CELEX: C2001/061/34
Language: en
Date: 2001-02-24 00:00:00
Title: Case T-368/00: Action brought on 30 November 2000 by General Motors Nederland B.V. and Opel Nederland B.V. against the Commission of the European Communities

24.2.2001              EN                     Official Journal of the European Communities                                       C 61/17
The applicant claims that the Court should:                              —     That the contested decision violates the principle of the
                                                                               legitimate expectation, inasmuch as for many years prior
                                                                               to 1997, the Commission would have known about the
—     annul the contested decision, alternatively Article 2                    existence and contents of French Law pursuant to which
      thereof; and                                                             the aid in question has been granted.
                                                                         —     That the Commission committed manifest error of calcu-
—     order the Commission to pay the costs.                                   lation.
                                                                         (1) OJ L 83, of 27.3.1999, p. 1.
Pleas in law and main arguments
The current application arises out of the Commission Decision
of 12 July 2000 (C(2000)2183) addressed to the French
Republic concerning two aids said to have been granted to the
applicant by the French Public Authorities. The two aids in
question consist of:                                                     Action brought on 30 November 2000 by General Motors
                                                                         Nederland B.V. and Opel Nederland B.V. against the
                                                                                  Commission of the European Communities
—     That the local authorities arranged for the transfer to the
      applicant of a certain and, namely 49 hectares of                                          (Case T-368/00)
      68 hectares site in the industrial zone of La Saussaye, and
      a factory on that site at a preferential price.
                                                                                                  (2001/C 61/34)
—     That the applicant benefited from a preferential tariff
      in respect of effluent treatment charges (redevances                                  (Language of the case: English)
      d’assainissement) levied by the City of Orléans.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
In support of their conclusions, the applicant submits:                  European Communities on 30 November 2000 by General
                                                                         Motors Nederland B.V. and Opel Nederland B.V., companies
                                                                         registered in the Netherlands, represented by Dirk Vander-
—     That insofar as Article 2 of the contested decision orders         meersch, Robbert Snelders and Steven Allcock of Cleary,
      the French Republic to recover the aid in question, it             Gottlieb, Steen & Hamilton, Brussels.
      infringes Article 15 of Council Regulation (EC) No
      659/1999 of 22 March 1999, laying down detailed rules
      for the application of Article 93 [now 88] of the EEC              The applicant claims that the Court should:
      Treaty (1), which provides for a 10 year limitation period
      in respect of the Commission’s power to recover aid.               —     annul Commission Decision No. C(2000) 2707 of
                                                                               20 September 2000 (Case COMP/36.653 — Opel),
                                                                               addressed to General Motors Nederland B.V. and Opel
—     That the administrative procedure infringed essential                    Nederland B.V.; alternatively
      procedural requirements and the applicant’s rights of
      defence and that the recovery order requires the French
                                                                         —     to cancel or reduce the fine imposed;
      Republic to act in breach of the European Convention of
      Human Rights. In this connection, Scott relies in particu-
      lar on the fact that there was never any fair trial of the         —     to order the Commission to pay the applicants’ costs.
      issues on which its liability to ‘repay’ the alleged aid was
      determined, let alone any fair trial in which the applicant
      could participate and in which the rights of defence were          Pleas in law and main arguments
      respected. On the contrary, the Commission treated the
      administrative procedure as being essentially a procedure
      between itself and the French Republic.                            The contested decision imposes a fine of 43 million euros on
                                                                         the applicants for an alleged infringement of Article 81(1) EC.
                                                                         The Commission concludes that Opel Nederland B.V. entered
—     That the contested decision results in unequal treatment           into agreements with Opel dealers in the Netherlands aimed at
      of equal situations, in relation to cases that in pari materia     restricting or prohibiting export sales of Opel vehicles to end-
      with that of Scott.                                                users and Opel dealers located in other Member States.
