EN Official Journal of the European Union C 327/30

Action brought on 15 September 2008 — Freistaat Sachsen and Land Sachsen-Anhalt v Commission

(Case T-396/08)

(2008/C 327/56)

Language of the case: German

Parties

Applicants: Freistaat Sachsen and Land Sachsen-Anhalt (represented by: T. Müller-Ibold and T. Graf, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the first paragraph of Article 1 of Commission Decision C(2008) 3178 final of 2 July 2008 in State aid case C 18/2007; and

— order the Commission to pay the costs.

Pleas in law and main arguments

This application for annulment relates to Commission Decision C(2008) 3178 final of 2 July 2008 in State aid case C 18/2007, in so far as a large part of the training aid notified, which the Freistaat Sachsen and the Land Sachsen-Anhalt intended to grant to the express courier services company, DHL, is declared to be incompatible with the common market.

In particular, the Freistaat Sachsen and the Land Sachsen-Anhalt rely on the following pleas in law in support of their claims.

First, the applicants object to the Commission's refusal to approve a large part of the notified aid, since the training aid is not ‘necessary’ for the training measures in question to be implemented. By introducing a general test of necessity in individual cases as a prerequisite for approval of the notified aid, the Commission contravenes the binding effect of Regulation (EC) No 68/2001 (1) and infringes the principles of equal treatment and the protection of legitimate expectations. The assessment criteria laid down by the Regulation are binding also in respect of aid above the exemption threshold.

Second, the Commission's approach, which makes approval of the notified training aid dependent on its necessity, is also wrong in law because it unlawfully ignores the positive market externalities of the training measures supported by the notified training aid. Such market externalities are in themselves sufficient to justify the compatibility of the notified training aid with the common market.

Third, the Commission wrongly concludes that the necessary incentive effect of the aid for the chosen location is lacking. In fact the training aid is necessary because it was a contributory factor in DHL's decision on Leipzig/Halle as its choice of location and DHL would not otherwise have undertaken any training there. Moreover, the Commission's assertion that comparable training costs would also have arisen in alternative locations is unfounded.

Fourth, the Commission relied on inappropriate criteria in its assessment of necessity. In particular, the Commission relies on subjective criteria, which go beyond objective necessity. Moreover, the Commission carries out its assessment on the basis of statutory provisions on training measures, which significantly disadvantages those Member States in which training content is regulated by law.

Fifth, the contested decision lacks adequate reasoning.

(1) Commission Regulation (EC) No 68/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to training aid (OJ 2001 L 10, p. 20); amended by Regulation (EC) No 363/2004 (OJ 2004 L 63, p. 20) and Regulation (EC) No 1976/2006 (OJ 2006 L 363, p. 85).