# C_2013026EN.01005102.xml

| 26.1.2013 | EN | Official Journal of the European Union | C 26/51 |
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26.1.2013

EN

Official Journal of the European Union

C 26/51

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Action brought on 1 November 2012 — Aer Lingus v Commission

(Case T-473/12)

2013/C 26/104

Language of the case: English

Parties

Parties

Applicant: Aer Lingus Ltd (Dublin, Ireland) (represented by: K. Bacon, D. Scannell, Barristers, and A. Burnside, Solicitor)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | Annul (or, in the alternative, partially annul) the Commission Decision of 25 July 2012 in State aid case SA.29064 (2011/C) (ex 2011/NN) — Differentiated air travel tax rates implemented by Ireland; and |
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Annul (or, in the alternative, partially annul) the Commission Decision of 25 July 2012 in State aid case SA.29064 (2011/C) (ex 2011/NN) — Differentiated air travel tax rates implemented by Ireland; and

| — | Order the defendant to pay the applicant’s costs. |
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Order the defendant to pay the applicant’s costs.

Pleas in law and main arguments

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the defendant erred in law in concluding, in the Contested Decision, that the lower rate tax constituted unlawful State aid. Specifically, the Commission erred in characterising the higher rate tax as the ‘normal’ rate of tax, for the purposes of determining whether the lower rate tax constituted a selective advantage. Since the higher rate tax was invalid pursuant to directly effective provisions of EU law, it could not properly be regarded as the ‘normal’ reference rate for this purpose. For the same reasons the Commission erred in finding that the airlines subject to the lower rate tax benefited from an advantage corresponding to €8 per passenger. |
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1.

First plea in law, alleging that the defendant erred in law in concluding, in the Contested Decision, that the lower rate tax constituted unlawful State aid. Specifically, the Commission erred in characterising the higher rate tax as the ‘normal’ rate of tax, for the purposes of determining whether the lower rate tax constituted a selective advantage. Since the higher rate tax was invalid pursuant to directly effective provisions of EU law, it could not properly be regarded as the ‘normal’ reference rate for this purpose. For the same reasons the Commission erred in finding that the airlines subject to the lower rate tax benefited from an advantage corresponding to €8 per passenger.

| 2. | Second plea in law, alleging that even if the Commission could properly characterise the lower rate tax as constituting State aid within the meaning of Article 107(1) TFEU, the order for recovery of the aid from the airlines subject to the lower rate tax, in circumstances where the higher rate tax was also liable to be repaid simultaneously, infringed the principle of legal certainty, the principle of effectiveness and the principle of good administration. Accordingly, the Contested Decision, in ordering recovery of the aid, was in breach of Article 14 of Council Regulation (EC) No 659/99 (1). |
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2.

Second plea in law, alleging that even if the Commission could properly characterise the lower rate tax as constituting State aid within the meaning of Article 107(1) TFEU, the order for recovery of the aid from the airlines subject to the lower rate tax, in circumstances where the higher rate tax was also liable to be repaid simultaneously, infringed the principle of legal certainty, the principle of effectiveness and the principle of good administration. Accordingly, the Contested Decision, in ordering recovery of the aid, was in breach of Article 14 of Council Regulation (EC) No 659/99 (1).

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| 3. | Third plea in law, alleging that the defendant also erred in law and fact by identifying the airline operators subject to the lower rate tax as the beneficiaries of the alleged aid in the amount of EUR 8 per passenger, and ordering recovery of the aid on that basis, in circumstances where the Commission acknowledged that the burden of the tax may have been carried by passengers, who were therefore the primary beneficiaries of the lower rate. |
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3.

Third plea in law, alleging that the defendant also erred in law and fact by identifying the airline operators subject to the lower rate tax as the beneficiaries of the alleged aid in the amount of EUR 8 per passenger, and ordering recovery of the aid on that basis, in circumstances where the Commission acknowledged that the burden of the tax may have been carried by passengers, who were therefore the primary beneficiaries of the lower rate.

| 4. | Fourth plea in law, alleging that since it is impossible to recoup the EUR 8 per passenger retrospectively from the passengers that benefited from the lower rate tax, the recovery order in these circumstances operates as an additional tax on the relevant airlines, and thereby amounts to unlawful penalisation of those airlines rather than the restoration of the situation prior to the grant of the alleged aid. This is disproportionate and a breach of the principle of equal treatment and therefore a further breach of Article 14 of Council Regulation (EC) No 659/99. |
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4.

Fourth plea in law, alleging that since it is impossible to recoup the EUR 8 per passenger retrospectively from the passengers that benefited from the lower rate tax, the recovery order in these circumstances operates as an additional tax on the relevant airlines, and thereby amounts to unlawful penalisation of those airlines rather than the restoration of the situation prior to the grant of the alleged aid. This is disproportionate and a breach of the principle of equal treatment and therefore a further breach of Article 14 of Council Regulation (EC) No 659/99.

| 5. | Fifth plea in law, alleging that the defendant gave no, or insufficient, reasons for ordering recovery of the aid and for quantifying the aid in the amount of EUR 8 per passenger. |
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5.

Fifth plea in law, alleging that the defendant gave no, or insufficient, reasons for ordering recovery of the aid and for quantifying the aid in the amount of EUR 8 per passenger.

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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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