Appeal brought on 22 February 2019 by the European Commission against the judgment of the General Court (Fourth Chamber) of 12 December 2018 in Case T-683/15, Freistaat Bayern v European Commission

(Case C-167/19 P)

(2019/C 131/40)

Language of the case: German

Parties

Appellant: European Commission (represented by: K. Herrmann, T. Maxian Rusche and P. Němečková, acting as Agents)

Other party to the proceedings: Freistaat Bayern

Form of order sought

The Commission claims that the Court should:

— set aside the judgment under appeal;

— declare unfounded the first plea in law of the action before the General Court;

— refer the case back to the General Court in respect of the remaining pleas in law;

— order the applicant in the proceedings at first instance to pay the costs of those proceedings and of the appeal, or, alternatively, in the event that the case is referred back to the General Court, reserve the decision on the costs of the proceedings at first instance and of the appeal for the final judgment.

Grounds of appeal and main arguments

First ground of appeal:

In paragraphs 60 to 67 of the judgment under appeal, when defining the requirements for the content of an opening decision, the General Court erred in law in its interpretation and application of Article 108(2) TFEU and Article 6(1) of Regulation No 659/1999 (1) and the case-law of the EU judicature relating to those provisions: the source of financing of aid is stated in the opening decision only exceptionally and in specific circumstances.

Second ground of appeal:

In paragraphs 53 to 58 and 62 of the judgment under appeal, the General Court misinterpreted the opening decision and thereby failed to state reasons and respond to the Commission’s arguments; the opening decision in fact includes budgetary funding.

Third ground of appeal:

In paragraphs 70 and 71 of the judgment under appeal, the General Court erred in law in its interpretation of the second paragraph of Article 263 TFEU and the case-law of the EU judicature relating to that provision, in so far as it holds that the rights of participation of third parties are essential procedural requirements within the meaning of the second paragraph of Article 263 TFEU.

Fourth ground of appeal:

In paragraphs 72 to 75 of the judgment under appeal, the General Court incorrectly interpreted the right of participation under Article 108(2) and (3) TFEU and Article 6(1) of Regulation No 659/1999 together with the case-law of the EU judicature on the consequences of infringing a right of participation, in so far as it finds that an observation of the parties involved on the question whether budgetary funding constitutes State resources could have had an effect on the outcome of the proceedings. In that regard, the General Court also misinterprets the concept of State resources under Article 107(1) TFEU and the concept of existing aid under Article 108(1) TFEU and distorts the facts set out in the decision at issue and adduced before it and fails to deal with the arguments put forward before it by the Commission.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty, OJ 1999 L 83, p. 1.