Case C-319/18 P: Appeal brought on 14 May 2018 by Fred Olsen, S.A. against the judgment of the General Court delivered on 15 March 2018 in Case T-108/16 Naviera Armas, S.A. v European Commission

Appeal brought on 14 May 2018 by Fred Olsen, S.A. against the judgment of the General Court delivered on 15 March 2018 in Case T-108/16 Naviera Armas, S.A. v European Commission

(Case C-319/18 P)

Parties

Appellant: Fred Olsen, S.A. (represented by: J.M. Rodríguez Cárcamo and A.M. Rodríguez Conde, abogados)

Other parties to the proceedings:

Naviera Armas, S.A.

European Commission

Form of order sought

Fred Olsen, S.A. respectfully requests the Court of Justice to:

— Set aside in its entirety the judgment of the General Court of 15 March 2018 in Case T-108/16, Naviera Armas, S.A. v European Commission, supported by Fred Olsen, S.A. (EU:T:2018:145);

— Dismiss in its entirety the form of order sought by Naviera Armas, S.A. seeking annulment of Decision (2015) 8655 final of the European Commission of 8 December 2015 on State aid SA.36628 (2015/NN) (ex 2013/CP — Spain — Fred Olsen); and

— Order the parties challenging the appeal to pay the costs incurred by Fred Olsen, S.A. for the purposes of these proceedings, and Naviera Armas, S.A. to pay the costs incurred by Fred Olsen, S.A. at first instance.

Pleas in law and main arguments

1. First ground of appeal

1. By its first ground of appeal, Fred Olsen, S.A. alleges failure to state reasons in the judgment under appeal so far as concerns the selectivity of the measure, within the meaning required by the judgment Commission v Hansestadt Lübeck (C-524/14 P). ( 1 )

2. If the General Court had examined the selectivity of the measure in accordance with the criteria set out in that judgment, it would have had to examine (i) the general reference framework in which Fred Olsen pays port dues for using the infrastructure of the Puerto de la Nieves, which is to say, the dues applicable to all ports in the Canary Islands, as regulated under national law; (ii) whether the positions of Fred Olsen and other operators using that infrastructure, including Naviera Armas, are comparable with respect to the measure under examination; and (iii) possible discrimination in the payment of those port dues.

3. The Commission considered, in the contested decision, that the fact that Fred Olsen is the sole user of the Puerto de las Nieves does not, as such, represent an advantage obtained with State resources, given that Fred Olsen pays the usual amount of the dues levied from all operators under the scheme applicable to all ports in the Canary Islands. The Commission was therefore not obliged to carry out an examination of the selectivity of the measure.

4. On the contrary, in order to assess the existence of a difficulty for the purposes of Article 108(2) TFEU, the General Court should have carried out that examination, which would have allowed it to assess whether the port dues paid by Fred Olsen, in return for being the sole user of the port infrastructure of the Puerto de las Nieves, provided it with any type of advantage.

5. Given that the reasons for the judgment are manifestly inadequate on this point, it is not possible to assess the existence of the alleged advantage, on which ground the judgment of the General Court should be set aside in its entirety.

2. Second ground of appeal

6. By its second ground of appeal, Fred Olsen alleges that sufficient reasons were stated for the Commission’s decision, which did not apply the private investor test.

7. The General Court found the reasons stated for the decision to be insufficient because, in its judgment, the Commission must use the criterion of the private investor acting in a market economy.

8. However, beyond the fact that Fred Olsen is the sole user of the Puerto de las Nieves, there is no indication in the judgment of the General Court that that position affords it any advantage with regard to the payment of port dues for the use of the infrastructure. In this particular case, there is no agreement or discount in the payment of dues by Fred Olsen, or a situation of discrimination towards other operators, such as Naviera Armas, with regard to the payment of dues.

9. The judgments in Freistaat Sachsen and Land Sajonia-Anhalt v Commission (T-443/08 and T-455/08) ( 2 ), Ryanair v Commission (T-196/04) ( 3 ) and Aéroports de Paris v Commission (T-128/98) ( 4 ) are not applicable to this case.

10. On that ground, the judgment of the General Court should be set aside in its entirety and the decision of the Commission maintained in its entirety.

( 1 ) Judgment of 21 December 2016, Commission v Hansestadt Lübeck, C-524/14 P, EU:C:2016:971.

( 2 ) Judgment of 24 March 2011, Freistaat Sachsen and Land Sajonia-Anhalt v Commission, T-443/08 and T-455/08, EU:T:2011:117.

( 3 ) Judgment of 17 December 2008, Ryanair v Commission, T-196/04, EU:T:2008:585.

( 4 ) Judgment of 12 December 2000, Aéroports de Paris v Commission, T-128/98, EU:T:2000:290.