CELEX: C2000/063/27
Language: en
Date: 2000-03-04 00:00:00
Title: Case C-482/99: Action brought on 20 December 1999 by the French Republic against the Commission of the European Communities

C 63/14                EN                     Official Journal of the European Communities                                       4.3.2000
2. The Court of First Instance erred in law in failing to find              the legal categorisation of the facts). In any event, the
     that the Commission should have notified the Appellants                Commission fails entirely to explain why it concluded that
     of its Decision when they formally requested notification              the mere finding that an undertaking is public in nature
     on 24 August 1998;                                                     suffices to establish that resources made available within
                                                                            the meaning of Article 87 of the Treaty must be public in
3. The Appellants’ rights of defence were infringed during                  origin (breach of the obligation to state reasons). Finally,
     the proceedings before the Court of First Instance, consti-            the Commission did not even examine whether or not the
     tuting a breach of procedure;                                          measures which it challenged were attributable to the State
                                                                            (error of law).
4. The Court of First Instance’s decision manifestly distorted
     the clear sense of the evidence, and amounted to an
     incorrect legal assessment of the facts.
                                                                         — (In the alternative): manifest error of assessment in
                                                                            determining whether SBT and Altus had acted prudently
(1) OJ C 358 of 21.11.1998, p. 19.                                          in providing funds to Stardust: it was not until the close of
(2) OJ C 174 of 19.6.1999, p. 6.                                            the accounts on 30 June 1995, when it was confirmed that
                                                                            there had been a considerable loss (FRF 362 million)
                                                                            attributable to the discovery and inclusion of the conse-
                                                                            quences of the fraudulent activities of the former directors,
                                                                            that the financial commitment made by SBT/Altus turned
                                                                            out to be of the disproportionate nature criticised by
                                                                            the Commission. Prior to that date, however, Stardust’s
                                                                            accounts reflected a situation which was acceptable for a
Action brought on 20 December 1999 by the French                            company just starting up. The Commission errs in refusing
Republic against the Commission of the European Com-                        to take account of the various cases of fraud in order to
                             munities                                       determine whether or not SBT acted prudently, on the
                                                                            ground in particular that, pending the decisions of the
                                                                            national courts seised of those cases, it cannot comment
                         (Case C-482/99)                                    on them.
                          (2000/C 63/27)
                                                                         — Internal contradictions in the grounds of the contested
An action against the Commission of the European Communi-                   decision, particularly with regard to the identification of
ties was brought before the Court of Justice of the European                the provider of the aid, since the Commission at times
Communities on 20 December 1999 by the French Republic,                     focuses its attention on Crédit Lyonnais and the CDR
represented by Kareen Rispal-Bellanger and Frédérik Million,                jointly, at times on Crédit Lyonnais alone, and at times on
acting as Agents, with an address for service in Luxembourg at              the CDR alone. The Commission’s entire reasoning appears
the French Embassy, 8B Boulevard Joseph II.                                 to be based on the supposition that the aid is attributable
                                                                            in its entirety to Crédit Lyonnais, including recapitalisations
The French Republic claims that the Court should:                           subsequent to debt restructuring which were only deferred
                                                                            to the charge of the CDR, whereas the actual operative
— Annul in its entirety the decision of 8 September 1999                    part of the decision, in contrast, focuses on the aid from
     adopted by the Commission of the European Communities                  the CDR to Stardust and orders it to be recovered.
     on the basis of Articles 87 EC and 88 EC concerning aid
     for the Stardust Marine undertaking;
                                                                         — Infringement of the principle of legal certainty: the contest-
— Order the Commission to pay the costs.                                    ed decision clearly overlooks important aspects of the
                                                                            Commission’s previous decisions on aid granted to Crédit
                                                                            Lyonnais. First, the Commission’s approach in the contest-
Pleas in law and main arguments                                             ed decision has the effect of excluding the possibility
                                                                            for the CDR to dispose of assets (if appropriate, after
— Breach of Article 87(1) EC: the contested decision miscon-                recapitalisation), even if this option is, as in the case of
     strues the concept of public resources inasmuch as the                 Stardust, the most rational from the economic point of
     Commission takes the view therein that the ostensibly                  view and thus corresponds to the task conferred on it.
     public nature of the resources made available by subsidia-             Second, the Commission refuses to accord any significance
     ries and subsubsidiaries of Crédit Lyonnais (Altus Finance             whatever to the care with which the CDR acted.
     and SBT) is a matter of fact not open to challenge. The
     public nature of the resources of an undertaking cannot be
     inferred merely from the fact that the undertaking belongs
     to the public sector (error of law). In this case, SBT and          — Breach of the French Government’s rights of defence:
     Altus (subsidiaries of Crédit Lyonnais) did not, at the time           within the context of the written administrative procedure,
     of the interventions for which they are criticised, have any           the Commission at no time indicated its intention to apply
     budgetary allocations or any other State resources (error in           the notion of continuity of State action, that is to say, to
 ---pagebreak--- 4.3.2000                 EN                   Official Journal of the European Communities                                       C 63/15
     attribute all of the measures in support of Stardust to the         Pleas in law and main arguments
     allegedly careless conduct of SBT and Altus prior to debt
     restructuring. This notion appears only in the contested            — Infringement of the freedom to provide
     decision and is none the less the key concept therein.                  services.
