CELEX: C2002/323/64
Language: en
Date: 2002-12-21 00:00:00
Title: Case T-326/02: Action brought on 24 October 2002 by Kotug International BV, Sleepdienst Adriaan Kooren BV and K&K International BV against the Commission of the European Communities

21.12.2002               EN                      Official Journal of the European Communities                                       C 323/39
That, like the storage of data giving information about                     Pleas and main arguments
membership of the union, infringes the provisions of Regu-
lation (EC) No 45/2001 ( 1).
                                                                            The applicants benefit from fiscal arrangements and the
( 1) Regulation (EC) No 45/2001 of the European Parliament and of           tonnage charge introduced by the Netherlands in favour of,
     the Council of 18 December 2000 on the protection of individuals
                                                                            inter alia, vessels intended for towing and assistance at sea. In
     with regard to the processing of personal data by the Community
     institutions and bodies and on the free movement of such data
                                                                            the contested decision the Commission considers that these
     (OJ 2001 L 8, p. 1).                                                   matters constitute new State aid for tugboat activities princi-
                                                                            pally carried on in and around the harbours of the Community
                                                                            and on inland waterways within the Community and not
                                                                            principally at sea. The Commission is at the same time seeking
                                                                            recovery by the Netherlands authority of that aid.
                                                                            The applicants submit that the Commission is in breach of the
                                                                            EC Treaty and Regulation No 659/1999 ( 1) by classifying the
                                                                            matters concerned as new State aid. According to the appli-
Action brought on 24 October 2002 by Kotug Inter-                           cants the provision made in regard to those matters constitutes
national BV, Sleepdienst Adriaan Kooren BV and K&K                          existing State aid authorised by the Commission.
International BV against the Commission of the European
                            Communities
                           (Case T-326/02)                                  Thus, there is no question of a change in the existing aid.
                                                                            According to the Commission, the interpretation of the
                                                                            Netherlands law has changed over the years. Under it tugboats
                          (2002/C 323/64)                                   were eligible for aid on the basis of technical criteria relating
                                                                            to the vessels rather than on the basis of the place where the
                                                                            activities are carried on. According to the applicants, that was
                                                                            however clear from the legislation notified by the Netherlands
                     (Language of the case: Dutch)
                                                                            authorities under which a technical and qualitative criterion is
                                                                            applied rather than a geographical one. That interpretation of
                                                                            the provision made in regard to the grant of the aid have
                                                                            accordingly not changed.
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 24 October 2002 by Kotug International BV,
Sleepdienst Adriaan Kooren BV and K&K International BV,                     The applicants further allege that the Commission did not
established in Rotterdam, represented by T.R. Ottervanger,                  follow the correct procedure. According to the applicants, the
with an address for service in Luxembourg.                                  Commission, upon receipt of supplementary information, did
                                                                            not issue a recommendation for the adoption of appropriate
                                                                            measures. Nor did the Commission review the aid under
                                                                            Article 9 of Regulation No 659/1999. Nor, the applicants
The applicants claim that the Court of First Instance should:               submit, are the requirements of that article satisfied since there
                                                                            is no question of incorrect information. Moreover, according
                                                                            to the applicants, the Commission failed to demonstrate that
1.     Primarily, annul Commission Decision C(2002) 2158 of
                                                                            the provision made for the matters concerned is not covered
       19 June 2002 concerning State aid by the Netherlands in
                                                                            by the aid measures approved by it previously.
       favour of the activities of Netherlands tugboats in sea
       harbours and on inland waterways of the Community;
2.     In the alternative, annul Articles 2 and 3 of the Com-
       mission’s contested decision in which the Commission                 Accordingly, the applicants submit that the contested decision
       requires the Netherlands Government to adopt all necess-             infringes Article 87(3) of the EC Treaty. According to the
       ary measures in order to recover aid from the recipients             applicants the Commission is acting incorrectly in declaring
       — with the exception of aid paid before 12 September                 the matters concerned incompatible with the common market.
       1990;                                                                The applicants allege that towing services provided by sea
                                                                            tugboats to sea-going vessels, irrespective of where those
                                                                            activities are carried on, come within the scope of the
3.     Order the Commission to pay the costs.                               Community guidelines on State aid for maritime transport ( 2).
 ---pagebreak--- C 323/40                EN                     Official Journal of the European Communities                                  21.12.2002
According to the applicants, the contested decision further               2.    In the alternative, annul Articles 2 and 3 of the Com-
infringes the principle of protection of legitimate expectations                mission’s contested decision in which the Commission
and Article 14 of Regulation No 659/1999. According to the                      requires the Netherlands Government to adopt all necess-
applicants, they were entitled to rely on the legality of the aid               ary measures in order to recover aid from the recipients
since it had been approved by the Commission. Recovery of                       — with the exception of aid paid before 12 September
aid received would run counter to the applicants’ legitimate                    1990;
expectations.
                                                                          3.    Order the Commission to pay the costs.
By altering its approach to fiscal measures for maritime
transport, the Commission, in adopting the contested decision,
also infringed the principle of legal certainty. In the applicants’
view, a change in the approach to aid measures cannot result              Pleas and main arguments
in already approved aid being classified as new rather than
existing aid.
                                                                          The pleas relied on are the same as in Case T-326/02.
The applicants are also claiming infringements of the principles
of equal treatment and proportionality and of the requirement
to provide a statement of reasons.
( 1) Council Regulation (EC) No 659/1999 of 20 March 1999 laying
     down detailed rules for the application of Article 93 of the EC
     Treaty (OJ 1999 L 83, p. 1).
( 2) Community guidelines on State aid for maritime transport (OJ
     1997 C 205, p. 5).
                                                                          Action brought on 24 October 2002 by Smit Harbour
                                                                          Towage Rotterdam BV against the Commission of the
                                                                                              European Communities
                                                                                                  (Case T-328/02)
                                                                                                  (2002/C 323/66)
Action brought on 24 October 2002 by Muller Marine
Holding BV, Muller Maritime Holding BV and Handel-
en Scheepvaartmaatschappij Multraschip BV against the                                        (Language of the case: Dutch)
          Commission of the European Communities
                          (Case T-327/02)
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of Justice of the European
                         (2002/C 323/65)
                                                                          Communities on 24 October 2002 by Smit Harbour Towage
                                                                          Rotterdam BV, established in Rotterdam, represented by
                    (Language of the case: Dutch)                         T.R. Ottervanger, with an address for service in Luxembourg.
                                                                          The applicants claim that the Court of First Instance should:
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European              1.    Primarily, annul Commission Decision C(2002) 2158 of
Communities on 24 October 2002 by Muller Marine Holding                         19 June 2002 concerning State aid by the Netherlands in
BV, Muller Maritime Holding BV and Handel- en Scheepvaart-                      favour of the activities of Netherlands tugboats in sea
maatschappij Multraschip BV established in Rotterdam, rep-                      harbours and on inland waterways of the Community;
resented by T.R. Ottervanger, with an address for service in
Luxembourg.
                                                                          2.    In the alternative, annul Articles 2 and 3 of the Com-
                                                                                mission’s contested decision in which the Commission
The applicants claim that the Court of First Instance should:                   requires the Netherlands Government to adopt all necess-
                                                                                ary measures in order to recover aid from the recipients
                                                                                — with the exception of aid paid before 12 September
1.     Primarily, annul Commission Decision C(2002) 2158 of
                                                                                1990;
       19 June 2002 concerning State aid by the Netherlands in
       favour of the activities of Netherlands tugboats in sea
       harbours and on inland waterways of the Community;                 3.    Order the Commission to pay the costs.