Action of Land Burgenland against the judgment of the General Court (Sixth Chamber) of 28 February 2012 in Joined Cases T-268/08 and T-281/08 Land Burgenland and Republic of Austria v European Commission, lodged on 8 May 2012
(Case C-214/12 P)
Language of the proceedings: German
Appellant: Land Burgenland (represented by: U. Soltész and P. Melcher, Rechtsanwälte, supported by A. Egger, Rechtsanwalt)
Other parties: European Commission, Republic of Austria
Form of order sought by the appellant
Set aside the judgment of the General Court of 28 February 2012 in Joined Cases T-268/08 and T-281/08;
Give final judgment in the case and annul Decision 2008/719/EC of the European Commission of 30 April 2008 on State aid C 56/06 (ex NN 77/06) implemented by Austria for the privatisation of Bank Burgenland (OJ 2008 L 239, p. 32) and order the European Commission to pay the costs of the proceedings before the General Court and the Court of Justice;
In the alternative to the second form of order, refer the case back to the General Court for a decision in keeping with the legal assessment in the judgment of the Court of Justice and reserve the costs.
Pleas in law and main arguments
By the present appeal, the appellant challenges the judgment of the General Court (Sixth Chamber) of 28 February 2012 in Joined Cases T-268/08 and T-281/08 in which it dismissed the action of the appellant against Commission Decision 2008/719/EC of 30 April 2008 on State aid implemented by Austria for the privatisation of Bank Burgenland.
The appellant relies on four grounds of appeal:
1. Infringement by the General Court of the right to be heard through the failure to appraise an essential part of the eighth plea in law
In the submissions that were not appraised, the appellant criticised the fact that the Commission exclusively took account of the advantage associated with the 'additional bonds' in the amount of EUR 380 million and thereby disregarded the advantage which was associated with the bonds in the amount of EUR 320 million and thus the absence of any 'aid element' in the sale of Bank Burgenland to Grazer Wechselseitige Versicherung.
Those submissions were not acknowledged by the General Court although the appellant had expressly pointed them out to the General Court in its observations on the Report for the Hearing because they were not contained in the Report for the Hearing.
2. Infringement of Article 107(1) TFEU through the finding that, during the evaluation of the offers, the Commission did not err in law in not taking account of the risks arising from Ausfallhaftung for the Province of Burgenland (Land Burgenland)
In that respect, the General Court wrongly relied on case-law which is not applicable to the present case or, if the case-law were applicable at least in principle, it is in conflict with the considerations of the General Court.
In addition, the General Court did not take account of other case-law which is in conflict with its arguments.
Finally, the General Court wrongly considered that the risks arising from Ausfallhaftung were not relevant, although Ausfallhaftung constitutes existing and therefore lawful aid.
3. Infringement of Article 107(1) TFEU through the finding that the Commission did not err in law in relying on the offer of the Consortium in order to determine the market value of Bank Burgenland
The General Court wrongly concluded that there was no manifest error of assessment in the choice and application of the methods for determining the market value of Bank Burgenland by the Commission.
In addition, the General Court considered that the tender procedure carried out for the sale of Bank Burgenland was unconditional, contrary to the unambiguous conclusions of the Commission, and, without checking, relied on the incorrect conclusion of the Commission that the 'deficient' conditions had no effect on the amount of the offers.
Furthermore, the General Court considered that the taking into account by the Commission of the clearly excessive offer of the Consortium was without fault although the determination of the excess was decisively based on the fact that Ausfallhaftung did not apply and that the risks arising from Ausfallhaftung were not to be taken into account.
4. Infringement of Article 107(1) TFEU through the finding that the Commission did not err in law in determining that neither the outcome nor the length of the procedure before the Finanzmarktaufsichtbehörde (authority responsible for the supervision of financial markets, 'FMA') justified the sale of Bank Burgenland to Grazer Wechselseitige Versicherung
The General Court considered that the finding of the Commission that nothing indicated that the FMA was going to prohibit the sale to the Consortium was without fault but in so doing incorrectly assumed that the evidence put forward by the appellant was not relevant for the authorisation procedure before the FMA and had not been taken into account by the FMA.
In addition, in finding that nothing indicated that the length of the procedure before the FMA had seriously compromised the chances of privatisation of Bank Burgenland, the General Court ignored the hard evidence put forward by the applicant.
Finally, the General Court applied an incorrect standard of examination and review. ____________