# C_2019082EN.01005701.xml

| 4.3.2019 | EN | Official Journal of the European Union | C 82/57 |
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4.3.2019

EN

Official Journal of the European Union

C 82/57

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Action brought on 20 December 2018 — Covestro Deutschland v Commission

(Case T-745/18)

(2019/C 82/69)

Language of the case: German

Parties

Applicant: Covestro Deutschland AG (Leverkusen, Germany) (represented by: M. Küper, J. Otter, C. Anger and M. Goldberg, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Decision C(2018) 3166 final of 28 May 2018 on aid scheme SA.34045 (2013/C) (ex 2012/NN) implemented by Germany for baseload consumers under Paragraph 19 of the Stromnetzentgeltverordnung (Ordinance on Electricity Network Charges; ‘the StromNEV’), in particular the classification of the full exemption of baseload consumers from network charges in 2012 and 2013 as aid, the finding that it is incompatible with the internal market and the order for immediate recovery from the beneficiaries pursuant to the minimum charge rule under the second sentence of Paragraph 19(2) of the StromNEV in the version of 3 September 2010, and |
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annul Commission Decision C(2018) 3166 final of 28 May 2018 on aid scheme SA.34045 (2013/C) (ex 2012/NN) implemented by Germany for baseload consumers under Paragraph 19 of the Stromnetzentgeltverordnung (Ordinance on Electricity Network Charges; ‘the StromNEV’), in particular the classification of the full exemption of baseload consumers from network charges in 2012 and 2013 as aid, the finding that it is incompatible with the internal market and the order for immediate recovery from the beneficiaries pursuant to the minimum charge rule under the second sentence of Paragraph 19(2) of the StromNEV in the version of 3 September 2010, and

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

Pleas in law and main arguments

The action is based on the following pleas in law.

| 1. | Unreasonable length of the proceedings






  — | In the context of the first plea in law, the applicant claims that the length of the proceedings of 62 months exceeds by more than double the period set out in Article 9(6) of the Aid Procedure Regulation. (1) |
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1.

Unreasonable length of the proceedings

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In the context of the first plea in law, the applicant claims that the length of the proceedings of 62 months exceeds by more than double the period set out in Article 9(6) of the Aid Procedure Regulation. (1)

| 2. | The exemption from network charges does not constitute aid under Article 107(1) TFEU






  — | In the context of the second plea in law, it is submitted that there is no favourable treatment, since appropriate consideration is given as a result of the network-stabilising effect of the baseload consumers. Furthermore, the exemption was not financed through State resources. |
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2.

The exemption from network charges does not constitute aid under Article 107(1) TFEU

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In the context of the second plea in law, it is submitted that there is no favourable treatment, since appropriate consideration is given as a result of the network-stabilising effect of the baseload consumers. Furthermore, the exemption was not financed through State resources.

| 3. | Compatibility with the internal market (justification, Article 107(3) TFEU)






  — | In the context of the third plea in law, it is claimed that the full exemption of baseload consumers remedies a serious disturbance in the German economy. Particularly energy-intensive industries should remain competitive and be deterred from moving abroad. |
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3.

Compatibility with the internal market (justification, Article 107(3) TFEU)

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In the context of the third plea in law, it is claimed that the full exemption of baseload consumers remedies a serious disturbance in the German economy. Particularly energy-intensive industries should remain competitive and be deterred from moving abroad.

| 4. | Unlawfulness of the order for recovery






  — | In the context of the fourth plea in law, the applicant submits that the recovery of a minimum charge in the amount of 20 % of the published network charges with reference to the version of Paragraph 19(2) of the StromNEV applicable until 3 August 2011 is arbitrary and at variance with the principle of non-discrimination. |
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4.

Unlawfulness of the order for recovery

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In the context of the fourth plea in law, the applicant submits that the recovery of a minimum charge in the amount of 20 % of the published network charges with reference to the version of Paragraph 19(2) of the StromNEV applicable until 3 August 2011 is arbitrary and at variance with the principle of non-discrimination.

| — | It is further claimed that only the determination of the network charges by means of the physical path ensures the observance of the cost-causality principle and the payment of reasonable and non-discriminatory network charges. |
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It is further claimed that only the determination of the network charges by means of the physical path ensures the observance of the cost-causality principle and the payment of reasonable and non-discriminatory network charges.

| — | The recovery order also infringes the principle of non-discrimination in that the Commission failed to take into account the transitional arrangement in Paragraph 32(3) of the StromNEV. |
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The recovery order also infringes the principle of non-discrimination in that the Commission failed to take into account the transitional arrangement in Paragraph 32(3) of the StromNEV.

| — | Lastly, it is claimed that baseload consumers and atypical network users within the meaning of the first sentence of Paragraph 19(2) of the StromNEV differ substantially. The fact that both groups of network users, notwithstanding their differences, have to pay a minimum charge in the amount of 20 % is not objectively justified. |
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Lastly, it is claimed that baseload consumers and atypical network users within the meaning of the first sentence of Paragraph 19(2) of the StromNEV differ substantially. The fact that both groups of network users, notwithstanding their differences, have to pay a minimum charge in the amount of 20 % is not objectively justified.

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(1)  Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).

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