27.3.2010

Official Journal of the European Union

C 80/21

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(Case C-47/10 P)

2010/C 80/36

Language of the case: German

Parties

Appellant: Republic of Austria (represented by: E. Riedel, acting as Agent; M. Núñez-Müller and J. Dammann, lawyers)

Other parties to the proceedings: Scheucher-Fleisch GmbH, Tauernfleisch Vertriebs GmbH, Wech-Kärntner Truthahnverarbeitung GmbH, Wech-Geflügel GmbH, Johann Zsifkovics, European Commission

Forms of order sought

The Republic of Austria claims that the Court should:

—set aside the judgment of the Court of First Instance of 18 November 2009 in Case T-375/04 (Scheucher and Others v Commission);

—give final judgment in the case and dismiss the application as inadmissible or, in the alternative, as unfounded;

—order the applicants in the original proceedings to pay the costs on appeal and the costs of the first instance proceedings in Case T-375/04.

Pleas in law and main arguments

The appellant argues that the contested judgment infringes Article 263(4) TFEU. The Court overlooked the fact that the applicants in the original proceedings were not individually or directly affected by the Commission decision in dispute. The contested decision did not lead to any noticeable prejudice to their market position, and the general sectoral aid rules of the Republic of Austria, approved by the Commission, did not lead to any distortions of competition since the granting of aid was dependent in each case on an individual decision by the relevant authorities. Finally, the applicants in the original proceedings do not have the necessary legal interest in bringing proceedings, as the contested decision of the Commission does not affect them themselves.

The appellant further argues that the contested judgment infringes Article 108(2) TFEU. The Court erred in law by assuming that, during the preliminary investigation procedure, the Commission encountered serious difficulties in assessing the disputed measures and was therefore obliged to initiate the formal investigation procedure.

The appellant also takes the view that the contested judgment infringes the rules on the burden of proof. The Court obliged the Commission to initiate the formal investigation procedure, even though the applicants had not produced the necessary evidence that they were affected.

In the appellant's submission, the contested judgment also infringes Article 81 of the Rules of Procedure of the Court for contradictory reasoning.

Finally, the appellant argues that the contested decision infringes Article 64 of the Rules of Procedure, because the Court failed to verify circumstances that were relevant for the decision by measures of organisation of procedure.

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