Action brought on 24 April 2024 – Kerkosand v Commission

(Case T-216/24)

Language of the case: German

Parties

Applicant: Kerkosand spol. s r.o. (Šajdíkove Humence, Slovak Republic) (represented by: A. Rosenfeld and C. Holtmann)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

declare that the European Commission unlawfully failed to take the measures resulting from the judgment of the General Court of 9 September 2020 in Case T-745/17 ¹ and to initiate the formal investigation procedure in State Aid Case SA.38121 [2016/FC] – Slovak Republic ‘Investment aid to the Slovak glass sand producer NAJPI a.s.’ under Article 4(4) of Regulation (EU) 2015/1589 ² ;

order the European Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The claim is based on the following pleas in law.

First plea in law, alleging infringement of Article 266 TFEU

In the first plea in law, the applicant complains that the Commission failed to fulfil its obligation under Article 266 TFEU by failing to take the measures resulting from the General Court’s judgment of 9 September 2020 in Case T-745/17 and to initiate the formal investigation procedure in State aid procedure SA.38121 [2016/FC] – Slovak Republic ‘Investment aid to the Slovak glass sand producer NAJPI a.s.’ under Article 4(4) of Regulation (EU) 2015/1589. In its judgment of 9 September 2020, the Court declared the contested decision null and void. According to the Court’s judgment, when examining the aid, if the Commission had doubts as to the compatibility with the internal market of that aid, it should have done so under Article 4(4) of Regulation (EU) 2015/1589. Since the Commission has not yet adopted a decision to initiate the formal investigation procedure, there is a breach of Article 266 TFEU.

Second plea in law, alleging infringement of Article 108 TFEU and Article 4 of Regulation (EU) 2015/1589

By the second plea in law, the applicant claims that, through its inaction, the Commission also breached its obligation under Article 108(2) TFEU, read in conjunction with Article 4(4) of Regulation (EU) 2015/1598. Article 4(4) of Regulation (EU) 2015/1589 requires the Commission to initiate the formal investigation procedure under Article 108(2) TFEU if, after a preliminary examination, the Commission finds that doubts are raised as to the compatibility with the internal market of a notified measure. Following the Court’s judgment of 9 September 2020, the Commission should have had doubts. Nevertheless, no corresponding decision to initiate the formal investigation procedure has been issued so far. More than three years and seven months have passed since the Court’s judgment of 9 September 2020. By the time the annulled decision was issued, the preliminary examination procedure would have already taken three years and six months. The preliminary examination procedure had therefore already lasted more than seven years in total without the formal investigation procedure being initiated.

3.    Third plea in law, alleging infringement of Article 41(1) of the Charter of Fundamental Rights of the European Union ¹

By the third plea in law, the applicant alleges a breach of the right to good administration under Article 41(1) of the Charter of Fundamental Rights. That fundamental right requires the Commission to complete an administrative procedure within a reasonable period of time and to avoid the procedure from taking too long. That fundamental right of the applicant was breached because more than seven years have passed since the applicant’s aid complaint without the formal investigation procedure being initiated. The Commission was required to do so at the latest since the Court’s judgment of 9 September 2020. That excessive length of the procedure, which could have been avoided, is incompatible with the principles of good administration and the right to an expeditious administrative procedure.

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¹ Judgment of 9 September 2020, Kerkosand v Commission, T-745/17, EU:T:2020:400.

¹ Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).

¹ OJ 2012 C 326, p. 391.