Action brought on 21 May 2012 - Ålands Industrihus v Commission

(Case T-212/12)

Language of the case: Swedish

Parties

Applicant: Ålands Industrihus (Mariehamn, Finland) (represented by: L. Laitinen, lawyer)

Defendant: European Commission

Form of order sought

Annul Commission Decision C 6/2008 of 13 July 2011 on measures implemented by the Regional Government of Åland in favour of Ålands Industrihus Ab, and

Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on seven pleas in law.

First plea in law, alleging incorrect application of Article 107(1) TFEU - not State aid

The applicant claims that the injection of capital and loan guarantees do not constitute State aid since the aid has not distorted competition to the extent that it affects trade between Member States. The Commission has made a clearly incorrect assessment of the facts of the case, in particular by finding that there is no absolute obstacle to foreign undertakings carrying out their activity in Åland and, indeed, no obstacle which prevents them from investing in the local property market.

2.    Second plea in law, alleging incorrect application of Article 107(1) TFEU as regards the notion of private investor - not State aid

The applicant claims that all the injections of capital were compatible with the market economy investor principle and thus did not distort or was likely to distort competition to the extent that it affects trade between Member States. The Commission has made an incorrect assessment as regards the measure's compatibility with the market economy investor principle in that the Commission, inter alia, incorrectly and arbitrarily regarded the extent of the expected yield by focussing only on one yearly yield. In the applicant's submission, the true expected yield was a combination of the yearly yield and the expected increase in value.

3.    Third plea in law, alleging failure to have regard to the existing aid programme relating to the guarantees

The Commission did not take account of the fact that at least two of the guarantees provided were included in an existing aid scheme.

4.    Fourth plea in law, alleging incorrect assessment of the facts and failure to state reasons

If, despite everything, the measures in question were to be regarded as constituting State aid, the amounts which are to be recovered are incorrectly calculated. Firstly, the Commission has, on the basis of weak, incomplete and extremely brief reasons, arbitrarily established that the scope of the recovery covers the entire invested capital sum. Secondly, the Commission has, on the basis of incomplete reasons, arbitrarily fixed the amount of the aid elements relating to the guarantees at an unreasonable and unrealistic level. The applicant claims that the lacunae and arbitrariness in the Commission's reasons makes it almost impossible for the applicant adequately to counter the Commission's allegations.

5.    Fifth plea in law, alleging incorrect application of the rules on the reference rate

The Commission has applied, in the calculation of the aid elements relating to the guarantees, its notice on review of the method for setting the reference and discount rates ² with retroactive effect. That unfair retroactive application has meant that the aid elements relating to the guarantees to be recovered were fixed higher than they would have been had the correct document, which, in the submission of the applicant, is Notice 97/C 273/03 Commission on the method for setting the reference and discount rates  which was in force at the time when the guarantees were issued, formed the basis of the calculation.

6.    Sixth plea in law, alleging that the applicant had legitimate expectations as regards the aid

The applicant had, on the basis of the facts set out above under the first, second and third pleas in law, legitimate expectations that the Regional Government's measures did not constitute unlawful State aid. The applicant none the less raised the question with the Regional Government, which confirmed that the measures were covered by notified aid schemes.

7.    Seventh plea in law, alleging that the Commission's decision endangers legal certainty and restricts the system of property ownership under Article 345 TFEU

The Commission has totally ignored concurrent investments carried out by the municipality of Mariehamn which makes it impossible for the applicant to treat the shareholders identically in a recovery situation in accordance with binding provisions of Finnish company law. The Commission's oversight thus distorts the economic end result for those involved in a way which means that the decision infringes Article 345 TFEU, under which the Treaties are in no way to prejudice the rules in Member States governing the system of property ownership.

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¹ - OJ 2008 C 14, p. 6.

² - OJ 1997 C 273, p. 3.