CELEX: C1999/366/22
Language: en
Date: 1999-12-18 00:00:00
Title: Case C-334/99: Action brought on 9 September 1999 by the Federal Republic of Germany against the Commission of the European Communities

C 366/14               EN                   Official Journal of the European Communities                                   18.12.1999
2. Orders the Kingdom of Spain to pay the costs;                          would not raise any objections to the financial allocation
                                                                          of the restructuring on grounds of State aids law. In any
3. Orders the Commission of the European Communities to pay its           event, there can be no question of demanding back the
     own costs.                                                           subsidies already paid before the end of 1995, since before
                                                                          the opening of the State aid proceedings in August 1997
                                                                          the Commission had allowed more than three years to
(1) OJ No C 208 of 12.8.1995.                                             elapse in which it did not claim that the information before
                                                                          it was insufficient. In respect of the notified intentions to
                                                                          pay subsidies also, the Commission did not at any time
                                                                          before August 1997 invoke the suspensive effect of
                                                                          Article 93(3) of the EC Treaty (old version) or of
                                                                          Article 6.4.4 of the Fifth Steel Aids Code or Article 6.4.1
                                                                          of the Sixth Steel Aids Code.
Action brought on 9 September 1999 by the Federal
Republic of Germany against the Commission of the
                     European Communities                              — Infringement of the duty to state reasons
                          (Case C-334/99)
                                                                       — Erroneous application of the ECSC Treaty to the competi-
                                                                          tive assessment of non-ECSC production: The Commission
                          (1999/C 366/22)                                 bases its decision on assumptions of the danger of a
                                                                          spillover effect, and not on factual determination of
An action against the Commission of the European Communi-                 disproportionate application of resources in the ECSC area;
ties was brought before the Court of Justice of the European              it gives insufficient weight to an accountant’s report
Communities on 9 September 1999 by the Federal Republic                   proving the contrary.
of Germany, represented by Claus-Dieter Quassowski of the
Federal Ministry of Finance, Bonn, and Joachim Sedemund,
Rechtsanwalt, Berlin, with an address for service at the               — Erroneous assessment of the investment subsidies under
office of Wolf-Dieter Plessing, Federal Ministry of Finance,              the Fifth Steel Aids Code: The Commission behaves
Graurheindorfer Strasse 108, D-53117 Bonn.                                inconsistently when it argues that the subsidies concerned
                                                                          were not notified on time, whereas it itself called upon the
The Federal Republic of Germany claims that the Court should:             Federal Government to withdraw notification that was
                                                                          made on time. In any event, the mere formal infringement
1. Annul Articles 4 to 7 of the Commission’s decision                     of a duty to notify does not justify final demand for
     K(1999) 2264 endg. of 8 July 1999 concerning ‘State aid              repayment where the substantive permissibility of the aid
     granted by Germany to Gröditzer Stahlwerke GmbH and                  has not been examined.
     its subsidiary Walzwerk Burg GmbH’;
2. Order the Commission, pursuant to Article 23 of the ECSC            — Erroneous assessment of the investment subsidies for the
     Statute of the Court of Justice, to transmit all files since         non-ECSC area: The Commission having itself acknowl-
     1994 concerning this aids proceeding to the Court of                 edged in the decision that in respect of the investment
     Justice and allow the applicant to inspect those files;              subsidies a clear distinction was to be made between the
                                                                          application of the EC and the ECSC Treaties, its reference
3. Order the Commission to pay the costs.                                 to the approval criteria of the ECSC Treaty and the Fifth
                                                                          Steel Aids Code is unlawful. Moreover, the EC activities of
                                                                          Gröditzer Stahlwerke do not constitute a ‘sensitive sector’
Pleas in law and main arguments                                           within the meaning of the Treuhand regulation cited by
                                                                          the Commission or the restructuring guidelines of the
— Irregular composition of the Commission: At the time of                 Commission. The ‘Framework for certain steel sectors not
     the decision, a Member of the Commission was ‘on                     covered by the ECSC Treaty’ (1) cited by the Commission
     holiday’, for which no provision is made in the Treaty, and          in its reasoning contains no material criteria for examining
     the transfer of his area of responsibility to another                aids in favour of the steel production areas described in
     Commissioner had the result that he could no longer                  that regulation and individually distinguished from each
     exercise his office; the number of the Commissioners with            other.
     the authority to make a decision was thus effectively
     reduced to nineteen.
                                                                          In carrying out the required assessment exclusively in
— Infringement of the duty to act within a reasonable time,               accordance with Article 87(3) of the EC Treaty, the Com-
     and of the principles of sound administrative practice and           mission should in the exercise of its discretion have applied
     legal certainty: Although the Commission was informed                to this case the approval criteria which it applied in
     by notifications in 1994 and 1995 of financial measures              numerous other cases of restructuring measures, and
     already carried out and planned for the future, it fed the           in particular several comparable cases concerning the
     legitimate expectation of the Federal Government and the             Treuhand, but also in the cases of Société Marseillaise de
     undertakings concerned over a period of three years that it          Crédit (2) or Olympic Airways (3).
