CELEX: C2001/161/44
Language: en
Date: 2001-06-02 00:00:00
Title: Case T-55/01: Action brought on 9 March 2001 by Asahi Vet SA against the Commission of the European Communities

C 161/20               EN                      Official Journal of the European Communities                                            2.6.2001
—     further, or in the alternative, to annul under Article 230          compatibility with the common market. It follows that the
      (ex 173) of the EC Treaty the implied decision of the               Commission has committed an error of law and a procedural
      Commission not to initiate the procedure provided for               irregularity by not initiating the procedure provided for under
      under Article 88(2) of the EC Treaty (ex93(2)) regarding            Article 88(2) (ex 93(2)) of the Treaty.
      the applicant’s complaint at all, or at least regarding that
      part of the applicant’s complaint dealing with the period
      up to 1995 outside the scope of the Case C-31/98
      procedure, (and/or the implied decision not to close the            (1) See Commission communication pursuant to Article 93(2) of the
      preliminary investigation procedure in any of the other                 EC Treaty to the other Member States and other interested parties
      ways available to it), contained in a letter dated 7 February           concerning aids in the shipping sector (State aids for the shipping
                                                                              company Brittany Ferries (BAI)), C 31/98, OJ C 244, 4.8.1998,
      2001;
                                                                              p. 9.
—     order the Commission to pay the applicant’s costs.
                                                                          Action brought on 9 March 2001 by Asahi Vet SA against
Pleas in law and main arguments                                                  the Commission of the European Communities
                                                                                                    (Case T-55/01)
The applicant is a ferry operator which provides tourist and                                       (2001/C 161/44)
freight ferry services on certain routes between France and the
United Kingdom in the western end of the Channel. Its main
competitor is the French ferry operator Bretagne-Angleterre-
Irlande S.A. (‘Brittany Ferries’).                                                           (Language of the case: German)
                                                                          An action against the Commission of the European Communi-
                                                                          ties as brought before the Court of First Instance of the
                                                                          European Communities on 9 March 2001 by Asahi Vet SA,
In February 2000, the applicant submitted a complaint to the              Rubı́, Barcelona (Spain), represented by Rechtsanwalt Carsten
Commission against State aid granted to Brittany Ferries by               Bittner.
the French authorities. Prior to this complaint, the Commission
initiated a formal investigation procedure against certain State
aid granted to Brittany Ferries in 1998 (1). However, according           The applicant claims that the Court should:
to the applicant, a part of its complaint is not covered by this
procedure.
                                                                          —     annul the defendant’s decision of 29 January 2001
                                                                                rejecting the applicant’s request for an unlimited unauth-
                                                                                orisation in respect of ToyoCerin for rearing pigs, sows
                                                                                and piglets, and an interim authorisation for fattening
The applicant submits that by failing to define its position on                 chickens, laying hens, calves, fattening cattle, fattening
the complaint, the Commission has, in breach of Article 232                     rabbits and breeding rabbits;
EC, failed to act. In particular, the Commission has failed to
adopt one of the three decisions that it is required by the               —     require the defendant to propose to the Standing Com-
Court’s case law to take in order to close the preliminary                      mittee for Feedingstuffs under Article 23(3) of Directive
examination of State aid within a reasonable time when it has                   70/524/EEC that it be awarded an unlimited Community
serious doubts as to whether a measure constitutes aid and, if                  authorisation in respect of ToyoCerin for use with rearing
so, as to whether it is compatible with the common market.                      pigs, piglets and sows;
Each of such decisions is of direct and individual concern to
the applicant under Article 230 EC.
                                                                          —     require the defendant to propose to the Standing Com-
                                                                                mittee for Feedingstuffs under Article 23(3) of Directive
                                                                                70/524/EEC that it be awarded a temporary Community
                                                                                authorisation in respect of ToyoCerin for use on fattening
                                                                                chickens, laying hens, calves, fattening cattle, fattening
As far as the grounds for annulment are concerned, the
                                                                                rabbits and breeding rabbits;
applicant claims that it is clear from the correspondence and
meetings between the parties that the Commission had cause
to suspect the existence of State aid and to doubt its                    —     order the defendant to pay the costs.
