(Case C-208/16 P) (*1)

‘Appeal — State aid — German tax legislation concerning the possibility of carrying certain losses forward to future tax years (‘restructuring clause’) — Decision declaring the aid scheme incompatible with the internal market — Actions for annulment — Admissibility — Article 263, fourth paragraph, TFEU — Person individually concerned — Article 107(1) TFEU — Concept of ‘State aid’ — Condition relating to selectivity — Determination of the reference framework — Legal classification of the facts’

Language of the case: German

Parties

Appellant: Federal Republic of Germany (represented by: T. Henze and R. Kanitz, acting as Agents)

Other parties to the proceedings: Dirk Andres (liquidator in the insolvency of Heitkamp BauHolding GmbH) (represented by: W. Niemann, S. Geringhoff, and P. Dodos, Rechtsanwälte), European Commission (represented by: R. Lyal, T. Maxian Rusche and K. Blanck-Putz, acting as Agents)

Operative part of the judgment

The Court:

1.dismisses the cross-appeal;

2.annuls paragraphs 2 and 3 of the operative part of the judgment of the General Court of the European Union of 4 February 2016, Heitkamp BauHolding v Commission (T-287/11, EU:T:2016:60);

3.annuls Commission Decision 2011/527/EU of 26 January 2011 on State aid C 7/10 (ex CP 250/09 and NN 5/10) implemented by Germany — Scheme for the carry-forward of tax losses in the case of restructuring of companies in difficulty (Sanierungsklausel);

4.orders the European Commission to pay, in addition to its own costs relating both to the proceedings at first instance and to the appeal proceedings, the costs incurred by the Federal Republic of Germany relating to appeal proceedings and the costs incurred by Mr Dirk Andres, acting as liquidator in the insolvency of Heitkamp BauHolding GmbH, relating to both the proceedings at first instance and to the appeal proceedings.

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(*1) OJ C 211, 13.6.2016.