Action brought on 2 April 2013 – Bouwfonds Ontwikkeling and Schouten & De Jong Projectontwikkeling v Commission

(Case T-193/13)

Language of the case: Dutch

Parties

Applicants: Bouwfonds Ontwikkeling BV (Hoevelaken, Netherlands) and Schouten & De Jong Projectontwikkeling BV (Leidschendam, Netherlands) (represented by: E. Pijnacker Hordijk and X. Reintjes, lawyers)

Defendant: European Commission

Form of order sought

Annul the contested decision; and

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicants challenge Commission Decision C(2013) 87 of 23 January 2013 on State aid SA.24123 (2012/C) (ex 2011/NN) implemented by the Netherlands – Alleged sale of land below market price by the Municipality of Leidschendam-Voorburg.

In support of the action, the applicants rely on three pleas in law.

First plea in law, alleging breach of the fundamental requirement that the Commission exercise its powers within a reasonable period of time, and thus breach of the principle of legal certainty and of the rights of the defence and of Article 41 of the Charter of Fundamental Rights of the European Union.

By allowing around 38 months to elapse between its becoming aware of the measures at issue and adoption of the contested decision, the Commission wrongfully acted in a dilatory manner and one that was thus contrary to the fundamental requirement that it should act within a reasonable period of time. In addition, as a result of the excessively long investigation period, it was more difficult for the applicants to counter the Commission’s arguments, the Commission having, by its conduct, thereby also breached the rights of the defence.

Second plea in law, alleging serious deficiencies in the determination and assessment of the relevant facts and/or breach of the obligation to state reasons and/or infringement of Article 107(1) TFEU by the Commission’s incorrect application of the private investor principle

Overall, the applicants did not obtain a financial benefit, let alone any financial benefit that might be regarded as unlawful State aid.

The Commission miscalculated the amount of the alleged benefit in that it, inter alia, attributed 100% of the agreed price reductions to the Municipality, whereas the price reduction was borne by a public private partnership in which the Municipality bore 50% of the risk. The Commission also disregarded earlier price reductions agreed within that partnership, without giving reasons for doing so.

Furthermore, the Commission incorrectly applied the private investor principle in the contested decision by assessing the Municipality’s conduct by reference to the – legally not practicable and in any event financially exceedingly unfavourable – hypothetical conduct of a notional private investor.

Third plea in law, alleging incorrect application of Article 107(3) TFEU

If it is determined that there is State aid, such aid is in any case fully compatible with the internal market. The Commission wrongly took the view that the Municipality was unable to demonstrate that the measures at issue had any common interest objective. In so doing it wrongly assessed the 2009/2010 measures at issue against the background of the (more favourable) market situation prevailing in 2004.

The Commission thereby failed to appreciate that the measures at issue were necessary for, and appropriate and proportionate to the revitalisation of the run-down town centre of Leidschendam, an objective which chimes with the clearly described and recognised EU objective of economic and social cohesion within the meaning of Article 3 TEU and Article 174 TFEU. There can be no question of any undue distortion of competition.