Appeal brought on 5 April 2006 by Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH and Stadtwerke Uelzen GmbH against the judgment of the Court of First Instance (Fourth Chamber) delivered on 26 January 2006 in Case T-92/02 Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH and Stadtwerke Uelzen GmbH v Commission of the European Communities supported by E.ON Kernkraft GmbH, RWE Power AG, EnBW Energie Baden-Württemberg AG and Hamburgische Electricitäts-Werke AG

(Case C-176/06 P)

(2006/C 131/66)

Language of the case: German

Parties

Appellants: Stadtwerke Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH and Stadtwerke Uelzen GmbH (represented by: D. Fouquet and P. Becker, Rechtsanwälte)

Other parties to the proceedings: Commission of the European Communities, E.ON Kernkraft GmbH, RWE Power AG, EnBW Energie Baden-Württemberg AG, Hamburgische Electricitäts-Werke AG

Form of order sought

In the alternative:

Pleas in law and main arguments

In these appeal proceedings the appellants challenge the judgment of the Court of First Instance by means of which it declared lawful the Commission's determination that the tax deferral applied to reserves for disposal purposes and for the permanent closure of nuclear power stations in the Federal Republic of Germany cannot be regarded as constituting State aid for the purposes of Article 87(1) EC. As grounds for their appeal the appellants submit infringement of procedural law and substantive Community law.

The Court of First Instance transferred the case, despite its obvious legal complexities and significance and although there were no special circumstances for so doing, from the First Chamber, Extended Composition, to the Fourth Chamber with a bench of three judges. That groundless and unjustified transfer of the case to a smaller chamber after it had been pending for a number of years infringed the appellants' right to a hearing before the judicial body laid down by law.

The Court of First Instance did not distinguish between the requirements relating to the existence of State aid and the requirements relating to the initiation of a full formal assessment. As in the present case there are, in reviewing whether the planned aid is compatible with the common market, serious difficulties of a factual and legal nature concerning the existence of a State guarantee and whether the obligations regarding permanent closure and disposal are sufficiently specified and also concerning the actual amounts of the reserves, the tax advantages and the total cost of permanent closure, the Commission was not entitled to restrict itself only to the preliminary stage. On the contrary, in this case it was under an obligation to open the formal stage of the investigation procedure.

Furthermore, the Court of First Instance did not properly assess the issue of the selectivity of the German reserve scheme per se. It failed to realise that the tax exemption for reserves in the nuclear industry is an exception to the general tax scheme. That exception is however only permitted if the future obligations have been determined in a sufficiently concrete manner. That is not however the case here: the criteria relating to the time of permanent closure, to the obligations associated with permanent closure and to the legal consequences of failure to comply with the provisions were not determined sufficiently at all. However, even if no selectivity as regards the aid is ascertainable de jure, a measure can contravene the law relating to State aid if it is liable to favour certain undertakings. The directive liberalising the internal market in electricity requires that Member States actively reduce discrimination and distortion of competition. The Court of First Instance did not however find that the Federal Government was under an obligation to alter the German practice as regards reserves which, by selectively supporting individual economic sectors, constitutes a direct infringement of the directive and the principle of effectiveness.

Lastly, the appellants contend that the contested judgment wrongly orders them to pay the interveners' costs. As the interveners only joined the proceedings at a very late stage, at which all the main pleadings had already been submitted, their contribution in support of the defendant could only have been marginal. That situation does not justify liability for all the costs on the part of the applicants.

(1)  OJ 2006 C 74, p. 15.