CELEX: C2000/247/27
Language: en
Date: 2000-08-26 00:00:00
Title: Case C-242/00: Action brought on 16 June 2000 by the Federal Republic of Germany against the Commission of the European Communities

C 247/20                EN                      Official Journal of the European Communities                                        26.8.2000
The Court of First Instance based its conclusions on the extent            2.    order the defendant to pay the costs.
of the rights of a complainant on a misapplication of the BAT
& Reynolds case, and Matra Hachette v. Commission. The
Court should have focussed on the fact that the Commission,
having granted access to the file, failed to give Kish sufficient
time to comment on documents in its file, contrary to the
principles set out in Guérin Automobiles v. Commission. As a
                                                                           Pleas in law and main arguments
result, the Court is in breach of Community law.
Third ground: incorrect application of Article 253 of the EC
                                                                           —     Infringement of Article 87(3) and Article 3(1)(g) of the
Treaty, and misinterpretation of the evidence before the Court
                                                                                 EC Treaty, the principle of equal treatment and the
in the judgment.
                                                                                 principle of proportionality.
In concluding that the contested decision was adequately
reasoned pursuant to Article 253 (ex Article 190) of the
Treaty, the Court misinterpreted the facts as established at the                 —     In the context of its investigation into the potential
oral hearing. Pursuant to established case law, the extent of the                      amount of development aid to disadvantaged econ-
obligation to state reasons is a question of law reviewable by                         omic areas based on existing regional disparities
the Court of Justice on appeal.                                                        within Article 87(3)(c) of the EC Treaty, the Com-
                                                                                       mission established, on the basis of income and
                                                                                       unemployment levels, the extent to which areas
                                                                                       are disadvantaged measured against the overall
(1) EEC Council Regulation No. 17 of 6 February 1962, First Regu-                      economic situation in each Member State. For
    lation implementing Articles 85 and 86 of the Treaty, OJ 013,                      Germany, it calculated that 23,4 % of the population
    21.2.1962, p. 204 (OJ, English Special Edition 1959-1962, p. 87).                  live in areas where the economic situation is so bad
                                                                                       compared to the economic situation in Germany as
                                                                                       a whole that aid under Article 87(3)(c) of the EC
                                                                                       Treaty is in principle justified. Germany applied for
                                                                                       aid under Article 87(3)(c) of the EC Treaty in respect
                                                                                       of areas whose size exactly reflects the figure of
                                                                                       23,4 % of the German population calculated by the
                                                                                       Commission. The Commission’s curtailing of the
                                                                                       parameters of the areas eligible for aid to just 17,6 %
                                                                                       of the German population is not based on sufficient
                                                                                       grounds nor is it justifiable on the basis that trading
Action brought on 16 June 2000 by the Federal Republic                                 conditions would otherwise be affected to an extent
of Germany against the Commission of the European                                      contrary to the common interest. Germany’s rela-
                           Communities                                                 tively strong economic situation is in any event
                                                                                       already taken account of, because regions in rela-
                                                                                       tively strong countries economically have to show a
                         (Case C-242/00)                                               bigger divergence from national averages (unem-
                                                                                       ployment, per capita GDP measured according to
                                                                                       purchasing power standard) than regions in econ-
                         (2000/C 247/27)                                               omically weaker countries, in order to be considered
                                                                                       for the method of apportionment. In fact the
                                                                                       Commission’s approach even has the result that
An action against the Commission of the European Communi-
                                                                                       Ireland and Portugal, for example, may grant
ties was brought before the Court of Justice of the European
                                                                                       regional aid to areas where income levels are clearly
Communities on 16 June 2000 by the Federal Republic of
                                                                                       above the national average, thereby further magnify-
Germany represented by Wolf-Dieter Plessing, Ministerialrat in
                                                                                       ing national disparities.
the Federal Ministry for Finances, Graurheindorfer Str. 108,
D-53117 Bonn and Dr Rainer M. Bierwagen of Kemmler Rapp
Böhlke & Crosby, Brussels.
