# C_2012258EN.01000803.xml

| 25.8.2012 | EN | Official Journal of the European Union | C 258/8 |
| --- | --- | --- | --- |

25.8.2012

EN

Official Journal of the European Union

C 258/8

---

Appeal brought on 11 May 2012 by the European Commission against the judgment delivered by the General Court (First Chamber) on 2 March 2012 in Joined Cases T-29/10 and T-33/10 Netherlands and ING Groep v Commission

(Case C-224/12 P)

2012/C 258/14

Languages of the case: Dutch and English

Parties

Parties

Appellant: European Commission (represented by: L. Flynn, S. Noë and H. Van Vliet, Agents)

Other parties to the proceedings:

| | Kingdom of the Netherlands |
| --- | --- |

Kingdom of the Netherlands

| | ING Groep NV |
| --- | --- |

ING Groep NV

| | De Nederlandsche Bank NV |
| --- | --- |

De Nederlandsche Bank NV

Form of order sought

Form of order sought

| — | Set aside the judgment of the General Court (First Chamber) of 2 March 2012, notified to the Commission on 6 March 2012, in Joined Cases T-29/10 and T-33/10 Netherlands and ING Groep v Commission; and |
| --- | --- |

—

Set aside the judgment of the General Court (First Chamber) of 2 March 2012, notified to the Commission on 6 March 2012, in Joined Cases T-29/10 and T-33/10 Netherlands and ING Groep v Commission; and

Netherlands and ING Groep

Commission

| — | dismiss the applications for partial annulment of the decision of the European Commission (1) of 18 November 2009 on State aid C 10/09 (ex N 138/2009) implemented by the Netherlands for ING’s Illiquid Assets Back-up Facility and Restructuring Plan; |
| --- | --- |

—

dismiss the applications for partial annulment of the decision of the European Commission (1) of 18 November 2009 on State aid C 10/09 (ex N 138/2009) implemented by the Netherlands for ING’s Illiquid Assets Back-up Facility and Restructuring Plan;

1

| — | order the applicants to pay the costs; |
| --- | --- |

—

order the applicants to pay the costs;

| — | in the alternative,






  — | refer the case back to the General Court for reconsideration; |
| --- | --- | --- |

—

in the alternative,

—

refer the case back to the General Court for reconsideration;

| — | reserve the costs of the proceedings at first instance and on appeal,
  or, in the further alternative, |
| --- | --- |

—

reserve the costs of the proceedings at first instance and on appeal,

or, in the further alternative,

| — | annul the third paragraph of Article 2 of the decision at issue; |
| --- | --- |

—

annul the third paragraph of Article 2 of the decision at issue;

| — | order the applicants to pay the costs of the appeal. |
| --- | --- |

—

order the applicants to pay the costs of the appeal.

Pleas in law and main arguments

Pleas in law and main arguments

The Commission maintains that the judgment under appeal should be set aside on the following grounds:

| | First
  , there is no requirement in law to apply the market economy investor principle in relation to an amendment of repayment conditions for a measure that itself constituted State aid. |
| --- | --- |

First
  , there is no requirement in law to apply the market economy investor principle in relation to an amendment of repayment conditions for a measure that itself constituted State aid.

First

| | Second
  , the General Court wrongly evaluated the loss of revenue to the Member State resulting from the modified repayment conditions examined in the Commission’s decision of 18 November 2009 on State aid C 10/09 (ex N 138/09) implemented by the Netherlands for ING’s Illiquid Assets Back-up Facility and Restructuring Plan (‘the decision at issue’). |
| --- | --- |

Second
  , the General Court wrongly evaluated the loss of revenue to the Member State resulting from the modified repayment conditions examined in the Commission’s decision of 18 November 2009 on State aid C 10/09 (ex N 138/09) implemented by the Netherlands for ING’s Illiquid Assets Back-up Facility and Restructuring Plan (‘the decision at issue’).

Second

| | Third
  , even if the Commission was wrong to treat the modified repayment conditions as State aid, the General Court was not entitled to annul the first paragraph of Article 2 of the decision at issue in its entirety. |
| --- | --- |

Third
  , even if the Commission was wrong to treat the modified repayment conditions as State aid, the General Court was not entitled to annul the first paragraph of Article 2 of the decision at issue in its entirety.

Third

| | Fourth
  , the General Court erred in law in finding that the second paragraph of Article 2 of the decision at issue was necessarily unlawful because the Commission had erred in finding that the modified repayment conditions constituted State aid. |
| --- | --- |

Fourth
  , the General Court erred in law in finding that the second paragraph of Article 2 of the decision at issue was necessarily unlawful because the Commission had erred in finding that the modified repayment conditions constituted State aid.

Fourth

| | Fifth
  , the General Court ruled ultra petita in annulling the second paragraph of Article 2 of the decision at issue and Annex II thereto. |
| --- | --- |

Fifth
  , the General Court ruled ultra petita in annulling the second paragraph of Article 2 of the decision at issue and Annex II thereto.

Fifth

ultra petita

| | Sixth
  , in the alternative, if the General Court was correct to annul the first and second paragraphs of Article 2 of the decision at issue and Annex II thereto, it also had to annul the third paragraph of Article 2 of the decision at issue. |
| --- | --- |

Sixth
  , in the alternative, if the General Court was correct to annul the first and second paragraphs of Article 2 of the decision at issue and Annex II thereto, it also had to annul the third paragraph of Article 2 of the decision at issue.

Sixth

---

(1)  Decision 2010/608/EC (OJ 2010 L 274, p. 139).

1

---