Action brought on 24 May 2014 – Fih Holding and Fih Erhversbank v Commission

(Case T-386/14)

Language of the case: English

Parties

Applicants: Fih Holding A/S (Copenhagen, Denmark); and Fih Erhversbank A/S (Copenhagen) (represented by: O. Koktvedgaard, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

Annul the Commission decision of 11 March 2014 C(2014) 1280 final on State aid SA.34445 (2012/c) implemented by Danemark for the transfer of property-related assets from FIH to the FSC ; and

Order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.

First plea in law, alleging that the contested decision is contrary to Article 107(1) TFEU in so far as the Commission found “that no market economy operator would have been willing to invest on terms and conditions equivalent to those of the share purchase agreement” (recital 93), that “as a result the measures are not in line with the MEOP” (recital 93 and 99), and in Article 1(1) that the asset transfer constitute State aid.

Second plea in law, alleging that the FSC should not be compared to a private investor guided by the longer-term prospects of profitability of the capital invested, but to a private creditor seeking to obtain payment of sums owed to it by a debtor in financial difficulties, due to the pre-existing liabilities resting upon the FSC.

Third plea in law, alleging that the contested decision is contrary to Article 107(1) TFEU in so far as it finds in recital 116 the gross capital relief effect of the measures to be DKK 375 million, which needed to be remunerated, and the transfer value to be DKK 254 million above the real economic value, which needed to be clawed back, and in the second paragraph of Article 1 and the Term Sheet, commitment 6, makes the approval contingent on this.

Fourth plea in law, alleging that the contested decision is contrary to Article 107(1) TFEU in so far as the Commission found in recital 103 (a) “a benefit related to the share purchase agreement formula (DKK 0.73 billion)”, and in recital 103 (b) “a foregone equity investment remuneration (DKK 1.33 billion)”. Due to this there is no basis for the claim for remuneration of the capital relief demanded by the Commission in the second paragraph of Article 1and commitment No 6.

Fifth plea in law, alleging that the Commission misunderstood the terms of the Agreement when the Commission concluded that FIH should repay DKK 254 million to the FSC (recital 116) as the difference between the Transfer Value and the Real Economic Value of the assets.

Sixth plea in law, alleging that the contested decision is contrary to Article 296 TFEU and Article 41(2)(c) of the Charter as the Commission has failed to observe its essential procedural duty to state reasons for its decision.