CELEX: C2002/247/20
Language: en
Date: 2002-10-12 00:00:00
Title: Case C-314/02: Action brought on 6 September 2002 by the Kingdom of the Netherlands against the Commission of the European Communities

C 247/12               EN                      Official Journal of the European Communities                                    12.10.2002
Action brought on 6 September 2002 by the Kingdom of                            cannot possibly be used as a basis on which to assess
the Netherlands against the Commission of the European                          those measures, which were notified in 1995. According
                           Communities                                          to a Commission decision of 11 December 1998 relating
                                                                                to a German fiscal measure and taxation according
                         (Case C-314/02)                                        to tonnage (see: Staatliche Beihilfe No N 396/98 —
                                                                                Deutschland, SG(98) D/11575), there was in December
                         (2002/C 247/20)                                        1998 still no question whatever of port activities being
                                                                                excluded from aid measures within the maritime sector.
An action against the Commission of the European Communi-                       On the contrary, that decision brings (maritime) trans-
ties was brought before the Court of Justice of the European                    port, including that of tugs, in foreign ports expressly
Communities on 6 September 2002 by the Kingdom of the                           within the scope covered by the German measures.
Netherlands, represented by H.G. Sevenster, acting as Agent,                    Should the Commission, when carrying out its task of
with an address for service in The Hague.                                       constant review of existing aid measures, classify such a
                                                                                measure, whether on its own initiative or in response to
The Kingdom of the Netherlands claims that the Court should:                    a complaint, forthwith and retroactively as a new aid
                                                                                measure, that would be at variance with the system laid
1.    Annul Commission Decision C(2002) 2158 final of                           down in Article 88 EC and Regulation (EC) No 659/
      19 June 2002 concerning State aid provided by the                         1999.
      Netherlands in favour of the activities of Netherlands tug
                                                                                A claim for repayment as from 12 September 1990 is
      boats in seaports and inland waterways within the EU;
                                                                                contrary to the basis used by the Commission itself in its
2.    In the alternative, annul Article 3 of that Decision;                     investigation and is for that reason contrary to law.
                                                                                The contested decision is also otherwise ambiguous with
3.    Order the Commission to pay the costs.                                    regard to its scope. Use of the term ‘inland waterways’
                                                                                rests on the assumption that that term has a Community-
                                                                                wide definition; such, however, is not the case.
Pleas in law and main arguments
                                                                          —     Infringement of the principle of legal certainty.
—     Breach of law: the Netherlands Government disputes the
      Commission’s description in the contested decision of the           —     Failure to comply with the obligation to provide reasons.
      aid measures in question as constituting new aid. The
      Commission appears intent on suggesting that the
      Netherlands Government failed to indicate that the
      measures in question (‘tax incentives’ and ‘taxation
      according to tonnage’) could also apply to tug-boat
      services within ports and inland waterways. It is, however,                 Removal from the register of Case C-145/00 ( 1)
      clear from the documents available to the Commission
      that, with regard to tug-boat activities, it is only the                                    (2002/C 247/21)
      formal criterion as to whether a vessel can be treated as
      ‘sea-going’ that is conclusive in determining the scope of
      application of the measures in question. The place where            By order of 17 June 2002 the President of the Fifth Chamber
      the tug-boat activities are actually performed is irrelevant.       of the Court of Justice of the European Communities ordered
                                                                          the removal from the register of Case C-145/00: Commission
      The Commission erred in basing its decision as to the
      compatibility of the aid in question on the Community’s             of the European Communities v Kingdom of the Netherlands.
      1997 Guidelines on State aid to maritime transport (OJ
      1997 C 205 of 5 July 1997, p. 5). Those Guidelines                  (1 ) OJ C 233 of 12.8.2000.