Case T-279/08: Action brought on 17 July 2008 — Communauté d'agglomération du Douaisis v Commission
Date: 2008-07-17
Institutions: Court of First Instance
Subjects: European Commission, France, State aid, action for annulment (EU), aid for restructuring, company in difficulties, control of State aid, rail transport, vehicle on rails

27.9.2008

EN

Official Journal of the European Union

C 247/15

— 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 Commis-
the determination of a State aid

sion in the context of
component.

Action brought on 8 July 2008 — Germany v Commission

(Case T-270/08)

(2008/C 247/28)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M.
Lumma, assisted by C. von Donat, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Decision C(2008) 1615 final of 29 April
the European
2008 reducing the
to
Regional Development Fund (ERDF) granted pursuant
Commission Decision C(94) 1973 of 5 August 1994 for
the Operational Programme Berlin (East) Objective 1
(1994-1999) in the Federal Republic of Germany;

contribution under

— Order the Commission to bear the costs.

Article 274 EC. According to the applicant it is also not possible
to find a corresponding administrative practice which has
existed over many years and is generally accepted.

that

The applicant claims moreover
the contested decision
infringes Article 24(2) of Regulation No 4253/88 as no irregu-
larities in the sense of that provision have occurred. It also
claims in that context that even if the conditions for a reduction
in accordance with Article 24(2) of Regulation No 4253/88 are
met, the Commission should have used the discretion available
to it and weighed up whether the reduction was proportionate.

In the alternative, the applicant argues that the flat-rate correc-
tions are disproportionate and that the Commission carried out
the extrapolation on an inadequate factual basis.

Furthermore, the applicant claims that the defendant infringed
its obligation to provide sufficient reasons for the contested
decision.

Finally, the applicant asserts that the Commission infringed the
principle of partnership since, notwithstanding numerous
checks by its
financial controllers during the 1994-1999
Programming Period, at no point were financial consequences
contemplated on account of systemic weaknesses.

(1) Council Regulation (EC) No 1260/1999 of 21 June 1999 laying
down general provisions on the Structural Funds (OJ 1999 L 161,
p. 1).

(2) Council Regulation (EEC) No 4253/88 of 19 December 1988, laying
down provisions for implementing Regulation (EEC) No 2052/88 as
regards coordination of the activities of the different Structural Funds
between themselves and with the operations of the European Invest-
ment Bank and the other existing financial instruments (OJ 1988
L 374, p. 1).

Pleas in law and main arguments

Action brought on 17 July 2008 — Communauté
d'agglomération du Douaisis v Commission

By the contested decision the Commission reduced the financial
contribution from the ERDF for the Operational Programme for
the Objective 1 region of the Land of Berlin in the Federal
Republic of Germany (1994-1999).

In the reasoning for its action the applicant claims first that the
Commission erroneously evaluated the factual situation. The
applicant alleges in particular that the Commission misjudged
the results of particular verifications and unjustifiably found
systematic errors in management and control arrangements.

Parties

(Case T-279/08)

(2008/C 247/29)

Language of the case: French

Second, the applicant argues that there is no legal basis for the
application of flat-rate or extrapolated financial corrections to
in the Programming Period
the Operational Programme
1994-1999 as there were no rules available in respect of that
period similar to those laid down in Article 39 of Regulation
(EC) No 1260/99 (1). Furthermore, nor can a sufficiently precise
legal basis be found in the provisions of Article 24 of Regu-
lation (EEC) No 4253/88 (2),
the
Commission of 15 October 1997 on net financial corrections
within the framework of Article 24 of Regulation No 4253/88
or the principles of sound financial management provided for in

the internal guidelines of

Applicant: Communauté d'agglomération du Douaisis (repre-
sented by: M.-Y Benjamin, lawyer)

Defendant: Commission of the European Communities.

Form of order sought

— Annul the decision No C 38/2007 of the Commission of

2 April 2008.

C 247/16

EN

Official Journal of the European Union

27.9.2008

Pleas in law and main arguments

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

seeks

applicant

the
of
annulment
the Commission of

The
the
decision
the European
C(2008) 1089 final of
Communities of 2 April 2008 by which the Commission
declared incompatible with the common market the State aid
granted by the applicant and the Région Nord-Pas-de-Calais in
favour of Arbel Fauvet Rail SA in the form of advances repay-
able at an annual rate of interest of 4,08 % corresponding to
the Community reference rate applicable when the loan was
granted. The Commission considered that, taking into account
its financial standing, Arbel Fauvet Rail SA would not have been
able to obtain funds on such favourable terms in the financial
market.

(Case T-282/08)

(2008/C 247/31)

Language of the case: German

Parties

The pleas in law and main arguments relied on by the applicant
are similar
to those relied on in Case T-267/08 Région
Nord-Pas-de-Calais v Commission.

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

Defendant: Commission of the European Communities

Action brought on 15 July 2008 — Austria v Commission

(Case T-281/08)

(2008/C 247/30)

Language of the case: German

Parties

Applicant: Republic of Austria (represented by: C. Pesendorfer)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision C(2008) 1625 Final of 30 April
2008 on State aid No C 56/2006 (ex NN 77/2006) of
Austria for the privatisation of Bank Burgenland;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant challenges Commission Decision C(2008) 1625
Final of 30 April 2008 in which the Commission decided
that the State aid implemented by Austria in breach of Arti-
cle 88(3) EC for the insurance company Grazer Wechselseitige
Versicherung AG and to GW Beteiligungserwerbs- und -verwal-
tungs-GmbH in connection with the privatisation of HYPO
Bank Burgenland AG is incompatible with the common market.

With regard to the grounds of the application, reference is made
to the summary of pleas in law relating to Case T-268/08 Land
Burgenland v Commission.

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 Wech-
selseitige 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.

its action the applicant claims first

the
In support of
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.

that

test.

In that

regard the applicant asserts that

Moreover, it is claimed that the defendant misapplied the private
the
vendor
Commission's argument that it was impermissible in the context
of the decision to award aid to take into account the legal guar-
antee (‘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.