CELEX: C2001/303/40
Language: en
Date: 2001-10-27 00:00:00
Title: Case T-198/01: Action brought on 28 August 2001 by Technische Glaswerke Ilmenau GmbH against the Commission of the European Communities

27.10.2001             EN                     Official Journal of the European Communities                                      C 303/25
the case under the present regulation. Thus the Commission               the applicant obtained three of the twelve production lines of
has distorted competition and discriminated between those                that company. A condition of the transfer of ownership was
undertakings able to satisfy the references laid down in the             the agreement by the German Federal State Thüringia to grant
new implementing regulation and the remaining undertakings.              an additional investment subsidy of DEM 4 000 000 in the
                                                                         framework of the ‘joint Federal Government/Länder scheme
                                                                         for improving regional economic structures’, whereby the
(1) Commission Regulation (EC) No 896/2001 of 7 May 2001                 burden on the applicant owing to the purchase price would be
    laying down detailed rules for applying Council Regulation (EEC)     reduced by that amount. The promise was not fulfilled.
    No 404/93 as regards the arrangements for importing bananas
    into the Community (OJ L 126, 08/5/2001, p. 6).
(2) Council Regulation (EEC) No 404/93 of 13 February 1993 on the
    common organization of the market in bananas (OJ L 47,
    25/2/1993, p. 1).
                                                                         Subsequently the applicant acquired a fourth production
                                                                         line. In February 1998, because of the applicant’s liquidity
                                                                         problems, the German Treuhandanstalt waived payment of
                                                                         DEM 4 000 000 of the purchase price under the 1994
                                                                         contract. In December 1998 Germany notified the Com-
                                                                         mission of various measures whose aim was the financial
                                                                         consolidation and long-term profitability of the applicant, and
Action brought on 28 August 2001 by Technische Glas-                     included the purchase price waiver, which the Commission
werke Ilmenau GmbH against the Commission of the                         has declared incompatible with the common market in the
                    European Communities                                 contested decision.
                         (Case T-198/01)
                         (2001/C 303/40)                                 The applicant claims that the purchase price waiver was not
                                                                         aid. The purpose of the purchase price waiver was to put the
                  (Language of the case: German)                         applicant in the position it would have been in if the full
                                                                         amount promised had been paid. That promise founded a
                                                                         claim for payment and a legitimate expectation. Moreover, it
                                                                         would not have infringed the aid rules if the Treuhandanstalt
An action against the Commission of the European Communi-
                                                                         had agreed with the applicant in 1994 on a purchase price
ties was brought before the Court of First Instance of the
                                                                         that was lower by DEM 4 000 000. The argument that the loss
European Communities on 28 August 2001 by Technische
                                                                         of the additional aid of DEM 4 000 000 is legally irrelevant,
Glaswerke Ilmenau GmbH, Ilmenau (Germany), represented by
                                                                         because the Treuhandanstalt and the Federal State of Thüringia
G. Schohe, lawyer, with an address for service in Luxembourg.
                                                                         are different legal persons, is not a sound one.
The applicant claims that the Court should:
—     Annul the Commission Decision of 12 June 2001 on
      German State aid to Technische Glaswerke Ilmenau                   Moreover, the applicant claims that the Commission wrongly
      GmbH, Germany — K(2001) 1549;                                      applied the private investor test. It ought to have examined
                                                                         whether the purchase price waiver could have led in the long-
—     Order the defendant to pay the costs of the proceedings.           term to the applicant’s profitability. Furthermore, the purchase
                                                                         price waiver has not led to a further, additional loss of State
                                                                         assets, but is merely a method chosen by Germany to fulfil its
                                                                         1994 promise.
Pleas in law and main arguments
The action concerns the Commission’s decision declaring State
aid of DEM 4 000 000 by Germany to the applicant to be                   In the alternative, the applicant submits that the determination
incompatible with the common market.                                     of the amount of the aid element is incorrect. The Commission
                                                                         failed to determine the amount by reference to positive
                                                                         findings of fact. Germany has also avoided losses which would
The application states that the Werk für Technisches Glas                have arisen without the purchase price waiver, because the
Ilmenau, a State-owned company, was the centre of glass                  applicant would have become bankrupt if the Treuhandanstalt
manufacture in the GDR and after unification of the Federal              had claimed the full amount of the purchase price. Further-
Republic of Germany and the German Democratic Republic                   more, the Commission estimated the amount of the aid
was converted into the Ilmenauer Glaswerke GmbH. In 1994                 element at a sum which contradicts its own findings.
