# C_2018094EN.01000401.xml

| 12.3.2018 | EN | Official Journal of the European Union | C 94/4 |
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12.3.2018

EN

Official Journal of the European Union

C 94/4

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Appeal brought on 22 November 2017 by Bayerische Motoren Werke AG against the judgment of the General Court (Fifth Chamber) delivered on 12 September 2017 in Case T-671/14, Bayerische Motoren Werke AG v European Commission

(Case C-654/17 P)

(2018/C 094/05)

Language of the case: German

Parties

Parties

Appellant: Bayerische Motoren Werke AG (represented by: M. Rosenthal, G. Drauz and M. Schütte, Rechtsanwälte)

Appellant:

Other parties to the proceedings: European Commission, Freistaat Sachsen

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court of Justice should:

| 1. | set aside the judgment of the General Court of the European Union (Fifth Chamber) of 12 September 2017 in Case T-671/14; |
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1.

set aside the judgment of the General Court of the European Union (Fifth Chamber) of 12 September 2017 in Case T-671/14;

| 2. | annul, pursuant to the fourth paragraph of Article 263 TFEU, the Commission decision of 9 July 2014 in Case SA.32009 (2011/C), which is challenged in the application, in so far as it declares the amount exceeding the amount of EUR 17 million (EUR 28 257 273) of the aid applied for, in the amount of EUR 45 257 273, to be incompatible with the internal market; if and in so far as the Court of Justice should consider itself unable to deliver final judgment in that respect, referral of the case back to the General Court of the European Union is sought in the alternative; |
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2.

annul, pursuant to the fourth paragraph of Article 263 TFEU, the Commission decision of 9 July 2014 in Case SA.32009 (2011/C), which is challenged in the application, in so far as it declares the amount exceeding the amount of EUR 17 million (EUR 28 257 273) of the aid applied for, in the amount of EUR 45 257 273, to be incompatible with the internal market; if and in so far as the Court of Justice should consider itself unable to deliver final judgment in that respect, referral of the case back to the General Court of the European Union is sought in the alternative;

| 3. | in the alternative, annul, pursuant to the fourth paragraph of Article 263 TFEU, the contested Commission decision of 9 July 2014 in Case SA.32009 (2011/C), in so far as it prohibits and declares incompatible with the internal market under Article 6(2) of the General Block Exemption Regulation, in the version of 6 August 2008, the granting of any registration-free aid for the appellant’s investment projects, to the extent that that aid exceeds the amount of EUR 17 million; |
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3.

in the alternative, annul, pursuant to the fourth paragraph of Article 263 TFEU, the contested Commission decision of 9 July 2014 in Case SA.32009 (2011/C), in so far as it prohibits and declares incompatible with the internal market under Article 6(2) of the General Block Exemption Regulation, in the version of 6 August 2008, the granting of any registration-free aid for the appellant’s investment projects, to the extent that that aid exceeds the amount of EUR 17 million;

| 4. | order the respondent to pay the costs of the proceedings in accordance with Articles 138(1) and 184(1) and (2) of the Rules of Procedure of the Court of Justice. |
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4.

order the respondent to pay the costs of the proceedings in accordance with Articles 138(1) and 184(1) and (2) of the Rules of Procedure of the Court of Justice.

Grounds of appeal and main arguments

Grounds of appeal and main arguments

The appellant raises the following grounds of appeal:

| 1. | First ground of appeal: infringement of Article 107(3) TFEU

  The judgment infringes Article 107(3) TFEU, since the General Court, in assessing the decision at issue, should, had it not erred in law, have concluded that the failure to carry out a separate examination as to whether and to what extent the granting of the aid would have the effect of distorting competition constitutes an infringement of Article 107(3)(c) TFEU.
  The judgment under appeal fails to recognise that the respondent could not limit its examination to merely determining the ex-ante estimated additional costs of the project in the disadvantaged location and ‘assume’ a distortion of competition for any aid going beyond that level, completely disregarding the appellant’s specific market position. |
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1.

First ground of appeal: infringement of Article 107(3) TFEU

First ground of appeal: infringement of Article 107(3) TFEU

The judgment infringes Article 107(3) TFEU, since the General Court, in assessing the decision at issue, should, had it not erred in law, have concluded that the failure to carry out a separate examination as to whether and to what extent the granting of the aid would have the effect of distorting competition constitutes an infringement of Article 107(3)(c) TFEU.

The judgment under appeal fails to recognise that the respondent could not limit its examination to merely determining the ex-ante estimated additional costs of the project in the disadvantaged location and ‘assume’ a distortion of competition for any aid going beyond that level, completely disregarding the appellant’s specific market position.

| 2. | Second ground of appeal: infringement of Article 288 TFEU, of Articles 3 and 13(1) of the GBER 2008 and of the prohibition of discrimination

  The judgment infringes Article 288 TFEU and Articles 3 and 13(1) of the General Block Exemption Regulation (GBER 2008), since the General Court, had it not erred in law in its assessment, should have conferred on the respondent no renewed competence to examine aid and declare its incompatibility by decision, in so far as that aid, up to the threshold level under Article 6(2) of the GBER 2008, had already been declared substantively compatible with the internal market on the basis of higher-ranking, secondary European Union law.
  Furthermore, as a consequence of the judgment under appeal, the prohibition on receiving aid in excess of EUR 17 million, up to the threshold level of the GBER 2008, discriminates against the appellant in comparison with its competitors, since it would have been possible for any — even a dominant — competitor in a comparable situation to receive aid, up to the threshold, for a comparably high level of investment under the German Investment Allowance Law. |
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2.

Second ground of appeal: infringement of Article 288 TFEU, of Articles 3 and 13(1) of the GBER 2008 and of the prohibition of discrimination

Second ground of appeal: infringement of Article 288 TFEU, of Articles 3 and 13(1) of the GBER 2008 and of the prohibition of discrimination

The judgment infringes Article 288 TFEU and Articles 3 and 13(1) of the General Block Exemption Regulation (GBER 2008), since the General Court, had it not erred in law in its assessment, should have conferred on the respondent no renewed competence to examine aid and declare its incompatibility by decision, in so far as that aid, up to the threshold level under Article 6(2) of the GBER 2008, had already been declared substantively compatible with the internal market on the basis of higher-ranking, secondary European Union law.

Furthermore, as a consequence of the judgment under appeal, the prohibition on receiving aid in excess of EUR 17 million, up to the threshold level of the GBER 2008, discriminates against the appellant in comparison with its competitors, since it would have been possible for any — even a dominant — competitor in a comparable situation to receive aid, up to the threshold, for a comparably high level of investment under the German Investment Allowance Law.

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