25.8.2012

Official Journal of the European Union

C 258/8

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(Case C-224/12)

2012/C 258/14

Languages of the case: Dutch and English

Parties

Appellant: European Commission (represented by: L. Flynn, S. Noë and H. Van Vliet, Agents)

Other parties to the proceedings:

Kingdom of the Netherlands

ING Groep NV

De Nederlandsche Bank NV

Form of order sought

—Set aside the judgment of the General Court (First Chamber) of 2 March 2012, notified to the Commission on 6 March 2012, in Joined Cases T-29/10 and T-33/10 Netherlands and ING Groep v Commission; and

—dismiss the applications for partial annulment of the decision of the European Commission (1) of 18 November 2009 on State aid C 10/09 (ex N 138/2009) implemented by the Netherlands for ING’s Illiquid Assets Back-up Facility and Restructuring Plan;

—order the applicants to pay the costs;

—in the alternative,

—refer the case back to the General Court for reconsideration;

—reserve the costs of the proceedings at first instance and on appeal,

—or, in the further alternative,

—annul the third paragraph of Article 2 of the decision at issue;

—order the applicants to pay the costs of the appeal.

Pleas in law and main arguments

The Commission maintains that the judgment under appeal should be set aside on the following grounds:

First, there is no requirement in law to apply the market economy investor principle in relation to an amendment of repayment conditions for a measure that itself constituted State aid.

Second, the General Court wrongly evaluated the loss of revenue to the Member State resulting from the modified repayment conditions examined in the Commission’s decision of 18 November 2009 on State aid C 10/09 (ex N 138/09) implemented by the Netherlands for ING’s Illiquid Assets Back-up Facility and Restructuring Plan (‘the decision at issue’).

Third, even if the Commission was wrong to treat the modified repayment conditions as State aid, the General Court was not entitled to annul the first paragraph of Article 2 of the decision at issue in its entirety.

Fourth, the General Court erred in law in finding that the second paragraph of Article 2 of the decision at issue was necessarily unlawful because the Commission had erred in finding that the modified repayment conditions constituted State aid.

Fifth, the General Court ruled ultra petita in annulling the second paragraph of Article 2 of the decision at issue and Annex II thereto.

Sixth, in the alternative, if the General Court was correct to annul the first and second paragraphs of Article 2 of the decision at issue and Annex II thereto, it also had to annul the third paragraph of Article 2 of the decision at issue.

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Decision 2010/608/EC (OJ 2010 L 274, p. 139).

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