CELEX: 62015TJ0284
State aid
Chemical industry
Decision to continue the operation of an undertaking during insolvency proceedings
Decision finding no State aid
Action for annulment
Individual concern
Admissibility
Concept of State aid
Advantage
Private creditor test
Whether attributable to the State
Duty to state reasons

)
I.

Background to the dispute
The applicant, AlzChem AG, is a company whose registered office is in Germany and which is active in several fine chemicals markets in a number of European Union Member States, including the Slovak Republic.
Novácké chemické závody, a.s. v konkurze (‘NCHZ’), was a privately owned chemical producer with three divisions. It operated a chemical plant located in the Trenčín region (Slovakia). The company’s main activities were the production of calcium carbide and technical gases, polyvinyl chloride (PVC) and its by-products, and an increasing share of low tonnage heavy chemicals and fine chemicals.
On 8 October 2009, NCHZ, having declared its inability to continue its operations and its insolvency, became the subject of insolvency proceedings.
On 5 November 2009, the Slovak Republic adopted the zákon č. 493/2009 Z.z. o niektorých opatreniach týkajúcich sa strategických spoločností a o zmene a doplnení niektorých zákonov (Law No 493/2009 on certain measures regarding strategic companies and on the amendment of certain laws, ‘the Law on Strategic Companies’). That legislation, which entered into force on 1 December 2009, gave the State a right of pre-emption enabling it to purchase strategic companies which were the subject of insolvency proceedings and required the presence of an insolvency administrator (‘the administrator’) to ensure the continued operation of the strategic company while those proceedings were ongoing. On 2 December 2009, NCHZ was classified by the Slovak authorities as a strategic company under that legislation and enjoyed that status until the expiry of the legislation on 31 December 2010. NCHZ was the only company subject to the application of the legislation (‘the first insolvency period’).
After 31 December 2010, NCHZ became subject to the application of the zákon č. 7/2005 Z.z. o konkurze a reštrukturalizácii a o zmene a doplneni niektorých zákonov (Law No 7/2005 on insolvency and restructuring and the amendments to certain laws, ‘the law on insolvency’) (‘the second insolvency period’). At the joint meeting of 26 January 2011 between the unsecured creditors, gathered under the committee of creditors (‘the creditors’ committee’), and the secured creditors concerned (‘the meeting of 26 January 2011’), the administrator then informed them that the operating costs generated by NCHZ’s operations were higher than the operating income. The administrator also informed the creditors of its economic analysis dated 23 December 2010 (‘the economic analysis’) which was supplemented by a management presentation. The aforementioned creditors then decided that NCHZ’s operations were to be continued (‘the decision of 26 January 2011’). That decision having been approved by decision of the súd v Trenčíne, (Regional Court, Trenčín, Slovak Republic), on 17 February 2011 (‘the decision of the súd v Trenčíne (Regional Court of Trenčin)’ or ‘the decision of 17 February 2011’), the administrator continued those operations. In the present case, in accordance with the law on insolvency, the creditors’ committee, the secured creditors, and the súd v Trenčíne (Regional Court of Trenčín) comprised the relevant committee (‘the relevant committee’).
…
By letter dated 2 July 2013, the Commission notified the Slovak authorities of its decision to initiate the formal investigation procedure under Article 108(2) of the TFEU (
OJ 2013 C 297, p. 85
), as regards, on the one hand, the authorisation of the State, as a result of the law on strategic companies, to continue NCHZ’s operations from December 2009 to December 2010 and, on the other, the creditors’ decision of January 2011 to continue NCHZ’s operations after the expiry of the law on strategic companies. The Commission also expressed doubts as to whether the tender procedure by which NCHZ was sold was unconditional and took the view that there were strong indications that there had been no break in the financial continuity between NCHZ and the new entity.
…
II.

