4.2.2012

EN

Official Journal of the European Union

C 32/36

(Case T-615/11)

2012/C 32/72

Language of the case: Danish

Parties

Applicant: Royal Scandinavian Casino Århus AS I/S (Århus, Denmark) (represented by: B. Jacobi, lawyer)

Defendant: European Commission

Form of order sought

—annul the Commission’s decision of 20.09.11 on the measure No C 35/2010 (ex N 302/2010) which Denmark is planning to implement in the form of duties for online gaming in the Danish Gaming Duties Act.

—order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

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

1.First plea in law, alleging that the Commission incorrectly approved the aid on the basis of Article 107(3)(c) TFEU, on the grounds that:

—Article 107(3)(c) TFEU does not allow for approval of aid to part of an economic area;

—the aid does not fulfil the requirement in Article 107(3)(c) TFEU that it must facilitate the development of certain economic areas;

—the aid affects trading conditions in a manner contrary to the common interest, and accordingly

—the aid does not serve a properly documented purpose of European interest.

The applicant further submits that the exception in Article 107(3)(c) TFEU must be interpreted restrictively and that that provision does not allow for the grant of State aid on the basis of State financial considerations.

2.Second plea in law, alleging that the Commission approved the aid contrary to the Court’s case-law on operating aid. The applicant submits that the aid in question, which is granted as permanent aid in the form of a tax reduction, amounts to operating aid which, according to settled case-law, cannot be approved in a case such as the present one.

3.Third plea in law, alleging that the Commission infringed the proportionality principle, since the objectives of the Danish legislation can be achieved without State aid being granted.

4.Fourth plea in law, alleging the Commission made an incorrect assessment in finding, incorrectly, that the aid is necessary in order to give incentive to online gaming providers to apply for a Danish licence.

5.Fifth plea in law, alleging that the Commission misused its powers by referring to a Treaty provision which gives authority to approve aid intended to facilitate the development of an economic area, whilst, by contrast, it is apparent from the decision that the actual reason for approving the aid is the wish to attract a suitable number of applicants for a Danish online gaming licence. The applicant adds that the Commission misuses its powers when it gives as grounds for the approval the objective of liberalising and facilitating the development of an economic area, whilst the Danish State itself states that the overall objective of the tax scheme is to generate as much tax revenue as possible.

6.Sixth plea in law, alleging that the Commission has failed to provide a sufficient statement of reasons, in that the reasons:

—are generally inconsistent and self-contradictory on a number of points;

—fail to provide a sufficient explanation as to how liberalisation of the gaming market is a legitimate purpose to pursue through approvals on the basis of Article 107(3)(c) TFEU;

—do not give a satisfactory explanation of the Commission’s interpretation of Article 107(3)(c) TFEU;

—do not document the need for State aid or give a sufficient account of taxation in other Member States;

—lack clarity as to the objectives of the Danish Gaming Duties Act;

—fail to address Danish legislation covering other forms of gaming;

—contain no examination or explanation of the effects of the aid on land-based gaming operations.