Judgment of the General Court (Sixth Chamber) of 28 February 2012 —
Grazer Wechselseitige Versicherung v Commission
(Case T‑282/08)
State aid — Aid granted by the Austrian authorities to the Grazer Wechselseitige group (GRAWE) in connection with the privatisation of Bank Burgenland — Decision declaring the aid to be incompatible with the common market and ordering its recovery — Private investor in a market economy test — Application where the State acts as vendor — Determination of the market price
1. State aid — Concept — Sale of an asset by a public body to a private person on preferential conditions — Included — Assessment according to the criterion of the private investor (Art. 87(1) EC) (see paras 45, 46)
2. State aid — Concept — Legal nature — Interpretation on the basis of objective factors — Judicial review –Scope (Art. 87(1) EC) (see paras 47, 48, 56)
3. Actions for annulment — Grounds — Lack of or inadequate statement of reasons — Distinguished from manifest error of assessment (Arts 230 EC and 253 EC) (see para. 68)
4. State aid — Concept — Assessment according to the criterion of the private investor — Transfer of an undertaking — Determination of a price — Preference to be given to the result of an open, transparent and unconditional tendering procedure rather than to an export report (Art. 87(1) EC) (see paras 76‑80, 86)
5. State aid — Concept — Assessment according to the criterion of the private investor — Transfer of an undertaking — Uncertain outcome and duration of an authorisation procedure not automatically implying the exclusion of a buyer by a private investor (Art. 87(1) EC) (see paras 88, 90, 100, 101)
6. State aid — Concept — Assessment according to the criterion of the private investor — Whether account to be taken, in determining the transfer price of an undertaking, of the risk represented by the existence of a statutory guarantee scheme benefiting the undertaking to be transferred — Not included (Art. 87(1) EC) (see paras 122, 128, 130, 131)
7. State aid — Recovery of unlawful aid — Aid granted in breach of the procedural rules of Article 88(3) EC — Legitimate expectations entertained by the recipients — Legal certainty — Protection — Conditions and limits (Art. 88(3) EC) (see paras 152, 153)
8. State aid — Prohibition — Exceptions — Aid to support or facilitate the economic development of certain regions or activities — Discretion of the Commission — Judicial review — Limits — Strict interpretation of derogations (Art. 87(3)(a) and (c) EC) (see paras 158, 161)
Re:
APPLICATION for annulment of 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).
Operative part
The Court:
1.
Dismisses the action;
2.
Orders Grazer Wechselseitige Versicherung AG to pay the costs.
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