30.6.2012

Official Journal of the European Union

C 194/17

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(Case C-223/12 P)

2012/C 194/26

Language of the case: German

Parties

Appellant: Republic of Austria (represented by: C. Pesendorfer, Agent)

Other parties to the proceedings: European Commission, Land Burgenland

Form of order sought

—Set aside the judgment of the General Court of 28 February 2012 in Joined Cases T-268/08 and T-281/08;

—give final judgment itself in the matter and annul Commission Decision 2008/719/EC of 30 April 2008 on State aid C 56/06 (ex NN 77/06) implemented by Austria for the privatisation of Bank Burgenland (OJ 2008 L 239, p. 32) and order the European Commission to pay the costs of the proceedings before the General Court and the Court of Justice;

—in the alternative to the second head of claim above, refer the case back to the General Court for determination in line with the legal assessment contained in the judgment of the Court of Justice, and reserve its decision on costs.

Pleas in law and main arguments

By the present appeal the appellant challenges the judgment of the General Court (Sixth Chamber) of 28 February 2012 in Joined Cases T-268/08 and T-281/08 by which the General Court dismissed the appellant’s action against Commission Decision 2008/719/EC of 30 April 2008 on State aid implemented by Austria for the privatisation of Bank Burgenland.

The appellant submits two grounds of appeal:

The General Court wrongly relies on case-law that is not applicable to the present case or — inasmuch as it is applicable, at least in principle — is inconsistent with the General Court’s considerations.

The General Court moreover failed to consider other case-law that is inconsistent with its considerations.

Lastly, the General Court erred in taking the view that the risks arising from the Ausfallhaftung could not be taken into account, even though the Ausfallhaftung constitutes existing and thus lawful aid.

The General Court considered the Commission’s conclusion that there was no indication that the FMA would forbid the purchase by the consortium to be correct, but erred in proceeding on the assumption that the information supplied by the appellant had not been relevant to the FMA approval process and had not been taken into account by the FMA.

The General Court also overlooked specific evidence adduced by the appellant when it found that there was no indication that the length of the FMA procedure had seriously jeopardised the chances of privatising Bank Burgenland.

Lastly, the General Court applied the wrong standard of assessment and review.

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