4.2.2012

EN

Official Journal of the European Union

C 32/35

(Case T-613/11)

2012/C 32/71

Language of the case: German

Parties

Applicant: VMS Deutschland Holdings GmbH (Darmstadt, Germany) (represented by: D. Pohl, G. Burwitz, M. Maier and P. Werner, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—annul the decision of the Commission of 26 January 2011, C(2011) 275 final, in the procedure on State aid C 7/2010 ‘KStG, Sanierungsklausel’ (‘Law on corporation tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty’);

—order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

1.First plea in law, alleging absence of prima facie selectivity of the measure

The applicant submits in the context of the first plea inter alia that the provision in Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax) regarding the fiscal carry forward of losses by undertakings in difficulty, which are taken over by another undertaking with the objective of restructuring, is not selective. In the applicant’s view the provision does not constitute State aid for the purposes of Article 107(1) TFEU because it does not lay down any exception to the relevant reference system.

2.Second plea in law, alleging that the provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty is a general measure

In that regard the applicant submits inter alia that the technical differentiation on the basis of an undertaking’s economic position and ability to pay is a technical provision which, as a general measure, cannot come within the scope of Article 107(1) TFEU. In the applicant’s opinion such a provision, in the context of an overall economic assessment, is capable of benefiting all undertakings even if, at a particular point in time, only some undertakings are in fact in a position to actually use the provision.

3.Third plea in law, alleging that the provision is justified on the basis of the nature and general scheme of the tax system

The applicant submits in this respect that the provision in Paragraph 8c(1a) of the KStG enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty is justified on the basis of the nature and general scheme of the tax system and does not constitute State aid for the purposes of Article 107(1) TFEU for that reason also.