CELEX: 62004TJ0425(01)
State Aid
Financial measures in favour of France Télécom
Shareholder loan offer
Public declarations by the French State
Decision declaring the aid incompatible with the common market
Absence of extension of the formal investigation procedure
Rights of the defence
Prudent private investor criterion
Normal market conditions
Errors of law
Manifest errors of assessment

Background to the dispute
1.
General background to the case
France Télécom (now Orange, ‘FT’), an operator and supplier of telecommunications networks and services, was formed in 1991 as a legal person governed by public law, and since 31 December 1996 has had the status of a public limited company. Since October 1997, FT has been listed on the stock exchange. In 2002, the French State’s participation in FT’s capital was 56.45%, the remainder being divided between the public (32.25%), France Télécom itself (8.26%) and employees of the company (3.04%).
In the first quarter of 2002, FT published its accounts for 2001, which showed a net debt of EUR 63.5 billion and a loss of EUR 8.3 billion.
In the period from March to June 2002, the credit rating agencies Moody’s and Standard & Poor’s (‘S & P’) downgraded FT’s rating and also downgraded its prospects to negative. In particular, on 24 June 2002 Moody’s downgraded FT’s rating for long- and short-term credit notes to the lowest investment grade. At the same time, FT’s share prices fell significantly.
In the light of FT’s financial situation, the French Minister for Economic Affairs, Finance and Industry (‘the Minister for Economic Affairs’), in an interview published on 12 July 2002 in the daily newspaper Les Echos (‘the declaration of 12 July 2002’), stated that:
‘We are the majority shareholder, with 55% of the capital … The State shareholder will behave like a prudent investor and would take appropriate steps if [FT] were to face any difficulties … I repeat, if [FT] were to face any financing problems, which is not the case today, the [French] State would take whatever decisions were necessary to overcome them. You are reviving the rumour of a capital increase … No, certainly not! I am simply saying that we shall take appropriate measures when the time comes. If it is necessary …’
On that same date, S & P published a press release which read as follows:
‘FT could face certain difficulties [in] refinancing its debt obligations coming due in 2003. Nevertheless, the [French] State’s indication underpins [FT]’s investment-grade credit quality … [T]he French State — which owns 55% of [FT] — has made clear to [S & P] that it will behave as an aware investor and would take appropriate steps if [FT] were to face any difficulties. [FT’s] [long-term] rating cut to BBB — …’
On 12 September 2002, the French authorities announced that they had accepted the resignation of FT’s chief executive officer.
On 13 September 2002, FT published its half-yearly accounts, which confirmed that, as at 30 June 2002, FT’s consolidated own funds became negative to the amount of EUR 440 million, and that its net debt reached EUR 69.69 billion, including EUR 48.9 billion of bond debt falling due for repayment during the period from 2003 to 2005. According to the same half-yearly accounts, FT’s turnover showed an increase of 10% compared with the same period in 2001, an operating result before amortisation amounting to EUR 6.87 billion, that is, an increase of 13.3% in historical data and 9.8% in pro forma data, and operating earnings of EUR 3.18 billion, up 15% in pro forma data. Earnings after interest (EUR 1.75 billion) but before taxes, minority shareholdings and interests, exclusive of extraordinary items, were EUR 718 million against EUR 271 million as at 30 June 2001. The operating free cash flow amounted to EUR 3.6 billion, up 15% on the first six months of 2001.
In a press release of 13 September 2002 on FT’s financial situation (‘the declaration of 13 September 2002’), the French authorities stated:
‘After the exceptional losses of the first six months, [FT] is faced with a serious shortage of capital. This financial situation is weakening [FT]’s potential. The [French] Government is therefore determined to exercise its responsibilities to the full ... Taking note of the new situation brought about by the considerable deterioration in the accounts, [FT’s chief executive officer] has tendered his resignation to the [French] Government, which has accepted it. The resignation will take effect at a board meeting to be held in the next few weeks, at which a new chairman will be presented ... The new chairman will in a very short space of time propose to the board a plan for improving the [FT]’s accounts, enabling its debts to be reduced and its financial structure to be restored while maintaining its strategic advantages. The [French] State will help [FT] implement this plan and will contribute to a very substantial strengthening of [FT]’s capital base, according to a timetable and in a manner to be determined in the light of market conditions. In the meantime, the [French] State will, if necessary, take steps to prevent [FT] from being faced with any financing difficulties.’
That same day, Moody’s changed the outlook of FT’s debt from negative to stable in a press release stating inter alia:
‘Moody’s [has] taken increased comfort from the [French] Government’s statement, which once again confirmed [its] strong support for FT. Whilst Moody’s concerns regarding the overall level of financial risk and particularly FT’s weak liquidity position remain, Moody’s has grown more comfortable with expectation that the French Government will act in a supportive manner, if FT started to encounter difficulties with its debt repayment schedule.’
On 2 October 2002, a new chief executive officer was appointed to FT. The press release announcing that appointment (‘the declaration of 2 October 2002’) reads as follows:
‘On a proposal from [FT]’s board of directors, the Council of Ministers has decided to appoint [a new chief executive officer of FT] … To that end, the new chairman will immediately carry out an inventory of [FT], the findings of which will be communicated to the board in the weeks ahead and which will form the basis for a financial recovery and strategic development plan enabling [FT]’s debt to be reduced while building on its strengths. Within this framework, [FT’s new chief executive officer] will enjoy the support of the State in its capacity as shareholder, determined as it is to exercise its responsibilities to the full. The [French] State will assist in implementing the recovery measures and will contribute, for its part, to the strengthening of [FT]’s own capital base in a manner to be determined in close collaboration with [FT]’s chairman and board. As already indicated, the [French] State will [in the meantime], if necessary, take steps to prevent [FT] from being faced with any financing difficulties.’
On 19 November 2002, the French authorities sent the Commission of the European Communities an ‘information note’ which, on the one hand, described FT’s financial situation while highlighting the fact that ‘its operational performance is excellent’ and, on the other, indicated their intention to participate in a recapitalisation of FT under market conditions while explaining the terms of their contribution to FT’s recovery plan. In that note, the French authorities stated, inter alia, the following:
‘In order to give [FT] the necessary room for manoeuvre to enter the market under the best possible conditions and at the most opportune moment, the [French] State is prepared to make an upfront prepayment towards the capital increase in the form of a shareholder loan which will be capitalised at the time of the issue of new securities. The amount of that loan will correspond to all or part of the [French] State’s subscription to the future capital increase and may be up to [EUR] 9 [billion]. That loan will be temporary and its conversion into securities will be obligatory. It will be drawn upon only to the extent that [FT] requires. It will also be remunerated at the market rates currently in force and the interest will be capitalised.
In order to implement its participation in [FT]’s recovery plan, the [French] State intends to use ERAP, a [French] public industrial and commercial entity, which will grant [FT] a shareholder loan and have authority to become a major [FT] shareholder once that loan is capitalised. By entering the public participation in [FT] on the assets side of its balance sheet, that public entity will have bond debts on the liabilities side of its balance sheet. That choice of ERAP reflects the [French] State’s intention to identify clearly the financial outlay being granted by isolating it in a dedicated structure.’
At FT’s board meeting of 4 December 2002, the new management of FT presented an action plan entitled ‘Ambition France Télécom 2005’ (‘the Ambition 2005 plan’) aimed essentially at rebalancing the undertaking’s balance sheet by strengthening its capital base to the amount of EUR 15 billion.
The presentation of the Ambition 2005 plan was accompanied by a press release by the Minister for Economic Affairs of 4 December 2002 (‘the announcement of 4 December 2002’), which reads as follows:
‘[T]he Minister for Economic Affairs … confirms the [French] State’s support for the action plan approved by [FT]’s board of directors on 4 December [2002]. (1) The [FT] group is a coherent industrial entity with a remarkable track record. However, [FT] is now faced with an unbalanced financial structure and a need for capital and refinancing in the medium term. This state of affairs is due to the failure of past investments, which were carried out badly at the height of the financial “bubble” and, more generally, to the market downturn. The impossibility for [FT] to finance its growth otherwise than through debt has made the situation worse. (2) The [French] State, as majority shareholder, has asked the new management to restore [FT]’s financial equilibrium while maintaining the group’s integrity ... (3) In the light of the action plan drawn up by management and the investment return prospects, the [French] State will participate in the EUR 15 billion strengthening of [FT]’s capital base in proportion to its share in the capital, giving an investment of EUR 9 billion. The [French] State shareholder thus intends to act like a prudent investor. It will be for [FT] to work out the detailed arrangements and precise timetable for the strengthening of its capital base. The [French] Government wants the utmost account to be taken during the operation of the situation of individual shareholders and of employees with shares in [FT]. To enable [FT] to launch a market operation at the most opportune moment, the [French] State is prepared to make an upfront prepayment towards the strengthening of the capital base in the form of a temporary shareholder loan, remunerated at market rates, placed at [FT]’s disposal. (4) The [French] State’s entire shareholding in [FT] will be transferred to ERAP ... The latter will borrow on the financial markets in order to finance the [French] State’s share in the strengthening of [FT]’s capital base.’
On 11 and 12 December 2002, FT launched two successive bond issues for a total amount of EUR 2.9 billion.
On 20 December 2002, ERAP, a public industrial and commercial entity of the French State, sent FT an initialled and signed draft shareholder loan contract (‘the shareholder loan offer’). FT did not sign that draft contract and the shareholder loan was never implemented.
