CELEX: C1996/210/47
Language: en
Date: 1996-07-20 00:00:00
Title: Action brought on 13 May 1996 by Hamburger Hafen- und Lagerhaus Aktiengesellschaft, the Zentralverband der deutschen Seehafenbetriebe e.V. and the Unternehmensverband Hafen Hamburg e.V. against the Commission of the European Communities (Case T-69/96)

20 . 7 . 96           EN                       Official Journal of the European Communities                                 No C 210/ 19
Action brought on 13 May 1996 by Hamburger Hafen­                         — promoted 'coordination of transport' within the
und Lagerhaus Aktiengesellschaft, the Zentralverband                          meaning of Article 77 of the Treaty and Article 3 ( 1 ) of
der      deutschen     Seehafenbetriebe          e.V.     and   the           Regulation ( EEC ) No 1107/70, that is to say, a rational
Unternehmensverband Hafen Hamburg e.V. against the                            division of tasks between the different methods of
         Commission of the European Communities                               transport ( transport by road on the one hand and by rail
                          Case T-69/96 )                                      and sea on the other ) and, in particular,
                          ( 96/C 210/47 )
                                                                          — whether it promoted combined transport, that is to say,
                                                                              whether it resulted in container transport being switched
               (Language of the case: German)                                 from carriage by road to carriage by rail or sea .
An action against the Commission of the European
Communities was brought before the Court of First                         The Commission contravened the right to a fair hearing of
Instance of the European Communities on 13 May 1996 by                    competitors of the undertakings in receipt of the aid and
( 1 ) Hamburger Hafen- und Lagerhaus Aktiengesellschaft,                  breached the principle of sound administration . It should
(2 ) the Zentralverband der deutschen Seehafenbetriebe e .V.              have afforded those competitors, including the first
and ( 3 ) the Unternehmensverband Hafen Hamburg e.V. ,                    applicant, the opportunity, in the procedure under
Hamburg, represented by Dr Erik A. Undritz and Dr Gerrit                  Article 93 ( 3 ) of the Treaty ('the preliminary procedure ') to
Schohe, Rechtsanwàlte , Hamburg, with an address for                      inspect the files in the matter and to comment on the facts
                                                                          and evidence on which it based its decision .
service in Luxembourg at the Chambers of Marc Baden, 34b
rue Philippe II .
                                                                          The Commission infringed the procedural requirements
The applicants claim that the Court should :                              relating to the adoption of its decision . The contested
                                                                          decisions were not adopted by the Commission on a
— annul the decisions of the Commission of 26 January                     collegiate basis but by a single Commissioner and by the
                                                                          Director-General        of  Directorate-General   VII  of    the
      1996 contained in the Commission's communication
      No SG(95 ) D/13294 of 25 October 1995 to the                        Commission respectively. Neither the Commissioner nor
      Netherlands Government concerning aid project                       the Director-General were empowered by the Commission,
      N 618/95 and in the Commission's undated                            as a collegiate body, so to act.
      communication No HC/cb/ 1693 to the Netherlands
      Government concerning aid project N 484/95 ,                        The contested decisions were based on a manifest error of
                                                                          assessment and were adopted in breach of Article 1 ( 3 ) ( e ) of
— order the Commission to pay the costs .                                 Regulation ( EEC ) No 1107/70 . They were clearly
                                                                          inappropriate for the promotion of combined transport.
Pleas in law and. main arguments                                          They did not result in the switch of a single tonne of freight
                                                                          from road to rail or sea transport. Moreover, in adopting the
                                                                          decision in Case N 618/95 , the Commission approved aid
The applicants state that the first applicant is engaged in the
                                                                          which was not due to be granted until 1996 , or the grant of
handling and storage of goods in the port of Hamburg and
                                                                          which was to continue during that year . According to
in all other business relating to seaport operations; the
                                                                          Article 3 ( 1 ) ( e ) of Regulation ( EEC ) No 1107/70, in the
second and third applicants are associations of undertakings
                                                                          version thereof applying at the time when the decision was
representing the interests of German seaports . The two                   adopted and on which it was based, the Commission was
grants of aid to the Netherlands which are contested in the
                                                                          authorized to approve only aid to be granted ('paid') until
present case were intended to promote the handling and                    31 December 1995 .
storage of goods by competitors of the first applicant in the
port of Rotterdam. The Commission approved the two
grants of aid without initiating the procedure provided for               The Commission breached its obligation to provide a
in Article 93 ( 2 ) of the EC Treaty ('the main examination               statement of reasons pursuant to Article 190 of the
procedure ').                                                             Treaty .
The contested decisions should be annulled on the following               The Commission committed a manifest error in its
grounds .                                                                 determination and/or assessment of the facts . It overlooked
                                                                          the fact that the geographical distance between Prague and
The      Commission      should    have       initiated   the  main
                                                                          Rotterdam is much further than that between Prague and
examination procedure ( pursuant to the first paragraph of                the North Sea ports ( such as Hamburg ), and that, contrary
Article 93 ( 2 ) of the Treaty ), since it was apparent, on a             to the common transport policy, the aid in question
 preliminary appraisal of the matter, that the assessment of              protracts, rather than shortens, the provision of transport
 the aid at issue presented certain difficulties . This was               services within the Community, thereby running counter to
 because it was necessary for the aid in question to comply               an important principle of the common transport policy,
 not merely with the letter but also with the purpose of the              namely the switch of freight ' from road to sea'.
 legal basis relied on ( Article 3 ( 1 ) ( e ) of Regulation ( EEC )
 No 1 107/70 ). In order to take that purpose into account, the
 Commission should have examined whether, as regards its
 basis and level, the aid in question