Appeal brought on 4 December 2020 by Hermann Albers eK against the judgment of the General Court (Fifth Chamber) delivered on 5 October 2020 in Case T-597/18, Hermann Albers v European Commission

(Case C-656/20 P)

Language of the case: German

Parties

Appellant: Hermann Albers eK (represented by: S. Roling, Rechtsanwalt)

Other parties to the proceedings: European Commission, Federal Republic of Germany, Land Niedersachsen

Form of order sought

The appellant claims that the Court should:

set aside in part the judgment of the General Court of 5 October 2020, Hermann Albers v Commission (T-597/18, EU:T:2020:467), in the form of paragraphs 1 and 2 of the operative part;

grant in their entirety the forms of order sought at first instance, by which it was sought that the decision of the European Commission of 12 July 2018, C(2018) 4385 final, 1 be annulled and that the Commission be ordered to pay the costs of the proceedings.

Grounds of appeal and main arguments

The appellant claims that the General Court misconstrued the meaning of Articles 107 TFEU and 108 TFEU in relation to Paragraph 7a of the Niedersächsisches Nahverkehrsgesetz (Law on local transport of the Land of Lower Saxony; the ‘NNVG’). Paragraph 7a of the NNVG constitutes, contrary to the findings of the General Court, new State aid that is subject to the obligation to notify.

As regards Article 107 TFEU, what is at issue is not merely the domestic transfer of financial resources, since the transport authorities, in their dual role as owners of public transport undertakings, benefit directly from the allocation of resources and use them selectively at the expense of the private sector via direct awards. The transport authorities exercised over the public transport undertakings control similar to that which they exercise over their own departments. The allocation of resources to the transport authorities is inextricably linked with a favouring effect, since at that point in time the use of the resources for the economic activities of municipal undertakings is often already established. This distorts competition and affects trade between Member States.

Moreover, on account of the fact that Paragraph 7a of the NNVG amounts to aid, but also independently therefrom, there has been an infringement of Article 108(3) TFEU, since the Federal Republic of Germany failed to notify Paragraph 7a of the NNVG to the European Commission.

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1     European Commission decision not to raise objections to the measure adopted by the Land Niedersachsen under Paragraph 7a of the Niedersächsisches Nahverkehrsgesetz (Law on local transport of the Land of Lower Saxony) (Case SA. 46697 (2017/NN)) (OJ 2018 C 292, p. 1).