On 15 January 2003, FT raised loans in the form of bond issues for a total amount of EUR 5.5 billion. Those bond issues were not covered by a State security or guarantee.
On 10 February 2003, FT renewed part of a maturing syndicated loan to the amount of EUR 15 billion.
On 4 March 2003 the operation to strengthen the capital base as envisaged by the Ambition 2005 plan was launched. On 24 March 2003, FT carried out a capital increase of EUR 15 billion. The French State participated in that operation to the amount of EUR 9 billion in proportion to its share in FT’s capital. An amount of EUR 6 billion was underwritten by a banking syndicate consisting of 21 banks. That operation was terminated on 11 April 2003.
FT ended the 2002 financial year with a loss of approximately EUR 21 billion and a net financial debt of approximately EUR 68 billion. The accounts for 2002 published by FT on 5 March 2003 showed a rise of 8.4% in turnover, of 21.1% in the operating result before amortisation and of 30.9% in the operating result. On 14 April 2003, the French State held 58.9% of FT’s capital, of which 28.6% through ERAP.
2.
Administrative procedure
On 4 December 2002, the French Republic notified the Commission of the financial measures provided for by the Ambition 2005 plan, including the shareholder loan offer, pursuant to Article 88(3) EC and Article 2 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (
OJ 1999 L 83, p. 1
).
On 22 January 2003, Bouygues SA and Bouygues Télécom SA (together ‘the Bouygues companies’), two companies governed by French law, the second of which is active on the French market for mobile telephony, submitted a complaint to the Commission concerning certain aids allegedly granted by the French State to FT in connection with the refinancing of FT. That complaint related, in particular, first, to the announcement of an investment by the French State to the amount of EUR 9 billion and, secondly, to the declarations of 12 July, 13 September and 2 October 2002 (‘the declarations from July 2002’).
On 12 March 2003, the Commission’s decision to open the formal investigation procedure provided for in Article 88(2) EC, specifically with regard to the financial measures put in place by the French State in favour of FT (‘the opening decision’) was published in the
Official Journal of the European Union
(
OJ 2003 C 57, p. 5
). It invited interested parties to submit their comments on the measures in question.
Following that publication, the French authorities and numerous interested parties, including the Bouygues companies, the Association française des opérateurs de réseaux et services de télécommunications (AFORS Télécom, ‘AFORS’) and FT, submitted their comments on the Commission’s opening decision.
On 30 May 2003, the Commission published an invitation to tender for a contract for ‘the provision of services to assist in assessing the compliance of the financial assistance granted by the French State to FT with the principle of the private investor in a market economy and if necessary to analyse FT’s recovery plan’. On 24 September 2003, that contract was awarded to a consultant, which delivered its economic report on 28 April 2004 (‘the report of 28 April 2004’). That report was accompanied by a legal report of 22 March 2004 (‘the report of 22 March 2004’). By letter of 3 May 2004, the Commission forwarded those two reports to the French authorities, inviting them to submit their comments. It also notified them to FT.
3.
Contested decision
On 3 August 2004, the Commission notified the French authorities of Decision 2006/621/EC of 2 August 2004 on the State aid implemented by France for FT (
OJ 2006 L 257, p. 11
; ‘the contested decision’).
Article 1 of the contested decision provides that ‘[p]laced in the context of the declarations ... from July 2002, the shareholder loan granted by [the French Republic] to [FT] in December 2002 in the form of a EUR 9 billion credit line constitutes State aid incompatible with the common market’.
In its response to a written question on the subject from the General Court in the present cases, the Commission stated that the reference in Article 1 of the contested decision to ‘the declarations ... from July 2002’ should be understood as including not only the declarations of 12 July, 13 September and 2 October 2002 but also the announcement of 4 December 2002. In paragraph 132 of its judgment of 19 March 2013 in
Bouygues and Others
v
Commission and Others
(C‑399/10 P and C‑401/10 P, ECR, ‘the judgment on appeal’,
EU:C:2013:175
), the Court of Justice did not consider the announcement of 4 December 2002 to be merely a matter of ‘context’, but held that the Commission had rightly found that, taken together, that announcement and the shareholder loan offer had conferred on FT an advantage involving the commitment of State resources.
Article 1 of the contested decision must therefore be read as characterising as State aid within the meaning of Article 87(1) EC the announcement of 4 December 2002 and the shareholder offer, taken together and in the context of the declarations made prior to that date, namely the declarations of 12 July, 13 September and 2 October 2002.
Under Article 2 of the contested decision, ‘[t]he aid referred to in Article 1 does not have to be recovered’.
In Section 3 ‘Chronological description of the facts and financial situation of [FT]’ of the contested decision, the Commission, in essence, made the findings set out below.
First, in recitals 17 to 34 of the contested decision the Commission found that, from June 2002 onwards, FT’s financial situation was characterised by serious structural problems and that the undertaking had an unbalanced balance sheet. In that regard, the Commission noted, on the one hand, a rapid worsening of FT’s credit rating during the first half of 2002 (recitals 20 to 27 of the contested decision), and, on the other, following an analysis of FT’s credit spreads, an increase in the risks associated with its very short-term debt, in particular at the beginning of July 2002, compared with the level of the risks associated with its medium- and long-term debt (recitals 28 to 30 of the contested decision). According to the Commission, the increase in the risk associated with FT’s debt was borne out by the fall in the price of FT’s bonds in June and July 2002, thus reflecting a lesser value of FT’s debt due to the increased risk of default perceived by the market (recital 31 of the contested decision). In addition, the Commission noted a significant fall in FT’s share price during the first half of 2002 (recital 35 of the contested decision).
Secondly, the Commission found that, on the date of the declaration of 12 July 2002, any further downgrade of the rating of FT’s debt would have led to the loss of its investment-grade rating and that the rating agencies S & P and Moody’s were about to downgrade that rating to junk-bond level. Having set out the content of S & P’s press release of the same date, the Commission thus concluded in recital 39 of the contested decision that, in July 2002, FT was facing a crisis of confidence threatening to hinder the planned refinancing and to create risks for its liquidity in 2003. It went on to say that the rating agencies had nevertheless maintained FT’s rating at investment grade ‘on the strength of the [French] State’s indications’.
Thirdly, the Commission stated that the conclusion set out in point 32 above had been confirmed retroactively in September 2002 when FT’s half-yearly accounts were published (recitals 40 to 50 of the contested decision). With regard to the declarations of 13 September and 2 October 2002 and the announcement of 4 December 2002, the rating agencies Moody’s and S & P had changed their assessment of the management of FT’s debt and noted an increase in market confidence (recitals 51 to 58 of the contested decision). In that regard, the Commission noted in particular that, in response to the announcement of 4 December 2002, S & P had on 17 December 2002 confirmed both that the French authorities’ support for FT, as consistently affirmed since July 2002, had been a key factor in maintaining the company’s investment-grade status and that that announcement had been proof of that support and of significant protection for FT’s creditors (see recital 58 of and footnotes 56 and 57 to the contested decision).
The Commission also noted that, following the FT capital increase in February and March 2003, the rating agencies had ceased to consider the French State’s support to be a key factor in FT’s credit rating (recital 61 of the contested decision). Thus, in February 2003 Moody’s stated (recital 61 of and footnote 58 to the contested decision):
‘The French Government has consistently stated its support for FT and its willingness to provide financial support if required, thereby addressing potential liquidity concerns. This support has been evidenced by ... providing a EUR 9 billion loan facility to FT, which pays cash interest, but is only repayable in FT’s equity, upon maturity in 18 months[’] time ... Moody’s factors [French] Government support into the Baa3 rating ... [T]he financial risk of the highly leveraged FT is not commensurate with investment grade (compensated by strong operational performance/implicit support of French Government).’
In Section 6 ‘Object of the present Decision’ of the contested decision, the Commission first of all noted in recital 185 of the decision that the notified measures could not be analysed ‘without having regard to the [French] Government’s declarations of July to September 2002’. By those declarations, the French authorities manifested their willingness to take appropriate steps to resolve FT’s financial difficulties. The shareholder loan offer was the concretisation of their intentions expressed previously.
In recital 186 of the contested decision, the Commission found as follows:
‘In the present case, the Commission notes that the measures of December 2002, which were the subject-matter of the notification, were preceded by several declarations and measures by the French authorities dating from July [2002]. Firstly, these declarations and measures make it possible to better understand the reasons for and scope of the December [2002] measures. Secondly, they definitely had an impact on the perception which the markets and economic operators had of [FT]’s situation in December [2002]. Inasmuch as the conduct of economic operators was itself influenced by the conduct of the State, it does not constitute an objective parameter for then judging the conduct of the State. These prior interventions must therefore be taken into account in analysing the presence of aid in the December [2002] measures.’
In recital 187 of the contested decision, the Commission noted that it was possible to view the successive declarations and measures of the French authorities from July 2002 onwards as ‘forming a set which took concrete shape in the December [2002] measures’.
