Appeal brought on 28 December 2021 by Fachverband Spielhallen eV and LM against the order of the General Court (Fourth Chamber) delivered on 22 October 2021 in Case T-510/20, Fachverband Spielhallen eV and LM v European Commission

(Case C-831/21 P)

Language of the case: German

Parties

Appellants: Fachverband Spielhallen eV, LM (represented by: A. Bartosch and R. Schmidt, Rechtsanwälte)

Other parties to the proceedings: European Commission, Federal Republic of Germany

Form of order sought

The appellants claims that the Court should:

set aside the order of the General Court of the European Union in Case T-510/20;

refer the case back to the General Court;

reserve the costs.

Pleas in law and main arguments

The appellants raise a single ground of appeal, alleging infringement of Article 107(1) TFEU.

The General Court dismissed the action in Case T-510/20 solely on the ground that the measure at issue was not capable of conferring an economic advantage for the purposes of Article 107(1) TFEU. However, according to established EU case-law on tax matters, the criteria of advantage and selectivity must always be examined together. A finding of selectivity invariably presupposes the definition of a normal tax system. Without the definition of such a normal tax system, it is therefore impossible to determine whether there was an economic advantage. However, the General Court failed to examine the normal tax system and was therefore not entitled to conclude that the measure at issue did not confer an economic advantage. As a result, the contested decision is vitiated by a serious error of law.

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