 ---pagebreak--- 18.12.1999               EN                   Official Journal of the European Communities                                      C 366/15
      Finally, the Commission should have cleared the notified           On a proper construction of Article 1 thereof, is Council
      measures in accordance with Article 87(2)(c) of the EC             Regulation (EC) No 3295/94 of 22 December 1994 laying
      Treaty. Despite knowledge of all the relevant. circum-             down measures to prohibit the release for free circulation,
      stances, the Commission passes over that provision with-           export, re-export or entry for a suspensive procedure of
      out a word of justification.                                       counterfeit and pirated goods (Official Journal of the European
                                                                         Communities L 341 of 30 December 1994) also applicable to
— Legally erroneous assumption of aid elements in the                    situations in which goods of the type specified therein are, in
      privatisation procedure: The Commission wrongly                    the course of transit between two countries not belonging to
      assumes, with reference to the case-law of the Court of            the European Community, temporarily detained by the cus-
      Justice (4), that in the sale/liquidation comparative cost         toms authorities in a Member State on the basis of that
      accounting only the liquidation value determined by the            regulation, at the request of a holder of rights who claims that
      accountants was to be taken into account. Under German             his rights have been infringed and whose undertaking has its
      law, however, the owner is responsible both for the                registered office in a non-member country?
      liquidation costs and the costs of restoring the site, and in
      this case the loans from shareholders could not be called
      in from the mass of the insolvency.
      The Commission’s criticism of the privatisation procedure
      expressed in the contested decision infringes the prohib-
      ition of contradictory conduct, since in many cases the
      Commission made on objection to comparable privatisa-
      tion procedures. Moreover, the Commission’s demands are
      not based on a realistic assessment even of the procedures
      that are normal even in the private sector for the disposal
      of shareholdings through the intervention of investment
      banks. The Federal Government therefore takes the view             Action brought on 4 October 1999 by the Portuguese
      that the privatisation as such does not contain any aids.          Republic against the Commission of the European Com-
      That is, however, ignored by the Commission. On this                                           munities
      point, moreover, insufficient grounds are stated for the
      decision (infringement of the fourth indent of the second
      subparagraph of Article 5 of the ECSC Treaty, Article 15                                   (Case C-365/99)
      of that treaty, and Article 253 of the EC Treaty).
                                                                                                 (1999/C 366/24)
( 1) OJ No C 320 of 13.12.1988, p. 3.
( 2) OJ No L 198 of 30.7.1999, p. 1.
( 3) OJ No L 128 of 21.5.1999, p. 1.                                     An action against the Commission of the European Communi-
( 4) Joined Cases C-278/92, C-279/92 and C-280/92 Spain v Com-
     mission (1994) ECR I-4103.
                                                                         ties was brought before the Court of Justice of the European
                                                                         Communities on 4 October 1999 by the Portuguese Republic,
                                                                         represented by Luı́s Fernandes, Director of the Legal Service of
                                                                         the Directorate-General for the European Communities of the
                                                                         Ministry of Foreign Affairs, and Maria João Abecassis, Assistant
                                                                         in the Private Office of the Minister for Agriculture, Rural
                                                                         Development and Fisheries, acting as Agents, and by Carlos
                                                                         Aguiar and Tiago Ferreira de Lima, of the Lisbon Bar, and
                                                                         Gerard van der Wal, of the Brussels Bar, with an address for
                                                                         service in Luxembourg at the Portuguese Embassy, 33 Allée
Reference for a preliminary ruling by the Landesgericht                  Scheffer.
Korneuburg (Austria) by order of that court of 17 Sep-
tember 1999 in the case of SEIKO Kabushiki Kaisha v
                        Mohammed Ibrahim
                                                                         The applicant claims that the Court should:
                          (Case C-362/99)
                                                                         a) declare the present action admissible;
                          (1999/C 366/23)
                                                                         b) annul Commission Decision 99/517/EC (1) in so far as it
Reference has been made to the Court of Justice of the                        replaced the words ‘1 August 1999’ in Article 4 of Decision
European Communities by order of the Landesgericht                            98/653/EC (2) with the words ‘1 February 2000’;
(Regional Court) Korneuburg (Austria) of 17 September 1999,
received at the Court Registry on 30 September 1999, for a
preliminary ruling in the case of SEIKO Kabushiki Kaisha v               c) order the Commission to pay the costs incurred by the
Mohammed Ibrahim on the following question:                                   Portuguese Republic.