Then, in recitals 188 to 191 of the contested decision, the Commission stated as follows:
‘(188)
The analysis of the present case suggests at first sight the existence of a time lag between the advantages for the Company, which were particularly distinct in July [2002], and the potential commitment of State resources, which seems to be more clearly established in December [2002]. Inasmuch as they clearly had an effect on the markets and conferred an advantage on [FT], the declarations by the Minister for Economic Affairs … may be characterised as aid. It would not be easy, however, to establish beyond all doubt whether the [12] July 2002 declaration … [was] of such a character as to commit, at least potentially, State resources. In this respect, the Commission has carefully analysed numerous legal arguments seeking to show, firstly, that such public declarations were equivalent from a legal standpoint to a State guarantee and, secondly, that they placed the State’s reputation on the line, with economic costs in the event of non-compliance. Taken as a whole, these elements might be thought to actually risk putting State resources in jeopardy (either by making the State liable towards investors, or by increasing the cost of future State transactions). The argument to the effect that the [12] July 2002 declaration … [is] aid is therefore innovative, but probably not without foundation.
(189)
The Commission does not, however, have sufficient evidence in the present case to establish irrefutably the existence of aid on the basis of this innovative argument. On the other hand, it does consider that it can establish the existence of aid elements by following a more traditional approach, taking as a basis the December [2002] measures which were the subject-matter of the notification.
(190)
For one thing, the existence of a commitment of State resources is clear in December [2002]. For another, the existence of an advantage for [FT] in December [2002] is also evident as soon as one takes account of the impact on the markets of the prior declarations and measures.
(191)
In this connection, the “private investor in a market economy” test cannot be used to justify this December [2002] intervention as the French authorities claim, inasmuch as economic operators’ conduct in December was clearly influenced by the prior actions and declarations of the Government since July [2002]. While it may be doubted that the [12] July [2002] declaration … w[as] sufficiently concrete to constitute aid in [itself], there is scarcely any doubt that such [a] declaration … w[as] more than sufficient to “contaminate” the markets’ perception and to influence economic operators’ subsequent conduct. If such is the case, this conduct on the part of economic operators cannot be taken as a neutral point of comparison from which to judge the [French] State’s conduct. The presumption based on the “private investor in a market economy” test cannot therefore take as [a] point of departure the market situation as it was in December [2002] but ought logically to be based on a market situation uncontaminated by the impact of the prior declarations.’
In Section 7 ‘Assessment of the measure at issue in the light of Article 87(1) [EC]’ of the contested decision, the Commission noted, in particular (recital 194 of the contested decision), the following:
‘[T]he shareholder loan [offer] (which constitutes the upfront prepayment by the [French] State towards [FT]’s recapitalisation) confers an advantage on [FT] as it enables it to increase its means of financing and to reassure the market as to its capacity to meet its maturities. Even if the [shareholder] loan agreement has never been signed, the appearance given to the market of the existence of such a loan is likely to confer an advantage on [FT] as the market has considered the Company’s financial situation to be more secure ... This may have influenced [FT]’s borrowing terms.’
In recital 196 of the contested decision, the Commission argued in its analysis of the condition for the commitment of State resources that ‘a potential additional burden on the State’s resources was created by the announcement of the provision of the shareholder loan coupled with the fulfilment of the preconditions for such provision ..., by the impression given to the market that the loan had actually been provided ... and, lastly, by the dispatch to [FT] of the loan contract initialled and signed by ERAP’. In the same recital, the Commission added that the fact that the shareholder loan contract had never been signed by FT did not mean that there was no potential commitment of State resources. FT could have signed it at any time, thereby acquiring the right to obtain immediate payment of the sum of EUR 9 billion.
After finding that the advantage thus conferred on FT distorted or threatened to distort competition and was likely to affect trade between Member States (recitals 198 to 201 of the contested decision), the Commission went on to examine, in Section 8 ‘Principle of the prudent private investor in a market economy’ of the contested decision, whether that principle had been observed taking into account all the declarations made by the French authorities during the months preceding the shareholder loan offer (recitals 203 to 230 of the contested decision). The content of those declarations and the impact they had on the market showed that the French State had decided as early as July 2002 to support FT (recital 203 of the contested decision).
In the light of the declarations from July 2002 and the announcement of 4 December 2002, the Commission concluded, in essence, that ‘[t]aken as a whole, these declarations [could] be regarded as having made public the [French] State’s intention whereby, if [FT] had any financing problems or financial difficulties, it, the State, would do whatever was necessary to overcome them’ and as making plain the State’s commitment in that regard. Those public declarations, which were repeated, concordant and attributable to the French State, were sufficiently clear, precise and firm for them to reflect in a credible manner the latter’s unconditional commitment, in particular towards the world of finance and industry, which would have construed them thus (recitals 206 to 213 and 217 of the contested decision). Moreover, in addition to those public declarations, the French authorities also contacted the ‘main market operators’, such as S & P, in order to inform them of their intentions and rapidly restore market confidence, thereby preventing the downgrading of FT’s debt rating to junk-bond status (recital 212 of the contested decision).
In recitals 214 to 218 of the contested decision, the Commission examined ‘the question whether, under domestic law, a private investor who has made the same declarations as the [French] State would be obliged to keep his promises’. First of all, it considered that it could not rule out at that stage that the declarations at issue may have binding force under French administrative, civil, commercial and criminal law as well as under the law of the State of New York (USA). It went on to say that those declarations were entirely likely to be considered credible by the market and as a result created an expectation on the part of the latter that the French State ‘w[ould] do everything necessary to resolve any financial difficulties that [FT] may face’. According to the Commission, ‘[a]ny failure by the [French] State to fulfil that expectation would have directly affected its reputation in its capacity as owner, shareholder or manager of companies, whether quoted or not, and in its capacity as issuer of bonds to finance the public debt’ (recital 217 of the contested decision). Thus, those declarations were the expression of a strategy based on the reputation of the State, consisting in entering into credible commitments in the short and long term. Consequently, those factors could ‘be deemed to actually endanger State resources (either by incurring the State’s responsibility vis-à-vis investors or by increasing the cost of the State’s future transactions)’ and ‘the argument to the effect that the declarations as from July 2002 are aid is therefore innovative, but probably not without foundation’ (recital 218 of the contested decision).
In recital 219 of the contested decision, the Commission nevertheless concluded that it could not ‘establish irrefutably the existence of aid on this basis’. It did, ‘on the other hand’, consider ‘that it [could] demonstrate the presence of aid elements in a more conventional manner taking as a basis the December 2002 measures which were the subject of the notification’. In that respect, it was sufficient‘to establish that the prior declarations had a real impact on the perception of the markets in December [2002], without having to characterise these ... declarations as being in themselves State aid.’
Relying inter alia on the report of 28 April 2004, which referred to an abnormal and not negligible increase in the value of FT’s shares and bonds following the declaration of 12 July 2002, on S & P’s press release of the same date and on the Deutsche Bank report of 22 July 2002, the Commission concluded that ‘the market regarded [the] declarations [by the French authorities] as a credible strategy of commitment by the [French] State to support FT’ (recitals 220 and 221 of the contested decision).
In recital 222 of the contested decision, the Commission added that those declarations had had a major impact on the market. They had helped to restore the financial markets’ confidence and been decisive in maintaining FT’s investment-grade credit quality. A downgrading of FT’s credit rating would have rendered the shareholder loan offer improbable and certainly much more costly.
According to the Commission, ‘[t]he fact that the measures notified in December [2002], viewed separately, may create the illusion of perfectly rational transactions does not alter the fact that the behaviour of economic operators in December was clearly influenced by the actions and declarations made by the [French] State beforehand, notably from July 2002, signalling the [French] State’s intention to mitigate [FT]’s financing problems’ (recital 225 of the contested decision). In that sense, the French authorities’ decision to act upfront of FT’s recapitalisation by granting a credit line constituted a concretisation of their declarations (recital 226 of the contested decision).
According to the Commission, the fact that the operation to recapitalise FT, carried out in April 2003, was a success and the shareholder loan offer was never actually made is not decisive. In applying the prudent private investor criterion, the basis of assessment must be the information the investor has at his disposal at the time he takes his investment decision. Moreover, ‘in applying the concomitance criterion’ the Commission ‘cannot base the assessment of the State’s conduct on the conduct of other economic operators’ in so far as their conduct and the market were influenced by the French authorities’ declarations. In the Commission’s view, ‘[t]he [French] State’s declarations, made in July and then repeated, to the effect that it would take the necessary steps to enable [FT] to overcome its financing difficulties distort the concomitance test in so far as private investors cannot be considered to have made up their minds on the sole basis of [FT]’s situation. This holds true irrespective of whether those declarations contain State aid or not’. The application of the prudent private investor criterion cannot be based on the market situation in December 2002, but must logically be based ‘on the situation of a market uncontaminated by prior declarations and interventions’ (recital 227 of the contested decision).
However, ‘it would appear’ that, if the investment decisions in question are examined in the context of the situation prior to July 2002, they do not satisfy the prudent private investor criterion (recital 228 of the contested decision). At that time, FT was operating in a difficult economic context and had lost the confidence of the markets, and the French authorities had not yet taken any steps to improve FT’s operations and results, commissioned any in-depth audit, appointed a new management team or prepared a recovery plan for the company. In those circumstances, it is ‘improbable that a private investor would, from July 2002, have made declarations similar to those made by the French Government, likely as they were, from a purely economic point of view, … seriously [to] place his credibility and reputation on the line and, from a legal point of view, … even [to] oblige him from that date to support [FT] financially come what may’. In so doing, such an investor would have assumed a very considerable risk vis-à-vis FT, without being indemnified or compensated. Even a reference shareholder in possession of the same information as that which the French authorities had at their disposal at the time would not have made a declaration of support for FT in July 2002 without first carrying out a thorough audit of FT’s financial situation and taking any measures necessary for its recovery in order to be able to assess the scale of the risk and the remuneration prospects involved in such a step. In any event, such a reference shareholder would have needed the financial markets’ help in putting right FT’s situation. However, those markets ‘did not at that time seem prepared to invest in or grant much in the way of credit to [FT]’ (recital 229 of the contested decision).
