Official Journal of the European Union

C 223/41

(Case T-289/14)

2014/C 223/44

Language of the case: German

Parties

Applicants: H-O-T Servicecenter Nürnberg GmbH (Nuremberg, Germany), H-O-T Servicecenter Schmölln GmbH & Co. KG (Schmölln), H-O-T Servicecenter Allgäu GmbH & Co. KG (Memmingerberg), EB Härtetechnik GmbH & Co. KG (Nuremberg) (represented by: A. Reuter, C. Arhold, N. Wimmer, F.-A. Wesche, K. Kindereit, R. Busch, A. Hohler and T. Woltering, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—annul the defendant’s decision of 18 December 2013 to open the formal investigation procedure in State aid case SA.33995 (2013/C) (ex 2013/NN) — Support for renewable electricity and reduced EEG-surcharge for energy-intensive users, OJ 2014 C 37, p. 73;

—join the present procedure and the procedure relating to Germany’s action before the General Court, seeking the annulment of the contested decision (lodging of the application on 21 March 2014); in the alternative: order that access be made available to the file in the proceedings referred to relating to Germany’s action;

—order the defendant to pay the costs.

Pleas in law and main arguments

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

1.First plea in law: No advantage

—The applicants claim that the special compensation regime provided for in the Gesetz für den Vorrang ernererbarer Energien (Law for the priority of renewable energy sources, hereinafter referred to as EEG) does not involve an advantage for energy-intensive users in the hardening shop and coating industry in general and for the applicants in particular.

2.Second plea in law: No selective advantage

—The applicants also claim that there is a fortiori no selective advantage for the purpose of Article 107(1) TFEU for the applicants in the special compensation regime.

3.Third plea in law: No use of State resources

—In addition, the applicants maintain that the special compensation regime does not constitute support ‘granted by a Member State or through State resources’ within the meaning of Article 107(1) TFEU.

4.Fourth plea in law: No distortion of competition

—The applicants claim that the special compensation regime does not distort competition in the European Union.

5.Fifth plea in law: No effect on trade between the Member States

—The applicants further state that the special compensation regime also does not affect trade between Member States.

6.Sixth plea in law: A cessation or substantial reduction of the special compensation regime infringes the applicants’ fundamental rights

—The applicants submit that not only would the limits of Article 107 TFEU clearly defined by the Court of Justice of the European Union be exceeded upon a classification of the special compensation regime as aid or a substantial reduction of the special compensation regime, but the fundamental requirement of substantive equity of charges would also be infringed. An abolition or substantial reduction of the special compensation regime would therefore also infringe the applicants’ fundamental rights, particularly their rights under the Charter of Fundamental Rights of the European Union.

7.Seventh plea in law: the special compensation regime is covered by the Commission decision of 22 May 2002

—The applicants also claim that, by its decision of 22 May 2002, the Commission expressly stated that the EEG and its ‘compensation regimes’ did not fall to be categorised as aid. That decision also covers the special compensation regime.

8.Eighth plea in law: Manifest error of assessment and insufficient preliminary examination

—The applicants also allege that the Commission did not adequately examine and therefore also did not realise that the exceptions for energy-intensive users are justified according to the aim, nature and scheme of the EEG and therefore did not constitute a selective advantage.

9.Ninth plea in law: Infringement of the right to be heard

—The applicants argue also that the Commission should have consulted them in any event before adopting a decision with such serious legal effects.

10.Tenth plea in law: Insufficient reasoning

—Lastly, the applicants claim that the opening decision is vitiated by a lack of reasoning in the essential passages.

Commission letter of 22 May 2002, C(2002) 1887 fin./State aid NN 27/2000- Germany