Action brought on 11 July 2008 - Land Burgenland v Commission

(Case T-268/08)

Language of the case: German

Parties

Applicant: Land Burgenland (represented by: U. Soltész and C. Herbst, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Pursuant to Article 231(1) EC, annul Commission Decision C(2008) 1625 final of 30 April 2008 (No C 56/2006, ex NN 77/2006 - Privatisation of the Bank Burgenland) in its entirety;

Pursuant to Article 87(1) of the Rules of Procedure of the Court, order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2008) 1625 final of 30 April 2008 in which the Commission decided that the State aid which Austria granted in contravention of Article 88(3) EC to the Versicherungsgesellschaft Grazer Wechselseitige Versicherung AG and the GW Beteiligungserwerbs- und -verwaltungs-GmbH in the context of the privatisation of the HYPO Bank Burgenland AG is incompatible with the common market.

The applicant makes the following pleas in law in support of its action:

erroneous application of Article 87(1) EC by the Commission when it fixed the market price, as a tender procedure is not mandatory;

erroneous application of Article 87(1) EC by the Commission as a result of the infringement of existing Commission practice;

erroneous application of Article 87(1) EC by the Commission since a private seller would also have had to predict that the Austrian Financial Market Authority would reject the bidder which made the highest bid;

erroneous application of Article 87(1) EC by the Commission since the applicant should have been allowed to take into account the legal guarantee ('Ausfallhaftung') for certain liabilities of the privatised bank in its decision to award aid;

erroneous application of the private vendor principle by the Commission when assessing the influence of the legal guarantee on the decision to sell;

erroneous application of Article 87(1) EC by the Commission as a result of mistaken application of the burden of proof or of the obligation to submit evidence in a tender procedure;

erroneous application of Article 87(1) EC by the Commission since the tender by the bidder with the highest offer cannot operate as the basis for the determination of the market price;

incorrect assessment of the economic value of the share issues of the privatised bank by the Commission; and

erroneous application of Article 87(1) EC by the Commission in the context of the determination of a State aid component.

____________