EN Official Journal of the European Union C 6/34

Action brought on 6 October 2008 — DHL Aviation et DHL Hub Leipzig/Commission

(Case T-452/08)

(2009/C 6/70)

Language of the case: English

Parties

Applicant(s): DHL Aviation NV (Zaventem, Belgium) and DHL Hub Leipzig GmbH (Schkeuditz, Germany) (represented by: A. Burnside, Solicitor and B. van de Walle de Ghelcke, lawyer)

Defendant(s): Commission of the European Communnities

Form of order sought

— Annul the decision in so far as it identifies the applicants as beneficiaries of State aid that is considered to be incompatible with the common market, and in so far as the decision orders Germany to recover the alleged State aid, and

— Order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek partial annulment of the Commission's Decision of 23 July 2008 in Case C 48/06 (ex N 227/06) — Germany, in so far as it identifies the applicants as beneficiaries of the State aid that is considered to be incompatible with the common market and in so far as the decision orders Germany to recover the alleged State aid.

On 5 April 2006 Germany notified measures undertaken by the publicly-owned Leipzig Airport and Land Sachsen concerning the construction and operation of the new southern runway at Leipzig Airport, relating; in particular, to the establishment of the European hub of the DHL group for its express parcel operations at the said airport. The notified measures were, specifically, the ‘Framework agreement’ (1) concluded between the airport and DHL Hub Leipzig as well as a ‘Comfort letter’ issued by Land Sachsen in favour of the Leipzig Airport and DHL Hub Leipzig to pay a set amount of damages in the event that DHL Hub Leipzig would no longer operate as foreseen at the airport. The applicants claim that, as a consequence of the contested decision, they are deprived of the contractual obligations undertaken by Leipzig Airport and Mitteldeutsche Flughafen (‘MFAG’) under the Framework Agreement as well as of the guarantee provided by the Comfort Letter and also subject to recovery of the alleged State aid.

The applicants raise the following pleas:

In they first and second pleas, the applicants submit that the Commission committed manifest errors in the application of Article 87(1) EC. By characterising the ‘Nightflight clause’ and the ‘90 % Clause’ as State aid, the Commission failed to correctly apply the said provision according to the applicant. The applicants submit that the Commission manifestly erred in the application of the private investor test by holding that the point of reference for it was November 2004 and not the actual date of the conclusion of the Framework agreement. Further, the applicants claim that the Commission manifestly erred by holding that, regardless of the point of reference for the investment decision, the so-called unlimited guarantees provided in the Framework agreement constituted State aid in any event, since risks that DHL assumed under these provisions were financed by a capital injection which constituted State aid itself.

On the basis of its second plea, the applicants claim that the Commission failed to correctly apply Article 87(1) EC, by holding that the Comfort letter constitutes State aid without considering the usual business practice between holding companies and subsidiaries.

In its third plea, the applicants submit that the Commission infringed Article 253 EC by not considering all relevant factors when characterising the Nightflight Clause, the 90 % Clause and the Comfort Letter as State aid.

In its fourth plea, the applicants submit that the Commission made a manifest error of assessment in ordering the recovery of the alleged State aid.

In its fifth plea, the applicants submit that the Commission infringed Article 235 EC by holding that Articles 8 and 9 of the Framework Agreement contain the alleged State aid and by deciding that these provisions are not compatible with the common market and must therefore be terminated.

(1) According to the communication published in the OJ 2007 C 48, p. 7, this agreement imposes on the airport the obligation to construct the new southern runway and further obligations in terms of capacity and operation. In case of non-fulfilment (e.g. if night flights are banned by the regulatory authorities), DHL can claim compensation of its losses and damages.