Action brought on 20 October 2020 — Leonine Distribution v Commission

(Case T-641/20)

(2021/C 19/61)

Language of the case: English

Parties

Applicant: Leonine Distribution GmbH (Munich, Germany) (represented by: J. Kreile, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul Commission Implementing Decision C(2020) 5515 final of 10 August 2020, reviewing the legality of an act of the Education, Audiovisual and Culture Executive Agency pursuant to Council Regulation (EC) 58/2003 (1);

— order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on eight pleas in law.

1. First plea in law, alleging that the Commission erred in interpreting the wording of the Call documents. — It is argued that the wording does not permit the conclusion that the nationality of ‘ultimate shareholders’ and not only of direct shareholders is decisive for the classification of the applicant as a European company.

2. Second plea in law, alleging that the Commission wrongly rejected the KKR European Fund IV LP as European ultimate owner of LEONINE Distribution. — The applicant argues that already the EACEA assumes that the KKR European Fund IV LP is to be regarded as the ‘ultimate owner’ of the applicant.

3. Third plea in law, alleging that the Commission wrongly based its decision on alleged lack of information on the shareholding structure of the KKR European Fund IV LP. — For the evaluation of the eligibility of the applicant, the detailed structure of the individual investors of the Fund is not important, but only an — assured — majority participation of European shareholders.

4. Fourth plea in law, alleging that the Commission did not take the facts of the case and the objectives of Regulation (EU) No 1295/2013 (‘the Creative Europe Regulation’) (2) into sufficient account. — The Commission bases its decision on the unproven assertion that the requested funding would be transferred to third countries; — The Commission did not examine the objectives of the funding laws in its decision.

5. Fifth plea in law, alleging that the Commission’s decision contradicts the objectives of the applicable funding Guidelines. — A rejection of the applicant’s eligibility for funding is incompatible with the objectives of the Creative Europe Regulation.

6. Sixth plea in law, alleging that the decision of the Commission contradicts the notion of ‘European work’ in the Creative Europe Regulation. — The concept of ‘European work’, which is defined by Directive 2010/13/EU of the European Parliament and of the Council (3), is widely understood and is not compatible with the Commission’s restrictive understanding of eligibility for funding.

7. Seventh plea in law, alleging that the Commission’s decision infringes the principle of proportionality. — The granting of MEDIA funding, subject to its use in accordance with the funding laws, would have been an equally effective but milder means.

8. Eighth plea in law, alleging that the Commission unlawfully failed to take into account the further clarifications submitted by the claimant in its letter of 15 July 2020. — The Commission should have taken the applicant’s observations into account, since they were not submitted late and were therefore not precluded.

(1) Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (OJ 2003 L 11, p. 1).

(2) Regulation (EU) No 1295/2013 of the European Parliament and of the Council of 11 December 2013 establishing the Creative Europe Programme (2014 to 2020) and repealing Decisions No 1718/2006/EC, No 1855/2006/EC and No 1041/2009/EC (OJ 2013 L 347, p. 221).

(3) Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ 2010 L 95, p. 1).