EN Official Journal of the European Union C 312/32

Action brought on 9 October 2009 — Neubrandenburger Wohnungsgesellschaft v Commission

(Case T-407/09)

2009/C 312/54

Language of the case: German

Parties

Applicant: Neubrandenburger Wohnungsgesellschaft mbH (Neubrandenburg, Germany) (represented by: M. Núñez Müller and J. Dammann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Decision D/53320 of 29 July 2009;

— in the alternative, declare that the Commission failed to initiate the formal investigation procedure under Article 88(2) EC, in infringement of its duties under Article 88 EC and Regulation (EC) No 659/1999;

— order the Commission to pay the cost of the proceedings.

Pleas in law and main arguments

The applicant contests Commission Decision D/53320 of 29 July 2009 concerning Case CP 141/2007 — Germany, Potential State aid granted in connection with the privatisation of apartments in Neubrandenburg. In that decision, the Commission took the preliminary view that the contracts against which the applicant had brought a complaint, which the applicant had entered into in connection with the privatisation of publicly-owned apartments in Neubrandenburg, did not contain State aid within the meaning of Article 87(1) EC.

In the alternative, the applicant has applied for a declaration that the Commission failed to fulfil its obligation to initiate the formal investigation procedure under Article 88(2) EC.

In support of its action for annulment, the applicant submits four pleas in law.

First, the applicant claims that the contested decision has to be annulled because the Commission failed to initiate the formal investigation procedure under Article 88(2) EC even though, during the preliminary examination following the applicant’s complaint, the Commission encountered serious difficulties as regards the assessment of the compatibility of the contested measure with the common market. Second, by finding that the contested contracts did not contain State aid, the Commission infringed Article 87(1) EC. Third, the Commission misused its powers. Fourth, the applicant claims that, in breach of Article 253 EC, the contested decision is inadequately reasoned.

In support of its alternative action for failure to act, the applicant submits three pleas in law.

First, the applicant claims in this respect that, although the applicant formally called on the Commission to act in accordance with Article 232(2) EC, the Commission failed to act, and that even though, following difficulties with the assessment of the contested contracts encountered during the preliminary examination, the Commission was under an obligation to initiate the formal investigation procedure under Article 88(2) EC. Second, the applicant claims that, by failing to initiate the formal investigation procedure, the Commission also infringed Article 4(4) of Regulation (EC) No 659/1999, (1) since, during the preliminary phase, the Commission had reason to doubt the compatibility of the contested contracts with the common market. Third, the applicant claims that the Commission infringed the allocation of jurisdiction among the Commission and national courts in the area of State aid control laid down in Articles 87 EC and 88 EC, because, pending the outcome of parallel proceedings between the applicant and the aid beneficiary before national courts, the Commission conducted the examination in a manner that was merely dilatory.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1)