Action brought on 2 December 2011 - GFKL Financial Services v Commission

(Case T-620/11)

Language of the case: German

Parties

Applicant: GFKL Financial Services AG (Essen, Germany) (represented by: M. Schweda, S. Schultes-Schnitzlein, J. Eggers and M. Knebelsberger, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the decision of the European Commission of 26 January 2011, C(2011) 275, on State aid C 7/2010 (ex CP 250/2009 and NN 5/2010) implemented by Germany 'KStG, Sanierungsklausel' ('Law on corporation tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty') (OJ 2011 L 235, p. 26);

order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies in essence on the following pleas in law:

First plea in law, alleging infringement of Article 107(1) TFEU: the provision enabling the fiscal carry forward of losses is not a selective measure

The applicant takes the view that the defendant based its decision on an incorrect understanding of German corporation tax law. In particular, it determined the relevant reference system incorrectly. It incorrectly assumed that exception in the Paragraph 8c(1) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax), according to which losses which may on the whole be carried forward are extinguished in particular cases of acquisitions of interests, are part of the reference system. In fact, that provision is a departure from the reference system. The reference system consists of the general possibility of carrying forward losses to subsequent fiscal periods. That follows not least from the (constitutional) principle of net profit or loss.

The provision enabling the fiscal carry forward of losses is in addition, according to the applicant, a general fiscal policy measure which does not confer a selective advantage because it does not favour certain undertakings or the production of certain goods and does not therefore differentiate between economic operators who are in a comparable factual and legal position as regards the aim of the tax system.

The provision enabling the fiscal carry forward of losses is after all also justified on the basis of the general scheme of the German tax system because it helps to give effect to fundamental principles of German corporation tax law (inter alia the principle of transfer of losses between different tax periods), which arise directly from the German Basic Law.

Second plea in law, alleging infringement of Article 107(1) TFEU: there are no subsidies from State resources

In this connection the applicant submits that there are no subsidies from State resources for the purposes of Article 107(1) TFEU in the carry forward of losses maintained by the provision, as that provision does not confer a financial advantage, but merely maintains a company's already existing financial position

Third plea in law, alleging infringement of the obligation to state reasons

The applicant submits in that regard, that the contested decision infringes essential procedural requirements. The applicant takes the view that there is no comprehensible reason for the reference system used as a basis by the defendant. In addition, the multitude of errors the defendant made in it assessment of the underlying German corporation tax law means as a whole that the basic reasons are no longer discernible. The applicant submits that the contested decision does not make it possible to discern the factual and legal circumstances on which the defendant bases its view that the provision enabling the fiscal carry forward of losses constitutes State aid.

Infringement of the principle of the protection of legitimate expectations

In this connection the applicant submits that the contested decision in also unlawful in so far as it orders the immediate and effective recovery of the (putative) aid without allowing Germany to take into account the existing justified legitimate expectation on the part of beneficiaries that the benefit would continue to exist. The contested decision to that extent infringes the unwritten principle of the protection of legitimate expectations under EU law.

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