Thus, according to the Commission, ‘[i]t is unlikely that a prudent private investor in the same position as the French State would, in the light of [FT]’s economic situation and the unavailability of any clear, comprehensive information thereon, have made any declarations of support for [FT] in July 2002’. It was even less likely that a prudent private investor ‘would have granted a shareholder loan, taking on himself alone a very substantial financial risk’ (recital 229 of the contested decision).
The Commission concluded from all the above that ‘the [criterion] of the prudent private investor in a market economy [was] not satisfied’ and that, ‘[c]onsequently, the advantage conferred on [FT] by the … shareholder loan [offer] — examined in the light of the prior declarations and interventions of the French authorities — constitute[d] State aid, even if the scale of the advantage [was] difficult to calculate’ (recital 230 of the contested decision).
In Section 9 ‘Compatibility of the aid’ of the contested decision, the Commission considered that the aid measures at issue did not fulfil the conditions for authorisation laid down in its Notice concerning the Community Guidelines on State aid for rescuing and restructuring firms in difficulty (
OJ 1999 C 288, p. 2
) (recitals 231 to 255 of the contested decision). It therefore concluded that the measures constituted State aid incompatible with the common market (recital 256 of the contested decision).
In Section 10 ‘Recovery of the aid’ of the contested decision, the Commission declared that it was unable at that stage to quantify precisely the aid in question or to incorporate into the contested decision parameters which were sufficiently precise to enable the French Republic to make that quantification subsequently. It considered that respect for the rights of the defence and the principle of the protection of legitimate expectations precluded recovery of the aid pursuant to Article 14 of Regulation No 659/1999 (recitals 257 to 264 of the contested decision).
Earlier proceedings before the General Court and the Court of Justice
1.
Earlier proceedings before the General Court
By applications lodged at the Court Registry on 13 October 2004 (Case T‑425/04), 5 November 2004 (Case T‑444/04) and 9 November 2004 (Case T‑450/04) respectively, the French Republic, FT and the Bouygues companies each brought an action for annulment of the contested decision in its entirety. By an application lodged at the Court Registry on 12 November 2004 (Case T‑456/04), AFORS brought an action for annulment of Article 2 of that decision.
By order of 30 January 2008, the President of the Third Chamber of the Court granted the Bouygues companies leave to intervene in the oral procedure in Case T‑444/04 in support of the forms of order sought by the Commission.
On 13 February 2008, pursuant to Article 14 of the Rules of Procedure of the General Court of 2 May 1991 and on the proposal of the Third Chamber, the Court, having heard the parties in accordance with Article 51 of those Rules, decided to reassign Cases T‑425/04, T‑444/04, T‑450/04 and T‑456/04 to a Chamber sitting in extended composition.
By order of the President of the Third Chamber, Extended Composition, of the Court of 17 February 2009, the four cases were joined for the purposes of the oral stage of the procedure and the judgment, in accordance with Article 50 of the Rules of Procedure of 2 May 1991.
By judgment of 21 May 2010 in
France and Others
v
Commission
(T‑425/04, T‑444/04, T‑450/04 and T‑456/04, ECR, ‘judgment of 21 May 2010’,
EU:T:2010:216
), the Court annulled Article 1 of the contested decision and ruled that there was no need to adjudicate on the claims for annulment of Article 2 of that decision.
As regards the application for annulment of Article 1 of the contested decision, in the first place, the Court rejected the pleas of inadmissibility raised by the Commission in Cases T‑425/04, T‑444/04 and T‑450/04 and found that there was no need to rule on the plea of inadmissibility raised by FT in Case T‑456/04 against an alleged application by AFORS for annulment of Article 1 of the contested decision (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraphs 111 to 134).
In the second place, the Court examined together the second and third pleas raised in Cases T‑425/04 and T‑444/04 and the first and second pleas put forward against Article 1 of the contested decision in Case T‑450/04, in so far as all those pleas concerned, in essence, the concept of aid within the meaning of Article 87(1) EC (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraphs 212 to 326).
In that regard, the Court first drew attention to certain principles concerning the concept of aid and the scope of the judicial review to be carried out (judgment of 21 May 2010, paragraphs 212 to 220). It pointed out in particular that the parties had acknowledged at the hearing that application of the prudent private investor criterion necessarily presupposes that the measures taken by the State in favour of an undertaking confer an advantage deriving from State resources (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraph 217).
Secondly, the Court examined whether the declarations from July 2002 and the shareholder loan offer, considered in isolation or together, had conferred one or more advantages on FT (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraphs 222 to 260).
In that regard, after making some preliminary observations and defining the concept of advantage as implying that the State measure must have the consequence of an improvement in the economic or financial position of the beneficiary (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraphs 222 to 231), the Court initially ascertained whether the declarations from July 2002 and the announcement of 4 December 2002 involved in themselves the conferment of such an advantage on FT (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraphs 232 to 242). In that regard, the Court held, in essence, that the Commission had demonstrated satisfactorily that, taken together, the declarations and the announcement had conferred an appreciable advantage on FT inasmuch as they had enabled the financial markets to regain confidence, made it possible, easier and cheaper for FT to gain access to new loans necessary in order to refinance its short-term debts to the amount of EUR 15 billion and had, in the end, helped to stabilise its very fragile financial situation. The Court held that, in those circumstances, there was no need to rule on the question whether the declarations from July 2002 also involved an advantage for FT by exerting a positive influence on its share and bond prices.
The Court then examined whether the shareholder loan offer on its own had produced an additional and separate advantage for FT, before concluding that the Commission had not established to the required legal standard that such was the case (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraphs 243 to 258). On the one hand, the Court held that the additional advantage referred to by the Commission in recital 194 of the contested decision was manifestly indissociable from that deriving from the declarations from July 2002 and, in particular, from that associated with the announcement of 4 December 2002. In that regard, it pointed out in particular that the dispatch of the shareholder loan offer on 20 December 2002 was not made public separately and in addition to the announcement, made on 4 December 2002, of that offer. On the other hand, the Court found that the Commission had not established to the required legal standard that the mere option for FT to use, unilaterally and unconditionally, the EUR 9 billion credit line which was the subject-matter of the shareholder loan offer constituted an advantage for it, even though the draft contract was never signed by it and never performed. In that regard, it noted that the Commission had neither established nor demonstrated any improvement in FT’s economic position which could result from the ‘contractual offer’ constituted by the shareholder loan offer as distinct from the situation in which it found itself, in particular, following the opportunity which had become available to it to refinance its debts to the amount of EUR 9 billion under the conditions prevailing at the time on the bond market.
Thirdly, the Court examined the condition that there should be a transfer of State resources (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraphs 262 to 313). It stated in paragraph 262 of the judgment of 21 May 2010, cited in paragraph 58 above (
EU:T:2010:216
), that there was a requirement of a connection between the advantage identified and the commitment of State resources, so that the advantage in question must be closely linked to a corresponding charge included in the State budget or to the creation, on the basis of legally binding obligations entered into by the State, of a sufficiently real economic risk to that budget.
First of all, the Court concluded that the declarations from July 2002 did not involve any commitment of State resources and rejected the Bouygues companies’ application for annulment of Article 1 of the contested decision inasmuch as the Commission refused to characterise those declarations as State aid (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraphs 268 to 290). The Court reached that conclusion having noted in particular that because of their open-ended, imprecise and conditional character, in particular as regards the nature, scope and conditions of any State intervention in favour of FT, and in the light of the factual context in which they were made, those declarations could not be treated in the same way as a State guarantee or interpreted as disclosing an irrevocable commitment to provide specific financial assistance for FT or as exposing the resources of the French State to a risk consequent on a transfer of such resources.
The Court then went on to make an individual examination of the announcement of 4 December 2002 (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraphs 293 to 298). It considered that it was not its task to ascertain whether that announcement, in itself, contained a sufficiently precise, firm and unconditional and, therefore, legally binding commitment supporting a finding of the existence of a transfer of State resources, since neither the Commission nor the Bouygues companies had raised such an argument or adduced any relevant and conclusive evidence in that connection (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraphs 293 to 295).
In paragraph 296 of the judgment of 21 May 2010, cited in paragraph 58 above (
EU:T:2010:216
), the Court added that, in any event, a transfer of State resources resulting from that announcement could correspond only to an advantage residing in the opening of the EUR 9 billion credit line expressly envisaged in that announcement. However, on the one hand, the Commission had failed to characterise, to the required legal standard, such an advantage in the contested decision and, on the other hand, that advantage was separate from that deriving from the declarations from July 2002, as found in that decision. In paragraph 297 of the same judgment, the Court pointed out that the requirement of a connection between the advantage identified and the transfer of State resources presupposes that the advantage in question corresponds to an equivalent charge included in the State budget, going on to note that that did not apply in this case as regards the relationship between the advantage found in the contested decision, which resulted from the declarations from July 2002, on the one hand, and the alleged transfer of public resources consisting in the opening of a EUR 9 billion credit line, as envisaged in the announcement on 4 December 2002, on the other.
