EN Official Journal of the European Union C 267/69

Action brought on 19 August 2009 — RapidEye v Commission

(Case T-330/09)

2009/C 267/127

Language of the case: German

Parties

Applicant: RapidEye AG (Brandenburg an der Havel, Germany) (represented by: T. Jestaedt, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annulment of the Commission’s decision by letter of 9 June 2009 in Case ‘State Aid CP 183/2009 — Germany, RapidEye AG (ex-post monitoring MSR 1998 — N 416/2002)’ in so far as the Commission thereby holds that a State aid intensity of 35 % of the gross grant equivalent and a State aid amount of EUR 44 199 321,36are inadmissible, and that State aid which exceeds either an aid intensity of 30,22 % or a maximum aid amount of EUR 37 316 000 requires a new notification;

— Order the Commission to pay the costs.

Pleas in law and main arguments

By its Decision C (2002) 3570 final of 2 October 2002, the Commission authorised State aid in favour of RapidEye AG (State Aid No N 416/2002 — Germany (Brandenburg), aid for RapidEye AG) in accordance with the multisectoral framework on regional aid for large investment projects (1), in which a maximum aid intensity and maximum aid amount are determined (‘Commission decision of 2 October 2002’).

In the present case, the applicant disputes the Commission letter D (2009) 569 of 9 June 2009 concerning State aid CP 183/2009 — Germany, RapidEye AG (ex-post monitoring MSR 1998 — N 416/2002). In that letter, the German authorities were in particular required to comply with the aid intensity and aid amount authorised by the Commission decision of 2 October 2002 and to confirm that any amounts paid to the beneficiary which exceed those maximum amounts would be recovered.

In support of its application, the applicant relies on five pleas in law.

First, the applicant alleges an infringement of Articles 87 and 88 EC and of Article 2(1) of Regulation (EC) No 659/1999 (2), as, in its opinion, State aid up to an aid intensity of 35 % is covered by the Commission decision of 2 October 2002.

Next, the applicant claims that the defendant misused its powers in so far as, contrary to its decision of 2 October 2002, it refused to authorise aid up to an aid intensity of 35 % without a new notification.

Third, the applicant asserts an infringement of the principle of the protection of legitimate expectations as the applicant, as a result of the aid, made investments on the understanding that aid up to an intensity of 35 % would be authorised.

Furthermore, in the alternative, an infringement of Article 88(3) EC is claimed. The applicant asserts in this regard that even if the Commission decision of 2 October 2002 is to be interpreted as meaning that it authorises a maximum aid intensity of only 30,22 %, the increase to an intensity of 35 % amounts to an insignificant amendment to the aid, which does not require a new notification.

Finally, in the alternative, the applicant alleges an infringement of Article 3 of Regulation (EC) No 800/2008 (3). It thereby asserts that, concerning an increase in the amount of aid to 35 % of the maximum aid intensity, the Commission requires a new notification without verifying whether the aid is exempted pursuant to Article 3 of Regulation No 800/2008.

(1) OJ 1998 C 107, p. 7.

(2) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1).

(3) Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General block exemption Regulation) (OJ 2008 L 214, p. 3).