Appeal brought on 16 December 2021 by Covestro Deutschland AG against the judgment of the General Court (Third Chamber) delivered on 6 October 2021 in Case T-745/18, Covestro Deutschland AG v European Commission

(Case C-790/21 P)

(2022/C 73/26)

Language of the case: German

Parties

Appellant: Covestro Deutschland AG (represented by: T. Hartmann, M. Kachel, D. Fouquet, Rechtsanwälte)

Other parties to the proceedings: European Commission, Federal Republic of Germany

Form of order sought

The appellant claims that the Court should:

1. set aside the judgment of the General Court of the European Union of 6 October 2021 in Case T-745/18 and annul European Commission Decision SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018, C(2018) 3166, in respect of the years 2012 and 2013;

2. in the alternative, set aside the judgment under appeal and annul the contested decision as against the appellant;

3. in the alternative to the claim under 1., set aside the judgment under appeal and refer the case back to the General Court for a new ruling on the annulment of the contested decision sought;

4. in the alternative to the claim under 2., set aside the judgment under appeal and refer the case back to the General Court for a new ruling on the annulment of the contested decision sought as against the appellant;

5. order the Commission to pay the costs of the proceedings.

Grounds of appeal and main arguments

In support of its appeal, the appellant relies on four grounds of appeal.

First and second grounds of appeal: infringement of the right to be heard and of the obligation to state grounds

As regards the first two grounds of appeal, the appellant argues that the General Court infringes procedural requirements of EU law, namely the appellant’s right to be heard and the obligation of the General Court to state the grounds for the judgment. As a consequence of those infringements, the General Court errs in law by taking the view that there is State aid within the meaning of Article 107(1) TFEU.

By the first part of those two grounds of appeal, the appellant complains that the General Court did not take account of its submission relating to the determination of the amount of the surcharge under Paragraph 19(2) of the Stromnetzentgeltverordnung (German Ordinance on Electricity Network Charges, ‘the StromNEV’) when determining whether there is State control (paragraph 8 of the judgment under appeal).

By the second part of those two grounds of appeal, the appellant alleges that the General Court did not take account of its submission relating to the determination of the amount of the surcharge under Paragraph 19(2) of the StromNEV (paragraphs 12, 94, 103, 129, 135 and 146 of the judgment under appeal).

By the third part of those two grounds of appeal, the appellant complains that the General Court did not take account of its submission relating to the non-compensation of all losses in revenue and all costs resulting from the grant of exemptions from network charges (paragraphs 130 and 143 of the judgment under appeal).

By the fourth part of those two grounds of appeal, the appellant complains that the General Court did not take account of its submission relating to the invalidity of the decision of the Bundesnetzagentur (Federal Network Agency) of 2011 when determining whether the resources are State resources (paragraphs 107 and 125 of the judgment under appeal).

Third ground of appeal: infringement of Article 107(1) TFEU

As regards its third ground of appeal, the appellant further argues that the General Court infringes substantive EU law by regarding the surcharge under Paragraph 19(2) of the StromNEV as State aid within the meaning of Article 107(1) TFEU (paragraphs 78 to 145 of the judgment under appeal).

First, the appellant complains in that regard that the General Court applies in its assessment legally erroneous criteria under State aid law in taking the view that the surcharge in question constitutes an advantage. The General Court incorrectly takes the view that there is an advantage and fails to acknowledge the non-selectivity resulting from the very nature of the matter and from the scheme of the StromNEV.

Secondly, the appellant complains that the General Court incorrectly regards the surcharge under Paragraph 19(2) of the StromNEV as aid granted through State resources. In that regard, the General Court uses an incorrect point of reference for the assessment of whether the resources are State resources and wrongly takes the view that there is a levy indicating that the resources are State resources.

Thirdly, the appellant also complains that the General Court errs in law by taking the view that there is State control over the resources of the surcharge under Paragraph 19(2) of the StromNEV.

Fourth ground of appeal: infringement of the prohibition of discrimination

Lastly, the appellant alleges in its fourth ground of appeal an infringement of the prohibition of discrimination in so far as the General Court, first, fails to acknowledge the unlawful difference in treatment vis-à-vis the transitional rule under Paragraph 32(7) of the StromNEV 2013 as a result of the recovery of aid ordered by the Commission in the contested decision; secondly, makes an impermissible distinction between baseload consumers; and, thirdly, unjustifiably treats countercyclical consumers and baseload consumers in the same way (paragraphs 192 to 210 of the judgment under appeal).