 ---pagebreak--- C 61/18                EN                     Official Journal of the European Communities                                        24.2.2001
The applicants oppose the unduly broad scope of the Com-                 Action brought on 4 December 2000 by the Département
mission’s findings and the excessive level of the fine and put           du Loiret against the Commission of the European Com-
forward, in particular, the following arguments:                                                       munities
                                                                                                  (Case T-369/00)
—     Contrary to the Commission’s findings Opel Nederland                                         (2001/C 61/35)
      did not apply a general strategy vis-à-vis its dealers to
      hinder or restrict all exports of new cars but conducted a
      lawful policy to dissuade irregular sales to unauthorized                              (Language of the case: French)
      resellers in order to protect the integrity of its selective
      distribution system.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 4 December 2000 by the Départe-
                                                                         ment du Loiret, of Orléans (France), represented by Alexandre
—     The applicants do not contest that Opel Nederland took
                                                                         Carnelutti, of the Paris Bar.
      a decision to limit product allocation based on certain
      sales targets. However, this unilateral decision cannot be
      characterised as an agreement with its dealers to restrict         The applicant claims that the Court should:
      exports in violation of Article 81 EC. This decision was
      never implemented nor was it ever communicated to the              —     annul the decision of the Commission of 12 July 2000 in
      dealers. In any event, it left dealers free to engage in                 so far as it declares illegal, and orders the repayment of,
      lawful export sales of their allegedly allocated volumes.                State aid amounting to FRF 48.7 million (100 million in
                                                                               terms of its current value) granted in the form of a
                                                                               preferential price for the purchase of land;
—     The Commission erred in finding that Opel Nederland’s              —     order the Commission to pay the costs.
      bonus policy infringed 81 EC. There were no findings
      that the dealers expressly or impliedly agreed to restrict
                                                                         Pleas in law and principal arguments
      their exports sales in reaction to the bonus policy.
      Moreover, the normal dealer margin was sufficient to
      make export sales profitable. In any event, the bonus              The present action seeks annulment of the same Commission
      policy could not be considered restrictive of exports since        decision as that forming the subject-matter of Case T-366/00
      supplies were never limited.                                       Scott Paper v Commission (1). The applicant is one of the two
                                                                         entities which granted the aid in issue.
                                                                         In support of its claims, the above-mentioned Département
—     There was no agreement to discontinue exports with all             asserts, first of all, that the Commission has applied an
      the dealers of the Opel distribution network in the                excessively narrow construction to the notion of a private
      Netherlands. The alleged commitments to restrict exports           investor, inasmuch as it fails to take account of the nature of
      concern a very small number of dealers and a short                 the local authority, of its investment parameters and of the
      period of time and did not appreciably restrict inter- or          economic considerations underlying its decision to sell a parcel
      intra-brand competition.                                           of developed industrial land. It states in that regard that, in
                                                                         seeking a suitable candidate to set up a business on its territory,
                                                                         a local authority necessarily includes, amongst the economic
                                                                         criteria on which its analysis is based, the specific fiscal revenue
                                                                         which it will receive, such as that arising from the business
As to the level of the fine, the applicants consider that it is          taxes and property taxes resulting from the business set up.
disproportionate and fails to reflect the short duration of the
alleged infringement and the limited number of dealers                   The applicant also complains that the Commission has
involved, the lack of intent of Opel Nederland, the clear                included in the total costs expenditure which has manifestly
evidence of large-scale violations of the Opel selective distri-         not been incurred in the interests of Scott Paper S.A. The
bution system by some dealers, the limited impact on intra-              specific sum in question amounts to FRF 2 372 000, relating
Community trade and, finally, the immediate and effective                to preliminary studies.
corrective action taken by Opel Nederland at its own initiative.
                                                                         Lastly, it maintains that the calculation method used by the
                                                                         Commission is wrong.
                                                                         (1) Not yet published in the Official Journal of the European
                                                                             Communities.