CELEX: C1996/031/18
Language: en
Date: 1996-02-03 00:00:00
Title: Appeal brought on 20 November 1995 by TWD Textilwerke Deggendorf GmbH against the judgment delivered on 13 September 1995 by the Third Chamber, extended composition, of the Court of First Instance of the European Communities in Joined Cases T-244/93 and T-486/93 between TWD Textilwerke Deggendorf GmbH and the Commission of the European Communities (Case C-355/95 P)

3 . 2 . 96              EN I                Official Journal of the European Communities                                     No C 31 /9
3 . order the Commission to pay the costs of Tierce                    Member State must, whether by primary legislation or
       Ladbroke both in the proceedings before the Court of            otherwise, not grant advantageous treatment to particular
       First Instance and before this Court .                          forms of economic activity subject to that Member State 's
                                                                       jurisdiction . Thus, the fact that Article 15 ( III ) constitutes
                                                                       primary legislation and provides that the statutory and fiscal
                                                                       retentions on bets placed in France on Belgian races are to be
Pleas in law and main arguments adduced in support:
                                                                       the same as if those bets were taken in Belgium — but
                                                                       different from when bets are taken on French races — does
                                                                       not mean that the difference in treatment falls outside the
The Court of First Instance 's finding that the opening of the
French market to the Belgian PMU is not in itselfcontrary to           scope of Article 92 . National law must conform to
Article 92 ( I ) of the Treaty solely because it has the effect of     Community law .
increasing the revenue of the Belgian PMU
                                                                       The Court of First Instance 's finding that the treatment of
                                                                       French bets on Belgian races pursuant to Article 75 (III) is
Where a Member State opens up its market to a foreign                  not a State aid because it does not involve a derogation from
undertaking it is necessary to examine whether the revenue             the general system
received by that foreign undertaking comes either directly
from the Member State or as a result of a State-directed
                                                                       Prior to the commencement of the Two PMUs Agreement
transfer of funds . If that is the case there is State aid unless it
                                                                       and Decret No 91-118 the only bets permitted in France
can be shown that the revenue received is a normal payment             were those placed on French races . That was 'the general
for services rendered by that foreign undertaking to either            system '. Article 15 ( III ) was not applied . The introduction,
the State or the transferor of the funds .
                                                                       in 1991 , of a new and different regime does not mean that
                                                                       the different regime becomes the 'general system',
                                                                       particularly when only one undertaking, namely the Belgian
The error of the Court of First Instance was to fail to
                                                                       PMU, can take advantage of the new regime . Article 92 does
analyse :                                                              not permit a Member State to treat foreign trade subject to
                                                                       its jurisdiction in a different way from domestic trade .
                                                                       Equally, measures which are only of benefit to one
  ( i ) whether the revenue obtained by the Belgian PMU
                                                                       particular undertaking cannot be considered to be part of a
        arose as a result of a compulsory levy and transfer
                                                                       general system.
        payment system; and
( ii ) if so, what amount, if any, of that revenue, could be said      ( 1 ) OJ No C 286 , 28 . 10 . 1995 , p . 12 .
        to be for payment for services rendered by the Belgian
        PMU to the PMU .
The Court of First Instance 's finding that the Commission
committed no manifest error in its findings of fact or in its
assessment of the evidence that the Belgian PMU drew no                Appeal brought on 20 November 1995 by TWD
real advantage from the application of the two PMUs                    Textilwerke Deggendorf GmbH against the judgment
Agreement                                                               delivered on 13 September 1995 by the Third Chamber,
                                                                        extended composition, of the Court of First Instance of the
                                                                        European Communities in Joined Cases T-244/93 and
 It is common ground that the Belgian PMU receives between
                                                                        T-486/93 between TWD Textilwerke Deggendorf GmbH
 25 and 28 % of the bets placed in Belgium on Belgian races
                                                                             and the Commission of the European Communities
 and 23,1 % of bets placed in France on Belgian races . The
 issue is whether on those agreed facts there is a State aid .                                  ( Case C-355/95 P)
 There is either an aid pursuant to Article 92 ( 1 ) of the Treaty                                  ( 96/C 31 / 18 )
 or there is not . There is no margin of appreciation on this
 issue . Accordingly the Court of First Instance fell into error
 in considering that the Commission had a margin of                     An appeal against the judgment delivered on 13 September
 appreciation in assessing whether the admitted facts                   1995 by the Third Chamber, extended composition, of the
 disclosed a State aid .                                                Court of First Instance of the European Communities in
                                                                        Joined Cases T-244/93 and T-486/93 between TWD
                                                                        Textilwerke Deggendorf GmbH and the Commission of the
 The Court of First Instance 's finding that, in considering            European Communities was brought before the Court of
 whether there was any real advantage to the Belgian PMU                Justice of the European Communities on 20 November
 the Commission was entitled to have regard to                           1995 by TWD Textilwerke Deggendorf GmbH,
 Article 15 (III) of the Law of 23 December 1964                        Deggendorf ( Federal Republic of Germany ), represented by
                                                                        Walter Forstner, Lutz Radtke and Karl-Heinz Schupp,
                                                                        Rechtsanwalte , assisted by Professor Michael Schweitzer,
 The question of whether a measure adopted in favour of a               Passau, with an address for service in Luxembourg at the
  particular undertaking is a State aid is to be decided by              office of Mr Stein, Bayerische Landesbank International SA,
  Community law not national law. The basic role is that a               7-9, Boulevard Royal .
