EN Official Journal of the European Union C 252/16

Appeal brought on 8 June 2011 by Mitteldeutsche Flughafen AG, Flughafen Leipzig/Halle GmbH against the judgment delivered by the General Court (Eighth Chanber) on 24 March 2011 in Joined Cases T-443/08 and T-455/08 Freistaat Sachsen and Others v European Commission

(Case C-288/11 P)

2011/C 252/30

Language of the case: German

Parties

Appellants: Mitteldeutsche Flughafen AG, Flughafen Leipzig/Halle GmbH (represented by: M. Núñez-Müller and J. Dammann, Rechtsanwälte)

Other parties to the proceedings: Freistaat Sachsen, Land Sachsen-Anhalt, Federal Republic of Germany, Arbeitsgemeinschaft Deutscher Verkehrsflughäfen e.V. (ADV), European Commission

Form of order sought

The appellants contend that the Court should:

— set aside paragraph 4 of the operative part of the contested judgment, by virtue of which the action in Case T-455/08 was dismissed as to the remainder, and the related decision on costs in paragraph 6;

— give final judgment in the matter and also uphold the action in Case T-455/08 in so far as it seeks annulment of the contested decision to the extent that the European Commission finds therein that the measure adopted by Germany providing capital contributions for the construction of a new southern runway and related airport infrastructure at Leipzig Halle Airport constitutes State aid for the purposes of Article 107(1) TFEU (formerly Article 87(1) EC);

— order the European Commission to pay both the costs of the appeal proceedings and — supplementing paragraph 7 of the contested operative part — the costs of the proceedings at first instance in Case T-455/08.

Pleas in law and main arguments

The present appeal concerns the judgment by which the General Court partially dismissed the appellants’ action for partial annulment of Commission Decision 2009/948/EC on measures by Germany to assist DHL and Leipzig Halle Airport.

The content of the appeal is limited. The appeal does not challenge paragraph 3 of the operative part of the judgment, by which the General Court partially annulled Article 1 of the contested decision; on the contrary, only paragraph 4 is challenged, by which the General Court dismissed the ‘remainder’ of the action. The approval under Article 107(3) TFEU granted by the second half of the sentence in Article 1 of the contested decision is therefore also not challenged; on the contrary, only the classification of the financing measures at issue as aid for the purposes of Article 107(1) TFEU is challenged.

The appellants base their appeal on the following pleas in law.

The contested judgment infringes Article 107(1) TFEU. Contrary to the view of the General Court, Flughafen Leipzig/Halle GmbH is not an undertaking within the meaning of Article 107(1) TFEU with regard to the infrastructure measures at issue and their financing. The construction of regional airport infrastructure does not constitute an economic activity. Consequently, the aid provisions are inapplicable to the present circumstances.

The contested judgment infringes furthermore the prohibition on retroactivity, the requirement of legal certainty and the protection of legitimate expectations. In the contested decision, the Commission applied the communication on Community guidelines on financing of airports and start-up aid to airlines departing from regional airports — which was published on 9 December 2005 — retroactively to the infrastructure measures which had been decided upon on 4 November 2004. The General Court finds that the 2005 guidelines were not applied retroactively and thereby upholds a contradictory and substantively incorrect legal position created by the Commission, in breach of the abovementioned principles. The General Court moeover fails to take account of the fact that the 1994 aviation guidelines — under which the State financing of airport infrastructure is regarded as a general measure and is therefore not subject to aid control — continued to apply.

The contested judgment also infringes Article 1(b)(v) or Articles 17 and 18 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1) because the General Court did not apply the provisions of that regulation on existing aid to the capital contributions of 4 November 2004 classified by the General Court as aid.

The contested judgment also violates, finally, the division of powers under the TFEU. By its interpretation of the concept of ‘undertaking’ in Article 107(1) TFEU, the General Court infringes primary law, in that it subjects to aid control Member State measures which in fact are not subject to the law on aid.

Finally, the appellants submit that the contested judgment also infringes the duty under Article 81 of the Rules of Procedure of the General Court to state reasons for judgments because the grounds of the judgment are incomplete.

(1) OJ 1999 L 83, p. 1.