Appeal brought on 12 April 2016 by Mr Dirk Andres (liquidator in the insolvency of Heitkamp BauHolding GmbH), formerly Heitkamp BauHolding GmbH against the judgment of the General Court (Ninth Chamber) delivered on 4 February 2016 in Case T-287/11 Heitkamp BauHolding GmbH v European Commission

(Case C-203/16 P)

(2016/C 211/48)

Language of the case: German

Parties

Appellant: Dirk Andres (liquidator in the insolvency of Heitkamp BauHolding GmbH) (represented by: W. Niemann, S. Geringhoff and P. Dodos, lawyers)

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

Form of order sought

— quash, in part, the judgment of the General Court of 4 February 2016 in Case T-287/11, as formulated in the operative part, in so far as it dismissed the action (paragraphs 2 and 3 of the operative part) and by upholding the claims at first instance, annul Commission Decision 2011/527/EU of 26 January 2011 on State aid C 7/10 (ex CP 250/09 and NN 5/10) — Law on corporation tax (KStG) Scheme for the carry-forward of tax losses in the case of restructuring of companies in difficulty (Sanierungsklausel) (1),

— in the alternative, quash, in part, paragraph 1 of the operative part of that judgment of the General Court, in so far as it dismissed the action (paragraphs 2 and 3 of the operative part) and refer the case back to the General Court;

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

Pleas in law and main arguments

In support of its appeal, the appellant raises the following grounds of appeal:

First of all, the appellant complains of procedural errors. The General Court did not provide reasons for its conclusions concerning the definitions of the reference framework, the selectivity of the measure and its justification, or it merely provided contradictory reasoning, and at the same time, by disregarding the appellant’s arguments, the General Court infringed its right to be heard.

In addition, the appellant alleges infringement of Article 107 TFEU and relies on three grounds:

First, the General Court incorrectly determined the reference framework, when, in combining the first and second stage of the selectivity examination, it erroneously evaluated the rule on the exclusion of the use of losses pursuant to Paragraph 8c(1) of the KStG as the relevant basic rule and the maintenance of losses under the ‘restructuring clause’ (Sanierungsklausel) of Paragraph 8c(1a) of the KStG as the exception. In that regard, the General Court failed to consider that the ‘restructuring clause’ is an integral part of more general and ordinary tax rules on the carrying forward of losses under Paragraph 10d of the German law on income tax (Einkommensteuergesetz, EstG) which are based on German constitutional law.

Second, the General Court wrongly assessed the ‘restructuring clause’ to be selective. The General Court disregarded the fact that that ‘restructuring clause’ does not define any area of personal application, but rather is applicable to all undertakings, irrespective of their type and purpose. The ‘restructuring clause’ is indistinctly applicable to all undertakings which have encountered financial difficulties. In that context, the General Court also disregarded the fact that undertakings in difficulties and healthy ones, with regard to the relevant purpose of the rule on the limitation of losses, that is, to exclude the risk of misuse of losses, are not in a factual and legal comparable situation. In cases covered by the ‘restructuring clause’, such a misuse of losses would be excluded under the legislator’s authority of categorisation.

Third, the General Court was wrong to consider, in any case, the ‘restructuring clause’ to be unjustified. The appellant maintains that that clause is not intended to support undertakings in difficulties, but to ensure taxation of such undertakings according to the principle of ability to pay as an intrinsic objective of German tax law. The maintenance of losses should, in particular, ultimately allow the tax exemption of what are known as ‘fictitious profits’ which arise from the waiver of debt through offsetting losses.

(1) OJ L 235, p. 26.