The Court therefore concluded, in paragraph 298 of the judgment of 21 May 2010, cited in paragraph 58 above (
EU:T:2010:216
), that the Commission had not demonstrated that the announcement of 4 December 2002 involved a transfer of State resources.
Furthermore, regarding the shareholder loan offer, the Court held, in paragraph 299 of the judgment of 21 May 2010, cited in paragraph 58 above (
EU:T:2010:216
), that, in so far as the Commission had not established satisfactorily an advantage deriving from the offer, it was not,
a fortiori
, possible for the Court to find the existence of any transfer of State resources linked to that advantage.
Finally, in paragraphs 302 to 309 of the judgment of 21 May 2010, cited in paragraph 58 above (
EU:T:2010:216
), the Court examined whether the Commission could nevertheless find, on the basis of an overall examination of the declarations from July 2002, in conjunction with the announcement of 4 December 2002 and the shareholder loan offer, that the criterion of transfer of State resources was satisfied in this case.
In that regard, the Court found in paragraphs 303 and 304 of the judgment of 21 May 2010, cited in paragraph 58 above (
EU:T:2010:216
) that the declarations from July 2002 did not in themselves contain the anticipation of specific financial support on the lines of that which took concrete form in December 2002, but, unlike the announcement of 4 December 2002, had an open-ended, imprecise and conditional character as regards the nature, scope and conditions of any future intervention by the French State. The French State’s decision in December 2002 to announce and put forward a shareholder loan offer therefore amounted to a significant break in the series of events which led to the refinancing of FT. In paragraph 305 of the same judgment, the Court rejected the Commission’s argument that the shareholder loan offer was the concrete embodiment of the French State’s earlier declarations.
The Court also found, in paragraph 307 of the judgment of 21 May 2010, cited in paragraph 58 above (
EU:T:2010:216
), that the Commission could not free itself from its duty to identify a specific advantage involving a corresponding transfer of State resources. It added in paragraph 308 of that judgment that, in view of the significant break in the series of events and in the conduct of the French authorities in December 2002, the Commission was not entitled to establish a link between any commitment of State resources at that stage and advantages conferred by earlier measures, namely the declarations from July 2002,
a fortiori
because those measures were substantially different in character from those taken in December 2002. Such a link between the constituent elements of the concept of aid in the case of separate facts which occurred at different stages would be contrary to the requirement of a connection between the advantage and the transfer of State resources.
The Court concluded from this, in paragraph 309 of the judgment of 21 May 2010, cited in paragraph 58 above (
EU:T:2010:216
) that even though it was permissible for the Commission to take account of all the events which preceded and influenced the final decision taken by the French State in December 2002 to support FT by means of a shareholder loan offer in order to characterise an advantage, it had failed to demonstrate the existence of a transfer of State resources connected to that advantage. According to the Court, the fact that the declarations from July 2002 and the announcement of 4 December 2002 resulted in the advantage for FT that they restored the confidence of the financial markets and improved the terms of its refinancing was not offset by a corresponding reduction of the State budget or a sufficiently concrete economic risk of burdens on that budget. The Court noted in particular that that advantage was separate from that which the shareholder loan offer was likely to involve and which the contested decision had failed to establish satisfactorily.
Consequently, the Court found, in paragraph 310 of the judgment of 21 May 2010, cited in paragraph 58 above (
EU:T:2010:216
), that the Commission had failed to apply the concept of State aid within the meaning of Article 87(1) EC by finding that the shareholder loan offer, when placed in the context of the declarations from July 2002, involved the conferment of an advantage on FT which resulted from a transfer of State resources. Accordingly, the Court, on the one hand, upheld the second part of the second plea and the third plea raised by the French Republic and FT, in so far as that part and that plea criticised the application of the concept of aid and, on the other, held that it was not necessary to examine the first part of the second plea and the third plea put forward by the French Republic and FT in so far as that part and that plea disputed the lawfulness of the Commission’s application of the prudent private investor criterion (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraphs 311 and 312). It also held that, given that Article 1 of the contested decision was to be annulled for error of law and manifest errors of assessment in the application of Article 87(1) EC, there was no need to examine the first plea put forward by the French Republic and FT or the fourth plea put forward by the French Republic (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraph 313).
In the third place, the Court examined and dismissed the second plea put forward by the Bouygues companies in Case T‑450/04, alleging inconsistency and failure to state adequate reasons, contrary to Article 253 EC (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraphs 314 to 324).
In the light of all the foregoing considerations, the Court annulled Article 1 of the contested decision on the grounds of unlawfulness put forward in the second and third pleas raised by the French Republic and FT (judgment of 21 May 2010, cited in paragraph 58 above,
EU:T:2010:216
, paragraph 326).
Finally, in paragraphs 327 to 330 of the judgment of 21 May 2010, cited in paragraph 58 above (
EU:T:2010:216
), the Court found that in the light of the annulment of Article 1 of the contested decision, on the basis of the pleas which the French Republic and FT put forward in Cases T‑425/04 and T‑444/04, their claims, that of the Bouygues companies in Case T‑450/04 and that of AFORS in Case T‑456/04 for annulment of Article 2 of that decision had lost their purpose. It therefore held that there was no need to adjudicate on those claims for annulment.
2.
Earlier proceedings before the Court of Justice
By applications lodged at the Registry of the Court of Justice on 4 and 3 August 2010 respectively, the Bouygues companies (C‑399/10 P) and the Commission (C‑401/10 P) appealed against the judgment of 21 May 2010, cited in paragraph 58 above (
EU:T:2010:216
).
By orders of 28 February 2011, the President of the Court of Justice granted leave to the Federal Republic of Germany to intervene in those two cases in support of the form of order sought by the French Republic.
By order of 8 September 2011, the President of the Court of Justice joined those cases for the purposes of the oral stage of the procedure and judgment.
By the judgment on appeal, the Court of Justice set aside the judgment of 21 May 2010, referred Cases T‑425/04, T‑444/04 and T‑450/04 back to the General Court for judgment on the pleas raised and the claims brought before it on which it had not given a ruling, and reserved the costs.
In the first place, the Court of Justice ruled on the appeals.
In that context, the Court of Justice first examined the Bouygues companies’ first ground of appeal, alleging an overly restrictive interpretation of the concept of State aid, a distortion of French law and an error in the legal characterisation of the facts, allegedly committed by the General Court when it rejected their arguments seeking to show that the Commission had erred in law by refusing to characterise the declarations from July 2002 as State aid (judgment on appeal, paragraphs 67 to 79).
In that regard, in paragraph 76 of the judgment on appeal the Court of Justice noted that the contested decision did not deal with the Bouygues companies’ complaint of 22 January 2003 in so far as they argued that the declarations from July 2002 constituted, in themselves, State aid. It noted in particular that those declarations had been taken into consideration only inasmuch as they were objectively relevant for the assessment of the shareholder loan offer and that the Commission had therefore examined them only in so far as they formed the context of that aid (judgment on appeal, paragraphs 73 to 75).
Thus, in paragraph 77 of the judgment on appeal, the Court of Justice stated that the General Court had erred in law by holding, in paragraphs 128 and 131 of the judgment of 21 May 2010, that Article 1 of the contested decision contained the Commission’s refusal to characterise the declarations from July 2002 as State aid. The Commission’s failure to express a view on the characterisation of these declarations, in themselves, as State aid, following the complaint by the Bouygues companies, clearly could not be regarded per se as a decision rejecting their claims.
The Court of Justice found, in paragraph 78 of the judgment on appeal, that the General Court had thus made an assessment of questions on which the Commission had not yet stated its position and confused different administrative and judicial procedural stages, which was incompatible with the system of the division of powers between the Commission and the Court of Justice and of the remedies laid down by the Treaty and with the requirements of the sound administration of justice. On that basis, it found in paragraph 79 of the judgment on appeal that the first ground of appeal raised by the Bouygues companies was ineffective.
Secondly, the Court of Justice examined together the first part of the second ground of appeal raised by the Bouygues companies and the first part of the Commission’s second ground of appeal, alleging errors in law concerning the characterisation as State aid of the announcement of 4 December 2002 and the shareholder loan offer, taken together. In essence, those parties criticised the General Court for erring in law by requiring, for the purposes of establishing the existence of State aid, a close connecting link between, on the one hand, an advantage that would have to be identified separately for the announcement of 4 December 2002 and for the shareholder loan offer and, on the other, a commitment of State resources equivalent and corresponding to one or other of the advantages thus identified.
In paragraph 97 of the judgment on appeal, the Court of Justice noted that the General Court had taken the view, first, that, for each State intervention measure, the Commission was obliged to examine individually whether it conferred a specific advantage through State resources and, secondly, that only a reduction of the State budget or a sufficiently concrete economic risk of burdens on that budget, closely linked and corresponding to an advantage thus identified, complied with the condition relating to financing through State resources within the meaning of Article 87(1) EC.