                                                                             (a) Bar to participation in a construction consortium: the
                                                                                  provision in Paragraph 1(1), second sentence, of the
                                                                                  Gesetz zur Regelung der gewerbsmässigen Arbeit-
                                                                                  nehmerüberlassung (Law governing commercial
                                                                                  deployment of employees) (‘the AÜG’), under which
                                                                                  the secondment of employees to carry out work
Action brought on 21 December 1999 by the Commission                              does not, under specified circumstances, constitute a
of the European Communities against the Federal Repub-                            deployment of employees for which authorisation
                           lic of Germany                                         is required, is of considerable importance to the
                                                                                  construction industry. However, since the exception is
                                                                                  predicated on the condition that German collective
                          (Case C-493/99)                                         agreements within the same (German) economic sector
                                                                                  apply to all members of a consortium, construction
                                                                                  companies from other Member States can participate
                           (2000/C 63/28)                                         in a consortium only if they maintain a subsidiary
                                                                                  in Germany with construction workers working in
An action against the Federal Republic of Germany was                             Germany and are thus able to be party to collective
brought before the Court of Justice of the European Communi-                      agreements. They cannot deploy employees from their
ties on 21 December 1999 by the Commission of the European                        place of establishment or their subsidiaries in other
Communities, represented by Jörn Sack, Legal Adviser, acting                      Member States to a consortium established in Ger-
as Agent, with an address for service in Luxembourg at the                        many, which normally takes the form of a private-law
office of Carlos Gómez de la Cruz, of the Commission’s Legal                     company, without the consortium thereby forfeiting
Service, Wagner Centre C 254, Kirchberg.                                          the possibility of invoking the abovementioned dero-
                                                                                  gating provision, with the result that such employees
                                                                                  would be unlawfully deployed. For that reason, under-
The applicant claims that the Court should:                                       takings from other Member States covered by non-Ger-
                                                                                  man collective agreements within the same economic
(1) declare that the Federal Republic of Germany has failed to                    sector are not at all accepted in such consortia set up
     fulfil its obligations under Articles 43 EC and 49 EC, by                    or to be set up in Germany. To that extent they cannot
     providing through legislation that construction companies                    exercise the freedom to provide services guaranteed by
     established in other Member States may:                                      the EC Treaty.
     (a) provide transfrontier services on the German market                 (b) Exclusion from the deployment of employees among
          as part of a consortium (Arbeitsgemeinschaft) only if                   construction companies: the deployment of employees
          they have a registered office or at least a subsidiary in               for work normally carried out by workers has in
          Germany employing their own staff and have con-                         principle been unlawful within the construction indus-
          cluded a company-wide collective agreement for those                    try since 1 January 1998 under Paragraph 1b, first
          staff;                                                                  sentence, of the AÜG. The second sentence of that
                                                                                  provision, however, permits this between firms in the
     (b) deploy workers on a transfrontier basis to other                         construction industry if they are covered by the same
          construction companies only if they have a registered                   framework and social-welfare collective agreements or
          office or at least a subsidiary in Germany employing                    are generally bound by such agreements. Undertakings
          their own staff and are, as members of a German                         (in the vast majority foreign undertakings) which do
          employers’ association, covered by a framework and                      not satisfy those conditions are thereby also precluded
          social-welfare collective agreement;                                    from providing so-called mutual assistance (Kollegen-
                                                                                  hilfe) to German companies, or even to companies in
     (c) not establish a subsidiary in Germany which is recog-                    Germany belonging to their own commercial group.
          nised as a construction company if its staff is respon-
          sible exclusively for duties concerning administration,            Grounds of public safety and health can in the present case
          marketing, planning, supervision and/or wages and                  be discounted from the outset as a basis for justification
          salaries; in order to be so recognised, such a subsidiary          (Article 55 EC in conjunction with Article 46 EC). Even if
          must, within the labour area of Germany, employ                    one wished to consider the social order in general as
          workers who provide construction services accounting               constituting part of public policy of a Member State within
          for more than 50 % of the company’s total working                  the meaning of Article 46, the German measures cannot
          time;                                                              be justified on that basis either, since they are general in
                                                                             nature and do not in any wise focus on the question
(2) order the Federal Republic of Germany to pay the costs of                whether the wages and social provisions guaranteed to the
     the proceedings.                                                        employees may in fact point to ‘pay-related dumping’.