CELEX: C2004/059/24
Language: en
Date: 2004-03-06 00:00:00
Title: Case C-553/03 P: Appeal brought on 30 December 2003 by the Panhellenic Union of Cotton Ginners and Exporters against the judgment delivered on 16 October 2003 by the Fifth Chamber (Extended Composition) of the Court of First Instance of the European Communities in case T-148/00 between the Panhellenic Union of Cotton Ginners and Exporters and the Commission of the European Communities, supported by the Hellenic Republic

C 59/14                EN                         Official Journal of the European Union                                         6.3.2004
Commission of the European Communities, was brought                             adequate reasons as to why Bronner is not relevant to the
before the Court of Justice of the European Communities on                      present case.
29 December 2003 by Unilever Bestfoods (Ireland) Ltd,
formerly HB Ice Cream Ltd, established in Dublin (Ireland),
represented by M. Nicholson, M. Rowe, M. Biesheuvel and                   (1) OJ C 234, 25.07.1998, p. 28.
M. de Grave, lawyers, with an address for service in Luxem-
bourg.
The Appellant claims that the Court should:
(a)   set aside — in its entirety or partially — the judgment of          Appeal brought on 30 December 2003 by the Panhellenic
      the Court of First Instance (Fifth Chamber) of 23 October           Union of Cotton Ginners and Exporters against the
      2003 in case T-65/98, excluding paragraph 3 of the                  judgment delivered on 16 October 2003 by the Fifth
      operative part of the judgment; and                                 Chamber (Extended Composition) of the Court of First
                                                                          Instance of the European Communities in case T-148/
                                                                          00 (1) between the Panhellenic Union of Cotton Ginners
(b) annul — in its entirety or partially — the Commission                 and Exporters and the Commission of the European
      Decision in Case Nos. IV/34.073, IV/34.395 and IV/                       Communities, supported by the Hellenic Republic
      35.946 relating to a proceeding under Articles 81
      (formerly 85) and 82 (formerly 86) of the Treaty (Van
      den Bergh Foods Ltd) or, alternatively, refer the case back                                 (Case C-553/03 P)
      to the Court of First Instance; and
                                                                                                    (2004/C 59/24)
(c)   order the Commission to pay the Applicant’s costs at first
      instance and in this Application on appeal.
                                                                          An appeal against the judgment delivered on 16 October 2003
                                                                          by the Fifth Chamber (Extended Composition) of the Court of
                                                                          First Instance of the European Communities in case T-148/00
                                                                          between the Panhellenic Union of Cotton Ginners and
Pleas in law and main arguments
                                                                          Exporters and the Commission of the European Communities,
                                                                          supported by the Hellenic Republic, was brought before the
                                                                          Court of Justice of the European Communities on 30 December
The Appellant submits that the Court of First Instance erred in           2003 by the Panhellenic Union of Cotton Ginners and
law by concluding that the distribution agreements of Van den             Exporters, established in Thessaloniki (Greece), represented by
Bergh Foods Ltd (formerly HB Ice Cream Ltd) are liable to have            K. Adamantopoulos and J. Gutiérrez Gisbert, lawyers, with an
an appreciable effect on competition for the purposes of                  address for service in Luxembourg.
Article 81(1) of the Treaty and contribute significantly to a
foreclosure of the market.
                                                                          The Appellant claims that the Court should:
                                                                          1.    set aside the judgment of the Court of First Instance of
The Appellant also submits that the Court of First Instance                     16 October 2003 in case T-148/00 which dismissed the
erred in law when applying Article 81(3) of the Treaty. It                      original application of the Appellant before the Court of
wrongly applied the relevant burden and standard of proof                       First Instance as inadmissible and ordered the Appellant
and, in so doing, rendered its judgment inadequatly reasoned.                   to bear its own costs and those of the European Com-
                                                                                mission in relation to the action before the Court of First
                                                                                Instance;
Finally, it is submitted that the Court of First Instance erred in        2.    as requested originally before the Court of First Instance,
law in two respects when applying Article 82 of the Treaty:                     annul Article 1 of the Commission Decision (2000/206/
                                                                                EC) (2) on an aid scheme applied in Greece to cotton by
                                                                                the Greek Cotton Board, in so far as it only declares
—     it drew legal inferences which were unwarranted and
                                                                                Article 30(3) of Law 2040/92 of 17/23.4.1992, and not
      inadequately reasoned and cannot, therefore, support a
                                                                                Article 30(1) as well, incompatible with the common
      conclusion as to the abusive nature of the inducement;
                                                                                market; and
      and
                                                                          3.    order that the costs of and occasioned by these proceed-
—     it failed to apply the legal principles advanced by the                   ings, and those before the Court of First Instance, be
      Court in Bronner or, in the alternative, failed to give                   borne by the European Commission.
