Appeal brought on 26 March 2012 by Neubrandenburger Wohnungsgesellschaft mbH against the order of the General Court (Fifth Chamber) delivered on 9 January 2012 in Case T-407/09 Neubrandenburger Wohnungsgesellschaft mbH v European Commission

(Case C-145/12 P)

(2012/C 138/15)

Language of the case: German

Parties

Appellant: Neubrandenburger Wohnungsgesellschaft mbH (represented by: M. Núñez-Müller, Rechtsanwalt, and J. Dammann de Chapto, Rechtsanwältin)

Other parties to the proceedings: European Commission, Bavaria Immobilien Beteiligungsgesellschaft mbH & Co. Objekte Neubrandenburg KG, Bavaria Immobilien Trading GmbH & Co. Immobilien Leasing Objekt Neubrandenburg KG

Form of order sought

The appellant claims that the Court of Justice should:

—	set aside the order under appeal;

—

give final judgment in the case and annul the Commission’s decision of 29 July 2009 (D/53320) and, in any event, give a final decision on the admissibility of the action in Case T-407/09,

in the alternative:

declare that the Commission failed to comply with its duties resulting from Article 108 TFEU and Regulation (EC) No 659/1999 by failing to initiate the formal investigation procedure under Article 108(2) TFEU;

—	order the Commission and the interveners in support of the Commission to pay the costs of the appeal proceedings and the costs incurred at first instance in Case T-407/09.

Pleas in law and main arguments

The present appeal has been brought against the order of the General Court of 9 January 2012 in Case T-407/09, by which that court dismissed as inadmissible the action brought by the applicant (now the appellant) for (i) the annulment of the Commission’s decision, claimed to be contained in a letter dated 29 July 2009, in which it states that certain contracts concluded by the applicant on the sale of apartments in the context of the privatisation of public apartments in Neubrandenburg did not fall within the scope of Article 87(1) EC, and (ii) a declaration that the Commission failed to act, within the meaning of Article 232 EC, since it did not give its opinion on those contracts in accordance with Article 4 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 88 EC (OJ 1999 L 83, p. 1).

The appellant essentially raises four grounds in support of its appeal:

First, the order under appeal infringes the fourth paragraph of Article 263 TFEU, since the General Court wrongly concluded that the Commission’s letter of 29 July 2009 did not constitute a challengeable decision for the purposes of that provision. The General Court construed the letter solely on the basis of its wording. However, in accordance with the principles developed in the settled case-law of the Court of Justice, the General Court should have taken account of the nature of the letter, the aim pursued by the Commission with its letter and the context in which the letter was drafted.

Second, the order under appeal infringes the guarantee of effective legal protection under European Union law. The General Court found the Commission’s letter of 29 July 2009 to be unchallengeable primarily on the ground that the Commission classed the aid assessment contained in its letter as ‘provisional’. If the Commission were able to turn a legally conclusive assessment into a measure with no legal effects simply be orally classing its assessment as ‘provisional’, it would be free to determine when to adopt a challengeable decision or not. Effective legal protection of individual rights would then no longer be possible.

Third, the order under appeal infringes Article 265 TFEU, since the General Court, first, found that the letter of 29 July 2009 could not be challenged and, second, wrongly found that the conditions for bringing an action for failure to act had not been satisfied. Consequently, the appellant was denied all of its rights of legal protection.

Finally, the order fails to provide adequate grounds in various instances and thereby infringes the duty to state reasons laid down in Article 81 of the Rules of Procedure of the General Court.