26.1.2008

Official Journal of the European Union

C 22/34

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(Case C-520/07)

(2008/C 22/62)

Language of the case: German

Parties

Appellant: Commission of the European Communities (represented by: K. Gross, B. Martenczuk)

Other party to the proceedings: MTU Friedrichshafen GmbH

Form of order sought

—Annul the contested judgment of the Court of First Instance delivered on 12 September 2007 in Case T-196/02 MTU Friedrichshafen GmbH v Commission of the European Communities,

—give a final decision in the case and dismiss the application as unfounded;

—order the applicant in the main proceedings to pay the costs of these appeal proceedings as well as the costs of the proceedings at first instance in Case T-196/02.

Pleas in law and main arguments

The Court of First Instance erred in assuming that it was not possible to make a decision on the basis of the available information for the purpose of establishing the actual beneficiary of the aid. Establishing the actual beneficiary is normally an integral part of Commission decisions ordering recovery of unlawful aid. Making this determination is indeed necessary to ensure efficient recovery of unlawful aid. Excluding the possibility of establishing the actual beneficiary of aid on the basis of the available information is thus not compatible with Article 13(1) of Regulation (EC) No 659/1999.

Secondly, the Court was wrong to assume that the Commission decision was based on a mere presumption which did not meet the requirements of a decision on the basis of the available information. On the one hand, where a decision is made on the basis of the information available no absolute certainty is required. On the other, the Commission decision was based on the information sent by SKL-M's insolvency administrator as to the development costs of the know-how. The Commission thus had sufficient evidence to allow it to conclude that the transfer of the know-how to MTU represented an advantage for that undertaking.

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