EN

Official Journal of the European Union

C 59/43

(Case T-738/15)

(2016/C 059/50)

Language of the case: German

Parties

Applicants: Aurubis AG (Hamburg, Germany), Aurubis Stolberg GmbH & Co. KG (Stolberg, Germany), Covestro Deutschland AG (Leverkusen, Germany), Dow Olefinverbund GmbH (Schkopau, Germany), Rheinkalk GmbH (Wülfrath, Germany), Siltronic AG (Munich, Germany), Vestolit GmbH (Marl, Germany) and Wacker Chemie AG (Munich) (represented by: C. Arhold and N. Wimmer, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—annul Article 3(1) of the contested decision

—in so far as the Commission finds that the reductions in the surcharge for the funding of support for electricity from renewable sources (EEG-surcharge) in the years 2013 and 2014 for energy-intensive users (Besondere Ausgleichsregelung, ‘the BesAR’) constitute State aid within the meaning of Article 107(1) TFEU, or

—in the alternative, in so far as the Commission finds that the BesAR constitutes unlawful State aid established in breach of Article 108(3) TFEU.

—annul Articles 6, 7 and 8 of the contested decision in so far as the Commission orders the recovery of the aid, and

—order the Commission to pay the costs incurred by the applicants.

Pleas in law and main arguments

By means of the present action, the applicants seek the partial annulment of Commission Decision (EU) 2015/1585 of 25 November 2014 (notified under document C(2014) 8786 final) on the aid scheme SA.33995 (2013/C) (ex 2013/NN) implemented by Germany for the support of renewable electricity and of energy-intensive users (1).

In support of the action, the applicants rely on four pleas in law.

1.First plea in law: Infringement of Article 107(1) TFEU

The applicants claim that the BesAR is not State aid within the meaning of Article 107(1) TFEU, not least because of the lack of a transfer of State resources. In addition, it gives energy-intensive users no selective economic advantage.

2.Second plea in law: Infringement of Article 108 TFEU

The applicants claim that, by ordering (partial) recovery, the Commission infringed Article 108 TFEU because the EEG-Act 2012 should have been classified, if at all, only as existing aid and not as new, unlawfully established aid.

3.Third plea in law: Breach of the principle of legitimate expectations

In that regard, it is claimed that the recovery of the aid allegedly granted unlawfully infringes the applicants’ legitimate expectations as to the lawfulness of the national legislation, which were established in particular by the Commission decision on the EEG-Act 2000.

4.Fourth plea in law: Infringement of Article 108(1) TFEU in conjunction with Article 18 of the Rules of Procedure

Within the context of the fourth plea in law, the applicants complain that the Commission did not propose any appropriate measures to the Federal Republic of Germany before the initiation of the formal investigation procedure.

(1) OJ 2015 L 250, p. 122.