Notice for the OJ
Action brought on 16 February 2005 by Aker Warnow Werft GmbH and Kværner ASA against the Commission of the European Communities
(Case T-68/05)
Language of the case: English
An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 16 February 2005 by Aker Warnow Werft GmbH, established in Rostock-Warnemünde (Germany) and Kværner ASA, established in Oslo (Norway), represented by B. Immenkamp, Solicitor and M. Schütte, lawyer.
The applicants claim that the Court should:
- annul the Decision of the Commission C 6/2000 of 20 October 2004,
in its entirety;
- order the Commission to pay the costs of these proceedings.
Pleas in law and main arguments
In October 1992, the German privatisation agency (Treuhandanstalt) privatised and sold the East German shipyard Warnow Werft to the Norwegian Kværner group. In the framework of the privatisation, a lump sum contribution to the restructuring of the shipyard, made available in different installments, was offered. The state aid was notified to and approved by the European Commission in separate approval decisions.
In the contested decision, the Commission concluded that the applicants received more aid than was required to cover the actual contract losses incurred by the shipyard, and that the excess of aid should be recovered.
In support of their application, the applicants submit that the Commission committed an error of law and a manifest error of appreciation. According to the applicants, the amount to be recovered as state aid incompatible with the EC Treaty was approved by the Commission in its approval decisions and constitutes existing aid. The applicants submit that the Commission had no right to initiate the formal procedure, to re-assess the compatibility of the aid and to order the recovery of parts of the aid. They submit also that all conditions in the approval decisions of the Commission have been complied with, in particular the obligation to provide Spill-Over Reports and to observe capacity limitations. The applicants claim that the approval decisions did not contain any reservation by the Commission concerning the amount of aid and that all operating aid was approved in a lump sum, following a thorough verification of the necessity of the aid ex ante. Finally, the applicants state that the approval decisions are still in force.
The applicants furthermore submit that the Commission committed a manifest error of appraisal in concluding that the amount of state aid received exceeded the level of contract losses incurred. According to the applicants, the amount of the aid indicated in the contested decision is not mentioned at all in the Commission's approval decisions. Also, the amounts approved by the Commission for contract losses would be lower than the actual contract losses incurred. The applicants claim as well that the Commission included in its assessment of the aid received assets that should be considered not as aid, including assets for which Kværner had paid a purchase price. Furthermore, the applicants claim that the Commission ignored that the amount of aid approved, was only partially received.
The applicants also submit a violation of the principle of legal certainty. According to the applicants, the Commission did not act in a timely manner while it had all relevant information at its disposal. The applicants submit that the Commission only started its inquiries in 1999, even though it was, according to the applicants, fully informed of all relevant facts in early 1996. The procedure opened in February 2000 would also have been extended to new elements that were never investigated before, and for which the approval decisions did not provide a legal basis.
Finally, as a subsidiary ground, the applicants submit that the Commission failed to take all restructuring costs into account when determining the amount to be recovered. According to the applicants, much more was spent on the restructuring than the amount of aid received for that purpose.
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