Notice for the OJ
Action brought on 30 November 2001 by Dessauer Versorgungs- und Verkehrsgesellschaft mbH - DVV - Stadtwerke and four other undertakings against the Commission of the European Communities
(Case T-291/01)
Language of the case: German
An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 30 November 2001 by Dessauer Versorgungs- und Verkehrsgesellschaft mbH - DVV - Stadtwerke, of Dessau (Germany), Neubrandenburger Stadtwerke GmbH, of Neubrandenburg (Germany), Stadtwerke Schwäbisch Hall GmbH, of Schwäbisch Hall (Germany), Stadtwerke Tübingen GmbH, of Tübingen (Germany) and Stadtwerke Uelzen GmbH, of Uelzen (Germany), represented by D. Fouquet, lawyer.
The applicants claim that the Court should:
(declare that, by failing, within two months after being formally called upon by letter of 29 August 2001 to act pursuant to the second paragraph of Article 232 EC, to examine the complaint made on the basis of Articles 87 and 88 EC and to reach a decision in the light of that examination, the Commission has infringed Article 232 EC;
(order the Commission to pay the costs of the proceedings, including the costs incurred by the applicants, even in the event that, following the bringing of the action, the Commission takes action in such a way that, in the opinion of the Court, the proceedings have become nugatory.
Pleas in law and main arguments:
The applicants are German public utilities producing their own electricity. Since the introduction of competition in the electricity market, the applicants, as energy suppliers, have been in competition with, in particular, the 19 existing nuclear power stations as regards the production of electricity in the Federal Republic of Germany.
According to the applicants, the nuclear power station operators set aside reserves in their commercial and tax balance sheets in respect of the cost of having to close down at some future date and the disposal of irradiated fuel elements and radioactive waste. The disposal and shutting-down costs are allocated to the sales proceeds from continuous electricity production. However, according to the applicants, the obligation under commercial law to set aside reserves affects, at the same time, the way in which the nuclear power station operators are treated for tax purposes. As a result of the German tax rules, a significant part of the tax additionally demanded is in fact made freely available to the nuclear power station operators by virtue of the legislation on tax relief.
The applicants assert that the exemption of reserves under fiscal law in favour of nuclear power stations constitutes a grant by the Federal Republic of Germany of unlawful, non-notified aid which is incompatible with the common market. They maintain that the Commission was obliged to open a formal procedure against the Federal Republic of Germany pursuant to Articles 10(1), 13(1) and 4(4) of Council Regulation (EC) No 659/1999
1. Had it done so, the Commission would then have been constrained, under the law applicable to grants of aid, to adopt a negative decision against the Federal Republic of Germany on the facts as stated.