28.1.2019

EN

Official Journal of the European Union

C 35/28

(Case T-693/18)

(2019/C 35/34)

Language of the case: German

Parties

Applicant: ZY (represented by: N. Voß and D. Fouquet, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—annul in its entirety Commission Decision C(2018) 3166 final SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018 in respect of the years 2012 and 2013;

—in the alternative, annul Commission Decision C(2018) 3166 final SA.34045 (2013/C) (ex 2012/NN) of 28 May 2018, in so far as it orders, with respect to baseload consumers with at least 7 000 user hours per year, the repayment of 20 %, with respect to baseload consumers with at least 7 500 user hours per year, the repayment of 15 %, and with respect to baseload consumers with at least 8 000 user hours per year, the repayment of 10 % of the published network charges;

—order the defendant to pay the costs of the proceedings, including legal and travel 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 a wrongful presumption of the existence of State aid for the purposes of Article 107(1) TFEU; In the context of the first plea in law, it is claimed that the defendant erred in law during its examination of the contested exemption from network charges by presuming the use of State resources. In addition, during the examination of the ‘selectivity’ criterion, the reference system was incorrectly and incompletely identified.

2.Second plea in law, alleging an infringement of the principle of equal treatment; In the context of the second plea in law, it is alleged that, the defendant’s decision only provided for the obligation to make repayments for baseload consumers who were entirely exempted from network charges in the years 2012 and 2013. As a result, those baseload consumers were unequally treated and unfairly disadvantaged vis-à-vis baseload consumers, who, over the same period, enjoyed flat-rate network charge reductions and in respect of which there were no obligations to make repayments.

3.Third plea in law, alleging an infringement of the general principle of the protection of legitimate expectations; In the context of the third plea in law, it is claimed that, in view of the particular circumstances, the applicant could rely on its right to retain the awarded special network charges.