Appeal brought on 20 December 2019 by Autostrada Wielkopolska S.A. against the judgment of the General Court (Ninth Chamber) delivered on 24 October 2019 in Case T-778/17, Autostrada Wielkopolska S.A. v Commission

(Case C-933/19 P)

(2020/C 87/15)

Language of the case: English

Parties

Appellant: Autostrada Wielkopolska S.A. (represented by: O. Geiss, Rechtsanwalt, T. Siakka, dikigoros)

Other parties to the proceedings: European Commission, Republic of Poland

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal;

— annul the Commission Decision (EU) 2018/556 of 25 August 2017 on the State aid SA.35356 (2013/C) (ex 2013/NN, ex 2012/N) implemented by Poland for Autostrada Wielkopolska S.A or, in the alternative, refer the case back to the General Court; and, in any event,

— order the Commission to pay the Appellant’s costs of the appeal and of the procedure in case T-778/17 before the General Court.

Pleas in law and main arguments

In support of the action, the Applicant relies on the following four grounds.

First Ground: the General Court manifestly erred in law in dismissing the first plea of the Appellant’s application because, after correctly finding that the Commission should have given the Appellant the opportunity to comment again during the administrative procedure (a finding not challenged in this appeal), it applied a wrong legal test (requiring a potential effect on the decision is established) and distorted the content of the contested decision and failed to provide adequate reasoning when finding that the (wrong test) was not met.

Second Ground: the General Court’s manifest errors in law include the failure to assess the Commission’s application of the private investor test against the correct legal standard in breach of Article 107 (1) TFEU, exceeding its powers of review by substituting its reasoning for that in the contested decision, reversing the burden of proof, inadequate reasoning, distortion of evidence, failure to adhere to the rules of evidence (in relation to its own findings and its obligation to assess whether the Commission’s assessment against the applicable legal standard) and breach of the fundamental principle of the supremacy of EU law. More specifically, the errors relate to the finding that the Commission was not obliged to take into account and assess the shift in inflation and exchange rate risk, the General Court’s reliance on the Law of 28 July 2005 as a limitation of the private investor test, the finding that the Commission was not obliged to take into account and assess the termination and litigation risk and errors in relation to the General Court’s assessment of the third element in recital 152.

Third Ground: in dismissing the second part of the second plea, the General Court manifestly erred in law by misapplying the applicable test, impermissibly substituting its own reasoning for that of the of the Commission, reversing of the burden of proof, inadequate reasoning and failing to adhere to the rules of evidence.

Fourth Ground: in dismissing the first ground of the fifth plea, the General Court erred in law by distorting the clear sense of the evidence and by providing inadequate reasoning.