# C_2010080EN.01002701.xml

| 27.3.2010 | EN | Official Journal of the European Union | C 80/27 |
| --- | --- | --- | --- |

27.3.2010

EN

Official Journal of the European Union

C 80/27

---

Action brought on 21 December 2009 — Niki Luftfahrt v European Commission

(Case T-511/09)

2010/C 80/48

Language of the case: German

Parties

Parties

Applicant: Niki Luftfahrt GmbH (Vienna, Austria) (represented by: H. Asenbauer, lawyer)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

| — | Annul the European Commission’s decision of 28 August 2009‘State Aid C 6/2009 (ex N 663/2008) — Austria Austrian Airlines — Restructuring Plan’ in accordance with the first paragraph of Article 264 TFEU (formerly the first paragraph of Article 231 EC); and |
| --- | --- |

—

Annul the European Commission’s decision of 28 August 2009‘State Aid C 6/2009 (ex N 663/2008) — Austria Austrian Airlines — Restructuring Plan’ in accordance with the first paragraph of Article 264 TFEU (formerly the first paragraph of Article 231 EC); and

| — | Order the European Commission to pay the applicant’s costs in accordance with Article 87(2) of the Rules of Procedure. |
| --- | --- |

—

Order the European Commission to pay the applicant’s costs in accordance with Article 87(2) of the Rules of Procedure.

Pleas in law and main arguments

Pleas in law and main arguments

The applicant challenges Commission Decision C (2009) 6686 final of 28 August 2009 concerning State aid in the course of the Austrian State’s sale of its shares in the Austrian Airlines group to Deutsche Lufthansa AG (C 6/2009 (ex 663/2008)). In that decision the Commission takes the view that, subject to certain conditions, the restructuring aid granted by the Republic of Austria to Austrian Airlines is compatible with the common market, provided that the restructuring plan notified to the Commission is implemented in full.

In support of its action for annulment the applicant, which operates a privately financed airline and lodged a complaint with the Commission regarding the restructuring aid at issue, submits, first, that the Commission has infringed Article 87(1) and (3)(c) EC, Article 88(2) EC and the Community guidelines on State aid for rescuing and restructuring firms in difficulty (OJ 2004 C 244, p. 2). In particular it claims that the Commission failed to appreciate that:

| — | the beneficiary of the aid at issue was not Austrian Airlines but Lufthansa, which is not a firm in difficulty and is therefore not a firm which merits aid, |
| --- | --- |

—

the beneficiary of the aid at issue was not Austrian Airlines but Lufthansa, which is not a firm in difficulty and is therefore not a firm which merits aid,

| — | neither Austrian Airlines nor Lufthansa has provided an appropriate contribution of its own to the restructuring of Austrian Airlines, |
| --- | --- |

—

neither Austrian Airlines nor Lufthansa has provided an appropriate contribution of its own to the restructuring of Austrian Airlines,

| — | the notified restructuring measures are not in accordance with the guidelines, and |
| --- | --- |

—

the notified restructuring measures are not in accordance with the guidelines, and

| — | the compensatory measures offered by the Republic of Austria are insufficient to reduce as far as possible negative effects of the aid on trading conditions. |
| --- | --- |

—

the compensatory measures offered by the Republic of Austria are insufficient to reduce as far as possible negative effects of the aid on trading conditions.

Moreover, the applicant also submits that the aid at issue is inseparable from conditions which infringe the Community rules on freedom of establishment and thus Article 43 EC.

It also alleges infringement of Article 253 EC, inasmuch as the Commission has not stated proper reasons for the contested decision, in that:

| — | it did not ascertain and examine the situation on the relevant markets, in particular the position of the undertaking benefiting from the aid and the position of competitors on the markets, and |
| --- | --- |

—

it did not ascertain and examine the situation on the relevant markets, in particular the position of the undertaking benefiting from the aid and the position of competitors on the markets, and

| — | it failed it to take account of the fact that in the past Austrian Airlines has received a large amount of aid that was contrary to Community law. |
| --- | --- |

—

it failed it to take account of the fact that in the past Austrian Airlines has received a large amount of aid that was contrary to Community law.

Lastly, the applicant complains that the Commission has abused its discretion.

---