Action brought on 7 October 2020 — KC v Commission

(Case T-580/20)

(2020/C 414/59)

Language of the case: French

Parties

Applicant: KC (represented by: L. Frölich, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—

Order the European Union to pay to the applicant compensation for material harm (distinct interest and damages) of an amount of EUR 330 000 per diem as from 1 June 2020 (inclusive) until the date of adoption of a decision by the European Commission, in the file [confidential], (1) consistent with the operative parts and principles of the judgments in Dilly’s Wellnesshotel C-493/14 of 21 July 2016 and Eesti Pagar AS C-349/17 of 5 March 2019;

—

Order the European Union to pay to the applicant compensation for loss of opportunity of an amount of EUR 680 000 per diem as from 1 June 2020 (inclusive) until the date of adoption of a decision by the European Commission, in the file [confidential], consistent with the operative parts and principles of the judgments in Dilly’s Wellnesshotel C-493/14 of 21 July 2016 and Eesti Pagar AS C-349/17 of 5 March 2019;

—	Order the European Union to pay to the applicant compensation for non-material harm of an amount of EUR 10 354 869,92;

—	Order that the compensation referred to above be increased by default interest, as from the date of delivery of the present judgment until full payment, at the rate set by the European Central Bank (ECB) for its main refinancing operations, increased by two percentage points;

—	Order the European Union to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on a single plea in law based on the three cumulative conditions laid down in the case-law arising from the judgment of 8 November 2011, Idromacchine and Others v Commission, T-88/09, EU:T:2011:641, for the European Union to incur liability on the basis of the second paragraph of Article 340 TFEU. That plea in law is divided into three parts.

In the first part, the applicant claims that it complained, in its complaints to the European Commission, of non-notified interventions by the French State in the form of capital invested in a fund managed by a company governed by private law enjoying exclusive and special rights for the purposes of Article 106(1) TFEU. It considers that the Commission failed to comply with the operative parts and principles set out in the judgments of 21 July 2016, Dilly’s Wellnesshotel, C-493/14, EU:C:2016:577, and of 5 March 2019, Eesti Pagar, C-349/17, EU:C:2019:172. According to the applicant, the Commission infringes, first, the principle of ‘lex posterior derogat legi priori’, second, the hierarchy of norms in Article 288 TFEU and, third, the principle of ‘lex specialis derogate legi generali’. Finally, the Commission infringed the applicant’s procedural rights by not opening the formal procedure laid down in Article 108(2) TFEU after a reasonable period of time.

In the second part, the applicant asserts that it was denied the decisive and necessary legal effects which the opening of the formal procedure provide and which would have enabled it to show to the national courts the existence of an obligation to recover the illegal aid at issue. According to the applicant, this would have enabled it to obtain temporary measures designed in particular to deal with the urgency it faced due to the absence of sufficient income.

In the third part, the applicant considers that the direct and certain nature of the harm suffered is established, on the ground that the Commission’s unlawful conduct prevented it from obtaining from the French authorities the payment of the compensation to guarantee the payment of its banking commitments, which results in material harm, loss of opportunity and non-material harm, for which compensation may be recovered from the Union.

(1) Confidential data omitted.