EN

Official Journal of the European Union

C 138/63

(Case T-108/15)

(2015/C 138/82)

Language of the case: German

Parties

Applicants: Bundesverband Glasindustrie (Düsseldorf, Germany), Gerresheimer Lohr GmbH (Lohr, Germany), Gerresheimer Tettau GmbH (Tettau, Germany), Noelle + von Campe Glashütte GmbH (Boffzen, Germany), Odenwald Faserplattenwerk GmbH (Amorbach, Germany), O-I Glasspack GmbH & Co. KG (Düsseldorf), Pilkington Deutschland AG (Gelsenkirchen, Germany), Schott AG (Mainz, Germany), SGD Kipfenberg GmbH (Kipfenberg, Germany), Thüringer Behälterglas GmbH Schleusingen (Schleusingen, Germany), Neue Glaswerke Großbreitenbach GmbH & Co. KG (Großbreitenbach, Germany), HNG Global GmbH (Gardelegen, Germany) (represented by: U. Soltész and C. von Köckritz, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—annul Articles 1 and 3(1) of the decision of the European Commission of 25 November 2014, State aid No SA.33995 (2013/C) (ex 2013/NN) — C (2014) 8786 final, relating to the promotion of electricity generation from renewable sources and the payment of the EEG-surcharge for energy-intensive industries, in so far as those provisions provide for the following:

(i)the promotion of electricity produced from renewable energy sources on the basis of the German Law for the priority of renewable energy sources (Law on Renewable Energy Sources of 25 October 2008 in the updated version of 1 January 2012 — ‘the EEG 2012’) including its financing mechanism, and

(ii)support for the reduced EEG-surcharge for energy-intensive users (special compensation regime — BesAR) according to which Paragraphs 40 et seq of the EEG 2012, for 2013 and 2014, amount to unlawful existing State aid within the meaning of Article 107(1) TFEU, in infringement of Article 108(3) TFEU;

—annul Articles 2, 3(2), 6, 7 and 8 of the contested decision in so far as they declare the incompatibility of the BesAR with the internal market and an order for the repayment of State aid is made; and

—order the Commission to pay the costs incurred by the applicants.

Pleas in law and main arguments

In support of the action, the applicants rely on seven pleas in law:

1.The special compensation regime (BesAR) contains no State aid within the meaning of Article 107(1) TFEU, since there is no favourable treatment. The Commission wrongly assumes that the BesAR grants energy-intensive undertakings an advantage amounting to State aid.

2.The EEG-surcharge system and the BesAR contain no State aid, since there is no burden on the State budget. The regulation affects exclusively private funds. The contested decision is incompatible with the Court’s case-law, in particular with the judgment in <span class="italic">PreussenElektra</span>.

3.The Commission wrongfully concluded in its statement of reasons that the BesAR has a selective character. There is, however, no derogation from the relevant reference system. In any event, the BesAR is justified by the nature and overall structure of the EEG 2012.

4.The Commission erred in law by assessing the eligibility of BesAR exclusively on the basis of the new Guidelines on State Aid for environmental and Energy 2014-2020.

5.Should the Commission come to the conclusion that the BesAR amounts to ineligible State aid, recovery would in any event not be applicable since at issue is ‘existing aid’.

6.In addition, recovery is to be excluded on account of the protection of legitimate expectations. In particular, the Commission stated in an earlier decision that the EEG-System did not contain State aid.

7.Furthermore, enforcement of an order for recovery for BesAR would not be possible.