Appeal brought on 5 November 2021 by MKB Multifunds BV against the order of the General Court (Eighth Chamber) delivered on 6 September 2021 in Case T-277/20, MKB Multifunds v Commission

(Case C-665/21 P)

(2022/C 11/26)

Language of the case: Dutch

Parties

Appellant: MKB Multifunds BV (represented by: J.M.M. van de Hel, R. Rampersad, advocaten)

Other parties to the proceedings: European Commission, Kingdom of the Netherlands

Form of order sought

MKB Multifunds respectfully requests the Court to:

— declare MKB Multifunds’ appeal well founded and admissible;

— set aside the order of the General Court;

— substitute the judgment of the Court for it and annul the decision of the Commission, and

— order the European Commission to pay the costs of the dispute that MKB Multifunds has had to incur.

Pleas in law and main arguments

The General Court wrongly found MKB Multifunds’ claims to be inadmissible. The General Court’s finding demonstrates an error of law. MKB Multifunds puts forward the following grounds of appeal:

First ground: The General Court demonstrates an error of law in paragraphs 36 to 38 of the order in not applying Article 36 of Protocol (No 3) on the Statute of the Court of Justice and Article 51 TEU. According to the General Court, no evidentiary value can be derived from MKB Multifunds’ own statements, since it ‘is merely a statement’. The General Court does not justify why MKB Multifunds’ statements are unreliable. As a result, the order is insufficiently reasoned.

Second ground: The General Court demonstrates an error of law in paragraph 30 of the order in its interpretation of the term ‘interested party’ as set out in Article 1(h) of Regulation 2015/1589. (1) The General Court’s interpretation is essentially that MKB Multifunds must show that it was actually active in the fund of funds sector — and was therefore a direct competitor of DVI — and has experienced concrete consequences. This is not in line with settled case-law, from which it is apparent that an undertaking is an interested party to the extent that (i) it is a (potential) competitor which is not active on the same market, and (ii) its interests may be adversely affected by the unlawful grant of aid. Due to the error of law, the General Court applied too strict a test and failed to recognise that MKB Multifunds is at least a potential competitor of DVI and that MKB Multifunds sufficiently argued that its interests were adversely affected by the unlawful grant of aid.

Third ground: The General Court demonstrates an error of law in paragraphs 53 to 55 of the order in construing too narrowly the term ‘individual concern’ within the meaning of the fourth paragraph of Article 263 TFEU. The consequence of this is that the General Court failed to recognise that MKB Multifunds put forward concrete arguments from which it is apparent that the decision affects MKB Multifunds by reason of certain attributes peculiar to it or by reason of a factual situation which differentiates it from all other persons.

(1) Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).