CELEX: C1998/072/56
Language: en
Date: 1998-03-07 00:00:00
Title: Action brought on 5 January 1998 by Mitteldeutsche Erdöl-Raffinerie GmbH (MIDER) against the Commission of the European Communities (Case T-9/98)

7.3.98               EN                Official Journal of the European Communities                                         C 72/25
producers, there was a degree of participation or                 Convention on Human Rights under the European rule of
knowledge on the part of third-country producers, notably         law; the proceedings leading up to the contested decision
in Japan and Latin America.                                       were not so conducted.
                                                                  Finally, the applicant maintains that the inadequate
The contested decision, addressed to Dalmine, the Techint        reasoning of the contested decision and the ineffective
Group' and the applicant (c/o Dalmine'), ordered the             notification of that decision to the applicant constitute
addressees to answer certain questions appended to that           independent and additional grounds for annulment on the
decision within 30 days from the date of its notification.        basis of Articles 190 and 191 of the EC Treaty.
The decision imposed on each of the addressees a penalty
of ECU 1 000 for each day of delay in providing the
information requested.                                            (1) Case T-596/97 (not yet published in the Official Journal).
The applicant points out that the contested decision refers
several times to the Techint Group', which is one of the
addressees of that decision. However, the Techint Group'
is no more than a name used to designate various                  Action brought on 5 January 1998 by Mitteldeutsche
companies engaged in different businesses and having in           Erdöl-Raffinerie GmbH (MIDER) against the Commission
common the fact that some or all of their shares are                              of the European Communities
ultimately owned by San Faustin NV. It is not a legal
                                                                                           (Case T-9/98)
entity. No company bearing the Techint' name is engaged
in the manufacture of steel pipes.                                                          (98/C 72/56)
                                                                                 (Language of the case: German)
The applicant submits that the defendant, by adopting the
contested decision, has sought to exercise its enforcement
jurisdiction extraterritorially. Public international law         An action against the Commission of the European
recognises and respects the separation between the legal          Communities was brought before the Court of First
personality of a corporation and that of its owners and           Instance of the European Communities on 5 January 1998
between a subsidiary and its parent. The decision, by             by Mitteldeutsche Erdöl-Raffinerie GmbH (MIDER),
asserting jurisdiction over a parent company by virtue of         whose registered office is at Spergau, Germany,
its 47 % shareholding in a European company, violates             represented by Michael Schütte and Martina Maier,
this principle. The defendant does not have the power to          Rechtsanwälte, Brussels, with an address for service in
take action against a third-country company merely                Luxembourg at the Chambers of Messrs Bonn and
because the company owns shares in a European affiliate.          Schmitt, 62 Avenue Guillaume.
                                                                  The applicant claims that the Court should:
Furthermore, the defendant infringed Article 11(5) of
Regulation No 17/62 because it lacked jurisdiction to
address to the applicant a mandatory request for
information; it also infringed Articles 15(5) and 16(1)(c)        Ð annul Commission Decision C(97) 3136 final of
of that regulation. As the defendant did not have                      1 October 1997 in so far as it affects the applicant,
jurisdiction to request information from the applicant, it             and especially in so far as it holds the application of
follows that it likewise lacked jurisdiction to impose a               Paragraph 18.1 of the Jahressteuergesetz (Annual Tax
penalty of ECU 1 000 per day and that did so in breach of              Law) 1996 to the applicant's project to be
Article 16(1)(c).                                                      incompatible with the common market and requires
                                                                       the aids paid to the applicant pursuant to that
                                                                       provision to be repaid,
As the imposition of periodic penalty payments on the
applicant must be annulled for lack of competence, in             Ð order the Commission to pay the costs.
breach of Article 16(1)(c), this circumstance alone would
also constitute sufficient ground for declaring void the
collective imposition of those payments on Dalmine. The           Pleas in law and main arguments adduced in support:
decision should be annulled because it violated the
applicant's fundamental procedural right to remain silent
without self-incrimination in the face of what were               The applicant, and indirect subsidiary of Elf Aquitaine SA,
effectively criminal charges. An investigation by the             Paris, was incorporated for the purpose of establishing a
defendant under Regulation No 17/62 into suspected                new refinery at Leuna (in the Bundesland of Saxony-
infringements must be conducted in accordance with the            Anhalt). The total amount of the investment was to be in
fair procedures guaranteed by Article 6 of the European           the area of DM 4,88 billion. In order to make that
 ---pagebreak--- C 72/26              EN                  Official Journal of the European Communities                                    7.3.98
investment possible, not only investment aid was provided           moreover, erroneously classified by the Commission as
but also investment grants of 8 % under the Investitionszu-         operational aids, even though, under both the criteria
lagengesetz (Investment Grants Law) 1993, to which each             recognised by the Commission itself and those recognised
investor in the new Bundesländer was statutorily entitled           by the Court of Justice and the Court of First Instance,
on fulfilling the conditions. The Investitionszulagengesetz         they were unambiguously dependent upon the carrying
1993 was approved by the Commission as an aid                       out of investments and could thus be regarded only as
programme and provided, inter alia, that the investments            investment aids. Because of that misclassification, the
benefiting from the programme had to be concluded                   Commission left the provisions of Article 92(3)(a) of the
before 1 January 1997. Through circumstances outside the            EC Treaty unapplied, even though they were relevant in
applicant's control (e.g. numerous bomb finds on the                this case (in so far as the aid was not in any event
construction site), it became apparent that completion by           compatible with the common market under Article 92(2)(c)
the end of December 1996 was impossible in practical                of the Treaty).
