CELEX: C1997/199/77
Language: en
Date: 1997-06-28 00:00:00
Title: Action brought on 18 April 1997 by Ferriera Lamifer S.p.A. against the Commission of the European Communities (Case T-122/97)

No C 199/30            EN                 Official Journal of the European Communities                                    28 . 6 . 97
introduced by Article 2 of Regulation ( EEC, Euratom,                Pleas in law and main arguments adduced in support:
ECSC ) No 840/95 creates an unjustifiable and unfair
difference    in   treatment    as  between   Presidents   and
Members of the Court of Auditors who are not yet in                  In 1994 the Italian Government notified the Commission
receipt of a pension and those who are, and also as
                                                                     of Law No 481 of 3 August 1994 and Decree No 683
between the pensioners themselves, according to the date
                                                                     of the Ministro dell'Industria , del Commercio e
taken into account for the purpose of determining when a
                                                                     dell'Artigianato ( Ministry of Industry, Commerce and
pension is acquired.
                                                                     Crafts ) of 12 October 1994, both of which were intended
                                                                     to facilitate the implementation of a plan for the
                                                                     restructuring of the Italian steel industry through aid for
                                                                     the closure of production units and for the re-training of
                                                                     personnel for work in economic sectors other than steel .
                                                                     By decision of 12 December 1994 the Commission
                                                                     approved those measures .
Action brought on 18 April 1997 by Ferriera Lamifer
S.p.A. against the Commission of the European
                           Communities
                        ( Case T-122/97 )
                                                                     By the first contested decision, adopted on the basis of the
                                                                     Steel Aid Code (') and the above decision of 12 December
                          ( 97/C 199/77 )                            1994, the Commission declared that the aid planned in
                                                                     favour of, inter alia, the applicant undertaking, was
                                                                     incompatible with the common market, on the assumption
                 (Language of the case: Italian)                     that aid for closures is to be granted solely to
                                                                     undertakings regularly manufacturing products for the
                                                                     steel market within the meaning of Article 4 ( 2 ) of the
 An action against the Commission of the European                    Code .
 Communities was brought before the Court of First
 Instance of the European Communities on 18 April 1997
 by Ferriera Lamifer S.p.A. , represented by Camine Punzi
 and Filippo Satta, of the Rome Bar, with an address for             The applicant, a company which possesses a hot-rolling
 service in Luxembourg at the Chambers of Charles Turk,              mill for the production of reinforcing rods for cement,
 13B Avenue Guillaume .                                              points out first of all that Article 4 ( 2 ) of the Code
                                                                      recognizes aid as compatible with the common market on
                                                                     condition that the undertakings in question, inter alia,
 The applicant claims that the Court should annul and                 ' have been regularly producing ECSC iron and steel
 amend :                                                              products up to the date of notification of the aid'. On that
                                                                      point, the applicant argues that the criterion for verifying
                                                                      the regularity of production, as further defined by the
 — Commission Decision No 4288 of 18 December 1996 ,                  Commission in its decision of 12 December 1994 , is
      notified to the applicant by post on 1 1 March 1997             invalid .
      by the Direzione Generale Produzione Industriale del
      Ministero dell'Industria della Repubblica Italiana
      ( General Industrial Production Directorate of the              In the first place, it is unreasonable to take 1993 — the
      Italian Ministry of Industry ), finding 'the State aid          year immediately preceding the adoption of national
      measures envisaged by Italy as part of the                      measures to encourage the closure of steel plants — as the
      restructuring of its private steel industry', in favour         sole reference period . Since the Code did not specify an
      inter alia of Ferriera Lamifer, incompatible with the           initial date for the reference period for calculating
      common market within the meaning of Article 4 ( c ) of          regularity of production, it seems totally at odds with the
      the ECSC Treaty and refusing to authorize the                    Code itself to restrict it so drastically. Secondly, it is
    , granting of such aid,                                           arbitrary and unfounded to take the MPP ( maximum
                                                                      possible production of an undertaking whose production
                                                                      timetable is based on the 24-hour day ) as a comparator
 — Commission Decision No 17924 of 12 December
                                                                       against which to measure actual production over the
      1994 in so far as, in identifying the criteria laid down         reference period. On that point the applicant points out
      by the second indent of Article 4 ( 2 ) of Commission            that the Code merely mentions ' regularity' of production,
      Decision No 3855/91 /ECSC of 27 November 1991
                                                                       by which it obviously means production according to the
      establishing Community rules for aid to the steel                undertaking's past /practice, and certainly not by reference
      industry ('the Aid Code'), it provides that ' regular            to a factor such as the MPP which is inappropriate for
      production' is to be interpreted as the manufacture of           that purpose .
