EN Official Journal of the European Union C 311/19

Appeal brought on 28 July 2011 by the European Commission against the judgment delivered by the General Court on 17 May 2011 in Case T-1/08 Buczek Automotive v Commission

(Case C-405/11 P)

2011/C 311/32

Language of the case: Polish

Parties

Appellant: European Commission (represented by: A. Stobiecka-Kuik, T. Maxian Rusche, Agents)

Other party to the proceedings: Buczek Automotive Sp. z o.o., Republic of Poland

Form of order sought

— set aside the judgment of the General Court of 17 May 2011 in Case T-1/08 Buczek Automotive Sp. z o.o. v Commission in so far as it annuls the contested decision;

— give final judgment on the issues which are the subject of the present appeal;

— refer the decision back to the General Court for fresh consideration as regards the remaining pleas put forward at first instance;

— reserve costs.

Pleas in law and main arguments

In the appeal the Commission puts forward two pleas, namely infringement of Article 107(1) TFEU and infringement of Article 107(1) TFEU in conjunction with Article 296 TFEU and Protocol No 8 to the 2004 Act of Accession on the restructuring of the Polish steel industry (1) (‘Protocol No 8’).

First, the General Court infringed Article 107(1) TFEU by assessing on the basis of an incorrect legal standard the private creditor test applied by the Commission. The Court thus stated that the Commission was obliged to carry out additional calculations of the gains from various methods of enforcement and should have compared the duration of the various enforcement procedures for the recovery of public debts. The Commission submits that it is not obliged to carry out precise calculations, but to take account of the factors that a private creditor would consider when taking his decision.

In addition, the General Court infringed Article 107(1) TFEU by incorrectly placing the burden of proof on the Commission, that is to say, by placing on the Commission the obligation to adduce additional evidence — in particular as regards the duration of the various procedures or comparison of the amount of the receipts from various types or stages of effective recovery of the debts — in order to reject the argument concerning the conduct of a private creditor.

Second, the General Court infringed Article 107(1) TFEU in conjunction with Article 296 TFEU and Protocol No 8 by incorrectly finding that the Commission did not fulfil the obligation to state the reasons for which the aid would have affected trade between Member States and distorted or threatened to distort competition. The Court took no account at all of the fact that the aid in question must be recognised as distorting or threatening to distort competition on the basis of primary law, namely Protocol No 8, which constitutes the decision’s legal basis, so that additional justification in the decision for the conditions relating to trade and competition was superfluous.

(1) Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded — Protocol No 8 on the restructuring of the Polish steel industry (OJ 2003 L 236, p. 948).