T-107/96

PANTOCHIM v COMMISSION

O R D E R O F T H E PRESIDENT O F T H E C O U R T O F FIRST INSTANCE 21 October 1996 *

In Case T-l07/96 R,

Pantochim SA, a company incorporated under Belgian law, established at Feluy (Belgium), represented by Jacques H . J. Bourgeois, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Marc Loesch, 11 rue Goethe,

applicant,

v

T H E P R E S I D E N T O F THE C O U R T O F FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

makes the following

Order

Facts

1 The applicant, Pantochim SA, whose registered office is at Feluy (Belgium), is a subsidiary of Società Italiana Serie Acetica Sintetica (hereinafter 'Sisas'), which is established in Milan (Italy). At Feluy Pantochim has a plant for producing diesel oil of vegetable origin, called Sisoil E. Sisoil E is a methyl ester of vegetable oil which may be used on its own or, mixed with classic diesel oils, as a fuel for inter- nal combustion engines and for domestic heating.

The application for exemption from domestic consumption duty

4 In particular, by letter of 21 June 1996, addressed to the Pantochim board, the French Minister of Agriculture, Fisheries and Food pointed out that, according to an on-the-spot investigation, the Feluy refinery had a production capacity which was higher than the volume for which approval was sought. Since Council Direc- tive 92/81/EEC of 19 October 1992 on the harmonization of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12) authorizes Member States t o apply exemptions from excise duty or full or partial reductions of excise duty only in relation to pilot projects defined by the capacity of production plant, n o approval could be granted for that refinery as a pilot plant. The minister also stated that, since a procedure for determining whether the French legislation was com- patible with the common market was pending before the Commission, it was impossible for the French authorities to grant any new approval. H e added that if the proposals submitted to the Commission were accepted, allowing the proce- dures in progress to be wound up satisfactorily, Pantochim could, like any other Community undertaking producing biofuels, apply for approval issued pursuant to a public procedure, on the basis of criteria and rules laid down in strict obser- vance of the rules of competition which would be made known to the interested parties.

The administrative procedure concerning the French legisUtion exempting biofuels from domestic consumption duty

5 O n 7 December 1994 the Commission initiated the procedure provided for in Article 93(2) of the EC Treaty in respect of the French legislation exempting bio- fuels from domestic consumption duty. The French authorities were notified of this step on 12 December 1994.

9 By letter of 24 May 1996 addressed to the Sisas board, the Commission informed Sisas that its letter of 29 March 1996 had been recorded as a complaint aimed at the initiation of infringement proceedings pursuant to Article 169 of the E C Treaty.

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Procedure

io By application lodged at the Registry of the Court of First Instance on 12 July 1996 Pantochim brought an action for (i) a declaration under Article 175 of the Treaty that the Commission had failed to prohibit, in the procedure commenced under Article 93(2) of the Treaty concerning the reduction of duties on biofuels in France, the discriminatory grant of that tax reduction and (ii) an award of com- pensation under Articles 178 and 215 of the EC Treaty for the damage which it claims to have suffered as a result of the Commission's failure to act.

n By separate document lodged at the Registry of the Court of First Instance on 19 July 1996 the applicant made this application under Article 186 of the EC Treaty for an interim order directing 'the Commission to require France, in the procedure under the first subparagraph of Article 93(2) of the EC Treaty, provisionally t o grant [to it] the [...] biodiesel quota requested to be exempt from the excise duty applicable'.

is Article 104(2) of the Rules of Procedure of the Court of First Instance provides that applications for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Such measures must be provisional in the sense that they must not prejudge the decision on the substance of the case (see the order of the President of the Court of First Instance of 8 October 1996 in Case T-84/96 R Cipeke v Commission [1996] E C R 11-1313, paragraph 23).

Arguments of the parties

Admissibility of the main application

i6 The Commission considers that this application must be declared inadmissible because the main application is itself inadmissible on the grounds that the applicant has not observed the procedure laid down in Article 175 of the Treaty and that this procedure is not available to it.

20 In particular, in a case such as this, which concerns a procedure in the matter of State aid, Article 93(2) of the Treaty allows undertakings interested in participating in the administrative procedure before the Commission only to submit their obser­ vations (Case 70/72 Commission v Germany [1973] E C R 813, paragraph 19). Since, first, the possibilities of bringing an action under Article 175 of the Treaty are more limited than those provided for by Article 173 and, secondly, the procedure in the matter of State aid is a special procedure, an interested third-party undertak­ ing which has, as in the present case, submitted observations under Article 93(2) of the Treaty is not allowed to bring an action for failure to act in order to have the Commission's failure to adopt a decision censured.

2i Finally, even supposing that it were necessary to assess the admissibility of an action for failure to act in accordance with the conditions laid down in the fourth paragraph of Article 173 of the Treaty as regards the action for annulment, the main action brought by Pantochim must also be regarded as inadmissible. For, according to the case-law of the Court of First Instance, an undertaking cannot be regarded as individually concerned by a decision approving a general aid scheme such as that in question since under such a general system 'the existence of an actual beneficiary, and therefore the existence of an actual competing undertaking, presupposes the practical application of the aid scheme by the grant of individual aids' (Case T-398/94 Kahn Scheepvaart v Commission [1996] E C R 11-479).