      steel products 'for the year 1 993 ... on average for at
      least one shift per day — that is, at least eight hours
      per day — five days per week ',
                                                                       Lastly, the applicant maintains that the statement of
                                                                       reasons is defective, in so far as the contested decision did
  — all other measures entailed by, connected with or                  not take into account its particular circumstances .
       howsoever consequential to, the above measures .                Specifically, the fixing of a single comparator for both
 ---pagebreak--- 28 . 6 . 97            EN                       Official Journal of the European Communities                               No C 199/31
steelworks      and   rolling     mills     amounts      to   serious      1 590 000 000 ( ECU 118 000 000 ) to be compatible with
discrimination against the applicant, whose production                     the common market .
operations are based on a single working shift per day, by
contrast with steel mills which average three shifts daily.
Furthermore, the regularity of its production has been                     This action challenges the legal assessment from the
impaired by measures adopted by the local authorities                      standpoint of Article 92 et seq of the EC Treaty, and
prohibiting night-time production operations since, having                 challenges the Commission's decision inasmuch as it
regard to the cost of electricity, those hours are the most                confirms the payment of OS 1 273 000 000 ( ECU
economic .                                                                 95 000 000 ) already conditionally approved by the
                                                                           Commission and grants further aid of OS 317 000 000
(') Commission Decision No 3855/91 /ECSC of 27 November                    ( ECU 23 000 000 ). It also challenges the undertakings and
    1991 establishing Community rules for aid to the steel                 conditions on the part of the Austrian authorities laid
    industry ( OJ No L 362 , 31 . 12 . 1991 , p. 57 ).                     down in Article 2 of the decision in that they are not
                                                                           proportionate to the amount of the aid granted and thus
                                                                           infringe the rules laid down by the Commission itself in its
                                                                           ' Community Guidelines on State Aid for Rescuing and
                                                                           Restructuring Firms in Difficulty' ( 1 ).
Action brought on 18 April 1997 by Salomon SA against                      In support of its action, the applicant maintains that there
        the Commission of the European Communities                         has been :
                        ( Case T-123/97 )
                          ( 97/C 199/78 )
                                                                           — a      manifest error of assessment inasmuch        as the
                                                                                Commission held the general conditions               for
                 (Language of the case: French)                                 authorizing payment of aid to have been satisfied,
An action against the Commission of the European
                                                                           — a manifest error of assessment and infringement of
Communities was brought before the Court of First
                                                                                Article 92 ( 3 ) ( c ) of the EC Treaty in that the aid
Instance of the European Communities on 18 April 1997
                                                                                granted by the Austrian Government:
by Salomon SA, whose registered office is at Pringy
( France ), represented by Loraine Donnedieu de Vabres and
Jean-Pierre Jouyet, of the Paris Bar, with an address for                      — are not capable of restoring the viability of HTM
service in Luxembourg at the Chambers of Aloyse May,                                 within a reasonable time,
31 Grand-Rue .
                                                                               — are not capable of preventing               unjustified
The applicant claims that the Court should :                                         distortions of competition, and
— annul Commission Decision 97/8 1 /EC of 30 luly                              — are disproportionate in relation to the costs and
     1996 ,                                                                          advantages of the restructuring,
— order the Commission to pay the costs .
                                                                           — a manifest error of assessment and infringement of
                                                                                Article 92 ( 3 ) ( c ) of the EC Treaty:
Pleas in law and main arguments adduced in support:
                                                                               — as regards the implementation of the restructuring
Austria Tabakwerke AG ('AT') is a public holding                                     plan and compliance with the conditions imposed,
company that is 100% owned by the Republic of Austria .
Head Tyrolia Mares ('HTM ') is an Austrian holding
company which groups together undertakings which                               — in that the Commission will not be in a position to
manufacture and market sports equipment, especially for                              exercise its supervision;
winter sports, tennis and diving.
                                                                           — infringement of Article 190 of the EC Treaty in that
The applicant is a direct competitor of HTM in the                              the Commission has not stated sufficient reasons for
markets for winter sports ( skis, bindings and ski boots ),                     its decision .
sports shoes and walking boots .
                                                                           (') OJ No C 368 , 23 . 12 . 1994 , p . 12 .
On 30 July 1996, the Commission declared the whole of
the aid already granted, or remaining to be granted, by AT
to HTM in the form of capital injections of OS