                                                                                 —     The Commission treated similar facts differently in
                                                                                       determining the maximum amount of regional
The applicant claims that the Court should:
                                                                                       assistance for the Member States. That is because the
                                                                                       Commission, using an objective method, increases
1.     declare the Commission’s decision of 14 March 2000,                             the basic maxima arrived at in respect of some
       K(2000)809 final (1) null and void in so far as proposed                        Member States, but significantly reduces them in
       regional aid notified for Germany for areas within the                          respect of other Member States. The Commission
       meaning of Article 87(3)(c) of the EC Treaty is found to                        therefore affords the favoured Member States oppor-
       be incompatible with the common market on the basis                             tunities to grant aid in amounts which go beyond
       of the figure of 23,4 % of the German population;                               actual regional-political commercial needs. On the
 ---pagebreak--- 26.8.2000               EN                    Official Journal of the European Communities                                     C 247/21
            other hand, Member States are not supposed to be             Reference for a preliminary ruling by the High Court
            able to take account of the regional-political trading       of Justice (England & Wales), Queen’s Bench Division
            needs established by the Commission itself using the         (Divisional Court), by order of that court of 23 May 2000,
            objective standard of regional disparities in those          in the case of The Queen against Secretary of State for
            Member States. Such ‘corrections’ also mean that                Trade and Industry, Ex parte: Trades Union Congress
            the level of the population in the region eligible for
            aid exceeds the target percentage level laid down by
                                                                                                  (Case C-243/00)
            the Commission of 42,7 % of the Community
            population. In any event, the fact that the Com-
            mission allows some Member States to have bigger                                      (2000/C 247/28)
            regions eligible for aid than is necessary having
            regard to the actual size of regional disparities in
            those Member States cannot constitute an objective           Reference has been made to the Court of Justice of the
            reason for reducing the size of the German regions           European Communities by an order of the High Court of
            eligible for aid.                                            Justice (England & Wales), Queen’s Bench Division (Divisional
                                                                         Court) of 23 May 2000, which was received at the Court
                                                                         Registry on 19 June 2000, for a preliminary ruling in the case
                                                                         of The Queen against Secretary of State for Trade and Industry,
      —     Germany does not challenge the Commission’s                  Ex parte: Trades Union Congress, on the following question:
            chosen goal to devolve decisions on the size of the
            regional aid areas to the Member States. However,
            the measures taken by the Commission to achieve              ‘Whether Directive 96/34/EC (1) (as extended to the United
            that goal are both unnecessary and wholly dispro-            Kingdom by Directive 97/75/EC) (2), and the Framework
            portionate. Reducing the size of regions of Germany          Agreement of 14 December 1995 to which it gave effect,
            eligible for aid is not the least restrictive possible       required Member States to confer the right to parental leave in
            measure to attain the objective of reducing the              relation to children under the specified age born or adopted
            size of those regions eligible for aid within the            before the date on which the Directive was given effect in the
            Community as a whole. For example, the Com-                  national law of Member States or only to children born or
            mission could have omitted to adopt ‘correction              adopted on or after that date.’
            measures’, or structured them in such a way that the
            increase in the overall population of the region
            eligible for aid was less. The Commission could also,        (1) Council Directive 96/34/EC of 3 June 1996 on the framework
            to even out the ‘corrections’, have applied the same             agreement on parental leave concluded by UNICE, CEEP and the
            reductions in all Member States, that is, including              ETUC (OJ L 145, 19.06.96, p. 4).
                                                                         (2) OJ L 10, 16.01.98, p. 24.
            those for whom the ‘corrections’ work in their
            favour.
—     Infringement of essential procedural requirements. The
      Commission does not give sufficient reasons for reducing
      the size of the German regions eligible for aid as such or
      the effect of applying dissimilar treatment to Community
      trade and competition.                                             Reference for a preliminary ruling by the Bundesgerichts-
                                                                         hof by order of that court of 11 May 2000 in the case of
                                                                         van Doren + Q. GmbH against lifestyle sports + sports-
      Nor do the ‘Guidelines on National Regional Aid’ publi-                 wear Handelsgesellschaft mbH and Michael Orth
      shed by the Commission in Official Journal C 74 of
      10 March 1998 contain any reasons for the Com-
      mission’s subsequent decision. Even if they did, Germany                                    (Case C-244/00)
      could not have challenged those guidelines of its own
      motion.                                                                                     (2000/C 247/29)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Federal Court of Justice
(1) The Commission’s decision of 14 March 2000 redefining the
                                                                         of 11 May 2000, received at the Court Registry on 19 June
    borders of areas eligible for aid for the purpose of the Com-        2000, for a preliminary ruling in the case of van Doren + Q.
    munity’s project entitled ‘Improvement of regional economic          GmbH v lifestyle sports + sportswear Handelsgesellschaft mbH
    structures’ in Germany for the period 1 January 2000 to              on the following question:
    31 December 2003 — West Germany and Berlin.
                                                                         Are Articles 28 and 30 EC to be interpreted as meaning that
                                                                         they permit the application of national legislation under which
                                                                         an infringer against whom proceedings are brought on the
                                                                         basis of a trade mark for marketing original goods, and who
                                                                         claims that the trade-mark right has been exhausted within the