23 The applicant emphasizes that the obligation in question is not the Commission's obligation to commence a procedure under the second subparagraph of Article 93(2) of the Treaty but the obligation incumbent on that institution to bring that procedure, once it has been started, to a successful conclusion within a reasonable time, in accordance with the first subparagraph of Article 93(2) of the Treaty. In the present case, having regard to the fact that the warning letter was sent to it on 29 March 1996, the Commission had more than a reasonable period of time in which to bring that procedure to an end (order of the Court of Justice in Case 59/79 Federation Nationale des Producteurs de Vins de Table et Vin de Pays v Commission [1979] E C R 2425), especially since it was aware that the French Gov- ernment sets the duty-free quotas by marketing year and this normally runs from 1 July to 30 June of the following year.

Legality of the interim measure sought

24 The Commission also contests the legality of the measure sought on the ground that it is contrary to the principles laid down by Articles 92 and 93 of the Treaty.

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25 First of all, according to the Commission, if granted, the measure sought would, notwithstanding its terms, be addressed to France. But since France is not party t o the proceedings, the interim order sought by Pantochim would infringe the pro- cedural rule that, before a protective measure is taken pursuant to Articles 92 and 93 of the Treaty, the Member State concerned must be put in a position to give its views on the planned measure (judgment of the Court of Justice in Case C-301/87 France v Commission [1990] ECR 1-307, paragraph 19).

ORDER OF 21.10. 1996 — CASE T-107/96 R

of Justice in Case C-354/90 Fédération Nationale du Commerce Extérieur des Pro- duits Alimentaires and Syndicat National des Négociants et Transformateurs de Saumons v French State [1991] ECR1-5505 and in Case C-39/94 SFEI v Commis- sion, cited above).

29 The applicant submits that the relevant provisions in this case are, contrary to the Commission's contention, not those contained in Article 93(2) of the Treaty but those contained in Article 93(3). So, the definition of the Commission's powers in the matter of interim measures, as this appears from the case-law cited by the Commission, according to which it has the power only to require that payment of aid be suspended and to request the information necessary for examining whether the aid is compatible with the common market, is not applicable in the present case.

30 In the applicant's view, there is therefore no provision denying the Commission the power to direct the French authorities to amend the conditions for the grant of the aid in question.

3i Furthermore and in any event, the bringing of an action before the French courts challenging the French authorities' refusal to grant it approval cannot affect the legality of the interim measure sought. Moreover, since the role of national courts is simply to ensure that Member States observe their obligations in the event of a failure to notify aid and since, in the present case, according to the applicant, the aid scheme has been notified to the Commission, the national court's involvement has no bearing on the assessment of the admissibility and of the merits of the application for interim measures.

35 As the Commission has pointed out, it is settled case-law that when, in a pro- cedure under Article 93(2) of the Treaty, it finds that aid has been introduced with- out being notified to it in advance, as Article 93(3) of the Treaty requires, the only interim measure it can take is to direct the Member State concerned to suspend payment of the aid immediately and to provide it, within a period of time deter- mined by it, with all the documents, information and data necessary for examining

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ORDER OF 21. 10. 1996 — CASE T-107/96 R

whether the aid is compatible with the common market (see, most recently, the judgment in Case C-39/94 SFEI v Commission, cited above, paragraph 45).

36 However, the interim measure which the applicant seeks from the Court, namely an order directing the Commission to require France to grant to the applicant a provisional, limited exemption from domestic consumption duty, is clearly beyond the powers conferred upon the Commission in relation to the administrative pro- cedure provided for by Article 93(2) of the Treaty.

37 Such a measure would also be contrary to the Community rules governing State aid (Articles 92 and 93 of the Treaty).

4i It follows that, in such a procedure, any interim measure not having such an aim has no foundation within that system and must be regarded as unlawful.

42 It must, accordingly, be concluded that the measure sought by the applicant in these interim proceedings — an order directing the Commission to require the French authorities to grant Pantochim a provisional, limited exemption from domestic consumption duty, as provided for by Article 32 of the 1992 Finance Law — is not allowed by the Community rules governing State aid.

43 Moreover, it must be observed that the interim measure sought in the present case would have the same content and the same effects as the measure which the Com- mission has, according to the applicant, failed to adopt. It would, however, not be consistent with the principles governing the distribution of powers between the various Community institutions, as intended by the authors of the Treaty, for the Community judicature to be able to require the Commission to accede to the request for interim measures submitted to it (order of the President of the Court of First Instance in Case T-131/89 R Cosimex v Commission [1990] ECR II-1, paragraphs 11 and 12).

44 In these interim proceedings the applicant is likewise asking the Court to assume the role of the Commission in assessing the alleged aid and judging whether it may need to be extended to the applicant before the Commission has taken any decision in the matter. Moreover, in making such an interim order the Court would not be addressing it to the defendant institution but to the Member State concerned.

1. The application for interim measures is dismissed.

2. Costs are reserved.

Luxembourg, 21 October 1996.

H. Jung A. Saggio

Registrar President

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