Contested decision
On 15 October 2014, the Commission adopted Decision (EU) 2015/1826 concerning State aid SA.33797 (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ (
OJ 2015 L 269, p. 71
) (‘the contested decision’).
The Commission took the view that granting NCHZ strategic company status (‘the first measure’) constituted a selective advantage in favour of that company, was attributable to the State, led to the use of State resources and distorted competition in a market open to trade between Member States. The Commission concluded that the measure constituted State aid within the meaning of Article 107(1) TFEU, and that the aid was unlawful and incompatible with the internal market (recitals 110 and 114 to 124 of the contested decision). After having taken the view that the State aid amounted to EUR 4 783 424.10, it took the view that the aid had to be recovered from NCHZ and that Fortischem should also be covered by the recovery order since there was an economic continuity with NCHZ (recitals 101 and 174 of the contested decision).
By contrast, the Commission found that the continued operation of NCHZ pursuant to the decision by the creditors on 26 January 2011 (‘the second measure’) did not constitute State aid within the meaning of Article 107(1) TFEU since at least two cumulative conditions for the existence of State aid, namely that the measure at issue is attributable to the State and that there is an economic advantage, were not satisfied (recital 113 of the contested decision).
The operative part of the contested decision is worded as follows:
‘
Article 2
The decision to allow continued operation of NCHZ after the expiry of the Act on the basis of the decision of the creditors’ committee did not constitute State aid within the meaning of Article 107(1) [TFEU].
…
Article 6
This Decision is addressed to the [Slovak Republic].’
…
V.

Law
…
B.

Substance
…
2.

Whether the continued operation of NCHZ during the second insolvency period is attributable to the State (second plea)
…
(b)

Infringement of the obligation to state reasons regarding whether the second measure is attributable to the State because of the approval by the súd v Trenčíne (Regional Court of Trenčín) of the decision of 26 January 2011 (first part of the second plea)
The applicant submits that, as the Commission stated in recital 46 of the contested decision, it submitted in its capacity as a complainant that the decision to authorise the continued operation of NCHZ was attributable to the State, in particular inasmuch as that decision had been confirmed and made binding by the súd v Trenčíne (Regional Court of Trenčín).
Although the Commission acknowledges, in recitals 14, 33, 35, 36 and 102 of the contested decision, the involvement of the súd v Trenčíne (Regional Court of Trenčín) in the decision-making process, it makes no reference, in recitals 103 and 104 of the contested decision, in which it sets out its analysis as to whether the second measure is attributable to the State, to the issue of the role played by that court. The applicant concludes from this that, whilst the decisions of national courts are generally regarded as attributable to the State, the Commission has not provided any information to explain why the decision of the súd v Trenčíne (Regional Court of Trenčín) is irrelevant or, if it is relevant, why it is insufficient to establish that the second measure is attributable to the State.
The Commission takes the view that the statement of reasons relating to the contested decision is sufficient. It contends that it disclosed in a clear and unequivocal fashion the reasoning it followed, thus enabling the applicant to understand that reasoning and the Court to exercise its power of review. It submits that it already clarified that, in a situation in which all of the creditors, the majority of which are private, expressly decide that it is in their economic interest to allow the continued operation of the insolvent undertaking, their decision is not attributable to the State simply because a court subsequently confirms it and makes it binding. According to the Commission, although the applicant may disagree with the merits of this approach, it cannot claim that it did not understand the logic behind the Commission’s finding, since, despite the brevity of the contested decision on the issue, that line of reasoning emerges unequivocally from it, and in particular, recitals 102 to 104 thereof.
As a preliminary point, it must be understood that, by its line of argument, the applicant alleges, in essence, infringement of the obligation to state reasons regarding the role of the súd v Trenčíne (Regional Court of Trenčín) in the decision-making process.
It must be noted that, in recital 102 of the contested decision, the Commission stated that ‘all creditors on the creditors’ committee and the secured creditors agreed in January 2011 that NCHZ should continue to operate’ and that ‘this decision was subsequently confirmed by the [súd v Trenčíne (Regional Court of Trenčín)] in accordance with the Slovak [law on insolvency] and thus became binding for the administrator’.
