Appeal brought on 3 December 2018 by M-Sansz Kereskedelmi, Termelő és Szolgáltató Kft. (M-Sansz Kft.) against the order of the General Court (Seventh Chamber) delivered on 28 September 2018 in Case T-709/17 M-Sansz v Commission

(Case C-757/18 P)

(2019/C 148/08)

Language of the case: Hungarian

Parties

Appellant: M Sansz Kereskedelmi, Termelő és Szolgáltató Kft. (M Sansz Kft.) (represented by: L. Ravasz, ügyvéd)

Other party to the proceedings: European Commission

Form of order sought

In its appeal, M-Sansz Kft. submits that the Court of Justice should:

— Set aside the order of the General Court (Seventh Chamber) of 28 September 2018, M-Sansz v Commission, T-709/17, and in its judgment, reject the plea of inadmissibility raised by the defendant at first instance, and uphold the action brought by the applicant in the proceedings at first instance; find, in relation to Commission Decisions SA.29432 [CP 290/2009] and SA.45498 [FC/2016], principally, that those decisions declaring the compatibility of State aid failed to rely on Article 107(1) TFEU; and, in the alternative, that the contested decisions do not constitute acts which are legally binding on the appellant in the context of Case No 23.P.25.843/2016 pending before the Fővárosi Törvényszék (Budapest High Court, Hungary), and that the appellant is therefore not directly and individually concerned, since it has brought its action for compensation on the basis of the fact that the State aid in question infringes Article 107(1) TFEU, not Article 107(3) TFEU. In the event that, on the contrary, the contested decisions are found to constitute acts which are legally binding on the appellant in relation to a procedure under Article 107(1) TFEU, the appellant also requests that the Court of Justice uphold the appeal brought by the applicant at first instance, and declare that the contested decisions are invalid owing to the fact that the aid granted by the Hungarian authorities infringes Article 107(1) TFEU (annulment).

— In the event that the Court of Justice does not consider it possible to rule on the substance of the case, set aside the abovementioned order of the General Court and refer the case back to the General Court as court of first instance.

— In the event that the Court of Justice gives judgment in accordance with the first paragraph of the form of order sought above, order the defendant to bear its own costs at first instance and on appeal.

Grounds of appeal and main arguments

Infringement of Article 263 TFEU and the provisions and case-law in bold, as follows:

The complaints lodged by the Hungarian applicant company gave rise to the procedures relating to Decisions SA.29432 and SA.45498. Those complaints concerned unlawful State aid and discriminatory treatment of a category of entities — which includes the applicant at first instance — since the recipient companies and those discriminated against are engaged in the same activity in Hungary, are situated in the same county in Hungary and employ disabled workers. The appellant also claims that the amount of the unlawful State aid is manifestly and unlawfully high. The appellant maintains that, in those procedures, the Commission failed to give decisions and certainly did not give decisions producing any legal effect in its regard. In the Hungarian proceedings mentioned in the appeal [Case No 23.P.25.843/2016, pending before the Fővárosi Törvényszék (Budapest High Court, Hungary)], the appellant seeks compensation in respect of the harm suffered as a consequence of the unlawful State aid; as a result, the outcome of the present case will have an undeniable effect on the judgment to be given in the context of the national proceedings. It is important that acts which legally do not constitute Commission decisions do not determine the outcome of the national proceedings. Those decisions failed to find the State aid in question to be compatible, within the meaning of Article 107(1) TFEU, and do not constitute legal acts intended to produce legal effects with regard to the appellant, since the wording of the latter’s application for compensation relies on the claim that the State aid at issue infringes Article 107(1) TFEU, and not on the allegation that it infringes Article 107(3) TFEU.

The appellant maintains that, in this case, it satisfies the requirement established in the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17). The appellant claims that it has demonstrated that it is a ‘party concerned’ for the purposes of the fourth paragraph of Article 263 TFEU, Article 108(2) TFEU, and Article 1(h) of Council Regulation (EU) 2015/1589, (1) and that the Court of Justice declared in its judgment of 24 May 2011, Commission v Kronoplu and Kronotex (C-83/09P, EU:C:2011:341), that, in order for undertakings to regarded as competitors, their spheres of activity were not required to be identical.

Infringement of procedural rights (breach of the provisions in bold), as follows:

Thus, whilst the table submitted as evidence of standing as a party concerned and the additional explanations failed to satisfy the General Court, the latter ought to have applied Article 83(1) to (3), Article 88(1), Article 89(1), (2)(a) to (c), (3)(a) and (d) and (4), together with Article 92(1) of its own Rules of Procedure, and made use, vis-à-vis the appellant, of a request for information or an invitation to make submissions with regard to that question. The breach occurred when the General Court failed to act of its own motion. Moreover, the Sargentini Report — which also examines the time period in question — criticises Hungary in connection with the principle of the rule of law, including the rule of law in economic matters (see paragraphs 12, 13, 22 and 23).

(1) Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).