# C_2021217EN.01003301.xml

| 7.6.2021 | EN | Official Journal of the European Union | C 217/33 |
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7.6.2021

EN

Official Journal of the European Union

C 217/33

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Appeal brought on 14 April 2021 by Petr Fryč against the order of the General Court (Second Chamber) delivered on 11 February 2021 in Case T-92/20 Fryč v Commission

(Case C-239/21 P)

(2021/C 217/44)

Language of the case: Czech

Parties

Appellant: Petr Fryč (represented by: Š. Oharková, advokátka)

Other party to the proceedings: European Commission

Form of order sought

| — | The appellant claims that the Court of Justice should decide that the case is to be referred back to the General Court to be adjudicated on again and that the General Court should be required also to consider the arguments contained in the reply of 2 October 2020, since those arguments were ignored in the decision of the General Court appealed against; |
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The appellant claims that the Court of Justice should decide that the case is to be referred back to the General Court to be adjudicated on again and that the General Court should be required also to consider the arguments contained in the reply of 2 October 2020, since those arguments were ignored in the decision of the General Court appealed against;

| — | In the event that the case is not referred back to the General Court to be adjudicated on again, the appellant claims that the Court of Justice should rule that the EU institutions have gravely breached their obligations and caused the appellant harm, in so far as:






  (a) | the European Commission adopted the GBER in a form in which, inter alia, it exceeds the limits of the Commission’s legal authority under the Treaties, in which it does not ensure observance of the constitutional principles that interference in competition affecting the common market must take place only exceptionally and must be justified and in which it unlawfully allowed state aid to be implemented in the context of the OPEI, which damaged the business of the appellant’s firm; |
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In the event that the case is not referred back to the General Court to be adjudicated on again, the appellant claims that the Court of Justice should rule that the EU institutions have gravely breached their obligations and caused the appellant harm, in so far as:

(a)

the European Commission adopted the GBER in a form in which, inter alia, it exceeds the limits of the Commission’s legal authority under the Treaties, in which it does not ensure observance of the constitutional principles that interference in competition affecting the common market must take place only exceptionally and must be justified and in which it unlawfully allowed state aid to be implemented in the context of the OPEI, which damaged the business of the appellant’s firm;

| (b) | by its decision of 3 December 2007, the European Commission adopted the Operational Programme infringing the Treaties and the Charter and did not publish that decision; |
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(b)

by its decision of 3 December 2007, the European Commission adopted the Operational Programme infringing the Treaties and the Charter and did not publish that decision;

| (c) | the European Commission did not proceed properly in dealing with the appellant’s complaint as to the unlawfulness of the OPEI inasmuch as it, first, failed to check the circumstances of the creation and implementation of the OPEI and, secondly, failed to properly justify its rejection of the applicant’s complaint; |
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(c)

the European Commission did not proceed properly in dealing with the appellant’s complaint as to the unlawfulness of the OPEI inasmuch as it, first, failed to check the circumstances of the creation and implementation of the OPEI and, secondly, failed to properly justify its rejection of the applicant’s complaint;

| (d) | the General Court refused to address the merits of the case in the application for annulment of the GBER and dismissed the application as manifestly unfounded, thereby breaching its constitutional obligation to apply the principle of proportionality, and by its excessively formalistic, unilateral approach infringed the applicant’s constitutional right to effective legal protection and a fair trial; |
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(d)

the General Court refused to address the merits of the case in the application for annulment of the GBER and dismissed the application as manifestly unfounded, thereby breaching its constitutional obligation to apply the principle of proportionality, and by its excessively formalistic, unilateral approach infringed the applicant’s constitutional right to effective legal protection and a fair trial;

| — | The appellant claims that the Court of Justice should determine that the Commission is required to pay the applicant the sum of EUR 4 800 000 by way of compensation for the harm caused by the above, within three days of the date on which the judgment becomes final; |
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The appellant claims that the Court of Justice should determine that the Commission is required to pay the applicant the sum of EUR 4 800 000 by way of compensation for the harm caused by the above, within three days of the date on which the judgment becomes final;

| — | The appellant claims that the Court of Justice should determine that the Commission is required to pay to the appellant’s legal representative the costs incurred by the appellant in the proceedings. |
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The appellant claims that the Court of Justice should determine that the Commission is required to pay to the appellant’s legal representative the costs incurred by the appellant in the proceedings.