In recital 103 of the contested decision, the Commission examined the question whether the creditors’ committee and the secured creditors had a right of veto and concluded, in that regard, that ‘no state entity could have enforced its interests in stopping further accumulation of the debts’.
In recital 104 of the contested decision, the Commission stated that ‘it can therefore be concluded that the continuation of NCHZ’s operations was based on a decision determined by the private creditors, as the public creditors were not in a position to veto NCHZ’s continued operation’, and that, ‘for [that] reason, the decision to continue operating NCHZ after the [law on insolvency] expired cannot be considered imputable to the State’.
It is common ground that, having regard to the circumstances of the case and in accordance with the provisions of the law on insolvency, the súd v Trenčíne (Regional Court of Trenčín) formed part of the relevant committee responsible for deciding whether to continue the operation of NCHZ and that, in accordance with Article 83(4) of the law on insolvency, the administrator was bound by the decision of 17 February 2011.
However, it should be noted that, in the contested decision, the Commission did not clearly indicate how it had considered the role of the súd v Trenčíne (Regional Court of Trenčín) in the decision-making process. In recitals 14, 26 and 32 and Article 2 of that decision, it mentioned only the decision of 26 January 2011, without referring to the intervention of that court (see paragraph 78 above), whereas, in recitals 33, 35, 36 and 102 of the contested decision, it referred to the decision of that court, without explaining its precise role in the present case, having regard to the wording of Article 83(4) of the law on insolvency, thus suggesting that it only had to approve the decision of 26 January 2011 and make it binding (see, in particular, recital 33 of the contested decision).
Moreover, in its assessment of the decision to continue NCHZ’s operations during the second insolvency period, although the Commission mentioned the existence of the decision of 17 February 2011 in recital 102 of the contested decision, it should be noted that, in recitals 103 to 112 of the contested decision, and more particularly in recitals 103 and 104 of that decision, no mention is made of the decision. The Commission thus mentioned only the decision of 26 January 2011.
In addition, as stated by the Commission at the hearing, it cannot be ruled out that a measure may be regarded as a decision attributable to the State within the meaning of Article 107(1) TFEU because of a decision of a national court (see, to that effect, judgments of 26 October 2016, DEI and Commission v Alouminion tis Ellados,
C‑590/14 P
,
EU:C:2016:797
, paragraphs
,
and
, and of 3 March 2016, Simet v Commission,
T‑15/14
,
EU:T:2016:124
, paragraphs
,
and
).
In that context, it must be held that the Commission should have explained, in the contested decision, the reasons which led it to conclude that the decision to continue NCHZ’s operations was not attributable to the súd v Trenčíne (Regional Court of Trenčín).
In that regard, with respect to the Commission’s argument that it clearly and unequivocally presented the reasoning it followed, it must be noted that its explanations, mentioned in paragraph 99 above, are in no way apparent from the contested decision, but from its submissions to the Court and that, contrary to what it submits, it does thus supplement the statement of reasons for the contested decision. In accordance with the case-law cited in paragraph 74 above, the statement of reasons must be contained in the body of the contested decision and may not be set out subsequently for the first time before the EU judicature.
Consequently, as argued by the applicant, the Commission failed to set out in the contested decision the reasons why the decision of the súd v Trenčíne (Regional Court of Trenčín) had no impact on its analysis of whether the measure under examination was attributable to the State.
In addition, at the hearing, the Commission was questioned by the Court, which was seeking to understand, in the light of the provisions of the law on insolvency, if a court involved pursuant to Article 83(4) of that law, such as, in this case, the súd v Trenčíne (Regional Court of Trenčín), was merely to assess compliance with the formal aspects of the creditors’ decision or whether it was also required to check the validity of the decision and, where applicable, could come to a different decision. It must be stated, however, that the Commission was not able to provide an answer in that regard. It merely claimed that, in the present case, the súd v Trenčíne (Regional Court of Trenčín) had no choice but to confirm the decision of 26 January 2011, without arguing that the review by that court was restricted in law.
It follows that, having regard to the particular circumstances in which the súd v Trenčíne (Regional Court of Trenčín) intervened in the present case, since it was a member of the relevant committee, the contested decision is vitiated by a lack of reasoning concerning whether the decision to continue NCHZ’s operations during the second insolvency period was attributable to the State.
…
3.

