Official Journal of the European Union

C 436/31

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(Case C-633/18 P)

(2018/C 436/44)

Language of the case: English

Parties

Appellant: Apple Distribution International (represented by: S. Schwiddessen, H. Lutz, Rechtsanwälte, N. Niejahr, Rechtsanwältin, A. Patsa, Advocate)

Other party to the proceedings: European Commission

Form of order sought

The applicant claims that the Court should:

—annul the contested order in its entirety;

—declare that Apple is directly and individually concerned by the contested decision;

—refer the case back to the General Court for a ruling on the merits; and

—order the Commission to pay its own costs and Apple’s costs in connection with these proceedings and the proceedings before the General Court.

Pleas in law and main arguments

Apple submits that the contested order is vitiated by errors of law:

—First, the General Court distorts and fails to consider relevant evidence in assessing whether Apple's competitive position on the market for the provision of home video entertainment services in Germany is substantially affected by the contested decision (1).

—Second, the General Court misapplies the legal test for assessing individual concern in finding that Apple does not belong to a closed group of undertakings who were identifiable when the contested decision was adopted by reason of criteria specific to the members of that group.

—Third, the General Court infringes Article 119 of its Rules of Procedure and Article 36 of the Statute of the Court of Justice by not stating reasons for concluding that: (i) the evidence adduced by Apple to assess the impact that the aid might have on its competitive position on the market for the provision of home video entertainment services in Germany is insufficient; and (ii) the existence of individual concern must be established by reference to the point in time when the contested measure is devised, adopted and implemented at national level.

—Fourth, the General Court infringes Apple's rights of defence by relying on observations the Commission submitted in response to questions by the General Court, which Apple did not have an opportunity to comment upon.

* Commission Decision (EU) 2016/2042 of 1 September 2016 on the aid scheme SA.38418 — 2014/C (ex 2014/N) which Germany is planning to implement for the funding of film production and distribution (OJ 2016, L 314, p. 63).

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