Official Journal of the European Union

C 14/28

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(Case C-579/16 P)

(2017/C 014/34)

Language of the case: English

Parties

Appellant: European Commission (represented by: L. Flynn, K. Blanck-Putz, A. Bouchagiar, Agents)

Other parties to the proceedings: FIH Holding A/S, FIH Erhvervsbank A/S

Form of order sought

The appellant claims that the Court should:

—set aside the judgment of the General Court (Sixth Chamber) of 15 September 2016, notified to the Commission on 16 September 2016, in Case T-386/14 Fih Holding and Fih Erhvervsbank v Commission;

—rule itself on the application at first instance and reject the application as unfounded in law; and

—order the respondents and applicants at first instance to pay the costs of the proceedings.

In the alternative, the appellant claims that the Court should:

—set aside the judgment of the General Court (Sixth Chamber) of 15 September 2016, notified to the Commission on 16 September 2016, in Case T-386/14 Fih Holding and Fih Erhvervsbank v Commission; and

—refer the case back to the General Court for consideration of the second plea at first instance; and

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

Pleas in law and main arguments

The General Court erred in law in finding that to establish the presence of State aid in the 2012 measures the Commission was required to apply the market economy creditor test in light of the cost which would have arisen for Denmark had it not adopted those measures. That finding of the General Court is a legal error because the cost in question is the direct consequence of the previous award of State aid by Denmark in favour of FIH and the consistent case-law of the Court makes clear that the Commission cannot take such a cost into account when it examines if a Member State has acted as a market economy operator would have done.

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