CELEX: C2003/171/57
Language: en
Date: 2003-07-19 00:00:00
Title: Case T-144/03: Action brought on 28 April 2003 by Nadine Schmit against the Commission of the European Communities

19.7.2003              EN                        Official Journal of the European Union                                        C 171/33
European Communities on 14 April 2003 by Sniace, S.A.,                         the conditions offered by Caja Cantabria against offers
whose registered office is in Madrid, represented by José Luis                 received from other private credit institutions and their
Baró Fuentes, lawyer.                                                          adherence to the guidelines laid down by the Commission
                                                                               in its Notice to the Member States of 13 November
                                                                               1993, lead to the conclusion that the loan with profit
                                                                               participation was granted under market conditions.
The applicant claims that the Court should:
                                                                         3.    Infringement of the principles of legal expectations and
—     annul Article 1 of the Decision of 11 December 2002 in                   proportionality. The applicant claims in this regard, first,
      so far as it states Spain has granted aid to Sniace, S.A.                that the lawfulness of the general system in Spain
      amounting to EUR 7 388 258;                                              concerning the granting of loans with profit participation
                                                                               to undertakings undergoing rationalisation, conformity
                                                                               with the formal requirements laid down by the Director
—     in the alternative, maintain Article 1 of the Decision of                de Ayudas de Estado (Director for State aid) (namely:
      11 December 2002 in so far as it finds that the State aid                documentary evidence that the loan was granted under
      is compatible with the common market;                                    market conditions), and the assurances provided by him
                                                                               that no further action would be taken, gave rise to a
                                                                               legitimate expectation on the part of the applicant that
—     order the defendant to pay the costs.                                    the administrative procedure would be concluded either
                                                                               by a decision that no further investigations would ensue
                                                                               or by a finding that the loan could not be considered to
                                                                               be State aid. Secondly, the applicant is of the view that
                                                                               the duration of the investigation (58 months) and the
Pleas in law and main arguments                                                means invested by the Commission in enquiring into a
                                                                               commercial transaction that was not at all technically
                                                                               complicated go beyond the limits of what is normally
                                                                               appropriate or necessary in this kind of operation.
The applicant company in these proceedings objects to the
description as ‘aid granted by a Member State or through State
                                                                         4.    Finally, the applicant undertaking alleges breach of its
resources’ of a contract for a subordinated convertible loan
                                                                               rights of defence and, in particular, of professional
with profit participation, amounting to EUR 12 020 242,                        secrecy as protected by Article 287 EC inasmuch as the
entered into with Caja Cantabria, together with a liquidity
                                                                               Commission forwarded, at the first request, the replies
agreement, which provided for the conversion into equity of
                                                                               of the Spanish authorities (including the applicant’s
credits under the loan.                                                        comments) to the lawyers for the undertaking whose
                                                                               complaint had given rise to the investigation.
In support of its claims, the applicant relies on the following
pleas in law and main arguments:
1.    Misinterpretation of the concept of ‘aid granted by a
      Member State or through State resources’ laid down in
      Article 87(1) EC. First, the applicant disputes that the
      Commission has established in its final decision that the          Action brought on 28 April 2003 by Nadine Schmit
      funds used by Caja Cantabria to finance the loan with                against the Commission of the European Communities
      profit participation made to Sniace were ‘State resources’.
      It points out, in that regard, that Caja Cantabria is a
      private credit institution and thus governed by private                                    (Case T-144/03)
      law. Its funds are not State resources but are private funds
      provided by private individuals and undertakings. In the
      present case, Caja Cantabria acted as a private investor                                   (2003/C 171/57)
      which invests its capital by reference to relatively short-
      term profitability. Secondly, the applicant states that the
      decision to finance Sniace was a strictly commercial                                  (Language of the case: French)
      decision adopted in accordance with criteria relating to
      operational profitability and that the public authorities
      played no part in the technical or commercial decision to
      grant the loan.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
2.    Manifest error of assessment in the application of the rule        European Communities on 28 April 2003 by Nadine Schmit,
      of ‘private investor in a market economy’. According               residing in Ispra (Italy), represented by Pierre-Paul Van
      to the applicant, a detailed analysis of the conditions            Gehuchten and Pierre Jadoul, lawyers, with an address for
      governing the loan, together with a comparison of                  service in Luxembourg.
