13.6.2016

Official Journal of the European Union

C 211/38

—

(Case C-208/16 P)

(2016/C 211/49)

Language of the case: German

Parties

Appellant: Federal Republic of Germany (represented by: T. Henze und R. Kanitz)

Other parties to the proceedings: Heitkamp BauHolding GmbH, European Commission

Form of order sought

The appellant claims that the Court of Justice should:

—quash the General Court’s judgment of 4 February 2016 in Case T-287/11 in so far as it dismissed the action as being unfounded;

—annul Commission Decision of 26 January 2011, K(2011)275 final, on State aid C 7/10 — Law on corporation tax (KStG) Scheme for the carry-forward of tax losses in the case of restructuring of companies in difficulty (Sanierungsklausel), according to Article 61(1) of the Statute of the Court of Justice;

—order the Commission to bear the costs incurred before the General Court and the Court of Justice.

Pleas in law and main arguments

The appellant raises one ground of appeal in support of its appeal.

There is an infringement of Article 107(1) TFEU. The General Court disregarded that Paragraph 8c(1a) of the Law on corporation tax (KStG), known as ‘the restructuring clause’, is not selective:

—the ‘restructuring clause’ is not prima facie selective, as there is no exception to the relevant reference system and because it is a general measure, which may benefit all undertakings in the territory of the Member State;

—the ‘restructuring clause’ is also justified by the nature and the internal structure of the tax system. The ‘restructuring clause’ is justified by, first, the principle of taxation according to ability to pay, second, combatting abuse, namely the prevention of abusive arrangements, and, third, the objective differences between a harmful acquisition of shares and an acquisition of shares for the purposes of restructuring.