# C_2021263EN.01002902.xml

| 5.7.2021 | EN | Official Journal of the European Union | C 263/29 |
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5.7.2021

EN

Official Journal of the European Union

C 263/29

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Action brought on 12 May 2021 — E. Breuninger v Commission

(Case T-260/21)

(2021/C 263/39)

Language of the case: German

Parties

Applicant: E. Breuninger GmbH & Co. (Stuttgart, Germany) (represented by: M. Vetter, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul, pursuant to Article 264(1) TFEU, the defendant’s decision of 20 November 2020 (State aid No SA.59289) as amended by the defendant’s decision of 12 February 2021 (State aid No SA.61744); |
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annul, pursuant to Article 264(1) TFEU, the defendant’s decision of 20 November 2020 (State aid No SA.59289) as amended by the defendant’s decision of 12 February 2021 (State aid No SA.61744);

| — | 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

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

| 1. | The German aid scheme ‘Bundesregelung Fixkostenhilfe 2020’ (Federal Scheme for Fixed Cost Aid 2020), approved by the defendant, is incompatible with the internal market because it distorts competition, without it being exceptionally justified in the present case. The defendant made a manifest error of assessment in determining that an aid scheme requiring a company-wide decrease in turnover of at least 30 % is compatible with the internal market under Article 107(3)(b) TFEU. According to the applicant, the company-wide approach of the aid scheme excludes companies such as the applicant, with several different business areas affected by the Covid-19 pandemic, whose brick-and-mortar business saw a drop in turnover far exceeding 30 % due to closures, from being eligible to apply for that aid only because another business area does not suffer any turnover losses and, by calculating the arithmetical average of the turnover from different business areas, the 30 % threshold is not reached. Those companies would then — by contrast to companies with only one business area — receive no aid and would have to cross-subsidise the uncovered fixed costs of their closed business area from their other business areas. This leads to a distortion of competition, both in relation to competitors in business areas that were affected by Covid-19 and in relation to those in business areas that were not affected by Covid-19. |
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1.

The German aid scheme ‘Bundesregelung Fixkostenhilfe 2020’ (Federal Scheme for Fixed Cost Aid 2020), approved by the defendant, is incompatible with the internal market because it distorts competition, without it being exceptionally justified in the present case. The defendant made a manifest error of assessment in determining that an aid scheme requiring a company-wide decrease in turnover of at least 30 % is compatible with the internal market under Article 107(3)(b) TFEU. According to the applicant, the company-wide approach of the aid scheme excludes companies such as the applicant, with several different business areas affected by the Covid-19 pandemic, whose brick-and-mortar business saw a drop in turnover far exceeding 30 % due to closures, from being eligible to apply for that aid only because another business area does not suffer any turnover losses and, by calculating the arithmetical average of the turnover from different business areas, the 30 % threshold is not reached. Those companies would then — by contrast to companies with only one business area — receive no aid and would have to cross-subsidise the uncovered fixed costs of their closed business area from their other business areas. This leads to a distortion of competition, both in relation to competitors in business areas that were affected by Covid-19 and in relation to those in business areas that were not affected by Covid-19.

| 2. | The defendant infringed the applicant’s procedural rights under Article 108(2) TFEU by failing to provide it with an opportunity to raise concerns in respect of the compatibility of the aid scheme with the internal market during the preliminary investigation procedure. |
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2.

The defendant infringed the applicant’s procedural rights under Article 108(2) TFEU by failing to provide it with an opportunity to raise concerns in respect of the compatibility of the aid scheme with the internal market during the preliminary investigation procedure.

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