# C_2012273EN.01001902.xml

| 8.9.2012 | EN | Official Journal of the European Union | C 273/19 |
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8.9.2012

EN

Official Journal of the European Union

C 273/19

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Action brought on 6 July 2012 — Zweckverband Tierkörperbeseitigung v Commission

(Case T-309/12)

2012/C 273/33

Language of the case: German

Parties

Parties

Applicant: Zweckverband Tierkörperbeseitigung in Rheinland-Pfalz, im Saarland, im Rheingau-Taunus-Kreis und im Landkreis Limburg-Weilburg (Rivenich, Germany) (represented by: A. Kerkmann, lawyer)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the European Commission of 25 April 2012 on State aid SA.25051 (C-19/2010) (ex NN 23/2010), which Germany granted to the Zweckverband Tierkörperbeseitigung in Rheinland-Pfalz, im Saarland, im Rheingau-Taunus-Kreis und im Landkreis Limburg-Weilburg (Case C(2012) 2557 final); |
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annul the decision of the European Commission of 25 April 2012 on State aid SA.25051 (C-19/2010) (ex NN 23/2010), which Germany granted to the Zweckverband Tierkörperbeseitigung in Rheinland-Pfalz, im Saarland, im Rheingau-Taunus-Kreis und im Landkreis Limburg-Weilburg (Case C(2012) 2557 final);

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

Pleas in law and main arguments

Pleas in law and main arguments

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

| 1. | First plea in law: infringement of Article 107(1) TFEU by determining that the applicant is to be regarded as an undertaking.
  The payment of contributions aims to fulfil a public service activity independent of the market. In carrying out that activity the applicant was not acting as an undertaking within the meaning of Article 107(1) TFEU. |
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1.

First plea in law: infringement of Article 107(1) TFEU by determining that the applicant is to be regarded as an undertaking.

The payment of contributions aims to fulfil a public service activity independent of the market. In carrying out that activity the applicant was not acting as an undertaking within the meaning of Article 107(1) TFEU.

| 2. | Second plea in law: infringement of Article 107(1) and Article 106(2) TFEU in finding that the applicant was granted a financial advantage by means of the payments and that it was not a service in the general economic interest.
  Through the payments made by its members, the applicant does not receive any economic advantage, since the payments remain in the sphere of public service activity and there is no co-financing of any other activity offered by the applicant on the market. In the alternative, the applicant submits that it provides a service in the general economic interest, which the Commission fails to recognise, thereby manifestly infringing the powers of discretion recognised in the case-law, which constitutes an error of assessment. Moreover, the four ‘Altmark criteria’ are satisfied in the present case. |
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2.

Second plea in law: infringement of Article 107(1) and Article 106(2) TFEU in finding that the applicant was granted a financial advantage by means of the payments and that it was not a service in the general economic interest.

Through the payments made by its members, the applicant does not receive any economic advantage, since the payments remain in the sphere of public service activity and there is no co-financing of any other activity offered by the applicant on the market. In the alternative, the applicant submits that it provides a service in the general economic interest, which the Commission fails to recognise, thereby manifestly infringing the powers of discretion recognised in the case-law, which constitutes an error of assessment. Moreover, the four ‘Altmark criteria’ are satisfied in the present case.

| 3. | Third plea in law: infringement of Article 107(1) TFEU in wrongly finding that the criteria were satisfied for there to be a distortion of competition and distortion of trade between Member States.
  In Germany, the disposal of category 1 and category 2 animal by-products, within the meaning of Regulation (EC) 1069/2009, is not open to the market, with the result that, since the appliant was legitimately granted exclusive rights, competition was not distorted and trade not affected. |
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3.

Third plea in law: infringement of Article 107(1) TFEU in wrongly finding that the criteria were satisfied for there to be a distortion of competition and distortion of trade between Member States.

In Germany, the disposal of category 1 and category 2 animal by-products, within the meaning of Regulation (EC) 1069/2009, is not open to the market, with the result that, since the appliant was legitimately granted exclusive rights, competition was not distorted and trade not affected.

| 4. | Fourth plea in law: infringement of Article 106(2) TFEU by misconceiving the conditions for approval laid down in that provision.
  In its assessment, the Commission wrongly applied the criterion of economic interest and infringed its powers of examination in failing to restrict itself to examining whether there had been over-compensation. |
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4.

