                  Pleas in law and main arguments
     fact and failed to comply with its obligation to state
     reasons within the meaning of Article 253 EC.
                                                                        The application is based on the following grounds:
     Infringement of substantive law
— The Commission applied the concept of reduction of                    The Commission, after its resignation, no longer had jurisdic-
     capacity within the meaning of Article 10a(2)(c) of Direc-         tion to adopt the decision, since its powers were limited to
     tive 90/684/EEC(1) wrongly in law and contrary to its own          current and urgent business.
     previous decision-making practice as meaning a restriction
     of production. The provision is correctly to be understood,
     however, as meaning that only the technical installations
     of a shipyard are to be restricted, regardless of actual           On 8 July 1999, the date when the decision was discussed and
     production. Moreover, by the departure from previous               voted on, the Commission was irregularly composed, since
     practice the principles of protection of legitimate expec-         Commission President Santer and Commissioner Bonino
     tations, equal treatment and proportionality were                  should no longer have been allowed to take part in the
     infringed.                                                         session, following their election to the European Parliament.
                                                                        In addition, Commissioner Bangemann had been wrongly
                                                                        ‘suspended’ by the Commission and excluded from the session.
— In addition, the Commission unlawfully based its decision
     on the total amount of aid approved, without ascertaining
     the amount of aid actually granted.
                                                                        The Commission infringed the applicant’s right to a fair
                                                                        hearing by failing to give it an opportunity to comment either
(1) Council Directive 90/684/EEC of 21 December 1990 on aid to          on the report of the Commission’s advisers, first consulting
    shipbuilding (OJ L 380 of 31.12.1990, p. 27), as amended by         limited, London, which was an essential basis of the reasons
    Council Directive 92/68/EEC of 20 July 1992 (OJ L 219 of            for the decision, or on the comments made by Bundesverband
    4.8.1992, p. 54).                                                   deutscher Banken.
                                                                        The Commission infringed its obligation to state reasons under
                                                                        Article 253 EC, since it did not explain the calculation it used
                                                                        of the return on the Wohnungsbauförderungsanstalt (‘Wfa’)
                                                                        assets, nor showed that the other elements of Article 87(1) EC
                                                                        were present.
Action brought on 12 October 1999 by Westdeutsche
Landesbank Girozentrale against the Commission of the
                    European Communities                                The decision infringes Article 87(1) EC because it extends the
                                                                        concept of aid too far, by applying the principle of the capital
                        (Case T-228/99)                                 investor acting in market-economy conditions, developed for
                                                                        cases of restructuring, without differentiation to the applicant,
                                                                        which is a profitable undertaking. In the decision the Com-
                          (2000/C 6/51)                                 mission moreover requires for the first time that the undertak-
                                                                        ing must achieve an average return for the sector rather than
                                                                        merely a reasonable return.
                  (Language of the case: German)
An action against the Commission of the European Communi-               The Commission overlooks, contrary to its previous decision-
ties was brought before the Court of First Instance of the              making practice and to the case-law of the Court of Justice, the
European Communities on 12 October 1999 by Westdeutsche                 fact that private investors too are not focused exclusively on
Landesbank Girozentrale, of Düsseldorf, Germany, represented            achieving returns. The requirement of an at least average return
by Dr Frank Montag, of Freshfields Deringer, Cologne, with an           discriminates against public undertakings and infringes the
address for service in Luxembourg at the Chambers of Aloyse             guarantee of the right to property in Article 295 EC.
May, 31 Grand’Rue.
The applicant claims that the Court should:                             The Commission applies the principle — which it misunder-
                                                                        stands — of the capital investor acting in market-economy
1. Annul Commission Decision C(1999) 2265 fin. of 8 July                conditions incorrectly and arrives at illusory figures for returns
     1999 concerning a measure taken by the Federal Republic            for the Wfa assets.
     of Germany in favour of Westdeutsche Landesbank Giro-
     zentrale;
                                                                        The Commission wrongly assumes that the risk profile of the
2. Order the Commission to pay the costs.                               Wfa assets is comparable economically with share capital.