2.4.2011   

EN

Official Journal of the European Union

C 103/28

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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);

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

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 (1) instead of Regulation No 1191/69 (2). The applicant considers that, regarding unlawful State aid, the Commission should apply the law as applicable at the time that aid was granted.