Judgment of the General Court (Eighth Chamber) of 28 January 2016 —

Austria v Commission

(Case T‑427/12)

‛State Aid — Banking sector — Aid implemented by Germany and Austria for the benefit of Bayerische Landesbank in the course of its restructuring — Decision declaring the aid compatible with the internal market, provided that certain conditions met — Repeal of the initial decision drawn up in a language other than that of the Member State — Action for annulment — Challengeable act — Admissibility — Definition of State aid — Advantage — Rights of defence — Obligation to state reasons’

1. Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Decision classifying a notified measure as State aid and declaring it compatible with the internal market — Included (Art. 263 TFEU) (see paras 27-31)

2. Actions for annulment — Actions of the Member States — Action against a Commission decision classifying a notified measure as State aid and declaring it compatible with the internal market — Admissibility not subject to demonstrating an interest in bringing proceedings (Art. 263 TFEU) (see paras 29-30)

3. Judicial proceedings — Decision replacing the contested decision during the proceedings — New factor — Extension of the initial pleadings (see paras 38-41)

4. State aid — Administrative procedure — Right of the persons concerned to be heard — Scope — Judicial review — Assessment by reference to information available at the time the decision adopted (Arts 108(2) TFEU and 263 TFEU; Council Regulation No 659/1999, Art. 6) (see paras 45-55)

5. Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid (Arts 107 TFEU and 296 TFEU) (see paras 59-62)

6. State aid — Concept — Grant of an advantage to the beneficiaries — State intervention mitigating the burdens normally included in the budget of an undertaking — Included (Art. 107(1) TFEU) (see paras 69-80)

7. State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid to the financial sector in the financial crisis — Discretion of the Commission — Judicial review — Limits (Art. 107(3) TFEU; Commission Notice 2009/C 195/04) (see paras 81-94)

8. Economic and monetary policy — Economic policy — Prohibition on the Union or a Member State answering for or assuming the undertakings of another Member State — Grant of financial assistance to a Member State remaining liable for its own undertakings towards its creditors — Financial assistance not disincentivising a Member State from conducting a sound budgetary policy — Lawfulness (Art. 125 TFEU) (see paras 100-101)

Re:

ACTION for the annulment of Article 1(1)(d) and 1(2) of Commission Decision C(2012) 5062 final of 25 July 2012 on State aid SA.28487 granted by Germany and Austria to Bayerische Landesbank (C 16/09, ex N 254/09), and, following the repeal of that decision by Article 1 of Commission Decision (EU) 2015/657 of 5 February 2013 on State aid granted by Germany and Austria to Bayerische Landesbank (Case SA.28487 (C 16/09, ex N 254/09)) (OJ 2015 L 109, p. 1), for the annulment of Article 2(1)(d) and 2(2) of the latter decision.

Operative part

The Court:

1. Dismisses the action;