CELEX: C2001/289/71
Language: en
Date: 2001-10-13 00:00:00
Title: Case T-173/01: Action brought on 25 July 2001 by Asahi Vet Sa against the Commission of the European Communities

13.10.2001              EN                      Official Journal of the European Communities                                        C 289/31
—      adopt such measures as it deems necessary;                          Action brought on 25 July 2001 by Asahi Vet Sa against
                                                                                  the Commission of the European Communities
—      order the Commission of the European Communities to
       pay the applicant the costs of the proceedings in their
       entirety.                                                                                    (Case T-173/01)
                                                                                                    (2001/C 289/71)
Pleas in law and main arguments
                                                                                             (Language of the case: German)
The applicant is a joint-enterprise company governed by
Argentinean law, established by a European Communities
undertaking and an Argentinean ship owning company, to                     An action against the Commission of the European Communi-
which the Commission granted aid by decision of 25 July                    ties was brought before the Court of First Instance of the
1995 (1). In 1997 the Commission decided to initiate a                     European Communities on 25 July 2001 by Asahi Vet SA of
procedure to reduce the aid granted, without first suspending              Rubı́, Barcelona (Spain), represented by Dr Carsten Bittner.
payment of the balance of the aid by formal decision (2).
On 19 March 2001 the Commission adopted a decision
withdrawing the balance of the aid. The applicant was excluded
from the scope of application of that decision (3).                        The applicant claims that the Court should:
                                                                           —     Annul Commission Regulation No 937/2001 of 11 May
Faced with that situation, on 18 May 2001, the applicant                         2001 (1) in so far as it limits the provisional authorisation
formally called upon the Commission to pay the balance of                        of the additives Bacillus cereus var. toyoi (ToyoCerin) for
the aid still outstanding. That request satisfies all the legal                  fattening chickens, laying hens, calves, fattening cattle,
requirements laid down in case-law. The Commission failed to                     fattening rabbits and breeding rabbits to the period up to
define its position with regard to that request within the two-                  1 March 2002;
month period provided for in Article 232 EC.
                                                                           —     Order the defendant to pay the costs.
The applicant maintains that the Commission was under an
obligation to act, given that it is the body responsible for
ordering the payment of the aid and remitting the Community
funds in question to the Argentinean authorities, who merely
execute the payment. Thus, by failing to answer the said                   Pleas in law and main arguments
request, the Commission failed to fulfil its obligations.
                                                                           The applicant is a subsidiary of the Japanese company Asahi
                                                                           Vet Japan Co. Ltd, which developed the feeding stuff additive
                                                                           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,
                                                                           the applicant is the applicant in a procedure for Community
(1) Aid granted within the framework of Council Regulation (EEC)           authorisation in respect of the additive ToyoCerin pursuant to
    No 3447/93 of 28 September 1993 on the conclusion of the               Article 3 and following of Council Directive 70/524/EEC (2).
    Agreement between the European Economic Community and the
    Argentine Republic on relations in the sea fisheries sector (OJ
    1993 L 318, p. 1).
(2) The two addressees of the decision to grant the aid (the Com-          The applicant first applied for a Community authorisation in
    munity undertaking and the joint enterprise) then brought an           respect of ToyoCerin for all categories of animal in 1991, and
    action in non-contractual liability, claiming damages on account       a temporary authorisation for ToyoCerin in respect of the
    of the Commission’s unlawful action (Case T-44/01 Eduardo
                                                                           following categories of animal was granted in 1994: rearing
    Vieira and Vieira Argentinav Commission, OJ 1997 C 134, p. 26).
                                                                           pigs, piglets and sows. That temporary authorisation was
(3) The decision was challenged by its addressee, the Community            periodically extended until April 1999. As regards other
    undertaking, in Case T-126/01 Eduardo Vieirav Commission, ECR          animals, such as fattening chickens, cattle and fattening rabbits,
    II-0000.
                                                                           ToyoCerin was authorised on a temporary basis by Regulation
                                                                           (EC) No 1411/1999 (3). That temporary authorisation was
                                                                           extended to 20 February 2001 by Regulation (EC)
                                                                           No 2697/2000 (4). The use of ToyoCerin was not authorised
                                                                           for a period of more than three months under that regulation.
 ---pagebreak--- C 289/32                EN                     Official Journal of the European Communities                                    13.10.2001
The contested regulation granted temporary authorisation for              Action brought on 31 July 2001 by Ferrieri Nord SPA
a limited period, that is to say from 1 June 2001 to 1 March                against the Commission of the European Communities
2002.
