# C_2010317EN.01002301.xml

| 20.11.2010 | EN | Official Journal of the European Union | C 317/23 |
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20.11.2010

EN

Official Journal of the European Union

C 317/23

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Appeal brought on 20 September 2010 by Freistaat Sachsen and Land Sachsen-Anhalt against the judgment delivered by the General Court (Eighth Chamber) on 8 July 2010 in Case T-396/08 Freistaat Sachsen and Land Sachsen-Anhalt v European Commission

(Case C-459/10 P)

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2010/C 317/41

Language of the case: German

Parties

Parties

Appellants: Freistaat Sachsen (Free State of Saxony) and Land Sachsen-Anhalt (Land of Saxony-Anhalt) (represented by: A. Rosenfeld and I. Liebach, Rechtsanwälte)

Appellants:

Land

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellants claim that the Court should:

| 1. | set aside the judgment of the General Court of the European Union of 8 July 2010 in Case T-396/08 Freistaat Sachsen and Land Sachsen-Anhalt v European Commission, concerning the partial annulment of Commission Decision 2008/878/EC of 2 July 2008 on State aid which Germany is planning to implement for DHL, and annul the first paragraph of Article 1 of Commission Decision 2008/878/EC of 2 July 2008; |
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1.

set aside the judgment of the General Court of the European Union of 8 July 2010 in Case T-396/08 Freistaat Sachsen and Land Sachsen-Anhalt v European Commission, concerning the partial annulment of Commission Decision 2008/878/EC of 2 July 2008 on State aid which Germany is planning to implement for DHL, and annul the first paragraph of Article 1 of Commission Decision 2008/878/EC of 2 July 2008;

Freistaat Sachsen and Land Sachsen-Anhalt

European Commission

| 2. | in the alternative, set aside the judgment of the General Court of the European Union referred to in 1. and refer the case back to the General Court; |
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2.

in the alternative, set aside the judgment of the General Court of the European Union referred to in 1. and refer the case back to the General Court;

| 3. | order the respondent to pay the costs. |
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3.

order the respondent to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The appeal is against the judgment of the General Court by which the appellants’ action for partial annulment of Commission Decision 2008/878/EC of 2 July 2008 was dismissed. By that decision the Commission had declared that a large part of the notified training aid which Freistaat Sachsen and Land Sachsen-Anhalt wanted to grant to DHL was incompatible with the common market.

By the appeal the appellants complain of the following infringements of European Union law by the General Court:

| — | The General Court has infringed Regulation No 68/2001, the former Article 87(3)(c) EC and the principle of equal treatment because the examination of the necessity of the aid is incorrect in law. The infringement of Regulation No 68/2001 results from the fact that substantive criteria not laid down in the regulation are examined, which is permissible, by way of exception, only where the specific features of an individual case so justify. The former Article 87(3) EC has been infringed because the General Court erred in law in not finding that training aid serves or can serve the objectives of the former Article 87(3)(c) EC and that this is to be taken into account by the Commission in the balancing test under Article 87(3) EC. Finally, there is an infringement of the principle of equal treatment since in previous decisions involving comparable facts the Commission neither examined nor established the necessity of training aid. No objective justification for this unequal treatment is apparent. |
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The General Court has infringed Regulation No 68/2001, the former Article 87(3)(c) EC and the principle of equal treatment because the examination of the necessity of the aid is incorrect in law. The infringement of Regulation No 68/2001 results from the fact that substantive criteria not laid down in the regulation are examined, which is permissible, by way of exception, only where the specific features of an individual case so justify. The former Article 87(3) EC has been infringed because the General Court erred in law in not finding that training aid serves or can serve the objectives of the former Article 87(3)(c) EC and that this is to be taken into account by the Commission in the balancing test under Article 87(3) EC. Finally, there is an infringement of the principle of equal treatment since in previous decisions involving comparable facts the Commission neither examined nor established the necessity of training aid. No objective justification for this unequal treatment is apparent.

| — | Even if it is to be assumed that the criterion of necessity was rightly used, there is an error of law. The appellants plead in this regard that the General Court did not have regard to Regulation No 68/2001, the Commission guidelines on regional aid and the former Article 87(3)(c) EC because, acting incorrectly in law, it failed to include the incentive effects on the choice of site in the examination of necessity. It is apparent from the wording of Regulation No 68/2001 that training aid can at least comprise regional aspects too. The General Court’s assumption that the promotion of enterprises in disadvantaged areas and the establishment of new undertakings can result only from regional aid is incorrect. |
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Even if it is to be assumed that the criterion of necessity was rightly used, there is an error of law. The appellants plead in this regard that the General Court did not have regard to Regulation No 68/2001, the Commission guidelines on regional aid and the former Article 87(3)(c) EC because, acting incorrectly in law, it failed to include the incentive effects on the choice of site in the examination of necessity. It is apparent from the wording of Regulation No 68/2001 that training aid can at least comprise regional aspects too. The General Court’s assumption that the promotion of enterprises in disadvantaged areas and the establishment of new undertakings can result only from regional aid is incorrect.

| — | Furthermore, the General Court has also infringed Regulation No 68/2001, the former Article 87(3)(c) EC and the principle of equal treatment in that it erred in law in applying improper criteria when assessing the necessity of the aid. First, it should not have taken account of the business practice and strategy of the recipient of the aid, as undertakings which, on the basis of internal standards, establish a high level of training are thereby placed at a disadvantage for the purposes of the law on aid vis-à-vis undertakings which have a low training level. Second, the aid should not have been regarded as unnecessary solely because it is prescribed in national legal rules. This has the effect that undertakings from Member States with a high training level prescribed by statute are placed at a disadvantage vis-à-vis undertakings from Member States with a comparatively low training level. |
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Furthermore, the General Court has also infringed Regulation No 68/2001, the former Article 87(3)(c) EC and the principle of equal treatment in that it erred in law in applying improper criteria when assessing the necessity of the aid. First, it should not have taken account of the business practice and strategy of the recipient of the aid, as undertakings which, on the basis of internal standards, establish a high level of training are thereby placed at a disadvantage for the purposes of the law on aid vis-à-vis undertakings which have a low training level. Second, the aid should not have been regarded as unnecessary solely because it is prescribed in national legal rules. This has the effect that undertakings from Member States with a high training level prescribed by statute are placed at a disadvantage vis-à-vis undertakings from Member States with a comparatively low training level.

| — | Finally, the General Court has also infringed the former Article 87(3)(c) EC in that, acting incorrectly in law, it failed to take account of the positive external effects of the training measure at issue. |
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Finally, the General Court has also infringed the former Article 87(3)(c) EC in that, acting incorrectly in law, it failed to take account of the positive external effects of the training measure at issue.

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