Action brought on 5 December 2011 - Biogas Nord v Commission

(Case T-628/11)

Language of the case: German

Parties

Applicant: Biogas Nord AG (Bielefeld, Germany) (represented by: C. Birkemeyer, lawyer)

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 on State aid C 7/2010 (ex CP 250/2009 and NN 5/2010) implemented by Germany 'KStG, Sanierungsklausel' ('Law on corporate tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty') (document C(2011) 275) pursuant to Article 264 TFEU;

order the Commission to pay the applicant's costs pursuant to Article 87(2) of the Rules of Procedure of the General Court.

Pleas in law and main arguments

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

First plea in law: compliance with the private creditor principle

In the context of the first plea, the applicant submits that Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) is not aid within the meaning of Article 107 et seq. TFEU because the beneficiary undertakings provide consideration of equal value in return which bears comparison with the conduct of a private creditor in a market economy.

Second plea in law: no selectivity

The applicant submits in that regard that Paragraph 8c(1a) of the KStG is not aid within the meaning of Article 107 et seq. TFEU because that provision does not have the effect of selectively favouring certain undertakings.

Third plea in law: protection of legitimate expectations

In the context of the third plea, the applicant submits that the legitimate expectations of undertakings which have made arrangements regarding assets before they know about a procedure initiated by the Commission under Article 108(2) TFEU enjoy protection.

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