                                                                                                   (Case T-176/01)
The action is directed against the Commission’s regulation
limiting the temporary authorisation of ToyoCerin to the
period ending on 1 March 2002. The applicant claims that the                                       (2001/C 289/72)
brevity of that temporary authorisation following a period
during which no authorisation was extant means that ToyoCe-
                                                                                              (Language of the case: Italian)
rin will not be able to be distributed on the market even
though there is an authorisation. It is so short that the duration
of the authorisation only marginally exceeds the sales period
required by feedingstuff manufacturers. Accordingly, the prod-            An action against the Commission of the European Communi-
uct cannot in fact be used by the applicant’s purchasers for the          ties was brought before the Court of First Instance of the
manufacture of feedingstuffs.                                             European Communities on 31 July 2001 by Ferriere Nord
                                                                          SPA, represented by Wilma Viscardini and Gabriele Donà,
                                                                          lawyers, against the Commission of the European Communi-
The applicant submits that the contested regulation infringes             ties.
general principles of Community law and also is vitiated by
errors of form. First of all, the regulation infringes the
requirement to give reasons in so far as it does not clearly
show — even though the Commission has no further concerns                 The applicant claims that the Court should:
about renewing the temporary authorisation — why the
authorisation has to be limited to nine months. For example,
                                                                          —     annul, pursuant to Article 230 of the EC Treaty, Com-
two other micro-organisms of the Saccharomyces Cerevisiae
                                                                                mission Decision C(2001) 1010 final of 28 March 2001
type received temporary authorisation for four years under the
                                                                                finding incompatible with the common market the aid
same regulation. The regulation also therefore infringes the
                                                                                granted by the Regione Autonoma Friuli-Venezia Giulia
general principle of equality and discriminates significantly
                                                                                to Ferriere Nord SPA (worth ITL 1 650 000 000) for
against the applicant’s product — it metes out unequal
                                                                                environmental investments in a new plant for the pro-
treatment which is not justified on objective grounds.
                                                                                duction of electrically welded mesh;
The applicant furthermore claims that the regulation is not               —     order the Commission to pay compensation pursuant to
proportionate and that it does not constitute a measure that is                 Articles 235 and 288(2) of the EC Treaty for the damage
appropriate either to authorise or to prohibit the additive                     suffered by Ferriere Nord SPA as a consequence of the
ToyoCerin. Finally the regulation is contradictory and infringes                illegal decision (c(2001) 1010 final of 28 March 2001)
the principle of proper administration.                                         and the consequent delay in paying the aid illegally
                                                                                cancelled;
                                                                          —     order the Commission to pay all costs and fees.
(1) Commission Regulation (EC) No 937/2001 of 11 May 2001
    concerning the authorisation of new additive uses, new additive       Pleas in law and main arguments
    preparation, prolongation of provisional authorisations and the
    10 year authorisation of an additive in feedingstuffs (OJ 2001
    L 130, p. 25).
(2) Council Directive 70/524/EEC of 23 November 1970 concerning           The contested decision concerns a production plant, for which
    additives in feedingstuffs (OJ 1970 L 270 p. 1), most recently        the regional aid at issue was requested, capable of bypassing
    amended by Commission Regulation No 45/1999 of 11 Novem-              the cold rolling process (drawing the wire), the straightening
    ber 1999 (OJ 1999 L 6, p. 3).                                         of the wire and its cutting to measure. The new manufacturing
(3) Commission Regulation (EC) No 1411/1999 of 29 June 1999               process provided for the use of wire with special technical
    concerning the authorisation of new additives and a new additive      characteristics enabling it to be used directly as steel wire in
    usage in feedingstuffs (OJ 1999 L 164, p. 56).                        the process for assembling the mesh. The applicant maintains
(4) Commission Regulation (EC) No 2697/2000 of 27 November                that the aid should be regarded as an instance of the application
    2000 concerning the provisional authorisation of additives in         of the general aid scheme provided for by Friuli-Venezia Giulia
    feedingstuffs (OJ 2001 L 319, p. 1).                                  Regional Law No 47 of 3 June 1978, as amended by Regional
                                                                          Law No 2 of 20 January 1992. Following the adoption of a
                                                                          number of amendments, the Commission decided not to raise
                                                                          objections under Articles 92 or 93 of the EEC Treaty (now
                                                                          Articles 87 EC and 88 EC) with regard to the 1992 Law.