Action brought on 2 April 2013 – Netherlands v Commission

(Case T-186/13)

Language of the case: Dutch

Parties

Applicant: Kingdom of the Netherlands (represented by: M. Bulterman, B. Koopman and J. Langer, acting as Agents)

Defendant: European Commission

Form of order sought

Annul the Decision; and

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant challenges 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 applicant relies on four pleas in law.

First plea in law, alleging infringement of Article 107(1) TFEU

This is not a case of State aid within the meaning of Article 107(1) TFEU. According to the Netherlands Government, the present case does not concern a benefit, or at least not a benefit that a market participant would not have obtained under ordinary market conditions. On the basis of false assumptions the Commission drew the mistaken conclusion that the Municipality had other options as regards the construction of the Damplein project. Adherence to existing agreements would not have led to the desired outcome, nor would a renegotiation of the contract have offered a solution. Further, the Commission manifestly erred in its assessment of the question whether trade between Member States was affected. The Leidschendam Centrum project and particularly the Damplein sub-project are so limited in scope that there can be no question of any effect on trade between Member States. The decision is therefore contrary to Article 107 TFEU.

Second plea in law, alleging infringement of Article 107(3)(c) TFEU

The Commission manifestly erred in its assessment of the facts and on that basis regarded the reduction in the price of the land as being incompatible with the internal market. The reduction in the price of the land satisfies every requirement and the Commission has failed, in particular in the light of earlier Commission decisions, sufficiently to explain why the reduction in the price of the land is incompatible. Further, the Commission erred in using market failure as a criterion for the applicability of Article 107(3)(c) TFEU. The Commission thus misapplied Article 107(3)(c) TFEU.

Third plea in law, alleging erroneous determination of the amount of aid on the basis of several calculation errors

In calculating the amount of the aid, the Commission made three serious errors. First, the Commission failed to take into account the fact that only 50% of the reduction in the price of the land and of the waiver of fees was to be financed from public funds. Secondly, the Commission failed to take into account the earlier price reductions of 2006 and 2008 when calculating the reduction in the price of the land. Thirdly, the Commission calculated the fees on the basis of the Leidschendam Centrum project area, instead of that of the Damplein sub-project. Interest paid from 2004 to 2010 was also disregarded. The Commission thus proceeded on the basis of incorrect facts when calculating the amount of the aid, as a result of which the aid figure of EUR 6 922 121 is incorrect.

Fourth plea in law, alleging breach of general principles and of Article 41 of the Charter of Fundamental Rights. Owing to the excessive duration of the procedure for the adoption of the decision, the Commission was not entitled to recovery.

From the point at which the full facts were known to the Commission, it allowed an unreasonable period of time to elapse before adopting the decision. In the particular circumstances, the Commission ought to have refrained from seeking recovery. The Commission thus breached the principles of due care, legal certainty and the protection of legitimate expectations.