30.8.2008

Official Journal of the European Union

C 223/30

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Appeal brought on 25 June 2008 by the Commission of the European Communities against the judgment delivered by the Court of First Instance (Fifth Chamber, Extended Composition) on 10 April 2008 in Case T-233/04 Kingdom of the Netherlands, supported by Federal Republic of Germany v Commission of the European Communities

(Case C-279/08 P)

(2008/C 223/47)

Language of the case: Dutch

Parties

Appellant: Commission of the European Communities (represented by: H. van Vliet, K. Gross and C. Urraca Gaviedes, Agents)

Other parties to the proceedings: Kingdom of the Netherlands, Federal Republic of Germany

Form of order sought

—Primarily:

(a)set aside the judgment under appeal;

(b)declare inadmissible the action seeking annulment of the Decision;

(c)order the Kingdom of the Netherlands to pay the costs of the proceedings before the Court of First Instance and those of the present appeal;

—In the alternative:

(a)set aside the judgment under appeal;

(b)dismiss the action seeking annulment of the Decision;

(c)order the Kingdom of the Netherlands to pay the costs of the proceedings before the Court of First Instance and those of the present appeal.

Pleas in law and main arguments

—In its first plea, the Commission submits that the Court of First Instance erred in declaring the action brought by the Kingdom of the Netherlands to be admissible.

—In the view of the Commission, it is clear from the Court's case-law, and in particular from its order in Case C-164/02, that a Member State cannot seek the annulment of a Commission decision by which the Commission declares an aid measure notified by that Member State to be compatible with the common market.

—By its second (alternative) plea in law, the Commission submits that the Court of First Instance was wrong to conclude that the disputed measure is not selective, that is to say, that it does not favour certain undertakings within the meaning of Article 87(1) EC. The Commission goes on to submit that the Court of First Instance erred in concluding that, even if the measure were selective, it would still not constitute State aid in view of its purpose and on the ground that that measure would be justified by the nature and general scheme of the system.

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