Fourth plea in law: infringement of Article 106(2) TFEU by misconceiving the conditions for approval laid down in that provision.

In its assessment, the Commission wrongly applied the criterion of economic interest and infringed its powers of examination in failing to restrict itself to examining whether there had been over-compensation.

| 5. | Fifth plea in law: failure to observe the division of competencies between the European Union and the Member States laid down in Article 14 TFEU and, at the same time, infringement of the principle of subsidiarity (Article 5(3) EU).
  The Commission failed to observe the prerogative on the part of the authorities of the Member States in determining which services fall within the general economic interest. |
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5.

Fifth plea in law: failure to observe the division of competencies between the European Union and the Member States laid down in Article 14 TFEU and, at the same time, infringement of the principle of subsidiarity (Article 5(3) EU).

The Commission failed to observe the prerogative on the part of the authorities of the Member States in determining which services fall within the general economic interest.

| 6. | Sixth plea in law: infringement of Article 108(1) TFEU and Article 1(b)(v) and Article 14 of Regulation (EC) 659/1999 in finding that the payments made since 1998 constitute new aid.
  The Commission’s findings are based on an insufficient assessment of the facts. |
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6.

Sixth plea in law: infringement of Article 108(1) TFEU and Article 1(b)(v) and Article 14 of Regulation (EC) 659/1999 in finding that the payments made since 1998 constitute new aid.

The Commission’s findings are based on an insufficient assessment of the facts.

| 7. | Seventh plea in law: infringement of Article 2 EU, Article 52 of the Charter of Fundamental Rights, and of Article 14(1) of Regulation (EC) 659/1999 by failing to have regard to the requirements of the principles of protection of legitimate expectations and of legal certainty.
  The Commission wrongly assumed that, as a result of the judgment of the Bundesverwaltungsgericht (Federal Administrative Court) of 16 December 2010 (AZZ. 3 C 44.09), the applicant could not rely on the principle of protection of legitimate expectations, although the judgment expressly ruled out the possibility of classing payments of contributions to the applicant as State aid. Since that judgment has become final, the Commission also infringed the principle of legal certainty. |
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7.

Seventh plea in law: infringement of Article 2 EU, Article 52 of the Charter of Fundamental Rights, and of Article 14(1) of Regulation (EC) 659/1999 by failing to have regard to the requirements of the principles of protection of legitimate expectations and of legal certainty.

The Commission wrongly assumed that, as a result of the judgment of the Bundesverwaltungsgericht (Federal Administrative Court) of 16 December 2010 (AZZ. 3 C 44.09), the applicant could not rely on the principle of protection of legitimate expectations, although the judgment expressly ruled out the possibility of classing payments of contributions to the applicant as State aid. Since that judgment has become final, the Commission also infringed the principle of legal certainty.

| 8. | Eighth plea in law: infringement of Article 14(1) of Regulation (EC) 659/1999 in instructing the Member State to recover all payments dating back to 1998 — Infringement of the principles of necessity and proportionality.
  The Commission’s requirement for Germany to recover all contributions made to the applicant since 1998 is disproportionate, since it fails to take account of the fact that, in reserving installation capacities in accordance with the decision of its members, the applicant actually incurred costs which were not covered. |
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8.

Eighth plea in law: infringement of Article 14(1) of Regulation (EC) 659/1999 in instructing the Member State to recover all payments dating back to 1998 — Infringement of the principles of necessity and proportionality.

The Commission’s requirement for Germany to recover all contributions made to the applicant since 1998 is disproportionate, since it fails to take account of the fact that, in reserving installation capacities in accordance with the decision of its members, the applicant actually incurred costs which were not covered.

| 9. | Ninth plea in law: infringement of Article 107(1) TFEU in finding that the contribution payments used for the remediation of contaminated sites constitute State aid.
  The contributions used for the remediation of contaminated sites compensate for a structural disadvantage which the applicant incurred as a result of being assigned the sites by law by the Land Rheineland-Palatinate and, consequently, they do not constitute State aid. |
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9.

Ninth plea in law: infringement of Article 107(1) TFEU in finding that the contribution payments used for the remediation of contaminated sites constitute State aid.

The contributions used for the remediation of contaminated sites compensate for a structural disadvantage which the applicant incurred as a result of being assigned the sites by law by the Land Rheineland-Palatinate and, consequently, they do not constitute State aid.

Land

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