 ---pagebreak--- No C 31 / 10            EN                    Official Journal of the European Communities                                    3 . 2 . 96
The appellant claims that the Court should:                              1995 by the Commission of the European Communities,
                                                                         represented by Francisco Enrique Gonzalez-Diaz and
1 . set aside the judgment of the Court of First Instance of             Richard Lyal, members of the Legal Service, acting as agents,
      13 September 1995 in Joined Cases T-244/93 and                     with an address for service in Luxembourg at the office of
     T-486/93 TWD Textilwerke Deggendorf GmbH v.                         Carlos Gomez de la Cruz, Centre Wagner, Kirchberg.
     Commission ( ! );
                                                                         The appellant claims that the Court should :
2.   declare     void   Article    2  of   Commission       Decision
     91/391 /EEC of 26 March 1991 on aid granted by the                  — quash the judgment of the Court of First Instance ( First
     German Government to TWD Textilwerke Deggendorf                          Chamber, extended composition ) of 18 September 1995
     GmbH ( OJ 1991 No L 215 , p. 16 ) and Article 2 of                       in Case T-548/93 , Ladbroke Racing Limited v.
     Commission Decision 92/330/EEC of 18 December                            Commission of the European Communities in so far
      1991 on aid by Germany to that undertaking ( OJ 1992                    as it annuls the Commission's decision contained in the
     No L 183 , p. 36 );                                                      letter dated 29 July 1993 rejecting the Ladbroke
                                                                              Racing Limited complaint of 24 November 1989
3 . order the Commission to pay the costs .                                   ( IV/33.374 ),
                                                                         — dismiss       the   application      under Article 173     as
Pleas in law and main arguments adduced in support:                           unfounded,
Infringement of Community law: the appellant repeats the                 — order the applicant to pay the costs in both levels of
pleas advanced by it in the proceedings at first instance (2 )                jurisdiction.
and further complains that the Court of First Instance
reinterpreted the contested decisions in an inadmissible
manner as meaning that the Commission had declared the                   Pleas in law and main arguments adduced in support:
new aid incompatible with the common market until such
time as the old aid was repaid . The Court of First Instance             The Commission submits that the judgment of the Court of
                                                                         First Instance is vitiated by errors of law and should be set
should in that regard have disregarded the wording and
scheme of the Commission decisions, and was entitled to                  aside . First, the judgment erred in law in formulating a
rely only on the considerations set out in the Commission's              general principle according to which the Commission must
statement of reasons; however, such considerations are                   examine the compatibility with the Treaty of legislation
                                                                         imposing obligations previously included in private
subordinate to the operative part of a decision . Moreover,
the reinterpretation applied to Article 1 of the decisions is in
                                                                         agreements before examining the applicability of Articles 85
                                                                         and 86 to these agreements . Second, the judgment ignores
any event inadmissible since it is only Article 2 thereof which
is being contested.                                                      the fact that, irrespective of the compatibility of French
                                                                         legislation with the Treaty, the Commission found that
                                                                         there were no infringements of Articles 85 and 86 of the
(') OJ No C 286 , 28 . 10 . 1995 , p . 8 .                               Treaty. That is to say, the Commission had sufficient
(2 ) As to those advanced in Case T-244/93 ( previously Case             grounds to reject the Applicant's complaint relating to the
     C-161 /91 ), see OJ No C 212 , 14 . 8 . 1991 , p. 10; as to those   alleged infringement of Articles 85 and 86 by the
     advanced in Case T-486/93 ( previously Case C-220/92 ), see
     OJ No C 167, 4 . 7 . 1992 , p. 8 .
                                                                         undertakings without having to determine whether or not
                                                                         the French legislation was incompatible with the Treaty.
                                                                         Third, the judgment is not adequately reasoned .
                                                                         (') OJ No C 286 , 28 . 10 . 1995 , p . 12 .
Appeal brought on 22 November 1995 by the Commission
of the European Communities against the judgment
delivered on 18 September 1995 by the First Chamber
( extended composition ) of the Court of First Instance of the           Reference for a preliminary ruling by order of the Tribunale
European Communities in Case T-548/93 ( J ) between                      di Salerno of 12 October 1995 in the proceedings brought
Ladbroke Racing Ltd and the Commission of the European                   before that court by Somalfruit SpA and Camar SpA against
       Communities, supported by the French Republic                     the Ministero delle Finanze and Ministero del Commercio
                         ( Case C-359/95 P)                                                         con l'Estero
                             ( 96/C 31/19 )                                                      ( Case C-369/95 )
                                                                                                     96/C 31 /20 )
An appeal against the judgment delivered on 18 September
 1995 by the First Chamber ( extended composition ) of the                Reference has been made to the Court of Justice of the
 Court of First Instance of the European Communities in                   European Communities by order of the Tribunale di Salerno
 Case T-548/93 between Ladbroke Racing Ltd and the                        ( Regional Court, Salerno ) of 12 October 1995 , which was
 Commission of the European Communities, supported by                     received at the Court Registry on 28 November 1995 , for a
the French Republic, was brought before the Court of                      preliminary ruling in the proceedings brought before that
Justice of the European Communities on 22 November                        court by Somalfruit SpA and Camar SpA against the