 ---pagebreak--- C 171/34               EN                          Official Journal of the European Union                                         19.7.2003
The applicant claims that the Court should:                                The applicants claim that the Court should:
—     annul the explicit rejection of the Commission of 11 July
      2002 BSS01 MS CDL/GS/MSG D (02) No 6779 in reply                     —     annul the Commission Decision of 11 December 2002
      to the request registered under No D/256/02 submitted                      which found that measures to support agricultural coop-
      by the applicant pursuant to Article 90(1) of the Staff                    eratives, by virtue of which only such cooperatives are
      Regulations;                                                               able to distribute unlimited amounts of fuel to non-
                                                                                 member third parties whilst enjoying preferential tax
—     annul, in so far as necessary, the refusal to register the                 treatment and which are contained in Royal Decree
      applicant’s fresh complaint;                                               Law 10/2000 of 6 October on emergency support for
                                                                                 agriculture, fisheries and transport do not constitute State
                                                                                 aid within the meaning of Article 87(1) EC;
—     order the Commission to pay the entire costs.
                                                                           —     order the European Commission to pay the costs.
Pleas in law and main arguments
The applicant is an official working for the defendant. She is
bringing her action against the rejection of a request concern-
ing the inclusion of certain documents in her personnel file               Pleas in law and main arguments
and to be informed of alleged written defamatory statements
made in her regard. In support of her action, she alleges breach
of the protection of dignity and equality between men and
women at work, enshrined in Article 31 of the Charter of
Fundamental Rights of the European Union, as a result of the               The applicants in the present action, who have also brought
fact that the defendant failed to take the necessary measures to           Case T-95/03 (Asociación de Empresarios de Estaciones de
ensure the protection of the applicant against the alleged                 Servicio de la Comunidad Autónoma de Madrid and the
denigration by other officials of the defendant institution,               Federación Catalana de Estaciones de Servicio) ( 1), are challeng-
which amounts, in her view, to harassment. She also alleges                ing the Commission’s refusal to regard as State aid the
infringement of Articles 25, 26 and 45 of the Staff Regulations,           measures in Royal Decree Law 10/2000, which allow only
of the obligation to provide reasons and of the rights of                  agricultural cooperatives, and not other cooperatives which
defence.                                                                   also benefit from special protection, to sell B diesel to non-
                                                                           member third parties without being subject to any limit
                                                                           and without losing the tax advantages granted to specially
                                                                           protected cooperatives. The contested decision concludes that
                                                                           the measures at issue do not constitute State aid, since they are
                                                                           justified by the nature or general scheme of the tax system.
Action brought on 15 April 2003 by the Asociación de
Empresarios de Estaciones de Servicio de la Comunidad                      In support of their claims, the applicants maintain that the
Autónoma de Madrid and the Federación Catalana de                          defendant has made various errors of fact and law:
Estaciones de Servicio against the Commission of the
                     European Communities
                                                                           —     in exempting the Spanish Government from its duty to
                                                                                 provide an explanation for the measures at issue on the
                         (Case T-146/03)                                         basis of the nature of the tax system. The contested
                                                                                 decision is at odds with the arguments put forward by
                         (2003/C 171/58)                                         the Government (need for further liberalisation in the fuel
                                                                                 sector as a structural measure responding to the increase
                                                                                 in the price of crude oil and the depreciation of the euro
                   (Language of the case: Spanish)                               against the dollar).
                                                                           —     in concluding that Royal Decree Law 10/2000 is consist-
An action against the Commission of the European Communi-                        ent with the nature of the tax system and in basing that
ties was brought before the Court of First Instance of the                       finding on an incomplete and incorrect analysis of the
European Communities on 15 April 2003 by the Asociación                          tax system applicable to cooperatives.
de Empresarios de Estaciones de Servicio de la Comunidad
Autónoma de Madrid and the Federación Catalana de Estacion-
es de Servicio, established in Madrid and Barcelona respectively,          —     in finding that the contested measures do not constitute
represented by Raimundo Ortega Bueno, lawyer.                                    State aid.