terms. Therefore, on the initiative of the Bundesland
Saxony-Anhalt, a bill to amend the Investitionszulagenge-           3. Infringement of the general Community law principle
setz was introduced, and, during 1995 in connection with            of proportionality, as expressed in Article 3b of the EC
the Jahressteuergesetz 1996, the amendment was decided              Treaty, in that the Commission declared Paragraph 18.1 of
upon. Paragraph 18.1 of the Jahressteuergesetz 1996                 the Jahressteuergesetz 1996 as a whole, and thus in
inserted into Paragraph 3.1.3 of the Investitionszulagenge-         relation to the applicant also, to be incompatible with the
setz, for the date by which the investments were to be              common market.
completed, the year 1999' instead of 1997' (i.e. requiring
completion before 1 January 1999).                                  The applicant submits that it was thereby affected to an
                                                                    extent which was disproportionate and not necessary in
                                                                    achieving the Commission's purpose. The Commission
In the contested decision, the Commission held that to be           could have declared Paragraph 18.1 incompatible with the
a new, additional State aid, which was unlawful and                 common market only in so far as projects other than the
incompatible with the common market. It called upon the             applicant's were concerned. That would have been
Federal Republic of Germany to annul Paragraph 18.1 of              appropriate from the European law standpoint and
the Jahressteuergesetz 1996 and to reclaim all aids granted         possible from the point of view of German law.
thereunder.
                                                                    4. Breach of essential procedural requirements
The applicant makes four legal arguments:
                                                                    The Commission erroneously classified the investment
                                                                    grant relating to the applicant, in the version appearing in
1. Failure to apply Article 92(2)(c) of the EC Treaty               Paragraph 18.1 of the Jahressteuergesetz 1996, as a new
                                                                    additional aid, rather than (correctly) as an approved
                                                                    existing aid. As a result, it failed to adopt the correct
The Commission should have verified whether that                    procedure and propose an appropriate measure to the
derogation applied, especially as the Federal Republic of           Federal Republic of Germany. Moreover, the reasons
Germany had expressly requested that it should be                   stated for the decision were not sufficient and infringed
applied. In its notice on the opening of the main                   Article 190 of the EC Treaty.
verification procedure, the Commission expressed the view
that the rule could not apply. Although, in the course of
the procedure, the Federal Republic of Germany made
further submissions as to the applicability of the rule and
the existence of the conditions, especially in relation to the
applicant, the Commission carried out no verification               Action brought on 9 January 1998 by A. A. M. van Hest
whatever. Since, moreover, no reasons were stated for the           against the Council of the European Union and the
failure to apply the rule, the applicant maintains that there                Commission of the European Communities
has been a breach of Article 190 of the EC Treaty. The                                     (Case T-11/98)
requirements of Article 92(2)(c) of the EC Treaty had been
                                                                                            (98/C 72/57)
fulfilled, since the Saxony-Anhalt region was an area
affected by the division of Germany, and the aid was
                                                                                    (Language of the case: Dutch)
required in order to compensate for the disadvantages
caused. Paragraph 18.1 of the Jahressteuergesetz 1996 was
therefore compatible with the common market pursuant                An action against the Council of the European Union and
to Article 92(2)(c) of the EC Treaty, at least in so far as         the Commission of the European Communities was
the applicant's project was concerned.                              brought before the Court of First Instance of the European
                                                                    Communities on 9 January 1998 by A. A. M. van Hest, of
                                                                    Moergestel (Netherlands), represented by A. A. M. Beek,
2. Defective application of Article 92(3) of the EC Treaty          of the Tilburg Bar.
                                                                    The applicant claims that the Court should:
The Commission failed to recognise that the extension of
the investment period did not constitute an additional aid          Ð declare that the European Economic Community is
over and above the investment grants. Those grants were,                liable in damages to the applicant,