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6.11.

2004 EN Official Journal of the European Union C 273/23

Action brought on 22 September 2004 by the Commission Council of 4 December 2001 establishing harmonised
of the European Communities against the Kingdom of requirements and procedures for the safe loading and
Sweden unloading of bulk carriers (1), and in any event, by failing to
communicate them to the Commission, the French Republic
has failed to fulfil its obligations under that directive;
(Case C-401/04)
2. order the French Republic to pay the costs.
(2004/C 273/42)

An action against the Kingdom of Sweden was brought before Pleas in law and main arguments:
the Court of Justice of the European Communities on 22
September 2004 by the Commission of the European Commu-
nities, represented by K. Simonsson and W. Wils, acting as The period allowed for the transposition of the Directive
Agents, with an address for service in Luxembourg. expired on 5 August 2003.

The applicant claims that the Court should:


(1) OJ L 13, 16.01.2002, p. 9.

1. Declare that Sweden has failed to fulfil its obligations under


Directive 2001/16/EC (1) of the European Parliament and of
the Council of 19 March 2001 on the interoperability of the
trans-European conventional rail system by failing to adopt
the laws and other provisions necessary to comply with the
directive or, in any event, by failing to inform the Commis-
sion thereof, and Appeal brought on 22 September 2004 by Technische
Glaswerke Ilmenau GmbH against the judgment delivered
2. Order Sweden to pay the costs. on 8 July 2004 by the Fifth Chamber, Extended Composi-
tion, of the Court of First Instance of the European
Communities in Case T-198/01 between Technische Glas-
Pleas in law and main arguments: werke Ilmenau GmbH and the Commission of the Euro-
pean Communities, supported by Schott Glas
The period prescribed for the implementation of the directive
ended on 20 April 2003. (Case C-404/04 P)

(1) OJ L 110, 20.4.2001, p. 1. (2004/C 273/44)

An appeal against the judgment delivered on 8 July 2004 by


the Fifth Chamber, Extended Composition, of the Court of First
Instance of the European Communities in Case T-198/01
between Technische Glaswerke Ilmenau GmbH and the
Action brought on 22 September 2004 by the Commission Commission of the European Communities, supported by
of the European Communities against the French Republic Schott Glas, was brought before the Court of Justice of the
European Communities on 22 September 2004 by Technische
Glaswerke Ilmenau GmbH, represented by Christoph Arhold
(Case C-402/04) and Norbert Wimmer, Rechtsanwälte, White & Case LLP, 62
rue de la Loi, B-1040 Brussels, with an address for service in
Luxembourg.
(2004/C 273/43)

An action against the French Republic was brought before the The appellant claims that the Court should:
Court of Justice of the European Communities on 22
September 2004 by the Commission of the European Commu-
nities, represented by Knut Simonssen, acting as Agent, with an 1. Set aside the judgment of the Court of First Instance of 8
address for service in Luxembourg. July 2004 in Case T-198/01; (1)

The Commission of the European Communities claims that the 2. Annul the decision of the Commission of 12 June 2001;
Court should:
3. In the alternative, refer the case back to the Court of First
Instance;
1. declare that by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2001/96/EC of the European Parliament and of the 4. Order the respondent to pay the costs.
C 273/24 EN Official Journal of the European Union 6.11.2004

Pleas and main arguments: the part of the Commission, since the Commission's
reasoning was manifestly incapable of casting doubt on
the appellant's submissions on the ceasing to exist of the
basis of the transaction. A breach of Article 87(1) EC by
the Commission should accordingly have been found by
1. The appellant contests the judgment of the Court of First the Court of First Instance.
Instance of 8 July 2004 in Case T-198/01 dismissing the
application for annulment of the Commission's decision
classifying as aid the reduction by DEM 4 000 000 of the — In so far as the Court of First Instance relied on addi-
purchase price of an undertaking privatised by the Treuhan- tional reasons not adduced by the Commission (no
danstalt (subsequently BvS) and requiring it to be recovered. evidence of a promise by the Freistaat Thüringen), these
were inadmissible (substitution of reasoning) and irrele-
vant (it was not the promise by Thüringen that was
2. The appellant, both in the procedure for the examination of evidentially relevant but the mistake of the contracting
aid and in the procedure before the Court of First Instance, parties as to the amount of support).
put forward the view that it had been entitled to the reduc-
tion of the purchase price on the ground that the basis of
the transaction had ceased to exist, since it and the vendor — Moreover, the Court of First Instance infringed essential
— the Treuhandanstalt — had both presumed when fixing procedural rules, inter alia the right to be heard, by
the purchase price that the Freistaat Thüringen (Land of rejecting in its judgment the appellant's applications for
Thuringia) would support the appellant's investment in the evidence to be taken as regards the basis of calculation,
privatised undertaking from GA funds (a general regional and at the same time basing the judgment on the fact
aid scheme approved by the Commission) at a higher rate that the appellant had not proved its submissions.
(permissible for small and medium-sized undertakings). That
support had been the basis of the calculation. Since only
normal, not higher-rate support had been granted, the basis 5. In addition to the above grounds of appeal, the appellant
of calculation had ceased to exist to that extent, and the also complains of errors of law in relation to other defects
purchase price should have been adjusted accordingly. Since in the reasoning of the Commission's decision and error of
there had been a general civil-law claim to adjustment of law in finding that the Commission had not committed
the purchase price, which any private seller would also have significant procedural errors.
been subject to, there could have been no question of aid
(no economic advantage and no selectivity within the
meaning of Article 87(1) EC). That was also the case (1) Not yet published in the Official Journal of the European Union.
because under the Treuhand system in force at the time of
privatisation the fixing of a correspondingly lower purchase
price would have been permissible without any problems as
regards aid law.

3. The Commission rejected the appellant's argument on legal


grounds and took the view that claims against the Treuhand Appeal brought on 23 September 2004 by Mannesmann-
and the Freistaat Thüringen were to be investigated sepa- röhren-Werke AG against the judgment delivered on 8
rately. The Court of First Instance approved that reasoning, July 2004 by the Second Chamber of the Court of First
and furthermore pointed out that the applicant had not Instance of the European Communities in Case T-44/00
produced in the judicial proceedings any written evidence between Mannesmannröhren-Werke AG and the Commis-
that the Freistaat Thüringen had agreed to provide support. sion of the European Communities

4. The appeal is directed against this. In connection with the


ceasing to exist of the basis of the transaction, the appellant (Case C-411/04 P)
puts forward in particular the following grounds of appeal:

(2004/C 273/45)
— The Court of First Instance wrongly found that the
Commission had not infringed the duty to state reasons
(Article 253 EC), since it was not possible, on the basis
of the Commission's reasoning, to ascertain why the
Commission had rejected the applicant's stated claim An appeal against the judgment delivered on 8 July 2004 by
against the Treuhand (now BvS) on the ground of the the Second Chamber of the Court of First Instance of the Euro-
ceasing to exist of the basis of the transaction. pean Communities in Case T-44/00 between Mannesmann-
röhren-Werke AG and the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 23 September 2004 by Mannes-
— If the Commission's reasoning satisfied the requirements mannröhren-Werke AG, represented by Dr. Martin Klusmann
of Article 253 EC, the Court of First Instance should in und Dr. Frederik Wiemer, Anwälte, of Freshfields Bruckhaus
any case have found a manifest error of assessment on Deringer, Freiligrathstraße 1, D-40479 Düsseldorf.