Action brought on 5 December 2011 — SinnLeffers v Commission

(Case T-621/11)

(2012/C 39/36)

Language of the case: German

Parties

Applicant: SinnLeffers GmbH (Hagen, Germany) (represented by: C. Rupp and H. Wunderlich, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

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annul the decision of the European Commission of 26 January 2011, C(2011) 275 final, in the procedure on State aid C 7/2010 (ex CP 250/2009 and ex NN 5/2010) implemented by Germany ‘KStG, Sanierungsklausel’ (‘Law on corporation tax, provision enabling the fiscal carry forward of losses to allow for the restructuring of companies in difficulty’);

—	order the defendant to pay the costs.

Pleas in law and main arguments

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

First plea in law, alleging infringement of Article 107(1) TFEU due to absence of selectivity of the measure

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Misjudgement of the relevant reference system: the applicant submits in this connection that the Commission took the wrong reference system as its basis in determining the selectivity of the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the German Körperschaftsteuergesetz (KStG) (Law on corporation tax). The applicant takes the view that it follows from the use of the principle of net profit or loss as the applicable reference system, that the provision enabling the fiscal carry forward of losses is not an exception to the reference system, but rather that it restores the reference system.

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Failure to have regard to the fact that general rules are not selective: the applicant submits in that regard that the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG is also not selective having regard to the fact that the rule in that statute is of general validity.

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Failure to have regard to the justification for the provision enabling the fiscal carry forward of losses on the basis of the nature and general scheme of the German corporation tax system: the applicant submits in this connection that the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG is in any event justified on the basis of the nature and general scheme of the German corporation tax system with reference to the applicable reference system of the principle of net profit or loss as the expression of the ability-to-pay principle.

Second plea in law, alleging infringement of superior law — infringement of the principle of legitimate expectations

The applicant submits in that regard inter alia, that the Commission did not at any time before the initiation of a formal investigation procedure against the provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG express doubts relating to State aid law in respect of the original provision in Paragraph 8(4)(3) of the KStG or comparable provisions of other Member States. On the basis of that conduct on the part of the Commission in the past, the applicant was not in a position, even applying the greatest of care on the part of a prudent and alert economic operator, to foresee the contested decision. The applicant should therefore have been able to rely on the correctness of the new provision enabling the fiscal carry forward of losses in Paragraph 8c(1a) of the KStG.