Grounds of appeal and main arguments

The appellant relies on the following grounds in support of its appeal:

| 1. | The first ground of appeal is based on the consequences of the currently applied system of state aid, which results in an unnatural and damaging change to the entire economic structure. The functioning of the whole market is thereby distorted and economic rules are infringed, where success on the market is determined above all by the possibility to obtain state aid, which was decided upon on a political, not a legal, basis. |
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1.

The first ground of appeal is based on the consequences of the currently applied system of state aid, which results in an unnatural and damaging change to the entire economic structure. The functioning of the whole market is thereby distorted and economic rules are infringed, where success on the market is determined above all by the possibility to obtain state aid, which was decided upon on a political, not a legal, basis.

| 2. | The second ground of appeal is based on the absence of any checks on the Commission’s activity. The system of public aid therefore becomes a carte blanche for the institutions of the executive to specify any of the named areas or areas otherwise additionally determined by them as compatible with the common market. |
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2.

The second ground of appeal is based on the absence of any checks on the Commission’s activity. The system of public aid therefore becomes a carte blanche for the institutions of the executive to specify any of the named areas or areas otherwise additionally determined by them as compatible with the common market.

| 3. | The third ground of appeal is based on an error of assessment regarding the point at which the limitation period for submitting the application started to run. The appellant took the view that in the EU there is a mechanism which ensures that the Commission continuously monitors whether the public aid provided under Article 107 TFEU (Treaty on the Functioning of the European Union) affects the common market or not, as provided for in Article 108(1) TFEU. The appellant therefore addressed to the Commission his request that the situation with regard to public aid provided in the Czech Republic in the framework of the OPEI programme should be verified. The Commission rejected that request, from which the applicant has determined that the monitoring system envisaged in Article 108 TFEU does not function. The appellant considered an action before the European Court of Justice to be only a last resort, and hoped that he would not need to use this option. The appellant took exceptional pains to warn the Commission of the deficiencies in the proposal for and implementation of the OPEI and it therefore categorically cannot be stated that the appellant was inactive during the limitation period. |
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3.

The third ground of appeal is based on an error of assessment regarding the point at which the limitation period for submitting the application started to run. The appellant took the view that in the EU there is a mechanism which ensures that the Commission continuously monitors whether the public aid provided under Article 107 TFEU (Treaty on the Functioning of the European Union) affects the common market or not, as provided for in Article 108(1) TFEU. The appellant therefore addressed to the Commission his request that the situation with regard to public aid provided in the Czech Republic in the framework of the OPEI programme should be verified. The Commission rejected that request, from which the applicant has determined that the monitoring system envisaged in Article 108 TFEU does not function. The appellant considered an action before the European Court of Justice to be only a last resort, and hoped that he would not need to use this option. The appellant took exceptional pains to warn the Commission of the deficiencies in the proposal for and implementation of the OPEI and it therefore categorically cannot be stated that the appellant was inactive during the limitation period.

| 4. | The fourth ground of appeal is based on an overriding legal interest. Irrespective of the court’s decision on whether the appellant’s claim is time-barred or not, the appellant takes the view that, having regard to the impact of the issue addressed not only at national level, but also throughout Europe, it is essential that the Court of Justice express its view on the issue of who bears liability for an incorrect subvention policy: the European Union or a Member State. |
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4.

The fourth ground of appeal is based on an overriding legal interest. Irrespective of the court’s decision on whether the appellant’s claim is time-barred or not, the appellant takes the view that, having regard to the impact of the issue addressed not only at national level, but also throughout Europe, it is essential that the Court of Justice express its view on the issue of who bears liability for an incorrect subvention policy: the European Union or a Member State.

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