EN Official Journal of the European Union C 180/58

Action brought on 3 June 2009 — Freistaat Sachsen v Commission

(Case T-215/09)

2009/C 180/107

Language of the case: German

Parties

Applicant: Freistaat Sachsen (represented by: U. Soltész und P. Melcher, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Decision C (2009) 2010 final of 24 March 2009 (NN 4/2009 (ex N 361/2008) — Germany, Dresden Airport) pursuant to the first paragraph of Article 231 EC in so far as the Commission finds that the capital contribution granted by Germany for the reconstruction and extension of the runway at Dresden airport constitutes State aid for the purposes of Article 87(1) EC; and

— order the Commission to pay the applicant’s costs pursuant to Article 87(2) of the Rules of Procedure of the Court of First Instance of the European Communities.

Pleas in law and main arguments

The applicant objects to Commission Decision C (2009) 2010 final of 24 March 2009 (NN 4/2009, ex N 361/2008) — Germany, Dresden Airport, by which the Commission approved Germany’s own proposed capital contribution for the reconstruction and extension of the runway at Dresden airport as being a measure compatible with the common market under Article 87(3)(c) EC. It seeks the annulment of the decision in so far as the Commission categorised the measure at issue as State aid.

In support of its application the applicant submits, first, that, by applying the rules on State aid to the measure at issue in this case, the Commission acted contrary to the division of powers under the EC Treaty and to the principle that the Community can only act within the powers conferred on it enshrined in Article 5(1) EC. State financing of the construction of infrastructure accessible to all potential users under objective and non-discriminatory conditions is a general measure of economic policy which, as such, does not normally fall within the scope of the rules on State aid.

Second, the applicant objects to the fact that, in relation to the replacement of the old runway by a new one, Flughafen Dresden GmbH was deemed to be an undertaking within the meaning of Article 87(1) EC.

Furthermore, it is submitted that the Commission failed to take account of the fact that Flughafen Dresden GmbH is a State-owned single purpose vehicle with an organisational structure governed by private law which, accordingly, cannot be deemed to be a recipient of aid in so far as the State provides it with the resources required in order to perform its functions.

Fourth, the applicant complains that the 2005 guidelines (1) are contrary to primary Community law, being factually inapplicable and inherently contradictory where regional airport operators do not have the status of an undertaking. They were intended to supplement, not replace, the 1994 guidelines. (2) The 2005 guidelines also made the establishment of airports subject to the rules on aid. According to the applicant, in the previous guidelines of 1994 which continue to apply, this activity was expressly excluded from the application of the rules on State aid.

In the alternative, the applicant submits a fifth plea to the effect that the measure at issue satisfies all the conditions of the judgment in Altmark Trans (3) and ultimately, therefore, does not constitute aid.

(1) Communication from the Commission — Community Guidelines on financing of airports and start-up aid to airlines departing from regional airports, OJ 2005 C 312, p. 1.

(2) Communication from the Commission — Application of Articles 92 and 93 of the EC Treaty and Article 61 of the EEA Agreement to State aids in the aviation sector, OJ 1994 C 350, p. 5.

(3) Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747, paragraph 88 et seq.