Case C-537/08 P: 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
Date: 2008-12-03
Institutions: Court of Justice
Subjects: European Community, Germany, State aid, appeal, balance of payments assistance, small and medium-sized enterprises

C 44/34

EN

Official Journal of the European Union

21.2.2009

Question referred

Must Article 17(2) and (3) and Article 28b(A)(2) of the Sixth
Directive (1) be interpreted as meaning that, if the place of an
intra-Community acquisition is deemed, on the basis of the first
subparagraph of the latter provision, to be within the territory
of
the Member State which issued the VAT identification
number under which the person acquiring made the acquisition,
the aforementioned person acquiring the goods has the right
immediately to deduct the VAT thus due in that Member State?

(1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmo-
nisation of the laws of the Member States relating to turnover taxes
— Common system of value added tax: uniform basis of assessment
(OJ 1977 L 145, p. 1).

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
the
Federal Republic of Germany v Commission of

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 Commu-
nities

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 imple-
mented 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 there-
fore 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
to
financial
Kahla/Thüringen Porzellan GmbH.

assistance

concerns

granted

the

The appellant relies on two main pleas in law and one alterna-
tive plea in law. The appellant submits that
the judgment
infringes Community law by wrongly applying the fundamental
principles 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.

legal certainty and the protection of

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 Arbeitsförderungsge-
setz (Law on the promotion of employment;
‘the AFG’)
approved by the Commission excluded private undertakings
from its scope.

be,

the Commission

As regards the second plea in law, the Court of First Instance
infringed the principle of the protection of legitimate expecta-
tions 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
that
case may
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 appel-
lant 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.

decision

finding

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.