 ---pagebreak--- 2.6.2001                  EN                       Official Journal of the European Communities                                      C 161/21
Pleas in law and main arguments                                               Action brought on 12 March 2001 by Solvay SA against
                                                                                     the Commission of the European Communities
The applicant is a subsidiary of the Japanese company Asahi
Vet Japan Co. Ltd, which developed the feedingstuff additive                                            (Case T-57/01)
ToyoCerin, and is the only manufacturer of that additive in the
world. The applicant produces the additive for the European
market in Spain and distributes it in Europe. In that capacity,                                        (2001/C 161/45)
the applicant is the applicant in a procedure for Community
authorisation in respect of the additive ToyoCerin pursuant to
Articles 3 and following of Council Directive 70/524/EEC (1).                                    (Language of the case: French)
The applicant first applied for a Community authorisation in                  An action against the Commission of the European Communi-
respect of ToyoCerin for all categories of animal in 1991, and                ties was brought before the Court of First Instance on 12 March
a temporary authorisation for ToyoCerin in respect of the                     2001 by Solvay SA, established in Brussels, represented by
following categories of animal was granted in 1994: rearing                   Lucien Simont, Paul Alain Foriers, Guy Block Frédéric Louis
pigs, piglets and sows. That temporary authorisation was                      and Anne Vallery, Lawyers.
periodically extended until April 1999. As regards other
animals, such as fattening chickens, cattle and fattening rabbits,
ToyoCerin was authorised on a temporary basis by Regulation                   The applicant claims that the Court of First Instance should:
(EC) No 1411/1999 (2). The applicant claims that that tempor-
ary authorisation was not extended and that the applicant’s
request for unlimited authorisation of ToyoCerin in respect of                —     find that the action taken against it was time-barred;
rearing pigs, piglets and sows has not been determined.
                                                                              —     in any event, annul the Commission Decision of
                                                                                    13 December 2000 relating to a procedure under
The action is directed against the Commission’s decision to                         Article 82 of the Treaty (COMP/33.133-C: Soda-ash —
dismiss the applicant’s request for unlimited authorisation in                      Solvay);
respect of ToyoCerin for use on swine, and for an extension of
the temporary authorisation in respect of use of ToyoCerin on
other types of animal. The applicant claims that it is entitled               —     find that the power to impose fines is time-barred;
to be awarded the authorisation it is requesting pursuant to
Article 3(a) of Directive 70/524/EEC, and that the Com-                       —     in any event, annul Article 2 of the contested decision, in
mission’s decision not to propose to the Standing Committee                         so far as it imposes a fine of EUR 20 million on the
for Feedingstuffs that such authorisation be granted, and to                        applicant;
dismiss the applicant’s request, infringes that provision.
                                                                              —     declare that no fine should be imposed on the applicant
Furthermore, the applicant has legitimate expectations in the                       or, at the very least, that the fine should be substantially
present case, pursuant to which it was entitled to assume that                      reduced;
ToyoCerin would be granted fresh authorisation for categories
of animal other than swine before the temporary authorisation                 —     order the Commission to pay the costs.
expired. Finally, the procedure followed by the defendant
infringes the provisions relating to the time limits within
which the authorisation procedure is to be carried out and
the defendant’s contested decision infringes the principle of                 Contentions and principal arguments adduced in support
proportionality and the requirement to provide reasons in
Directive 70/524/EEC.
                                                                              The applicant is a company incorporated under Belgian law,
                                                                              which operates in the soda-ash sector through marketing
                                                                              outlets in nine countries in Europe.
(1) Council Directive 70/524/EEC of 23 November 1970 concerning
     additives in feeding stuffs (OJ L 270, p. 1), most recently amended
     by Commission Regulation (EC) No 45/1999 of 11 November
     1999 (OJ L 6, p. 3).                                                     On 19 December 1990, the Commission adopted Decision
                                                                              91/299/EEC (1) finding that the applicant held a dominant
( 2) Commission Regulation (EC) No 1411/1999 of 29 June 1999                  position on the soda-ash market in continental Europe and
     concerning the authorisation of new additives and new additive
     uses in feedingstuffs (OJ L 164, p. 56).
                                                                              had abused that position, and imposed on the applicant a fine
                                                                              of ECU 20 million. An action for the annulment of that initial
                                                                              decision was brought before the Court of First Instance. By
                                                                              judgment of 29 June 1995, the Court of First Instance
                                                                              annulled the decision (2). The Commission’s appeal against that
                                                                              judgment was dismissed by the Court (3).