 ---pagebreak--- 6.3.2004                  EN                        Official Journal of the European Union                                         C 59/15
Pleas in law and main arguments                                             Reference for a preliminary ruling by the Rechtbank
                                                                            Utrecht, Sector kanton, Locatie Utrecht, by order of that
                                                                            Court of 10 December 2003 in the case of POSEIDON
                                                                            CHARTERING B.V. against 1. V.O.F. Marianne Zeeschip,
The present appeal is based on the following two grounds of                 2. ALBERT MOOIJ, 3. SJOERDTJE SIJSWERDA, 4. GER-
law:                                                                                            RIT DANIEL SCHRAM
(i)   Manifest error in that the judgment of the Court of First                                      (Case C-3/04)
      Instance states that the Appellant’s principal objection
      relates to the validity of the Commission’s finding that
      the Compensatory levy is compatible with the common                                           (2004/C 59/25)
      market organisation for cotton and therefore the original
      Application of the Appellant is inadmissible — should
      this finding be upheld it would inevitably result in an
      infringement of the rights to access to justice of the
      Appellant.                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by order of the Rechtbank Utrecht,
                                                                            Sector kanton, Locatie Utrecht, of 10 December 2003, received
      This is because the Appellant did not have any other                  at the Court Registry on 5 January 2004, for a preliminary
      option but to challenge the deficient finding of the                  ruling in the case of POSEIDON CHARTERING B.V. against 1.
      operative part of Article 1 of the contested Decision,                V.O.F. Marianne Zeeschip, 2. ALBERT MOOIJ, 3. SJOERDTJE
      which implicitly refers to the last paragraph of Section IV           SIJSWERDA, 4. GERRIT DANIEL SCHRAM on the following
      of the contested Decision which states that the Com-                  questions:
      pensatory levy of Article 30(1) of Law 2040/92 is
      ‘consonant with the market organisation’. The contested
                                                                            1.   Is a self-employed intermediary, who has arranged (not
      Decision is deficient in that the Commission failed to
                                                                                 several but) one contract (a charter for a ship) which is
      fulfil its duty to analyse the activities of the Greek Cotton
                                                                                 renewed every year and pursuant to which, in respect of
      Board financed by the compensatory levy of Article 30(1)
                                                                                 the renewal of the charter, the annual freight negotiations
      of Law 2040/92 under the EC State aid rules; and
                                                                                 (except, during the period from 1994 to 2000, in 1999)
                                                                                 are conducted between the owner of the ship and a third
                                                                                 party and the outcome of those negotiations is recorded
(ii) The judgment of the Court of First Instance is erroneous                    by the intermediary in an addendum, to be regarded as a
      in law and contrary to the case-law of the Court of Justice                commercial agent within the meaning of Council Direc-
      of the European Communities.                                               tive 86/653/EEC (1) of 18 December 1986 on the coordi-
                                                                                 nation of the laws of the Member States relating to self-
                                                                                 employed commercial agents?
      The Appellant submits that the judgment of the Court of
      First Instance is contrary to the case-law of the Court of            2.   Does it make any difference to the answer to Question 1
      Justice of the European Communities in that the judgment                   that the intermediary works for two principals because
      states that (i) ‘it is obvious’ that the Compensatory levy of              the intermediary already knew the third party between
      Article 30(1) of Law 2040/92 neither constitutes State                     1987 and 1994 and transacted business in respect of the
      aid nor contains a State aid component — the reason                        abovementioned charter for the same ship? If an agency
      being that in the Court of First Instance’s opinion the                    contract must be held to exist, does it make any
      Compensatory levy of Article 30(1) of Law 2040/92 is                       difference to the answer to Question 1 that an indemnity
      ‘merely one of two State aid financing methods granted                     (commission) of 2,5 % of the charter has been paid over
      by the Greek Cotton Board’; and (ii) that it is erroneous                  many years and/or that Article 7(1) of the Directive
      to equate the Compensatory levy of Article 30(1) of Law                    refers to ‘commercial transactions concluded’ and to the
      2040/92 ‘with State aid’. This is because the Compensa-                    existence of an entitlement to (the) commission ‘where
      tory levy of Article 30(1) of Law 2040/92 constitutes                      the transaction is concluded with a third party whom he
      State aid within the meaning of the Enirisorse and Van                     has previously acquired as a customer for transactions of
      Calster case-law.                                                          the same kind’?
                                                                            3.   Does is make any difference to the answer to Question 1
                                                                                 that Article 17 of the Directive refers to ‘customers’
(1) OJ C 259, 09.09.2000, p. 24.                                                 instead of customer?
(2) OJ 2000, L 63, p. 27.
                                                                            (1) OJ L 382 of 31.12.1986, p. 17.