First of all, the Court of Justice began by examining the first of the General Court’s assessments referred to in paragraph 89 above (judgment on appeal, paragraphs 98 to 105). In that regard, the Court of Justice stated in particular that, as State interventions take various forms and have to be assessed in relation to their effects, it cannot be excluded that several consecutive measures of State intervention must, for the purposes of Article 87(1) EC, be regarded as a single intervention (judgment on appeal, paragraph 103). According to the Court of Justice, that could be the case in particular where consecutive interventions, especially having regard to their chronology, their purpose and the circumstances of the undertaking at the time of those interventions, are so closely linked to each other that they are inseparable from one another (judgment on appeal, paragraph 104). The Court of Justice concluded from this that, having found that it was necessary to identify a reduction of the State budget or a sufficiently concrete economic risk of burdens on that budget, closely linked and corresponding to, or having as a counterpart, a specific advantage deriving either from the announcement of 4 December 2002 or from the shareholder loan offer, the General Court erred in law by applying a test that immediately excludes those State interventions, depending on their links with one another and their effects, from being regarded as a single intervention (judgment on appeal, paragraph 105).
The Court of Justice then examined the second of the General Court’s assessments referred to in paragraph 89 above (judgment on appeal, paragraphs 106 to 110). In that regard, the Court of Justice stated, in essence, that while, for the purposes of establishing the existence of State aid, the Commission must establish a sufficiently direct link between, on the one hand, the advantage given to the beneficiary and, on the other, a reduction of the State budget, or a sufficiently concrete economic risk of burdens on that budget, it is not, however, necessary that such a reduction, or even such a risk, should correspond or be equivalent to that advantage, or that the advantage has as its counterpoint such a reduction or such a risk, or that it is of the same nature as the commitment of State resources from which it derives (judgment on appeal, paragraphs 109 and 110).
The Court of Justice therefore concluded, in paragraph 111 of the judgment on appeal, that the General Court had erred in law, both in its review of the Commission’s identification of the State intervention measure conferring State aid and in the examination of the links between the advantage identified and the commitment of State resources found by the Commission. It therefore set aside the contested judgment, noting that there was no need to examine the other grounds of appeal (judgment on appeal, paragraphs 113 and 114).
In the second place, the Court of Justice considered that it had the necessary information to give final judgment, first, on the application for annulment of Article 1 of the contested decision, in that the Commission had refused to characterise the declarations from July 2002 as State aid, in Case T‑450/04, and, secondly, on the second part of the second plea and the third plea raised by the French Republic and by FT in support of their actions in Cases T‑425/04 and T‑444/04 in so far as that part and that plea were directed against the finding made in the contested decision of an advantage conferred on FT by the French State (judgment on appeal, paragraphs 116 to 142).
Regarding the first aspect, in paragraph 118 of the judgment on appeal the Court of Justice held that the pleas in the application in Case T‑450/04 seeking annulment of Article 1 of the contested decision, in that the Commission refused to characterise the declarations from July 2002 as State aid, were ineffective.
As regards the second aspect, first, in paragraph 126 of the judgment on appeal the Court of Justice pointed out that it followed in particular from recitals 188 and 189 of the contested decision that the Commission had not based its finding of the existence of State aid on a commitment which the French State gave when it made the 12 July 2002 declaration.
Secondly, in paragraph 129 of the judgment on appeal, the Court of Justice concluded from certain passages of recitals 194 and 196 of the contested decision that the Commission had considered that the announcement of 4 December 2002 and the shareholder loan offer, taken together, had conferred an advantage entailing the commitment of State resources within the meaning of Article 87(1) EC. Then, in paragraphs 130 and 131 of that judgment, the Court of Justice, referring to paragraphs 103 and 104 of the same judgment, held that the Commission had been right to examine those two measures together, given that the first was clearly inseparable from the second.
Thirdly, in paragraphs 132 to 136 of the judgment on appeal, the Court of Justice held that the Commission had rightly found that the shareholder loan offer, announced and notified on 4 December 2002, conferred on FT an advantage within the meaning of Article 87(1) EC by allowing it to increase its means of financing and to reassure the market as to its capacity to meet its maturities. As to the condition relating to the commitment of State resources, in paragraph 137 of the judgment on appeal the Court of Justice held that the shareholder loan offer concerned the opening of a credit line of EUR 9 billion and that while it was true that FT had not signed the loan agreement sent to it, it could have signed it at any time, thereby acquiring the right to obtain immediate payment of that sum. In paragraph 138 of the same judgment, the Court of Justice noted that the Commission had pointed out in the contested decision that, on 5 December 2002, FT had in a presentation to investors described the French State’s ‘back-up facility’ as being immediately available, that on the same day S & P had announced that the French State would immediately grant a shareholder loan, that it had been indicated to the Finance Committee of the French National Assembly that the shareholder loan ‘[had] already been made available to FT’ and that Moody’s had announced on 9 December 2002 that it was confirmed that ‘the EUR 9 billion loan facility [had] been put in place’. In paragraph 139 of that judgment, the Court of Justice concluded that, having regard to the potential additional burden of EUR 9 billion on the State’s resources, the Commission had rightly found that the advantage referred to above had been granted through State resources within the meaning of Article 87(1) EC.
Finally, in paragraphs 140 and 141 of the judgment on appeal, the Court of Justice ruled that the state of the proceedings did not permit a decision by that Court in relation to the second and third pleas relied upon by the French Republic and FT, in so far as those pleas were directed against the Commission’s application of the prudent private investor criterion. It held that the same applied to the first plea relied upon by the French Republic and FT, alleging infringement of an essential procedural requirement and the rights of defence, and to the fourth plea of the French Republic, alleging a failure to state adequate reasons, and, accordingly, to the claim by the Bouygues companies for the annulment of Article 2 of the contested decision. Consequently, in paragraph 142 of the judgment on appeal, the Court of Justice decided to refer Cases T‑425/04, T‑444/04 and T‑450/04 back to the General Court for judgment on the above part and the above pleas raised, and on the claim before it on which the Court of Justice had not given a ruling.
Procedure and forms of order sought by the parties following referral of the case
Further to the judgment on appeal, Cases T‑425/04 RENV, T‑444/04 RENV and T‑450/04 RENV were assigned to the First Chamber, Extended Composition, of the General Court.
On 31 May 2013 the French Republic, in Case T‑425/04 RENV, and FT, in Case T‑444/04 RENV, and, on 17 July 2013 the Commission, in both those cases, submitted written observations in accordance with Article 119(1) of the Rules of Procedure of 2 May 1991. The Federal Republic of Germany waived the right to submit observations in these cases.
By letter of 22 July 2013, FT informed the General Court that it had changed its business name to Orange on 1 July 2013.
The composition of the chambers of the General Court having been changed, the Judge-Rapporteur was assigned to the Fourth Chamber of the General Court and Cases T‑425/04 RENV, T‑444/04 RENV and T‑450/04 RENV were reassigned to the Fourth Chamber, Extended Composition, of the Court.
Since the Judge-Rapporteur was prevented from sitting, the President of the General Court reassigned the case to another Judge-Rapporteur and the above cases were reassigned to the Sixth Chamber, Extended Composition, of the Court.
By orders of the President of the Sixth Chamber, Extended Composition, of the Court of 27 June 2014, the Bouygues companies were removed from Case T‑444/04 RENV as interveners in support of the forms of order sought by the Commission and Case T‑450/04 RENV was removed from the register of the General Court, since they had withdrawn their intervention and their appeal.
By order of the President of the Sixth Chamber, Extended Composition, of the Court of 15 July 2014, Cases T‑425/04 RENV and T‑444/04 RENV were joined for the purposes of the oral procedure and the judgment.
On a proposal by the Judge-Rapporteur, the Court (Sixth Chamber, Extended Composition) decided to open the oral stage of the procedure. In the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, it invited the French Republic and the Commission to answer certain questions in writing, which they did within the prescribed period.
By letter of 8 August 2014, the Federal Republic of Germany informed the Court that it would not be present at the hearing.
At the hearing on 24 September 2014, the parties presented oral argument and answered the questions put to them by the Court.
In Case T‑425/04 RENV, the French Republic, supported by the Federal Republic of Germany, claims that the Court should:
—
annul the contested decision in its entirety;
—
order the Commission to pay the costs.
In Case T‑425/04 RENV, the Commission contends that the Court should:
—
dismiss the action as unfounded;
—
order the French Republic to pay the costs.
In Case T‑444/04 RENV, FT claims that the Court should:
—
annul the contested decision;
—
order the Commission to pay the costs.
In Case T‑444/04 RENV, the Commission contends that the Court should:
—
dismiss the action as unfounded;
—
order FT to pay the costs.
At the hearing, the Commission also contended that the Court should dismiss the action in Case T‑444/04 RENV as inadmissible.
In Law
1.
Admissibility of the action in Case T‑444/04 RENV
At the hearing, the Commission pleaded that the action brought by FT in Case T‑444/04 RENV was inadmissible for lack of a legal interest in bringing proceedings. It argued that since the Bouygues companies had discontinued their action and the judgment on appeal had not referred Case T‑456/04 back to the General Court, Article 2 of the contested decision was no longer the subject of an application for annulment and there was therefore no specific, vested and present risk that FT would be required to repay the aid at issue.
It should first of all be noted that, contrary to the Commission’s argument, Article 2 of the contested decision is still the subject-matter of actions for annulment, since both the French Republic and FT are seeking annulment of the contested decision in its entirety. That application for annulment of Article 2 of the contested decision will be examined in paragraphs 264 to 270 below.
Then, as regards FT’s application for the annulment of Article 1 of the contested decision, it should be pointed out that it is settled case-law that the interest in bringing proceedings must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (judgment of 7 June 2007 in
Wunenburger
v
Commission
, C‑362/05 P, ECR,
EU:C:2007:322
, paragraph 42, and order of 7 December 2011 in
Fellah
v
Council
, T‑255/11,
EU:T:2011:718
, paragraph 12).