 ---pagebreak--- C 303/26                EN                     Official Journal of the European Communities                                      27.10.2001
The applicant claims that the Commission, when exercising its                   continue with a view to determining the quantum of the
discretion, did not take account of the fact that another firm                  damage, and order the Community in any event to pay
obtains or strengthens a dominant position in specific areas of                 the damages provisionally quantified and yet to be
glass manufacture if the applicant disappears from the market.                  quantified, alternatively order the Community to pay
That is a manifest error of appraisal and therefore an infringe-                such compensation as the Court may deem fair and
ment of Article 87(3)(c) EC. Moreover, the Commission took                      equitable, together with interest thereon from the date of
a restructuring plan as a basis which it knew to be no longer                   the application until payment in full;
current.
                                                                          (3) order the Commission to pay the costs.
Finally, the applicant complains of infringement of the appli-
cant’s right to a fair hearing, of its rights of defence, of the
principle of good administration, of the duty to state reasons
(Article 253 EC) and of Article 20(1) of Regulation                       Pleas in law and main arguments
No 659/1999 (1).
                                                                          The applicant has a sugar refinery in Curaçao which is used
(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying           for processing C sugar from the European Community. That
    down detailed rules for the application of Article 93 of the EC       sugar obtains OCT origin under the EC/OCT cumulation of
    Treaty (OJ L 83, p. 1).                                               origin rule, and can be imported into the Community duty-
                                                                          free.
                                                                          By Regulation 1325/2001 of 29 June 2001 (1) (the Fifth
                                                                          Safeguard Measure), amended by Commission Regulation
                                                                          1476/2001 of 18 July 2001 (2), a quota of 4 848 tonnes was
                                                                          fixed for the period 1 July to 1 December 2001.
Action brought on 30 August 2001 by Free Trade Foods
NV against the Commission of the European Communities                     The applicant puts forward the following pleas in law in
                                                                          support of its claims:
                           (Case T-202/01)
                                                                          —     infringement of Article 109 of the OCT decision;
                          (2001/C 303/41)
                                                                          —     infringement of the order of preference established by the
                                                                                EC Treaty in favour of OCT goods;
                    (Language of the case: Dutch)
                                                                          —     infringement of Article 7(5) of the Agreement on Safe-
                                                                                guards concluded within the framework of the WTO, and
An action against the Commission of the European Communi-                       of Article 33(7) EC;
ties was brought before the Court of First Instance of the
European Communities on 30 August 2001 by Free Trade                      —     illegality of Regulation 2553/97, the provisions of which
Foods NV, established in Curaçao (Dutch West Indies), rep-                      have been declared applicable by the contested regulation.
resented by M.M. Slotboom and N.J. Helder, lawyers.
The applicant claims that the Court should:                               (1) Commission Regulation (EC) No 1325/2001 of 29 June 2001
                                                                              providing for the continued application of safeguard measures
                                                                              with regard to imports of sugar sector products with EC/OCT
(1) annul Regulation 1325/2001 of 29 June 2001 introdu-                       originating status from the overseas countries and territories for
      cing safeguard measures for imports from the overseas                   the period 1 July to 1 December 2001 (OJ L 177 of 30 June 2001,
      countries and territories of sugar sector products with                 p. 57).
      EC/OCT cumulation of origin;                                        (2) Commission Regulation (EC) No 1476/2001 of 18 July 2001
                                                                              amending Regulation (EC) No 1325/2001 as regards safeguard
                                                                              measures with regard to imports from the overseas countries
(2) rule that the Community is liable for the damage suffered                 and territories of mixtures of sugar and cocoa with ACP/OCT
      by the applicant as a result of the Fifth Safeguard Measure,            originating status for the period 1 July to 1 December 2001 (OJ
      and that the parties should seek to reach agreement on                  L 195 of 19 July 2001, p. 29).
      the extent of the damage suffered by the applicant, and
      order that, if no such agreement is reached within a time-
      limit to be specified by the Court, the proceedings are to