Action brought on 14 March 2007 — Kliq (in liquidation) v Commission

(Case T-82/07)

(2007/C 117/38)

Language of the case: Dutch

Parties

Applicants: Jan Rudolf Maas and Cornelis Van den Bergh, acting in their capacity as receivers in the liquidation proceedings relating to Kliq B.V., a private company with limited liability (Apeldoorn, Netherlands) (represented by: G. van der Wal and T. Boesman, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Pleas in law and main arguments

The applicants are challenging Commission Decision 2006/939/EC of 19 July 2006 on the aid measure notified by the Netherlands for KG Holding NV (1).

That aid measure related to restructuring aid which the Netherlands wished to grant to KG Holding NV by converting a previously approved rescue loan and the interest payable thereon into equity capital. In the contested decision, the Commission declares the aid measure, in the form of restructuring aid, to be incompatible with the common market.

The Commission also rules that the Netherlands must recover from KG Holding NV and its subsidiary Kliq BV that portion of the aid which KG Holding NV had transferred to Kliq BV as a rescue loan and which had been converted into equity capital, and that the Netherlands are required to register with the receivers their claim against KG Holding NV and/or Kliq Reïntegratie as a creditor in the liquidation proceedings.

In support of their application, the applicants submit, first, that the Commission erred in its claim regarding the full payment of KG Holding's shares in Kliq BV through set-off of the obligation to make full payment against KG Holding's claim against Kliq BV under the loan agreement. That, it is claimed, did not form any part of the decision of 5 August 2005 (2) which initiated the proceedings. The Commission, it is alleged, misused its powers and acted in a manner contrary to the rights of the defence and the applicants' right to be heard. Second, the Commission, it is alleged, was wrong to find that Kliq B.V. was to be regarded as a recipient of State aid in the amount of EUR 9.25 million. In its appraisal, the Commission wrongly failed to take account of the fact that the ‘conversion of the rescue loan into equity capital’, as referred to in points (43) to (46) of the contested decision, cannot in any wise whatsoever be attributed to the Member State of the Netherlands and therefore cannot be classified as State aid within the terms of Article 87(1) EC. In this connection, it is argued, the Commission committed errors in its appraisal of the facts. In the view of the applicants, the contested decision is therefore legally and/or factually incorrect, or at any rate incomprehensible and/or incorrect or inadequately reasoned and at variance with Article 87 EC and/or Article 253 EC.

Third, it is alleged that the Commission wrongly failed to establish that the alleged aid might be liable to have an adverse effect on competition and trade between Member States; at any rate, the Commission's findings on this point are not adequately reasoned.

Fourth, the Commission is alleged to have erred in its determination that the alleged aid in the amount of EUR 9.25 million must be recovered by the Netherlands from KG Holding and Kliq BV. By reason of the liquidation of KG Holding, Kliq Reïntegratie and Kliq BV, recovery of amounts of alleged aid will, it is argued, be definitively impossible and has in any event become pointless in the sense that recovery through registration in the liquidation proceedings relating to those companies is unnecessary and, indeed, entirely superfluous for the purpose of putting an end to the distortion of competition.

Fifth, it is submitted that the Commission erred in its decision that the amount to be recovered from KG Holding and Kliq BV also includes interest from the date on which the individual portions of that amount were made available to the recipients up to the date on which the money is actually repaid. That requirement, it is argued, is at variance with national bankruptcy law.

(1)  OJ 2006 L 366, p. 40.

(2)  State aid No C 30/2005 (ex N 78/2004) — Restructuring aid to KG Holding N.V. — Invitation to submit comments pursuant to Article 88(2) of the EC Treaty (OJ 2005 C 280, p. 2).