Case T-282/08: Action brought on 17 July 2008 — Grazer Wechselseitige Versicherung v Commission
Date: 2008-07-17
Institutions: Court of First Instance
Subjects: Austria, European Commission, State aid, action for annulment (EU), aid for restructuring, bank, control of State aid, mortgage bank

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.

27.9.2008

EN

Official Journal of the European Union

C 247/17

the applicant argues that

In the alternative,
the Commis-
sion failed, in assuming there to be a State aid, to examine its
compatibility with the
light of
Article 87(3)(c) EC.

common market

in the

Action brought on 21 July 2008 — Fidelio KG v OHIM

(Case T-286/08)

(2008/C 247/33)

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

Language in which the application was lodged: German

Action brought on 21 July 2008 — Securvita v OHIM
(Natur-Aktien-Index)

(Case T-285/08)

(2008/C 247/32)

Language in which the application was lodged: German

Parties

Applicant: Securvita Gesellschaft zur Entwicklung alternativer
Versicherungskonzepte mbH (Hamburg, Germany) (represented
by: M. van Eendenburg, Rechtsanwalt)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Form of order sought

— Vary the decision of the Fourth Board of Appeal of 26 May
2008 in Case R 525/2007-4 to the effect that it be ordered
that the word mark ‘Natur-Aktien-Index’ be registered as a
Community trade mark at the Office for Harmonisation in
the Internal Market.

Pleas in law and main arguments

Community trade mark concerned: the word mark ‘Natur-Aktien-
Index’ for goods and services in Classes 16, 36 and 42 (appli-
cation No 4 861 175).

Decision of the Examiner: rejection of the application.

Decision of the Board of Appeal: dismissal of the appeal.

Pleas in law: infringement of Article 7(1)(b) of Regulation (EC)
No 40/94 (1), since the mark applied for is not devoid of any
distinctive character.

Parties

Applicant: Fidelio KG (Linz, Austria)
acting as Agent)

(represented by M. Gail,

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Form of order sought

— Annul the decision of the Fourth Board of Appeal of the
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) of 21 May 2008 (case R 632/2007-4);

— Order the Office for Harmonisation in the Internal Market
(Trade Marks and Designs) to pay its own costs as well as
those of the applicant.

Pleas in law and main arguments

Community trade mark concerned: The word mark ‘Hallux’
goods in Classes 10, 18 and 25 (Application No 5 245 147).

for

Decision of the Examiner: Partial refusal of the application.

Decision of the Board of Appeal: Appeal partially upheld.

Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation
(EC) No 40/94 (1), as the registered marks concerning the goods
‘orthopaedic article’ and ‘footwear’ do not present any absolute
grounds for refusal.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 25 July 2008 — Cadila Healthcare v
OHIM — Laboratorios Inibsa (ZYDUS)

(Case T-287/08)

(2008/C 247/34)

Language in which the application was lodged: English

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Parties

Applicant: Cadila Healthcare Ltd (Ahmedabad, India) (represented
by: S. Bailey, A. Juaristi and F. Potin, lawyers)