Notice for the OJ
Action brought on 22 July 2002 by Ter Lembeek International N.V. against the Commission of the European Communities
(Case T-217/02)
Language of the Case: Dutch
An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 22 July 2002 by Ter Lembeek International N.V., having its registered office in Wielsbeke (Belgium), represented by Jean-Pierre Vande Maele, Frank Wijckmans and Filip Tuytschaever.
The applicant claims that the Court should:
1.Annul Articles 1 and 2 of the Commission decision of 24 April 2002 concerning State aid granted by Belgium to the Beaulieu Group (Ter Lembeek International);
2.Order the defendant to pay the costs.
Pleas in law and main arguments:
The applicant was involved as a shareholder in three companies under the name Verlipack. When it became a shareholder in those companies it assumed responsibility for repurchasing a specified number of shares from the public authorities. In 1991 the authorities concerned insisted on compliance with this obligation of repurchase and the applicant accordingly found itself obliged to buy back the shares. Repurchase was spread over several years.
In 1996 the Regional Authority for Wallonia pressed for accelerated repurchase of those shares by the applicant. The latter thereupon took over the shares from the Regional Authority for Wallonia, which thereby obtained an outstanding claim against the applicant. According to the applicant, the purchase had no economic significance for it and the shares were of no value to it. The shares, however, had to be bought for a fixed price. The applicant also derived no advantage whatever from the shares as they were shortly afterwards brought into a separate company over which the applicant had no control.
In 1998 the Regional Authority for Wallonia reached agreement with the applicant that it would transfer its shares in Verlipack Holding II to that Authority. In exchange, the claim which that Authority held against the applicant would lapse.
The decision under challenge treats this latter agreement as constituting State aid and as being incompatible with the Common Market. That decision states that the shares given in payment were at that moment in fact worthless. The Regional Authority for Wallonia thus permitted its claim against the applicant to lapse without receiving any consideration. The decision accordingly also takes the view that the applicant obtained free of cost the shares which it was required to purchase from the Regional Authority for Wallonia in 1996.
According to the applicant, the decision under challenge breaches Article 87(1) EC and Articles 7 and 13 of Regulation No 659/1999.
1 It argues that no benefit was obtained. In its view, the economic value of the shares when they were repurchased in 1996 was nil, or even negative, and it also derived no advantage from those shares. Moreover, according to the applicant, it was not the beneficiary of any aid measure, as it held the shares only for a very short period of time. It goes on to submit that there was no distortion of competition. According to the decision under challenge, competition was distorted within the textiles sector, whereas the alleged aid measure was granted within the glass sector.
The applicant pleads, second, an infringement of the proportionality principle and Article 14 of Regulation No 659/1999. In its opinion, the requested repayment of the aid bears no relation to the advantage allegedly enjoyed.
The applicant further claims that there has been an infringement of the principle of equal treatment and argues that two separate valuation methods are applied in the decision under challenge. For the valuation of the shares which it was forced to purchase, the decision applies a nominal price, which, however, according to the applicant, was much higher than the true value of the shares. For the valuation of the shares which the applicant transferred to the Regional Authority for Wallonia by way of payment, however, the decision applies the real value of the shares, which at that time was considered to be zero.
In conclusion, the applicant argues that there has been an infringement of the principle that reasons must be given.
____________1 - (Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83 of 27.03.1999, pp 1 to 9).