CELEX: C1996/269/59
Language: en
Date: 1996-09-14 00:00:00
Title: Action brought on 12 July 1996 by Pantochim SA against the Commission of the European Communities (Case T-107/96)

No C 269/26           EN                  Official Journal of the European Communities                                     14 . 9 . 96
unprofitable steelworks is prohibited . According to the             Action brought on 12 July 1996 by Pantochim SA against
Treaty ( Article 56 ( 2 )) and the code, approval could have                the Commission of the European Communities
been given only in respect of aid relating to closures .                                     ( Case T-107/96 )
                                                                                               ( 96/C 269/59 )
The applicant advances, in particular, the following
pleas :
                                                                                      (Language of the case: French)
— breach of the principle that the administration must act
    in accordance with the law, since the contested decision
    is not in conformity with the ECSC Treaty and the fifth          An action against the Commission of the European
    steel aids code, and since a derogation from the aids code       Communities was brought before the Court of First
    could only have been provided for by a general rule in the       Instance of the European Communities on 12 July 1996 by
    abstract,                                                        Pantochim SA, whose registered office is in Feluy ( Belgium ),
                                                                     represented by Jacques H. J. Bourgeois, of the Brussels Bar,
— breach of the principle of equality, and in particular of          with an address for service in Luxembourg at the Chambers
    the principle that the administration is bound by its own        of Marc Loesch, 11 rue Goethe .
    acts ,
— the absence of any compelling need for approval of aid in          The applicant claims that the Court should :
    order to attain the objectives of the Treaty, since the aid
    payments did not serve to achieve any of the objectives of       — declare that the Commission has infringed the EC Treaty
    Articles 2 and 3 but were designed to offset losses and               by failing to decide, pursuant to the first subparagraph
    liabilities from previous years ,                                     of Article 93 ( 2 ) thereof, that France must alter its
                                                                          procedures governing the grant of aid for biofuel so that
— breach of the inherent scheme of Article 3 of the ECSC                  they comply with the rules in the EC Treaty,
    Treaty and infringement of Article 56 ( 2 ) of that
    Treaty,
                                                                     — find the Community liable for the harm resulting from
                                                                          the    Commission 's    failure to   act  and   order     the
— unlawful legalization of unnotified aids dating from
    1993 ,
                                                                          Commission to make good that harm, provisionally
                                                                          assessed at FF 50 508 729 ,
— breach of the principle of the restrictive interpretation of
    exemption provisions , in particular Article 95 of the           — order the Commission to pay the costs .
    ECSC Treaty,
— breach of the principle of the protection of legitimate            Pleas in law and main arguments adduced in support:
    expectations, since the reliance placed by privately
    operated steel undertakings on meticulous adherence to           The applicant, a company established under Belgian law and
    the aids code as a guideline for action by the Commission        subsidiary of Societa Italiana Serie Acetica Sintetica SpA
    has been rendered worthless ,                                    (' Sisas'), has a factory in Feluy where it produces a methyl
                                                                     ester from vegetable oils, called Sisoil E. It challenges the
— breach of the principle of the right to a fair hearing, since      alleged failure of the Commission to take action under the
    the competitors of Irish Steel were not notified in              procedure laid down by Article 93 ( 2 ) of the EC Treaty
    advance and invited to comment,                                  against the discriminatory grant by the French authorities of
                                                                     tax relief for biodiesel other than ethyl alcohol originating in
— infringement of the procedural rules governing the                 another Member State .
    adoption of the contested decision, in particular
    Article 13 of the ECSC Treaty, concerning the                    The applicant points out in that regard that Sisas contacted
    decision-making procedure of the Commission ,                    both the main French oil companies with a view to entering
    Articles 1 and 27 of the Commission 's rules of procedure        into contracts for the direct supply of Sisoil E and three
    of 9 January 1963 concerning the principle of                    French vegetable oil producers with a view to entering into
    collegiality and the delegation of powers , and Articles 1 1     contracts for ester processing on their behalf at the Feluy
    and 12 of the rules of procedure concerning written              factory . The problem has arisen because the French
    procedure and the procedure for holding meetings,                authorities' approval of the factory in Feluy as a ' pilot unit'
                                                                     is required before such contracts can be entered into .
— breach of the obligation to provide a statement of                 Despite repeated efforts, Sisas has never obtained French
    reasons pursuant to Article 15 of the ECSC Treaty,               Government approval for the applicant to supply in France
                                                                     biodiesel benefiting from the tax relief.