In the present case, on the one hand, it must be pointed out that Article 1 of the contested decision is intended to produce mandatory legal effects for FT, in that FT is the sole beneficiary of the aid measure which is found therein to be incompatible with the common market.
On the other hand, regardless of whether or not FT is still at any risk of having to repay the aid at issue, it must be borne in mind that annulment of Article 1 of the contested decision on the basis of the pleas relied on by that undertaking would have the consequence of invalidating the finding that that aid measure, an individual measure in its favour, is unlawful, which constitutes a legal consequence changing its legal position and procuring an advantage to it.
In any event, it follows from the case-law that an applicant party may retain an interest in claiming the annulment of an act of an institution, first, to prevent its alleged unlawfulness recurring in the future (see judgment of 7 June 2007 in
Wunenburger
v
Commission
, C‑362/05 P, ECR,
EU:C:2007:322
, paragraph 50 and case-law cited) and, secondly, to obtain a finding by the courts of the European Union that it has been the victim of an unlawful act, so that such a finding may form the basis for a possible action for damages to obtain adequate compensation for the harm caused by the contested act (see, to that effect, judgments of 5 March 1980 in
Könecke Fleischwarenfabrik
v
Commission
, 76/79, ECR,
EU:C:1980:68
, paragraphs 8 and 9, and of 31 March 1998 in
France and Others
v
Commission
, C‑68/94 and C‑30/95, ECR,
EU:C:1998:148
, paragraph 74).
It follows from the foregoing considerations that FT continues to have a vested and present interest in the annulment of Article 1 of the contested decision. It is therefore necessary to reject the plea of inadmissibility raised by the Commission at the hearing and directed against that undertaking’s action.
2.
The claim for annulment of Article 1 of the contested decision
Preliminary observations
In Case T‑425/04, the French Republic raised four pleas in support of its action, all of them directed against Article 1 of the contested decision, namely: (i) infringement of essential procedural requirements and of the rights of the defence; (ii) errors of law in the application of the concept of aid within the meaning of Article 87(1) EC, and more specifically of the prudent private investor criterion; (iii) manifest errors in the assessment of the content or alleged effects of the declarations from July 2002 and; (iv) failure to state reasons within the meaning of Article 253 EC. In its written observations of 31 May 2013, the French Republic states that it maintains the first and fourth pleas in their entirety and the second and third pleas in so far as they concern the application of the prudent private investor criterion.
In Case T‑444/04, FT had raised three pleas in support of its action, all three of them also directed against Article 1 of the contested decision, corresponding, in essence, to the first three pleas relied upon by the French Republic in Case T‑425/04. In its written observations of 31 May 2013, FT states that it maintains the first plea in its entirety and the second and third pleas in so far as they concern the application of the prudent private investor criterion.
Regarding the pleas so outlined, the French Republic and FT in their written observations of 31 May 2013 and the Commission in its written observations of 17 July 2013 refer to the arguments which they had put forward in their pleadings in Cases T‑425/04 and T‑444/04 and formulate a number of additional arguments in the light of the findings made by the Court of Justice in the judgment on appeal.
The General Court considers that it is desirable to examine, first of all, the first plea and then the second and third pleas together, since the latter are both concerned with the application of the prudent private investor criterion.
The first plea, alleging infringement of essential procedural requirements and of the rights of the defence
The first plea raised by the French Republic and FT has two parts, alleging, first, infringement of essential procedural requirements and, secondly, infringement of the rights of the defence.
Infringement of essential procedural requirements
– Arguments of the parties
The French Republic and FT complain that the Commission has infringed essential procedural requirements by failing to extend the formal investigation procedure to include the declaration of 12 July 2002. They claim that the declaration was not covered by the opening decision, although, as is clear from recitals 192 to 230 of the contested decision, it is the ‘central point’ in demonstrating the existence of alleged State aid in this case and therefore a ‘relevant issue of fact and law’ for the purposes of Article 6(1) of Regulation No 659/1999.
The French Republic adds that the Commission cannot use the fact that the French authorities have commented at length on the observations from interested third parties and the report of 28 April 2004, which concerned the declaration of 12 July 2002, as an argument since such observations or such a report cannot extend the scope of a procedure opened by the Commission and release it from the necessity of extending the procedure formally.
The French Republic also maintains that if the French authorities had been able to put across their point of view regarding the declaration of 12 July 2002, the Commission would have had to take account of that point of view in the contested decision, which could therefore have been different.
The Commission rejects the arguments of the French Republic and FT. It claims, in essence, that it has complied with the procedural rules of Regulation No 659/1999 in this case.
– Assessment of the General Court
It should be recalled that the Commission must initiate a formal investigation procedure, informing the interested parties, when, following a preliminary investigation, it has serious doubts as to the compatibility of the measure in question with the common market. It follows that the Commission cannot be required to present a complete analysis on the measure in question in its notice of intention to initiate that procedure. It must, however, define sufficiently the framework of its investigation so as not to render meaningless the right of interested parties to put forward their comments (judgment of 31 May 2006 in
Kuwait Petroleum (Nederland)
v
Commission
, T‑354/99, ECR,
EU:T:2006:137
, paragraph 85).
The decision to initiate the formal investigation procedure must give the interested parties the opportunity effectively to participate in the procedure, during which they will have the opportunity to put forward their arguments. For that purpose, it is sufficient for the interested parties to be aware of the reasoning which led the Commission to conclude provisionally that the measure in issue might constitute new aid incompatible with the common market (judgments of 30 April 2002 in
Government of Gibraltar
v
Commission
, T‑195/01 and T‑207/01, ECR,
EU:T:2002:111
, paragraph 138, and of 23 October 2002 in
Diputación Foral de Guipúzcoa
v
Commission
, T‑269/99, T‑271/99 and T‑272/99, ECR,
EU:T:2002:258
, paragraph 105).
It follows from recital 8 of Regulation No 659/1999 and from Article 6(1) of the same regulation that the decision to initiate the formal investigation procedure must summarise the relevant issues of fact and law, include a preliminary assessment as to the aid character of the proposed measure at issue and set out the doubts as to its compatibility with the common market, so as to allow the Member State concerned and other interested parties to submit their observations properly and, in doing so, to provide the Commission with all the information it needs to assess the compatibility of the aid with the common market.
In those circumstances, the expression ‘relevant issues of fact and law’ in Article 6(1) of Regulation No 659/1999 must therefore be understood as referring to the essential issues on the basis of which the Commission considers, at that stage in the procedure, that the measure at issue might constitute aid incompatible with the common market.
Moreover, since the purpose of the formal investigation procedure is to allow the Commission to examine in depth and to clarify the issues raised in the decision to open that procedure, in particular by obtaining observations from the Member State concerned and other interested parties, it may happen that in the course of that procedure the Commission is made aware of new factors or that its analysis changes. In that regard, it should be pointed out that, according to the case-law, the Commission’s final decision may differ somewhat from the decision to initiate the formal investigation procedure, without, however, those differences affecting the legality of the final decision (judgment of 4 March 2009 in
Italy
v
Commission
, T‑424/05,
EU:T:2009:49
, paragraph 69). Nevertheless, although the texts governing the procedure for State aid make no express provision for the possibility of adopting a decision to correct and extend a pending procedure, the case-law has accepted that if the Commission realises, once a decision to open the formal investigation procedure has been adopted, that the decision is based either on incomplete facts or on an incorrect legal classification of those facts, it must be able to alter its position by adopting a correcting decision (judgment of 20 September 2011 in
Regione autonoma della Sardegna and Others
v
Commission
, T‑394/08, T‑408/08, T‑453/08 and T‑454/08, ECR,
EU:T:2011:493
, paragraphs 69 to 72). Such a decision would not however be justified if there were no substantial change to the investigation framework defined in the decision to initiate the formal procedure and the issues of fact and law on which the Commission’s reasoning was based were essentially the same.
In the present case, having regard in particular to Article 1 of the contested decision, to recitals 185 to 230 of that decision, and to the assessments which the General Court will make below when examining the second and third pleas together, it cannot be disputed that, although the Commission took account of the declarations from July 2002 and in particular the declaration of 12 July 2002 only as forming the context for the shareholder loan offer announced and notified on 4 December 2002, they did play a crucial role in that measure being characterised as unlawful aid.
As the French Republic and FT rightly maintain, the declaration of 12 July 2002 must therefore be considered beyond any doubt to be a ‘relevant issue of fact and law’ for the purposes of Article 6(1) of Regulation No 659/1999, and it should therefore have been mentioned in the opening decision.
It must be noted, however, that this part of the plea is factually incorrect. The opening decision makes brief but sufficient reference to the declarations from July 2002, including the declaration of 12 July 2002, and to their role in the Commission’s reasoning.
In paragraph 70 of the opening decision, the Commission makes a general statement that ‘an announcement made by the State of its intention to commit itself might — provided that that commitment is irrevocable and thereby breeds an expectation and a feeling of confidence on the part of the market as reflected in an increase in FT’s share price and in the positive reaction of the rating agencies — already involve the commitment of state resources’. In the same paragraph, the Commission links that general statement more specifically to the facts contained in the notification from the French authorities, which related solely to the December 2002 measures, stating that ‘[the] announcement of the [French] State’s commitment coupled with the apparent making available of the amount of the loan lead the Commission to find that the aid might be considered as having been granted even before an agreement between FT and ERAP for the provision of the credit line was signed’.
