Action brought on 18 May 2011 — Austria v Commission

(Case T-251/11)

(2011/C 232/55)

Language of the case: German

Parties

Applicant: Republic of Austria (represented by: C. Pesendorfer, Agent)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

—	annul the Commission Decision C(2011) 1363 of 8 March 2011 on the Austrian State aid measure No C 24/2009 for energy-intensive businesses under the Green Electricity Act;

—	order the Commission 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 incorrect application of Article 107 (1) TFEU — no State aid:

In the applicant’s opinion, Section 22c of the Austrian Green Electricity Act (BGBL. I No 114/2008) (ÖSG) limiting costs for energy-intensive businesses is not State Aid for the reason that no use of ‘State resources’ is involved.

Second plea in law, alleging incorrect application of Article 107 (1) TFEU –absence of selectivity:

In the applicant’s opinion, neither de iure selectivity nor de facto selectivity can be considered to exist. Even if that is assumed from the fact that Section 22c ÖSG leads to a departure from the reference price system, that departure appears justified by the rationale and internal structure of the system for the support of green electricity.

Third plea in law, alleging incorrect application of Article 107 (1) TFEU — misuse of discretion:

If the proposed measure were nonetheless to be deemed to be aid, the measure falls, in the applicant’s opinion, within the scope of the Community guidelines on State aid for environmental protection: There is moreover an analogy to be drawn between the notified compensatory payment under Section 22c ÖSG and the rules for the assessment of exemptions from energy taxes covered by Community legislation under Section 4 of the Guidelines; consequently, on the basis of that analogy, the compensatory arrangement ought to have been permitted. In addition to the application by analogy of the Guidelines, an analogy with Article 25 of the general block exemption regulation is also conceivable.

Fourth plea in law: Different treatment by the European Commission of comparable situations in terms of competition:

In the applicant’s opinion, the question arises why comparable situations in terms of competition — with reference to the similarities between the ÖSG and the German Renewable Energy Act, particularly in respect of the economic and competitive effects — have manifestly been treated differently. That appears incompatible with the general principle of equal treatment.