Action brought on 12 October 2020 — Landwärme v Commission

(Case T-626/20)

(2020/C 414/68)

Language of the case: German

Parties

Applicant: Landwärme GmbH (Munich, Germany) (represented by: J. Bonhage and M. Frank, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

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annul Commission Decision C(2020) 4489 final of 29 June 2020 on State aid SA.56125 (2020/N) — ‘Sweden Prolongation and modification of scheme SA.49893 (2018/N)/Tax exemption for non-food based biogas and bio-propane in heat generation’ and SA. 56908 (2020/N) — ‘Sweden Prolongation and modification of biogas scheme for motor fuel in Sweden’; and

—	order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.

First plea in law, alleging unlawfulness of the State aid.

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The aid granted by the Kingdom of Sweden for biogas in heat generation and for use as motor fuel allows for a combination with aid from other EU Member States. In the case of biogas imports, this combination leads to overcompensation. Therefore, the aid is unlawful and the Commission’s approval decisions are void.

Second plea in law, alleging error of assessment.

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In 2019, in a complaint to the Commission, the applicant referred to the problem of combining aid granted by the Kingdom of Sweden with aid from other EU Member States. The Commission failed to take into account that complaint in its assessment. In addition to the applicant’s complaint, the Commission also failed to take into account the extensive information publicly available concerning this problem. Since the Commission failed to investigate and assess the economic context of the aid granted by the Kingdom of Sweden for biogas in heat generation and for use as motor fuel, the applicant alleges an error of assessment. Therefore, the Commission’s approval decisions are void.

Third plea in law, alleging failure to state reasons.

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In its approval decisions, the Commission fails to take into account the combination of aid granted by the Kingdom of Sweden with aid from other EU Member States. This constitutes a failure to state reasons and an infringement of Article 296(2) TFEU as well as Article 41(2)(c) of the Charter of Fundamental Rights of the European Union. Therefore, the Commission’s approval decisions are void.

Fourth plea in law, alleging an obligation to initiate a formal investigation procedure.

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On account of the market conditions which have substantially changed since the initial approval, the Commission is obliged to substantiate its assessment of aid, by means of market information, in a formal investigation procedure. In addition, the Commission is obliged to initiate a formal investigation procedure, since it encountered significant difficulties in the assessment of aid granted by the Kingdom of Sweden. Failure to initiate a formal investigation procedure constitutes an infringement of Article 4(4) of Regulation (EU) 2015/1589. (1) Therefore, the Commission’s approval decisions are void.

(1) Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).