Appeal brought on 18 August 2021 by the European Commission against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 9 June 2021 in Case T-47/19, Dansk Erhverv v Commission

(Case C-508/21 P)

(2022/C 2/18)

Language of the case: English

Parties

Appellant: European Commission (represented by: B. Stromsky, T. Maxian Rusche, Agents)

Other parties to the proceedings: Dansk Erhverv, Danmarks Naturfredningsforening, Federal Republic of Germany, Interessengemeinschaft der Grenzhändler (IGG)

Form of order sought

The appellant claims that the Court should:

— set aside the operative part of the judgment under appeal;

— give judgment in Case T-47/19 Danske Erhverv v Commission, by annulling section 3.3 of the contested decision (1);

— order the applicant in first instance to bear the costs for the appeal;

— order each party and each intervener to bear its own costs for the proceedings at first instance.

Pleas in law and main arguments

First ground of appeal: The General Court has erred in law by finding that the success of the third part of the sole plea in law leads to the annulment of the contested decision in its entirety. That finding violates Article 264 TFEU, as interpreted by the Court of Justice in Commission v Department de Loiret and the principle of proportionality.

In Commission v Department de Loiret, the Court of Justice has interpreted Article 264 TFEU as follows: (2)

‘[…] the Court of First Instance may not, merely because it considers a plea relied on by the appellant in support of its action for annulment to be well founded, automatically annul the challenged act in its entirety. Annulment of the act in its entirety is not acceptable where it is obvious that that plea, directed only at a specific part of the challenged act, is such as to provide a basis only for partial annulment.’

In the present case, the third part of the single plea of the applicant at first instance was only directed against one of the three decisions that were bundled in the contested decision into one act. That was the decision finding that the non-imposition of a fine for not charging the deposit on beverage cans by the boarder shops did not involve the use of State resources, and therefore did not constitute State aid. The third part of the single plea of the applicant was not directed against the other decisions, which find that the non-charging of the deposit and the non-charging of VAT on the non-charged deposit did not involve the use of State resources, and therefore did not constitute State aid.

Second ground of appeal: The General Court failed to provide reasoning and provided contradictory reasoning when holding that the three decisions were inseparable one from the other.

Third ground of appeal: The General Court erred in law in holding that the three decisions are inseparable. Indeed, the three measures assessed in the three decisions are not linked. In particular, the non-imposition of the fine is not directly and automatically linked to the non-charging of the deposit and the non-charging of VAT. Imposing the fine may, or may not, change the behaviour of the boarder shops. The boarder shops may contest the imposition of the fine before the competent courts, and continue not to charge the deposit (and not to collect VAT on the non-charged deposit). And in any event, not charging the deposit does not lead to a loss of State resources, because the money is missing in an entirely privately run deposit scheme, with no control by the State.

(1) Decision C(2018) 6315 final concerning State aid SA.44865 (2016/FC) — Germany — Alleged State aid to German beverage border shops.

(2) Judgment in Commission v Départment de Loiret, C-295/07 P, EU:C:2008:707, para 104.