Official Journal of the European Union

C 103/28

(Case T-92/11)

2011/C 103/48

Language of the case: English

Parties

Applicant: Jørgen Andersen (Ballerup, Denmark) (represented by: M. F. Nissen and G. Van de Walle de Ghelcke, lawyers)

Defendant: European Commission

Form of order sought

—Annul Article 1(2) of the Decision of the Commission dated 24 February 2010 in State Aid case C 41/08 (NN 35/08) — Public service contracts between the Danish Ministry of Transport and Danske Statsbaner (DSB) (OJ 2011 L 7, p. 1);

—Order that the Commission pay the cost incurred by the applicant.

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 that the Commission manifestly erred in law in concluding that the Danish government did not commit a manifest error of appreciation with regard to the classification of the Copenhagen-Ystad route as a public service and in including it in the scheme of public service contracts. The applicant considers that this route has efficiently been operated by market participants without subsidies and therefore should not be included in a public service contract.

2.Second plea in law, alleging that the Commission manifestly erred in law by not ordering recovery of the incompatible overcompensation paid to DSB due to the dividends paid to its shareholder, the Danish State. The applicant considers that payment of dividends from a wholly State-owned company to the State is not a legitimate mechanism for off-setting incompatible overcompensation.

3.Third plea in law, alleging the Commission manifestly erred in law by applying Regulation No 1370/2007 instead of Regulation No 1191/69. The applicant considers that, regarding unlawful State aid, the Commission should apply the law as applicable at the time that aid was granted.

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Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1)

Regulation (EEC) No 1191/69 of the Council of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway (OJ 1969 L 156, p. 1)