Appeal brought on 7 December 2020 by Gesamtverband Verkehrsgewerbe Niedersachsen eV (GVN) against the judgment of the General Court (Fifth Chamber) delivered on 5 October 2020 in Case T-583/18, GVN v European Commission

(Case C-666/20 P)

(2021/C 44/41)

Language of the case: German

Parties

Appellant: Gesamtverband Verkehrsgewerbe Niedersachsen eV (GVN) (represented by: C. Antweiler, Rechtsanwalt)

Other parties to the proceedings: European Commission, Federal Republic of Germany, Land Niedersachsen

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of 5 October 2020, GVN v Commission (T-583/18, EU:T:2020:467), in the form of paragraphs 1 and 2 of the operative part;

— should the appeal be declared well founded, grant the form of order sought at first instance, by which it was sought that the decision of the European Commission of 12 July 2018, C(2018) 4385 final, (1) be annulled.

Grounds of appeal and main arguments

The appellant claims, in the first place, that the General Court infringed Article 47(2) of the Charter of Fundamental Rights and made a procedural error, in so far as it completely disregarded the submission made by the appellant, which was relevant to the decision, regarding the conditions under which the German Länder are, in accordance with Paragraph 64a of the Personenbeförderungsgesetz (Law on passenger transport; the ‘PBefG’), empowered to substitute Paragraph 45a of that law with laws of the Länder.

In the second place, the appellant alleges multiple infringements of EU law.

First of all, EU law was infringed in that the General Court stated, in paragraph 36 of the judgment under appeal, that it was common ground between the parties that the German legislature, through Paragraph 45a of the PBefG and the third sentence of Paragraph 8(4) of the PBefG, had excluded compensation for the public transportation of persons with season tickets for journeys relating to their studies from the scope of Regulation (EC) No 1370/2007. (2) In doing so, the General Court disregarded the fact that the Federal Republic of Germany notified neither Paragraph 45a of the PBefG nor the third sentence of Paragraph 8(4) of the PBefG to the European Commission in accordance with the second sentence of Article 3(3) of Regulation No 1370/2007.

A further infringement of EU law lies in the fact that the General Court, in paragraph 40 et seq. of the judgment under appeal, unlawfully accepted that a legislature could, under Article 3(3) of Regulation No 1370/2007, not only exclude rules on financial compensation for public service obligations for the transportation of pupils and apprentices from the scope of the regulation, but also simply restrict the scope of that exception by revising such a decision in order to put such compensation back within the scope of Regulation No 1370/2007. In fact, the revision considered admissible by the General Court constitutes the actus contrarius of the decision under the second sentence of Article 3(3) of Regulation No 1370/2007; it is therefore subject to the same formal conditions for validity, which, in the present case, are not met failing any notification of the revision to the Commission.

Lastly, there has been an infringement of EU law — namely Article 107 TFEU and Article 108(3) TFEU — in that the General Court held, in respect of the second plea in law, that, on the basis of Paragraph 7a of the Niedersächsisches Nahverkehrsgesetz (Law on local transport of the Land of Lower Saxony; the ‘NNVG’) the Land of Lower Saxony had not granted any State aid to undertakings, even though all municipal undertakings received in full from the municipal transport authorities the financial resources which the Land of Lower Saxony made available to the latter. Contrary to the General Court’s finding, it is not possible to draw a distinction between the transport authorities’ activity as public authorities, on the one hand, and their economic activity as holders of shares in the transport undertakings controlled by them, on the other.

(1) European Commission decision not to raise objections to the measure adopted by the Land Niedersachsen under Paragraph 7a of the Niedersächsisches Nahverkehrsgesetz (Law on local transport of the Land of Lower Saxony) (Case SA. 46697 (2017/NN)) (OJ 2018 C 292, p. 1).

(2) Regulation 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) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1).