On the existence of an economic advantage as a result of the decision to continue NCHZ’s operations during the second insolvency period (first part of the first plea)
…
(c)

Misapplication of the private creditor test (first subsection)
…
(3)

The comparability of the situation of the public and private creditors
…
(i)

The State being treated as a single creditor
…
It must be held that, as the Commission, supported by the Slovak Republic and Fortischem, contends, the applicant’s line of argument in that regard is based on the premiss that the Commission should not have taken account of each public creditor individually, but of the Slovak Republic as the sole public creditor, representing all the public creditors concerned.
Both the Commission and the interveners submit that that premiss is incorrect, since it follows from the private creditor test that each public creditor must decide in the light of the characteristics of the claims held against the debtor concerned, and that the comparison should be between the decision of each public creditor and that which a private creditor, placed in the same situation, would have taken.
It should be noted at the outset that the applicant does not cite any case-law in support of that argument; it merely disputes that the case-law relied on by the Commission supports the latter’s contention. It takes the view that the issue was not decided, whereas the Commission contends that it did not have to be, as it is part of the very essence of the application of the private creditor test.
First, in the judgment of 11 July 2002, HAMSA v Commission (
T‑152/99
,
EU:T:2002:188
), relied on by the Commission, the EU judicature held that it was for the Commission to determine, for each of the public bodies in question, whether the debt remission it had granted was manifestly more substantial than that which would have been granted by a hypothetical private creditor who was, vis-à-vis the applicant, in a situation comparable to that of the relevant public body and who was seeking to recover the sums owed to it. Thus, according to the EU judicature, each creditor is required to make a choice with regard to the amount offered to him under the proposed agreement on the one hand, and the amount he believes he can recover following the possible liquidation of the company on the other, its choice being influenced by a number of factors, such as its status as a preferential or unsecured creditor, the nature and extent of any security it holds, its assessment of the company’s chances of being restored to viability and the amount it would receive in the event of liquidation (see, to that effect, judgment of 11 July 2002, HAMSA v Commission,
T‑152/99
,
EU:T:2002:188
, paragraphs
and
).
Accordingly, it is apparent from the judgment of 11 July 2002, HAMSA v Commission (
T‑152/99
,
EU:T:2002:188
), and in particular paragraphs 166 to 172 thereof, that the EU judicature called for an examination of the individual situation of the public creditors, in particular based on its status as a preferential or unsecured creditor, to determine, in essence, whether the choices made by them went beyond what was justified by commercial constraints or if it could be explained by the desire to confer an advantage on the undertaking concerned. It follows that the EU judicature found that the public creditors should not be considered as a single entity, but that their specific characteristics should be taken into account.
Furthermore, it is necessary to reject the applicant’s argument that the judgment of 11 July 2002, HAMSA v Commission (
T‑152/99
,
EU:T:2002:188
), is not relevant, since, in the case which gave rise to that judgment, all public creditors consented to the remission of the debt of the recipient of the aid in question, whereas, in the present case, the interests of the social insurance company were evidently not taken into account for the application of the private creditor test. The interests of the latter were taken into consideration, as a post-insolvency creditor (see recital 110 of the contested decision) (see paragraphs 161 to 163 above).
Finally, it must be observed that the considerations set out in the judgment of 11 July 2002, HAMSA v Commission,
T‑152/99
,
EU:T:2002:188
, paragraphs
and
), were referred to in the judgment of 17 May 2011 in Buczek Automotive v Commission (
T‑1/08
,
EU:T:2011:216
, paragraph
).
Secondly, having regard to the judgment of 11 September 2012, Corsica Ferries France v Commission (
T‑565/08
,
EU:T:2012:415
, paragraphs
to
), also relied on by the Commission, it must be held that, as the applicant claims, it is irrelevant in the present case. The issue was whether the Commission had defined, in an unambiguous manner, the French State’s economic activities for which a need to protect the brand image might potentially exist and not whether the State should have been assessed as a single creditor.
Thirdly, it must be recalled that, in the judgments cited in paragraph 61 above, the Court indicated the need to take account, when applying the private creditor test, of a private creditor which was in a situation as close as possible to that of the public creditor and seeking to obtain payment of the sums owed to it by a debtor experiencing financial difficulties, which entails not having to look at the State as a single creditor, bringing together all the public creditors concerned.
Fourthly, as the Commission rightly points out, according to the applicable case-law on State aid, it is necessary in certain situations to distinguish between the role of the State as an economic operator and its role as a public authority (see, to that effect, judgment of 14 September 1994, Spain v Commission,
C‑278/92 to C‑280/92
,
EU:C:1994:325
, paragraph
). It follows that, in the field of State aid, the State should not necessarily be considered a single entity.
…
It follows from all of the foregoing that an assessment of the State as a single creditor could lead to accepting that certain public creditors should take a decision contrary to their interests and not act in the same way that a private creditor, placed in the same situation, would, which is contrary to the case-law cited in paragraph 61 above. Therefore, the applicant’s argument relating to the State being treated as a single creditor must be rejected.
…

On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:

1.
Annuls Article 2 of Commission Decision (EU) 2015/1826 of 15 October 2014 on State aid SA.33797 (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ;

2.
Orders the European Commission to bear its own costs and to pay those of AlzChem AG;

3.
Orders the Slovak Republic and Fortischem a.s. to bear their own costs.

Berardis
Papasavvas
Spineanu-Matei
Delivered in open court in Luxembourg on 13 December 2018.
E. Coulon
Registrar
G. Berardis
President
(
*1
)	Language of the case: English.
(
)	Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.