EN Official Journal of the European Union C 180/58

Action brought on 3 June 2009 — Mitteldeutsche Flughafen and Flughafen Dresden v Commission

(Case T-217/09)

2009/C 180/108

Language of the case: German

Parties

Applicants: Mitteldeutsche Flughafen AG (Leipzig, Germany) and Flughafen Dresden GmbH (Dresden, Germany) (represented by: M. Núñez-Müller und M. le Bell, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 1 of Commission Decision C (2009) 2010 final of 24 March 2009 pursuant to the first paragraph of Article 231 EC in so far as the Commission deemed the financing of the reconstruction and extension of the runway at Dresden airport to be State aid;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicants object to Commission Decision C (2009) 2010 final of 24 March 2009 (NN 4/2009, ex N 361/2008) — Germany, Dresden Airport, by which the Commission approved Germany’s own proposed capital contribution for the reconstruction and extension of the runway at Dresden airport as being a measure compatible with the common market under Article 87(3)(c) EC. They seek the annulment of the decision in so far as the Commission categorised the measure at issue as State aid.

In support of their application, the applicants submit, first, that the Commission acted contrary to the division of powers and the principle that the Community can only act within the powers conferred on it enshrined in Article 5 EC, as it is not responsible for reviewing the measure at issue, according to the division of powers of the EC. Planning powers and responsibility for infrastructure in respect of airport capacity fall within the original competences of the Member States of the European Union.

By their second plea, the applicants allege infringement of Article 87 EC. They submit that, in the 1994 guidelines, (1) the Commission explicitly ruled out the application of the Treaty rules on State aid to measures relating to airport infrastructure. Those guidelines, the applicants submit, continue to be applicable, because they are not contrary to primary Community law as interpreted by the Community judicature, nor have they been effectively repealed by the Commission. In particular, the 1994 guidelines have not been repealed by the 2005 guidelines. (2) In the alternative, the applicants submit that the 2005 guidelines are not applicable.

Furthermore, Flughafen Dresden GmbH should not be categorised as an undertaking within the meaning of Article 87(1) EC so far as the measure at issue is concerned, but should be regarded as a public authority. Moreover, there is no benefit, for the purposes of the rules on State aid, because the standard applied by the Commission — that of the private investor in a market economy — cannot be applied in relation to airport infrastructure.

By their third plea, the applicants submit that the decision should be annulled to the extent applied for also on the grounds that the Commission has infringed essential procedural requirements, the prohibition on retroactivity and the protection of legitimate expectations, and that the decision is inherently contradictory.

(1) Communication from the Commission — Application of Articles 92 and 93 of the EC Treaty and Article 61 of the EEA Agreement to State aids in the aviation sector, OJ 1994 C 350, p. 5.

(2) Communication from the Commission — Community Guidelines on financing of airports and start-up aid to airlines departing from regional airports, OJ 2005 C 312, p. 1.