Action brought on 13 November 2009 - Westfälisch-Lippischer Sparkassen- und Giroverband v Commission

(Case T-457/09)

Language of the case: German

Parties

Applicant: Westfälisch-Lippischer Sparkassen- und Giroverband (Münster, Germany) (represented by: A. Rosenfeld and I. Liebach, lawyers)

Defendant: European Commission

Form of order sought

Annul Commission Decision C(2009) 3900 final corr. of 12 May 2009 on the State aid C 43/2008 (ex N 390/2008) implemented by Germany for the restructuring of WestLB AG;

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant has brought an action for the annulment of Commission Decision C(2009) 3900 final corr. of 12 May 2009 on the State aid C 43/2008 (ex N 390/2008) implemented by Germany for the restructuring of WestLB AG. In that decision, the Commission took the position that, subject to a number of conditions, the notified aid in the form of a guarantee of EUR 5 billion is compatible with the common market.

In support of its application for annulment the applicant, one of the owners of WestLB AG, submits the following pleas in law:

Infringement of the principle of collegiality enshrined in Article 219 EC, since the contested decision was not taken by the Commission as the materially competent body, but by the Commissioner for Competition;

infringement of Article 87(1) EC, since the Commission did not examine whether competition would be distorted;

errors in the application of the second alternative in Article 87(3)(b) EC, since the contested decision wrongly interpreted the facts as well as the content and normative structure of that provision; failed to undertake the mandatory review of proportionality and the mandatory balancing test, or undertook them in a manner that was inadequate; contained several errors of assessment and of judgment and imposed disproportionate conditions;

infringed the principle of proportionality;

infringed the principle of equal treatment, since the contested decision treats WestLB AG and its owners differently compared to other decisions adopted prior to the financial crisis and other decisions adopted during the present financial crisis, without objectively justified reasons being provided for that difference in treatment;

infringement of Article 295 EC, since the condition requiring the present owners to sell their shares interferes with the property rights of the owners of WestLB AG as guaranteed and protected by Germany;

infringement of Article 7(4) of Regulation (EC) No 659/1999,¹ which does not provide a substantive and sufficiently definite legal basis for such interference;

infringement of the obligation to provide reasons under Article 253 EC.

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¹ - Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1).