24.6.2019

EN

Official Journal of the European Union

C 213/40

(Case T-190/19)

(2019/C 213/42)

Language of the case: German

Parties

Applicant: BF (represented by: S. Gesterkamp, lawyer, and C. König, Professor)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—declare that, as from 18 December 2018, the date of electronic service of the applicant’s second letter requesting the defendant to act, the defendant failed through inaction to fulfil its obligation to issue a decision, to be sent to the applicant as a complainant, closing the preliminary examination procedure in State aid case SA.48706 (RVV Rostocker Versorgungs- und Verkehrs-Holding GmbH and Nordwasser GmbH), that is, either a decision to initiate the formal investigation procedure or a decision not to initiate that procedure;

—order the defendant to pay the costs of the proceedings; and

—as a precaution and in the alternative, should the defendant remedy its failure to act after the action has been brought, order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The action is based on the following pleas in law.

The applicant claims, first of all, that the requirements of an action for failure to act have been met, in particular because the factual circumstances were, on the date of service of the second letter requesting the defendant to act, such as to permit a decision closing the preliminary examination procedure under Article 4 of Regulation (EU) 2015/1589. (1)

The applicant further submits that the defendant, in its administrative letter of 17 December 2018, merely normatively stated a legal monopoly in favour of Nordwasser GmbH, commissioned by means of an in-house transaction, which could rule out a distortion of competition within the meaning of Article 107(1) TFEU, without thereby addressing factual issues such as the factual precondition of favourable treatment.

The applicant also claims that, in submitting its complaint, it had already disproved at an earlier stage of the procedure that a legal monopoly had been formed in accordance with EU law. In any event, the defendant should have expressed its view purely legally on the basis of the established facts and, consequently, at least have issued an actionable decision not to initiate the procedure under Article 4(2) of Regulation (EU) 2015/1589 by no later than December 2018.

Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).