EN Official Journal of the European Union C 252/19

Appeal brought on 3 June 2013 by European Commission against the judgment of the General Court (Fifth Chamber) delivered on 20 March 2013 in Case T-92/11: Jørgen Andersen v European Commission

(Case C-303/13 P)

2013/C 252/29

Language of the case: English

Parties

Appellant: European Commission (represented by: L. Armati, T. Maxian Rusche, agents)

Other parties to the proceedings: Jørgen Andersen, Kingdom of Denmark, Danske Statsbaner (DSB)

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court (Fifth Chamber) of 20 March 2013, notified to the Commission on 22 March 2013, in Case T-92/11 Jorgen Andersen v European Commission; and

— reject the application to annul Commission Decision 2011/3/EU (1) of 24 February 2010 concerning public transport service contracts between the Danish Ministry of Transport and Danske Statsbaner (Case C 41/08 (ex NN 35/08)); and

— order the applicant at first instance to pay the costs;

alternatively,

— rule that the third plea at first instance is not well founded and refer the case back to the General Court for consideration of the first and second pleas at first instance;

— and reserve the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

The Commission advances a single ground of appeal: violation of Articles 108(2) and (3), 288 and 297(1) TFEU, by finding that the Commission applied Regulation (EC) No 1370/2007 (2) retroactively.

The Commission considers that the assessment of the aid in question on the basis of Regulation (EC) No 1370/2007 did not entail a retroactive application of that Regulation but is consistent with the principle of immediate application under which a provision of Union law applies from the time it enters into force to the future effects of a situation which arose under the old rule.

The case-law of the Court of Justice distinguishes, with regards to retroactivity, between a definitively-established legal situation (to which the new rule does not apply) and temporary situations which arose under the old rule, but are still on-going (to which the new rule applies).

The Commission considers that the General Court has erred in law by considering that State aid granted by a Member State in violation of the notification and standstill obligation constitutes a definitively established legal situation, rather than a temporary situation. It follows from the rules and case law on recovery of unlawful aid that the recipient of such aid cannot be considered to have definitively acquired the aid until such time as the Commission approves it and the approval decision has become final. In view of the mandatory nature of the supervision of State aid by the Commission under Article 108 TFEU, undertakings to which aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that article.

Finally, the Commission also observes that the judgment under appeal is in open and direct conflict with earlier rulings of the Court of Justice on the same question.

(1) OJ L 7, p. 1

(2) Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) No 1191/69 and No 1107/70

OJ L 315, p. 1.