Action brought on 17 July 2008 - Grazer Wechselseitige Versicherung v Commission

(Case T-282/08)

Language of the case: German

Parties

Applicant: Grazer Wechselseitige Versicherung AG (Graz, Austria) (represented by: H. Wollmann, lawyer)

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(2) 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 -verwaltungsGmbH in the context of the privatisation of the HYPO Bank Burgenland AG is incompatible with the common market.

In support of its action the applicant claims first that the Commission misapplied Article 87(1) EC in a number of respects. In particular it argues in that regard that there are several indications that the market value of the privatised bank at the time of the sale was significantly lower than the purchase price offered by the applicant, meaning that it was not given preferential treatment when the sale took place.

Moreover, it is claimed that the defendant misapplied the private vendor test. In that regard the applicant asserts that the Commission's argument that it was impermissible in the context of the decision to award aid to take into account the legal guarantee ('Ausfallhaftung') by the Land of Burgenland for certain liabilities of the privatised bank is wrong. Furthermore, the applicant claims in that context that the Commission proceeds not from the model of a genuine private sector investor but from the fiction of a seller prepared to assume a 100% risk.

In addition, the applicant argues that the Commission has not proved that the applicant's offer was nominally worse than the offer of the competing bidder after all the necessary adjustments were carried out.

In the alternative, the applicant argues that the Commission failed, in assuming there to be a State aid, to examine its compatibility with the common market in the light of Article 87(3)(c) EC.

Finally, the applicant claims that the reasoning of the contested decision is deficient in a number of respects.

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