# C_2016059EN.01003802.xml

| 15.2.2016 | EN | Official Journal of the European Union | C 59/38 |
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15.2.2016

EN

Official Journal of the European Union

C 59/38

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Action brought on 4 December 2015 — Interessengemeinschaft privater Milchverarbeiter Bayerns v Commission

(Case T-722/15)

(2016/C 059/45)

Language of the case: German

Parties

Parties

Applicant: Interessengemeinschaft privater Milchverarbeiter Bayerns e. V. (Mertingen, Germany) (represented by: C. Bittner and N. Thies)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | declare the contested decision to be invalid in so far as it:






  — | states in Article 1 that the State aid which the Federal Republic of Germany granted unlawfully in breach of Article 108(3) TFEU in respect of the milk quality tests carried out by the Land Bavaria in favour of dairy sector undertakings in that Land is during the period starting 1 January 2007 incompatible with the internal market; |
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declare the contested decision to be invalid in so far as it:

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states in Article 1 that the State aid which the Federal Republic of Germany granted unlawfully in breach of Article 108(3) TFEU in respect of the milk quality tests carried out by the Land Bavaria in favour of dairy sector undertakings in that Land is during the period starting 1 January 2007 incompatible with the internal market;

| — | orders in Articles 2 to 4 the repayment of that State aid together with interest by the beneficiaries; |
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orders in Articles 2 to 4 the repayment of that State aid together with interest by the beneficiaries;

| — | order the defendant to bear the costs incurred by the applicant. |
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order the defendant to bear the costs incurred by the applicant.

Pleas in law and main arguments

Pleas in law and main arguments

By the present action, the applicant seeks the partial annulment of Commission Decision C(2015) 6295 final of 18 September 2015 concerning State aid SA.35484 (2013/C) (ex SA.35484 (2012/NN)) granted by Germany in respect of milk quality tests pursuant to the Milk and Fat Law.

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

| 1. | First plea in law, alleging an infringement of Article 108(3) TFEU in conjunction with Article 6(1) and the first sentence of Article 20(1) of Regulation (EC) No 659/1999 (1)

  The applicant claims that the contested decision is based on facts and points of law which were not part of the opening decision. |
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1.

First plea in law, alleging an infringement of Article 108(3) TFEU in conjunction with Article 6(1) and the first sentence of Article 20(1) of Regulation (EC) No 659/1999 (1)

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The applicant claims that the contested decision is based on facts and points of law which were not part of the opening decision.

| 2. | Second plea in law, alleging an infringement of Article 107(1) TFEU in so far as the surcharge was classified as a State resource
  According to the applicant, the surcharge should not be classified as a State resource, since it is not under permanent State control and is not available to the national authorities. The national authorities merely forwarded payments from Bavarian dairy companies to the milk testers designated to carry out milk quality tests. |
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2.

Second plea in law, alleging an infringement of Article 107(1) TFEU in so far as the surcharge was classified as a State resource

According to the applicant, the surcharge should not be classified as a State resource, since it is not under permanent State control and is not available to the national authorities. The national authorities merely forwarded payments from Bavarian dairy companies to the milk testers designated to carry out milk quality tests.

| 3. | Third plea in law, alleging an infringement of Article 107(1) TFEU in so far as the financing of the milk quality tests was classified as State aid in favour of Bavarian dairy companies
  In this regard, it is claimed that the costs of milk quality tests are not expenses usually borne by Bavarian dairy companies. The tests were carried out in the public interest. In addition, the alleged benefits enjoyed by the dairy companies were offset by the requirement to pay a surcharge. |
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3.

Third plea in law, alleging an infringement of Article 107(1) TFEU in so far as the financing of the milk quality tests was classified as State aid in favour of Bavarian dairy companies

In this regard, it is claimed that the costs of milk quality tests are not expenses usually borne by Bavarian dairy companies. The tests were carried out in the public interest. In addition, the alleged benefits enjoyed by the dairy companies were offset by the requirement to pay a surcharge.

| 4. | Fourth plea in law (in the alternative), alleging an infringement of Article 107(3) TFEU
  The applicant claims that, during the period 2000-2006, the defendant considered the contested funding to be compatible with the internal market. Since then, there has been no change to the contested funding. Those circumstances indicate that the defendant’s discretion was reduced so that it is required to consider the contested funding granted since 1 January 2007 as compatible with the internal market. |
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4.

Fourth plea in law (in the alternative), alleging an infringement of Article 107(3) TFEU

The applicant claims that, during the period 2000-2006, the defendant considered the contested funding to be compatible with the internal market. Since then, there has been no change to the contested funding. Those circumstances indicate that the defendant’s discretion was reduced so that it is required to consider the contested funding granted since 1 January 2007 as compatible with the internal market.

| 5. | Fifth plea in law (in the alternative), alleging an infringement of Article 108(1) and (3) TFEU in so far as the financing of the milk quality tests was classified as new State aid which is thus subject to the obligation to notify |
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5.

Fifth plea in law (in the alternative), alleging an infringement of Article 108(1) and (3) TFEU in so far as the financing of the milk quality tests was classified as new State aid which is thus subject to the obligation to notify

| 6. | Sixth plea in law (in the alternative), alleging an infringement of the principle of legitimate expectations
  Finally, the applicant claims that, for the period 2000-2006, the Commission found that the financing of milk quality tests was compatible with the internal market. In addition, still in February 2012, it classified the financing of milk quality tests as existing aid. As a result, it created the legitimate expectation that in any event there would be no order for repayment of the alleged State aid. |
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6.

Sixth plea in law (in the alternative), alleging an infringement of the principle of legitimate expectations

Finally, the applicant claims that, for the period 2000-2006, the Commission found that the financing of milk quality tests was compatible with the internal market. In addition, still in February 2012, it classified the financing of milk quality tests as existing aid. As a result, it created the legitimate expectation that in any event there would be no order for repayment of the alleged State aid.

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(1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

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