CELEX: C1998/072/57
Language: en
Date: 1998-03-07 00:00:00
Title: Action brought on 9 January 1998 by A. A. M. van Hest against the Council of the European Union and the Commission of the European Communities (Case T-11/98)

C 72/26              EN                  Official Journal of the European Communities                                    7.3.98
investment possible, not only investment aid was provided           moreover, erroneously classified by the Commission as
but also investment grants of 8 % under the Investitionszu-         operational aids, even though, under both the criteria
lagengesetz (Investment Grants Law) 1993, to which each             recognised by the Commission itself and those recognised
investor in the new Bundesländer was statutorily entitled           by the Court of Justice and the Court of First Instance,
on fulfilling the conditions. The Investitionszulagengesetz         they were unambiguously dependent upon the carrying
1993 was approved by the Commission as an aid                       out of investments and could thus be regarded only as
programme and provided, inter alia, that the investments            investment aids. Because of that misclassification, the
benefiting from the programme had to be concluded                   Commission left the provisions of Article 92(3)(a) of the
before 1 January 1997. Through circumstances outside the            EC Treaty unapplied, even though they were relevant in
applicant's control (e.g. numerous bomb finds on the                this case (in so far as the aid was not in any event
construction site), it became apparent that completion by           compatible with the common market under Article 92(2)(c)
the end of December 1996 was impossible in practical                of the Treaty).
terms. Therefore, on the initiative of the Bundesland
Saxony-Anhalt, a bill to amend the Investitionszulagenge-           3. Infringement of the general Community law principle
setz was introduced, and, during 1995 in connection with            of proportionality, as expressed in Article 3b of the EC
the Jahressteuergesetz 1996, the amendment was decided              Treaty, in that the Commission declared Paragraph 18.1 of
upon. Paragraph 18.1 of the Jahressteuergesetz 1996                 the Jahressteuergesetz 1996 as a whole, and thus in
inserted into Paragraph 3.1.3 of the Investitionszulagenge-         relation to the applicant also, to be incompatible with the
setz, for the date by which the investments were to be              common market.
completed, the year 1999' instead of 1997' (i.e. requiring
completion before 1 January 1999).                                  The applicant submits that it was thereby affected to an
                                                                    extent which was disproportionate and not necessary in
                                                                    achieving the Commission's purpose. The Commission
In the contested decision, the Commission held that to be           could have declared Paragraph 18.1 incompatible with the
a new, additional State aid, which was unlawful and                 common market only in so far as projects other than the
incompatible with the common market. It called upon the             applicant's were concerned. That would have been
Federal Republic of Germany to annul Paragraph 18.1 of              appropriate from the European law standpoint and
the Jahressteuergesetz 1996 and to reclaim all aids granted         possible from the point of view of German law.
thereunder.
                                                                    4. Breach of essential procedural requirements
The applicant makes four legal arguments:
                                                                    The Commission erroneously classified the investment
                                                                    grant relating to the applicant, in the version appearing in
1. Failure to apply Article 92(2)(c) of the EC Treaty               Paragraph 18.1 of the Jahressteuergesetz 1996, as a new
                                                                    additional aid, rather than (correctly) as an approved
                                                                    existing aid. As a result, it failed to adopt the correct
The Commission should have verified whether that                    procedure and propose an appropriate measure to the
derogation applied, especially as the Federal Republic of           Federal Republic of Germany. Moreover, the reasons
Germany had expressly requested that it should be                   stated for the decision were not sufficient and infringed
applied. In its notice on the opening of the main                   Article 190 of the EC Treaty.
verification procedure, the Commission expressed the view
that the rule could not apply. Although, in the course of
the procedure, the Federal Republic of Germany made
further submissions as to the applicability of the rule and
the existence of the conditions, especially in relation to the
applicant, the Commission carried out no verification               Action brought on 9 January 1998 by A. A. M. van Hest
whatever. Since, moreover, no reasons were stated for the           against the Council of the European Union and the
failure to apply the rule, the applicant maintains that there                Commission of the European Communities
has been a breach of Article 190 of the EC Treaty. The                                     (Case T-11/98)
requirements of Article 92(2)(c) of the EC Treaty had been
                                                                                            (98/C 72/57)
fulfilled, since the Saxony-Anhalt region was an area
affected by the division of Germany, and the aid was
                                                                                    (Language of the case: Dutch)
required in order to compensate for the disadvantages
caused. Paragraph 18.1 of the Jahressteuergesetz 1996 was
therefore compatible with the common market pursuant                An action against the Council of the European Union and
to Article 92(2)(c) of the EC Treaty, at least in so far as         the Commission of the European Communities was
the applicant's project was concerned.                              brought before the Court of First Instance of the European
                                                                    Communities on 9 January 1998 by A. A. M. van Hest, of
                                                                    Moergestel (Netherlands), represented by A. A. M. Beek,
2. Defective application of Article 92(3) of the EC Treaty          of the Tilburg Bar.
                                                                    The applicant claims that the Court should:
The Commission failed to recognise that the extension of
the investment period did not constitute an additional aid          Ð declare that the European Economic Community is
over and above the investment grants. Those grants were,                liable in damages to the applicant,
 ---pagebreak--- 7.3.98               EN                 Official Journal of the European Communities                                   C 72/27
Ð declare that the European Economic Community is                  Chambers of Me Marc Loesch & Wolter, 11 rue Goethe,
    liable to the applicant for the loss of income suffered        Luxembourg.
