# C_2012025EN.01006002.xml

| 28.1.2012 | EN | Official Journal of the European Union | C 25/60 |
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28.1.2012

EN

Official Journal of the European Union

C 25/60

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Action brought on 17 November 2011 — Oppenheim v Commission

(Case T-586/11)

(2012/C 25/116)

Language of the case: German

Parties

Applicant: Sal. Oppenheim jr. & Cie. AG & Co. KGaA (Cologne, Germany) (represented by: W. Deselaers, J. Brückner and M. Haisch, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Decision K(2011)275, of 26 January 2011 on State aid C-7/10 relating to the fiscal carry-forward of losses (‘Sanierungsklausel’), corrected by Decision K(2011) 2608 of 15 April 2011; |
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annul Commission Decision K(2011)275, of 26 January 2011 on State aid C-7/10 relating to the fiscal carry-forward of losses (‘Sanierungsklausel’), corrected by Decision K(2011) 2608 of 15 April 2011;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

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

| 1. | First plea in law: no prima facie selectivity/incorrect definition of the reference framework
  The applicant claims that there is no prima facie selectivity within the meaning of Article 107(1) TFEU. It argues that the Commission’s determination of the reference system is incorrect and that the relevant system of reference, that is the continuation of unused losses by the company, despite an acquisition of shares, is a fundamental rule of national tax law. In addition, it is claimed that the fiscal carry-forward of losses constitutes an exception to that exception which leads back to the system of reference and therefore itself complies with the system. |
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1.

First plea in law: no prima facie selectivity/incorrect definition of the reference framework

The applicant claims that there is no prima facie selectivity within the meaning of Article 107(1) TFEU. It argues that the Commission’s determination of the reference system is incorrect and that the relevant system of reference, that is the continuation of unused losses by the company, despite an acquisition of shares, is a fundamental rule of national tax law. In addition, it is claimed that the fiscal carry-forward of losses constitutes an exception to that exception which leads back to the system of reference and therefore itself complies with the system.

| 2. | Second plea in law: carry-forward of losses as a general measure
  Under this point, the applicant claims that the carry-forward of losses constitutes a general measure and not, therefore, State aid within the meaning of Article 107(1) TFEU. It is submitted that carrying forward losses is available to all companies which are liable to tax in Germany and that they are neither openly nor covertly linked to features based on territory, size or production sector. |
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2.

Second plea in law: carry-forward of losses as a general measure

Under this point, the applicant claims that the carry-forward of losses constitutes a general measure and not, therefore, State aid within the meaning of Article 107(1) TFEU. It is submitted that carrying forward losses is available to all companies which are liable to tax in Germany and that they are neither openly nor covertly linked to features based on territory, size or production sector.

| 3. | Third plea in law: justification on the basis of the nature and the internal logic of the taxation system
  The applicant claims in the course of the third plea in law that the carrying-forward of losses is justified by the nature and the internal logic of the German taxation system, as it is a system — consistent exception to the exception of a forfeiture of losses pursuant to Paragraph 8c(1) of the German Law on corporation tax (Körperschaftsteuergesetz; ‘KStG’) which leads back to the reference system complies with it. |
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3.

Third plea in law: justification on the basis of the nature and the internal logic of the taxation system

The applicant claims in the course of the third plea in law that the carrying-forward of losses is justified by the nature and the internal logic of the German taxation system, as it is a system — consistent exception to the exception of a forfeiture of losses pursuant to Paragraph 8c(1) of the German Law on corporation tax (Körperschaftsteuergesetz; ‘KStG’) which leads back to the reference system complies with it.

| 4. | Fourth plea in law: no burden on public finances
  The applicant claims that the carrying-forward of losses (‘Sanierungsklausel) could not lead to a burden on public finances relevant to aid and for that reason alone it is not State aid within the meaning of Article 107(1) TFEU. The applicant argues that in a case of corporate restructuring other than the insolvency of the affected company, the only alternative to avoid insolvency is by means of restructuring, and that by the carrying-forward of losses which may enable the company to be saved, the possibility of future tax revenue from the affected company is maintained. |
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4.

Fourth plea in law: no burden on public finances

The applicant claims that the carrying-forward of losses (‘Sanierungsklausel) could not lead to a burden on public finances relevant to aid and for that reason alone it is not State aid within the meaning of Article 107(1) TFEU. The applicant argues that in a case of corporate restructuring other than the insolvency of the affected company, the only alternative to avoid insolvency is by means of restructuring, and that by the carrying-forward of losses which may enable the company to be saved, the possibility of future tax revenue from the affected company is maintained.

| 5. | Fifth plea in law: infringement of the principle of EU law of the protection of legitimate expectations
  In the fifth plea in law, the applicant claims that the Commission, through its practice and failure to object to the previous rules of Paragraph 8c KStg as well as comparable rules of other Member States, gave rise to legitimate expectations on the part of the applicant, which should also have been protected on the basis of the binding information and lack of predictability of relevance to State aid of the carrying-forward of losses. |
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5.

Fifth plea in law: infringement of the principle of EU law of the protection of legitimate expectations

In the fifth plea in law, the applicant claims that the Commission, through its practice and failure to object to the previous rules of Paragraph 8c KStg as well as comparable rules of other Member States, gave rise to legitimate expectations on the part of the applicant, which should also have been protected on the basis of the binding information and lack of predictability of relevance to State aid of the carrying-forward of losses.

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