# C_2013147EN.01002502.xml

| 25.5.2013 | EN | Official Journal of the European Union | C 147/25 |
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25.5.2013

EN

Official Journal of the European Union

C 147/25

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Action brought on 18 March 2013 — Magic Mountain Kletterhallen and Others v Commission

(Case T-162/13)

2013/C 147/46

Language of the case: German

Parties

Parties

Applicants: Magic Mountain Kletterhallen GmbH (Berlin, Germany); Kletterhallenverband Klever e.V. (Leipzig, Germany); Neoliet Beheer BV (Son, Netherlands); and Pedriza BV (Haarlem, Netherlands) (represented by: M. von Oppen and A. Gerdung)

Applicants:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Decision C(2012) 8761 final of 5 December 2012 concerning State aid SA.33952 (2012/NN) — Germany, Climbing centres of the Deutscher Alpenverein, in accordance with the first paragraph of Article 264 TFEU; |
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annul Commission Decision C(2012) 8761 final of 5 December 2012 concerning State aid SA.33952 (2012/NN) — Germany, Climbing centres of the Deutscher Alpenverein, in accordance with the first paragraph of Article 264 TFEU;

| — | 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 their action, the applicants rely on two pleas in law.

| 1. | First plea in law: infringement of Article 107(3)(c) TFEU
  By their first plea in law, the applicants submit that the Commission wrongly found the aid at issue to be compatible with the internal market, since the requirements of Article 107(3)(c) TFEU were not satisfied. They submit that the aid does not serve a purpose in the common interest. In that respect, they also argue, inter alia, that this can be determined only in the case of a proven market deficiency, which is lacking in this instance. Moreover, they argue that there is no compatibility for the purposes of Article 106(2) TFEU. Furthermore, the applicants claim that the aid is not appropriate to address the alleged market efficiency problem. The aid also provides no incentive. The Commission merely assumes that the aid has an incentive effect. The aid is also not appropriate. The Commission merely assumes that the national authorities would ensure that the individual aid payments were proportionate, and it bases its misassumption on the status of the association of being in the common interest. The applicants accuse the Commission of having failed to balance the various interests correctly, in that it failed to weigh up the positive and negative effects of the aid. In that respect, they claim that, in the case of doubt, operating aid (and the aid granted is primarily operating aid) is not compatible with the internal market. |
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1.

First plea in law: infringement of Article 107(3)(c) TFEU

By their first plea in law, the applicants submit that the Commission wrongly found the aid at issue to be compatible with the internal market, since the requirements of Article 107(3)(c) TFEU were not satisfied. They submit that the aid does not serve a purpose in the common interest. In that respect, they also argue, inter alia, that this can be determined only in the case of a proven market deficiency, which is lacking in this instance. Moreover, they argue that there is no compatibility for the purposes of Article 106(2) TFEU. Furthermore, the applicants claim that the aid is not appropriate to address the alleged market efficiency problem. The aid also provides no incentive. The Commission merely assumes that the aid has an incentive effect. The aid is also not appropriate. The Commission merely assumes that the national authorities would ensure that the individual aid payments were proportionate, and it bases its misassumption on the status of the association of being in the common interest. The applicants accuse the Commission of having failed to balance the various interests correctly, in that it failed to weigh up the positive and negative effects of the aid. In that respect, they claim that, in the case of doubt, operating aid (and the aid granted is primarily operating aid) is not compatible with the internal market.

| 2. | Second plea in law: failure to initiate the formal investigation procedure
  In the context of their second plea, the applicants submit that, in spite of serious difficulties in assessing the compatibility of the aid with the internal market, the Commission failed to initiate the formal investigation procedure. An indicator of such serious difficulties is the length of the preliminary investigation procedure — over one year in this instance. Similarly, the Commission failed to sufficiently establish the facts necessary for its assessment. In the view of the applicants, only in the formal investigation procedure could a sufficiently in-depth investigation of the climbing centre market have been carried out. Furthermore, the complaint examined by the Commission gave rise to difficult legal issues regarding operating aid for associations in the common interest. The applicants further submit that, as competitor undertakings or associations of undertakings they are interested parties within the meaning of Article 1(h) of Regulation (EC) No 659/1999, and they have the right to submit their opinion in the formal investigation procedure in accordance with Article 108(2) TFEU, a right of which they were deprived as a result of the failure to initiate the procedure. |
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2.

Second plea in law: failure to initiate the formal investigation procedure

In the context of their second plea, the applicants submit that, in spite of serious difficulties in assessing the compatibility of the aid with the internal market, the Commission failed to initiate the formal investigation procedure. An indicator of such serious difficulties is the length of the preliminary investigation procedure — over one year in this instance. Similarly, the Commission failed to sufficiently establish the facts necessary for its assessment. In the view of the applicants, only in the formal investigation procedure could a sufficiently in-depth investigation of the climbing centre market have been carried out. Furthermore, the complaint examined by the Commission gave rise to difficult legal issues regarding operating aid for associations in the common interest. The applicants further submit that, as competitor undertakings or associations of undertakings they are interested parties within the meaning of Article 1(h) of Regulation (EC) No 659/1999, and they have the right to submit their opinion in the formal investigation procedure in accordance with Article 108(2) TFEU, a right of which they were deprived as a result of the failure to initiate the procedure.

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