    by him as a result of the application of Council
    Regulation (EEC) No 857/84 of 31 Mach 1984 and of
    Council Regulation (EEC) No 764/89 of 20 March                 The applicant claims that the Court should:
    1989 amending Regulation (EEC) No 857/84,
    inasmuch as those regulations contain(ed) no provision
    enabling a representative reference quantity to be             Ð annul the decision of 4 November 1997, whereby the
    granted to SLOM transferees who, pursuant to an                    Council refused to grant access to the document
    undertaking given in accordance with Council                       requested by the applicant,
    Regulation (EEC) No 1078/77 of 17 May 1977, did
    not supply any milk during the reference year selected
    by the Member State concerned,                                 Ð order the Council to pay the applicant's costs pursuant
                                                                       to the Article 87 of the Rules of Procedure of the
                                                                       Court of First Instance, including the costs of any
Ð declare that the applicant has suffered a loss of income             interveners.
    amounting to the difference between, on the one hand,
    the revenue Ð including inter alia income from sales
    and additions to his herd Ð which he would in the              Pleas in law and main arguments adduced in support:
    ordinary course of events have received from the
    quantities of milk that he would have delivered if,
    during the period from 1 April 1984 (the date on               The applicant, a Member of the European Parliament,
    which Regulation (EEC) No 857/84 entered into force)           seeks the annulment of a refusal by the defendant to grant
    to 31 March 1994 (the date of expiry of the 1993/              access to a certain document which was requested
    1994 levy period), had he been in possession of the            pursuant to Council Decision 93/731/EC of 20 December
    milk reference quantity to which he was entitled, and,         1993 on public access to Council documents. The
    on the other hand, the income which he actually                document in question is the Report from the Common
    received during that period;                                   Foreign and Security Policy (CFSP) Working Group on
                                                                   Conventional Arms Exports, approved on 14Ð15
                                                                   November 1996, on the implementation of the common
Ð declare that interest at the rate of 8 % per annum, or           criteria on arms exports agreed by the European Council
    such other rate as the Court shall in its discretion           in 1991 and 1992.
    think fit, is payable to the applicant on the
    compensation due to him, covering the period from
    the date of delivery of the Court's judgment to the            In support of the form of order which it seeks the
    date of payment in full,                                       applicant submits that the contested refusal constitutes:
Ð order the defendants to pay the costs.
                                                                   Ð a misapplication of the exceptions laid down in
                                                                       Article 4(1) of the above mentioned Council Decision.
Pleas in law and main arguments adduced in support:                    First, the Council has refused access to the Report in
                                                                       its entirety, without any explanation why its disclosure
                                                                       could be harmful for the EU's relations with third
The pleas in law and main arguments are the same as in                 countries'. The mandatory and absolute terms in
Case T-146/97.                                                         which the Article 4(1) is drafted does not permit such
                                                                       an approach. Second, even should it appear that the
                                                                       disclosure of certain aspects of the Report might
                                                                       undermine the protection of the public interest, the
                                                                       applicant still submits that the Council has acted in
                                                                       breach of its duty to provide access to those parts of
                                                                       the document not covered by the exception. The
Action brought on 13 January 1998 by Heidi Hautala,                    failure on the part of the defendant to examine in the
Member of the European Parliament against the Council                  present case the question whether the document
                   of the European Union                               should be released if certain parts were blanked out
                       (Case T-14/98)                                  constitutes further evidence of the Council's failure to
                                                                       give the applicant's request any careful consideration
                        (98/C 72/58)                                   and should in itself be regarded as constituting an
                                                                       infringement of Article 4(1),
               (Language of the case: English)
                                                                   Ð a breach of the fundamental principle of the
An action against the Council of the European Union was                Community law that citizens of the European Union
brought before the Court of First Instance of the European             should be granted the widest and fullest possible
Communities on 13 January 1998 by Heidi Hautala, MEP,                  access to documents of the institutions of the Union,
represented by Onno W. Brouwer and Thomas Janssens,                    and of the principle of the protection of legitimate
with an address for service in Luxembourg at the                       expectations,