— breach of the principle of proportionality , as a result of
    the distortion of competition arising from the grant of
    approval of a massive expansion of production .                  Since the procedure initiated by the Commission under
                                                                     Article 93 ( 2 ) of the EC Treaty was not pursued , the
                                                                     applicant has brought this action for declaration of failure
                                                                     to act. In that regard, the applicant considers that the legal
 ---pagebreak--- 14 . 9 . 96           EN                   Official Journal of the European Communities                               No C 269/27
instrument enabling the application lodged by Sisas on                    applicant, in accordance with Article 87 of the Rules of
Pantochim's behalf to be granted is a decision which,                     Procedure of the Court of First Instance .
although addressed to France, is of direct and individual
concern to the applicant . Pantochim is currently the only
non-French producer within the Community that is                      Pleas in law and main arguments adduced in support:
genuinely capable of supplying biodiesel in France at a price
that is competitive with that of standard diesel , in so far as it,
like its French competitors, is entitled to the exemption from        The applicant states that the contested decision rejected
excise duty .                                                         specific aspects of a complaint ('the complaint') filed by ITT
                                                                      Promedia NV ('Promedia ') with the European Commission
The applicant also contends that the systematic refusal by            ('the Commission ') on 20 October 1994 against Belgacom
the French administrative authorities to grant the tax relief         NV (' Belgacom') alleging infringements of Article 86 of the
in respect of the biodiesel that it produces reflects their           EC Treaty. The behaviour challenged in the complaint
desire to close off the French market by preventing the only          involves, inter alia, vexatious and confiscatory legal
genuinely competitive non-French producer of biodiesel                proceedings brought by Belgacom against Promedia .
within the Community from gaining access to that                      According to the applicant those actions were part of a plan
market .                                                              to drive it out of business and were based on the Belgian
                                                                      regulatory framework governing commercial directories
                                                                      whose status was questionable under Articles 59, 86 and 90
It also considers that the procedures applied by the French           of the EC Treaty . The second action sought to stop
administrative authorities patently infringe Article 95 of the        Promedia from requesting the subscriber data necessary for
EC Treaty. It is clear, in its view, that those procedures            the publication of directories . The third action sought
adversely affect both the free movement of biodiesel and              expropriation of Promedia 's business in the guise of a
normal conditions of competition between Member States :              contractual claim under a publishing agreement which
the conditions of competition of biofuel producers                    linked Promedia and Belgacom at a time when Belgacom
established in Belgium and those for producers established            enjoyed a statutory monopoly with respect to directories .
in France are not normalized by the rules governing the
grant of the tax relief at issue .
                                                                      The applicant submits that the Commission was wrong in
                                                                      rejecting the complaint. Its arguments are that:
                                                                      — the Commission made an incorrect assessment of the
                                                                           facts which resulted in an inadequate statement of
                                                                           reasons in breach of Article 190 of the EC Treaty in
                                                                           respect of a material argument put forward by Promedia
 Action brought on 22 July 1996 by ITT Promedia NV                         in support of its claim concerning Belgacom's vexatious
   against the Commission of the European Communities                      litigation ,
                        ( Case T-lll /96 )
                          ( 96/C 269/60 )
                                                                      — the Commission made a manifest error of appraisal and
                                                                           failed to review all elements of the case with due care in
                 (Language of the case: English)                           respect of the Belgian regulatory framework governing
                                                                           directories ,
 An action against the Commission of the European                      — the Commission relied on an incorrect assessment of the
 Communities was brought before the Court of First                         Belgian regulatory framework governing directories
 Instance of the European Communities on 22 July 1996 by                   with the result that the conclusion in paragraph 22 of its
 ITT Promedia NV, represented by Ivo Van Bael , Peter                      decision was defective ,
 L'Ecluse and Kris Van Hove , with an address for service in
 Luxembourg at the Chambers of Loesch & Wolter, 11 rue
 Goethe .                                                              — the Commission made a manifest error of appraisal
                                                                           regarding the supposed legality of Belgacom 's refusal to
                                                                           supply,
 The applicant claims that the Court should :
 — annul the Commission decision of 21 May 1996 to reject              — the Commission made a manifest error of appraisal in
     definitively the complaint filed with the Commission                  respect of Belgacom's strategy to eliminate Promedia in
     and registered under number IV/35.268 in so far as it                  order to benefit Belgacom's subsidiary, BDS ,
     concerns Belgacom 's vexatious and confiscatory
     litigation,                                                       — the Commission gave an inadequate statement of
                                                                            reasons in breach of Article 190 of the EC Treaty
 — order the Commission to pay the costs in connection                      regarding the rejection of the part of the complaint
     with the present application, including those of the                   relating to Belgacom 's confiscatory action,