Appeal brought on 18 August 2021 by Interessengemeinschaft der Grenzhändler (IGG) 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-509/21 P)

(2022/C 2/19)

Language of the case: English

Parties

Appellants: Interessengemeinschaft der Grenzhändler (IGG) (represented by: M. Bauer, F. von Hammerstein, Rechtsanwälte)

Other parties to the proceedings: Dansk Erhverv, European Commission, Danmarks Naturfredningsforening, Federal Republic of Germany

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal in its entirety;

— dismiss the application;

— order the applicant to pay the costs.

Pleas in law and main arguments

The judgment under appeal is vitiated by several errors in law. It misinterprets various legal concepts in State aid law including the concept of ‘serious difficulties’ concerning the necessity to initiate formal proceedings, the concept of a ‘sufficiently direct link’ between an advantage and the State budget to establish the criterion of ‘State resources’ and the concept of ‘severability’ concerning various parts of a judgment. The judgment under appeal also ignored a few arguments presented to it and/or distorted or misinterpreted the Commission’s Decision C(2018) 6315 final concerning State aid SA.44865 (2016/FC) — Germany — Alleged State aid to German beverage border shops and/or the appellant’s submissions and failed to state reasons.

In detail, the appellant raises the following pleas in law:

1) The General Court erred in law and misapplied Art. 107(1) TFEU) by misinterpreting the necessity of a ‘sufficiently direct link’ between an advantage and the State budget when assessing the criterion of ‘State resources’.

2) The General Court erred in law and misapplied Art. 107(1) TFEU) by applying a wrong standard for the Commission’s assessment of the criterion of ‘State resources’ in cases of difficulties in interpreting the applicable legislation, the infringement of which could be subject to fines. — Part 1: The General Court erred in law in paragraphs 159 to 164 by rejecting the applicability of the test of ‘reasonable and severe grounds’ developed by the Commission. — Part 2: The General Court erred in law in paragraphs 140 to 158 by requesting an additional criterion (‘necessity of gradual clarification of the legislative provisions’) to the test of ‘reasonable and severe grounds’ developed by the Commission.

3) The General Court erred in law in paragraphs 166 to 203 by applying a standard for the Commission’s assessment concerning the criterion of State resources beyond the test of ‘reasonable grounds’.

4) The General Court erred in law in paragraphs 166 to 203 concerning all of its six further considerations based on which the General Court found that the Commission was faced with ‘serious difficulties’. — Part 1: The General Court erred in law in para. 166 about the link between the non-imposing of fines and the non-charging of a deposit. — Part 2: The General Court erred in law in para. 169 to 175 about the lack of a legal basis in German law. — Part 3: The General Court erred in law in paragraphs 175 to 177 concerning the divergence of legal views in Germany. — Part 4: The General Court erred in law in paragraphs 178 to 182 about the application of the derogation in Germany. — Part 5: The General Court erred in law in paragraphs 183 to 190 about the motivation of the local authorities. — Part 6: The General Court erred in law in paragraphs 191 to 195 concerning the necessity to investigate the underlying legal framework. — Part 7: The General Court erred in law in paragraphs 196 to 202 concerning the legal interpretation applied by the local German authorities based and on a ‘conclusion by analogy’.

5) The General Court erred in law by rejecting the appellant’s additional arguments to support the finding that the Commission was not faced with ‘serious difficulties’. — Part 1: The General Court erred in law in paragraphs 222 to 229 by rejecting the appellant’s argument concerning the fact that the national law does not require the authorities to impose fines. — Part 2: The General Court erred in law in paragraphs 231 to 234 by ignoring the appellant’s argument concerning the Court’s judgment in the Radlberger case and the infringement of Art. 34 TFEU.