Action brought on 29 November 2021 — DCM Film Distribution v Commission

(Case T-760/21)

(2022/C 51/50)

Language of the case: English

Parties

Applicant: DCM Film Distribution GmbH (Berlin, Germany) (represented by: A. Huttenlauch, M. Klasse and P. Hesse, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

— annul European Commission Decision C(2021) 7095 final of 28 September 2021 on the review of the legality of an act of the European Education and Culture Executive Agency pursuant to Council Regulation (EC) No 58/2003 (1) in accordance with Article 264(1) TFEU; and

— order the European Commission to pay all costs.

Pleas in law and main arguments

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

1. First plea in law, alleging that the Commission’s interpretation of ‘European company’ is incompatible with the literal meaning of the Guidelines and the Work Programme. — It is argued that the Commission erred in law by interpreting the criterion of nationality to refer only to the natural persons owning the applicant company. Thereby, the Commission wrongly understands ‘ownership’ to mean ‘ultimate ownership’. 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. The Commission’s narrow reading is not only not supported by the wording but also inconsistent with and contrary to the common understanding of the terms ‘nationality’, ‘EU company’, and ‘European work’ as established in EU law.

2. Second plea in law, alleging that the Commission’s interpretation of ‘European company’ is incompatible with higher-ranking EU law. — It is argued that by relying on this erroneous interpretation without adequately taking into account the facts of the case, the Commission’s decision runs counter the objectives of applicable EU law.

3. Third plea in law, alleging that the Commission’s decision contradicts Regulation (EU) No 1295/2013 (2) underlying the Creative Europe MEDIA funding scheme. — It is argued that relying on the nationality of the ultimate owners of the applicant company as an eligibility prerequisite for funding has no basis in the Creative Europe Regulation; in fact, it contradicts the notion of a consistent implementation of the general and specific objectives of the Creative Europe MEDIA sub-programme.

4. Fourth plea in law, alleging that the Commission’s decision also violates the requirements of Regulation (EU, Euratom) 2018/1046. (3) — It is argued that the Commission’s interpretation of the eligibility criteria fails to satisfy the principles of equal treatment and non-discrimination, which the Commission is required to observe in its financing decisions on grants.

5. Fifth plea in law, alleging that the Commission’s decision infringes Article 20 of the Charter of Fundamental Rights of the European Union. — It is argued that the Commission’s decision leads to a different treatment of like cases to the detriment of certain entities, which is not objectively justified.

6. Sixth plea in law, alleging that the Commission exceeds the limits of its discretionary powers. — It is argued that choosing an interpretation disregarding and conflicting with EU law despite several alternative interpretations being available, that are consistent with EU law, constitutes a misuse of discretion on the Commission’s part.

7. Seventh plea in law, alleging that the Commission’s decision infringes the principle of proportionality. — It is argued that granting funding subject to the reservation that the outflow of profits to any third countries would be prevented would have been an equally effective but milder means.

(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) Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1).