EN Official Journal of the European Union C 44/34

Appeal brought on 3 December 2008 by Kahla/Thüringen Porzellan GmbH against the judgment of the Court of First Instance (Fifth Chamber, Extended Composition) delivered on 24 September 2008 in Case T-20/03 Kahla/Thüringen Porzellan GmbH, supported by Freistaat Thüringen and the Federal Republic of Germany v Commission of the European Communities

(Case C-537/08 P)

(2009/C 44/56)

Language of the case: German

Parties

Appellant: Kahla/Thüringen Porzellan GmbH (represented by: M. Schütte, Rechtsanwalt, S. Zühlke, Rechtsanwältin, und P. Werner, Rechtsanwalt)

Other parties to the proceedings: Freistaat Thüringen, Federal Republic of Germany, Commission of the European Communities

Form of order sought

— set aside the judgment of the Court of First Instance of 24 September 2008 in Case T-20/03 Kahla/Thüringen Porzellan GmbH v Commission of the European Communities, in so far as it concerns measures 15 and 26 and the decision on costs;

— annul Article 1(2)(d) and (g) of Commission Decision 2003/643/EC of 13 May 2003 on the State aid implemented by Germany for Kahla Porzellan GmbH and Kahla/Thüringen Porzellan GmbH (1), as well as Article 2 thereof in so far as it concerns measures 15 and 26, at least in so far as it orders the recovery of measures 15 and 26;

— in the alternative, set aside the judgment under appeal in so far as it holds that the employment promotion grants received conferred an advantage on the appellant and therefore must be recovered;

— order the respondent to pay the cost of the proceedings.

Pleas in law and main arguments

The current appeal is lodged against the judgment of the Court of First Instance dismissing the action brought by the appellant against Commission Decision 2003/643/EC of 13 May 2003 on the State aid implemented by Germany for Kahla Porzellan GmbH and Kahla/Thüringen Porzellan GmbH, in so far as that decision concerns the financial assistance granted to Kahla/Thüringen Porzellan GmbH.

The appellant relies on two main pleas in law and one alternative plea in law. The appellant submits that the judgment infringes Community law by wrongly applying the fundamental principles of legal certainty and the protection of legitimate expectations. Even if the Court of Justice were not to uphold those pleas, certain findings in the judgment in any event constitute an infringement of Article 87(1) EC.

As regards the first plea in law, the judgment of the Court of First Instance infringed the principle of legal certainty by holding that, right from the beginning, the aid scheme approved by the Commission covering the programme of the Land of Thuringia for investments by small and medium-sized enterprises (SMEs) contained restrictions in respect of firms in difficulty and the aid scheme under Paragraph 249h of the Arbeitsförderungsgesetz (Law on the promotion of employment; ‘the AFG’) approved by the Commission excluded private undertakings from its scope.

As regards the second plea in law, the Court of First Instance infringed the principle of the protection of legitimate expectations by holding that the absence of explicit restrictions in the versions of the Commission decision approving the programme of the Land of Thuringia for investments by SMEs or, as the case may be, the Commission decision finding that Paragraph 249h AFG does not contain State aid published in the Official Journal or otherwise publicly available could not give rise to legitimate expectations on the part of the appellant that the measure was lawful and that, consequently, the appellant could be expected to keep itself informed — by looking beyond the documents that were publicly available — as to whether the grant of the aid that it had been awarded was lawful.

Finally, as regards the third, alternative plea, the Court of First Instance infringed Article 87 EC when it found — without undertaking an assessment of the actual savings made by the appellant — that, because of the measure at issue, the appellant enjoyed an advantage relevant in State aid law in the amount of the grant received.

(1) OJ 2003 L 227, p. 12.