Action brought on 19 October 2012 - Flughafen Lübeck v Commission
(Case T-461/12)
Language of the case: German
Parties
Applicant: Flughafen Lübeck GmbH (Lübeck, Germany) (represented by: M. Núñez Müller, J. Dammann de Chapto and T. Becker, lawyers)
Defendant: European Commission
Form of order sought
Annul the Commission's decision of 22 February 2012 on the initiation of the formal investigation procedure under Article 108(2) TFEU concerning State aid No SA.27585 (2012/C) (2012/NN) and SA.31149 (2012/C) (ex 2012/NN) (OJ 2012 C 241, p. 56) in so far as that decision initiates the formal investigation procedure in relation to the applicant's schedule of airport charges in 2006;
annul the decision referred to above in so far as it requires the Federal Republic of Germany, in accordance with Article 10(3) of Regulation (EC) No 659/1999, to reply to the information injunction contained in the Commission's decision in relation to the applicant's schedule of airport charges in 2006;
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 six pleas in law.
First plea in law, alleging infringement of the rights of defence of the Federal Republic of Germany
By the first plea, the applicant submits that the Commission infringed the rights of defence of the Federal Republic of Germany by initiating the formal investigation procedure in relation to the schedule of airport charges even though it was not the subject of the preliminary investigation procedure. The applicant submits in that respect that, according to the case-law of the Court, it can rely on the infringement of the rights of defence of the Federal Republic of Germany, leading to the annulment (in part) of the contested decision.
Second plea in law, alleging breach of the obligation to conduct a diligent and impartial examination
By the second plea, the applicant submits that the Commission failed to fulfil its obligation to conduct a diligent and impartial examination, in that it initiated the formal investigation procedure in relation to the schedule of charges without giving the Federal Republic of Germany or the applicant the opportunity during the preliminary investigation procedure to comment on its alleged unlawfulness under State aid law.
Third plea in law, alleging infringement of Article 108(2) and (3) TFEU and of Articles 4, 6 and 13(1) of Regulation No 659/1999
In the third plea, the applicant states that the Commission infringed Article 108(2) and (3) TFEU and Articles 4, 6 and 13(1) of Regulation No 659/1999, in that it failed to conduct the two-stage State aid control procedure laid down in those provisions - consisting of the preliminary investigation procedure and the formal investigation procedure - in respect of the schedule of charges.
Fourth plea in law, alleging infringement of Article 107(1) TFEU
In the context of the fourth plea, the applicant submits that the Commission infringed Article 107(1) TFEU in so far as it takes the view that the schedule of charges confers State aid. According to the applicant, the Commission was not entitled to infer the selectivity of the schedule of charges from the fact that the schedule applied only to airport users. Further, the applicant takes the view that the Commission should not have found that the schedule of charges was a State measure, as the majority of shares in the applicant were privately owned at the time when the schedule of charges was issued.
Fifth plea in law, alleging breach of the obligation to state reasons
In the applicant's opinion, the Commission also infringed the second paragraph of Article 296 TFEU, in that it failed to state adequate reasons for the initiation of the formal investigation procedure in relation to the 2006 schedule of charges.
Sixth plea in law, alleging infringement of Article 10(2) and (3) of Regulation No 659/1999
In the context of the sixth plea, the applicant states that the Commission infringed Article 10(2) and (3) of Regulation No 659/1999 in that it issued an information injunction, within the meaning of Article 10(3) of Regulation No 659/1999, to the Federal Republic of Germany in relation to the schedule of charges without first sending the Federal Republic of Germany a simple request for information, as provided for in Article 10(2) of Regulation No 659/1999.
____________1 - Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).