6.8.2005   

EN

Official Journal of the European Union

C 193/22

(1)

annul the judgment of 14 April 2005 of the Court of First Instance in Case T-88/01;

(2)

allow the claims made at first instance or, if appropriate, refer the case back to the Court of First Instance for the latter to give a decision on the merits of the case;

(3)

allow the appellant's request for measures of organisation of procedure made on 16 October 2001, and the request for the parties to appear in person, for witnesses to give evidence and for an expert's report, made by the appellant on 20 April 2001;

(4)

order the respondent (the defendant at first instance) to pay the costs.

1.

An error of law in that the appellant's application was held to be inadmissible because it had not adduced pertinent reasons to show that the contested decision might adversely affect its legitimate interests by seriously jeopardising its position on the market. Here, the Court of First Instance fell into various errors of assessment of the information in the file, in particular in relation to direct competition between the cellulose fibres (lyocell, sub-standards of lyocell and proviscose) manufactured and marketed by the undertaking which is the recipient of the State aid and the cellulose fibres (viscose) manufactured and marketed by the appellant. Both fibres compete for certain uses and applications on the same market. Likewise, the Court of First Instance failed to make a proper assessment of various matters in the file that constituted legal evidence of the existence of a set of specific circumstances identifying the appellant (closed circle of addressees and over-capacity on the market for cellulose fibres etc.). Finally, the Court of First Instance made an incorrect assessment of the matters in the file that prove the considerable adverse effect on the appellant's position on the market.

2.

An error of law in that the application was declared inadmissible because the appellant was not individually concerned, having played only a minor role in the pre-litigation procedure. On this point, the European Commission gave the appellant notice to submit comments as an interested third party for the purposes of Article 88(2) EC. The appellant made effective use of its procedural rights and submitted comments directed at the aid granted to Lenzing Lyocell. Nonetheless, that participation could serve no practical purpose because the Commission considered it expedient not to reveal certain information during the administrative procedure.

3.

As a subsidiary matter, breach of the fundamental right of effective legal protection. The Court of First Instance's decision to declare the action inadmissible, without undertaking any evaluation of the merits of the case, constitutes an infringement of the right to a fair hearing and a denial of justice. It implies a retrograde step in Community case-law which has made more flexible the conditions on which third parties concerned in proceedings concerning State aid may bring an action.

4.

As a further subsidiary matter, infringement of Community law. This plea may in turn be divided into two parts. First, breach of the principle of procedural equality, given that comparative examination supports the conclusion that the Fifth Chamber (Extended Composition) of the Court of First Instance afforded different treatment to two comparable situations. Second, infringement of Articles 64 and 65 of the Rules of Procedure of the Court of First Instance, in that the Court of First Instance did not grant the request for measures of organisation of procedure and for evidence sought at first instance by the appellant.