It is true that this latter announcement is, as the French Republic and FT rightly point out, that of 4 December 2002. However, it is clear from footnote 40 to the opening decision, to which paragraph 70 of that decision refers, that the Commission was likely to include in its analysis the declarations from July 2002 and in particular the declaration of 12 July 2002. It is in fact emphasised therein that ‘from July 2002 and more particularly from September 2002 the market had already been reassured by the [French] State’s support for FT’. Similarly, it should be noted that in footnote 39 to the opening decision the Commission illustrates the market expectation and confidence referred to in paragraph 138 above by quoting, in particular, a statement from S & P that ‘since July 2002 Standard & Poor’s has indicated that expected support from FT’s 56% shareholder, the French State, [was] a likely factor underpinning the group’s investment-grade status’.
Furthermore, in paragraphs 83 to 85 of the opening decision, in the context of its analysis of the existence of an advantage which FT would not have obtained under normal market conditions, the Commission refers not only to the provision of the shareholder loan offer but also to the announcement preceding it, before noting, in footnote 48 to that decision, that ‘[a]lready in the past, declarations by the French authorities implying that they would participate in recapitalisation have had a positive effect on the market by raising the outlook for FT’s rating’.
It must be concluded from these various findings that the opening decision makes sufficient reference to the declarations from July 2002, including the declaration of 12 July 2002, and contains everything necessary to show that, for the purposes of its analysis, the Commission did not confine itself to the measures notified to it on 4 December 2002, but could assess them together with the events leading up to them. On this latter point, the opening decision mentions in particular, with sufficient clarity and precision, the strategy pursued by the French State since July 2002 of announcing its support for FT publicly with the aim of regaining market confidence and ensuring that FT’s rating was maintained. It is therefore clear from the opening decision that the Commission intended to give further consideration to the precise role and impact of the French Government’s earlier declarations and announcements.
The opening decision can therefore be considered to have allowed the French Republic and FT to be sufficiently aware of the relevant investigation framework and the reasoning which led the Commission to take the view that the measures at issue might constitute aid incompatible with the common market and to present their observations effectively during the formal investigation procedure.
In any event, as will be explained in more detail below when examining the second part of this plea, the question of the legal and economic implications of the declarations from July 2002 was discussed at some length during the formal investigation procedure and both the French Republic and FT had a specific and ample opportunity to make their position on this question known. Consequently, even if the opening decision should be held not to have made sufficient reference to the declaration of 12 July 2002 and the Commission held to have unlawfully failed to adopt a decision correcting and extending the formal investigation procedure, there are sufficient grounds to conclude that the right of those parties to a hearing and to take part in the procedure has been respected.
The first part of the first plea raised by the French Republic and FT must therefore be dismissed as unfounded.
Infringement of the rights of the defence
– Arguments of the parties
The French Republic and FT argue that the Commission has infringed their rights of defence in that, at no time during the administrative procedure, did it allow them effectively to state their position on the innovative approach leading it to conclude that there was State aid in this case, which consisted in characterising the measures notified in December 2002 as State aid on the basis of the declaration of 12 July 2002. They maintain that the Commission revealed this approach for the first time only in the contested decision. They were therefore not in a position to comment on the legal and economic implications of the July 2002 declaration on the characterisation of the shareholder loan offer in the light of the rules on State aid before that decision was adopted.
The French Republic takes the view that the Commission cannot use the fact that the French authorities had an opportunity to comment on the observations of interested third parties and on the reports of 22 March and 28 April 2004, which were largely concerned with the legal nature of the declaration of 12 July 2002 and its effects on the market, as a basis for concluding that its rights of defence have been fully respected, since the claims of interested third parties and experts commit only themselves. Similarly, the French Republic and FT point out that the comments they presented on the observations of interested third parties and on those two reports during the administrative procedure were intended only to dispute the argument that that declaration in itself constituted State aid.
The French Republic also reiterates that the Commission ought to have extended the formal investigation procedure to include the declaration of 12 July 2002. At the very least, the Commission ought to have sent the French authorities a letter informing them of the innovative approach in question and inviting them to submit their observations in that regard.
Finally, the French Republic and FT claim that if they had been given an opportunity effectively to make known their point of view on the declaration of 12 July 2002 and the innovative approach taken by the Commission, the Commission would have been obliged to take account of that point of view in the contested decision, which would certainly have been different. They argue that it is apparent from recital 263 of the contested decision that the Commission would have concluded that there was no State aid if it had been unable to take that declaration into account when analysing the notified measures.
The Commission rejects the arguments of the French Republic and FT.
– Assessment of the General Court
As a preliminary point, it must be recalled that according to settled case-law, observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of any specific rules (judgments of 10 July 1986 in
Belgium
v
Commission
, 234/84, ECR,
EU:C:1986:302
, paragraph 27, and of 30 March 2000 in
Kish Glass
v
Commission
, T‑65/96, ECR,
EU:T:2000:93
, paragraph 32).
In the first place, it is necessary to examine whether the French Republic’s rights of defence have been infringed.
According to the settled case-law, observance of the rights of the defence, during the formal investigation procedure under Article 88(2) EC, requires the Member State concerned to be placed in a position in which it may effectively make known its views on the truth and relevance of the facts and circumstances alleged and on the documents obtained by the Commission to support its claim that there has been infringement of EU law, as well as on the observations submitted by interested third parties in accordance with Article 88(2) EC. In so far as the Member State has not been afforded the opportunity to comment on those observations, the Commission may not use them in its decision against that State (see judgment of 15 November 2011 in
Commission and Spain
v
Government of Gibraltar and United Kingdom
, C‑106/09 P and C‑107/09 P, ECR,
EU:C:2011:732
, paragraph 165 and case-law cited).
It must be noted that it is apparent from the file that the French Republic fully made known its views on the truth and relevance of the facts and circumstances alleged and on the observations submitted by the interested third parties, so that the obligations resulting from the case-law recalled in paragraph 152 above were fully satisfied.
More particularly, so far as the declaration of 12 July 2002 is concerned, aside from the fact that the opening decision made sufficient reference to it (see paragraphs 130 to 142 above), it should be noted that the French Republic received and, in a document of 10 June 2004, commented at length on the reports of 22 March and 28 April 2004 by the Commission’s external consultants which, in accordance with the terms of reference determined by the Commission, were concerned precisely with the legal nature and effects on the market of the declarations from July 2002 and, in particular, of the declaration of 12 July 2002.
Previously, the French Republic had already commented, in a document dated 29 July 2003, on the observations, in particular, of the Bouygues companies of 11 April 2003, which also contained a lengthy discussion of the legal and economic implications of the declarations from July 2002, including the declaration of 12 July 2002.
Furthermore, the French Republic, as it had confirmed in answer to a question from the General Court at the hearing of 24 September 2014, again expressed its views on the conclusions to be drawn from the declarations from July 2002 at two meetings with the Commission services on 16 and 23 June 2004.
Moreover, the French Republic cannot base any effective argument on the fact that the key position taken in the report of 28 April 2004 and in the observations of certain interested parties was that the declaration of 12 July 2002 itself constituted State aid, since that fact in reality merely confirmed that the issue of the legal and economic implications of the declaration was open to discussion and that the Commission wished to clarify it.
Likewise, nor can the French Republic base any argument on the fact that the Commission is not bound by the observations of interested parties or by the findings of its own expert reports. While these do not in fact bind the Commission, the fact remains that the Commission is required, in the interests of sound administration of the fundamental rules of the Treaty relating to State aid, to examine them (see, to that effect, judgment of 2 April 1998 in
Commission
v
Sytraval and Brink’s France
, C‑367/95 P, ECR,
EU:C:1998:154
, paragraph 62). The important thing is that the legal and economic implications of the declarations from July 2002 should have been discussed during the administrative procedure, which they were in this case.
Nor can the French Republic succeed in its argument based on the supposedly innovative nature of the approach adopted by the Commission in this case to establish the existence of unlawful State aid. Indeed, the Commission cannot be required to submit to the Member State concerned or to the other interested parties, before adopting its final decision, the legal assessment which it intends to make in that decision, innovative as that assessment may be. In that regard, it must be borne in mind that, according to the case-law, neither the provisions on State aid nor the case-law require the Commission to hear the views of the recipient of the aid on its legal assessment of the measure in question or to inform the Member State concerned — or,
a fortiori
, the recipient of the aid — of its position before adopting its decision, where the interested parties and the Member State concerned have been given notice to submit their comments (see judgment of 8 July 2004 in
Technische Glaswerke Ilmenau
v
Commission
, T‑198/01, ECR,
EU:T:2004:222
, paragraph 198 and case-law cited).
It follows that the French Republic has no grounds for maintaining that its rights of defence have been disregarded.
In the second place, so far as FT is concerned, it should be pointed out that the administrative procedure regarding State aid is opened only against the Member State concerned. Only that Member State, as the addressee of the contested decision, may therefore rely on true rights of defence (see judgment of 1 July 2009 in
Operator ARP
v
Commission
, T‑291/06, ECR,
EU:T:2009:235
, paragraph 35 and case-law cited). Undertakings in receipt of aid are considered only to be interested parties in that procedure, within the meaning of Article 88(2) EC (judgment of 16 December 1999 in
Acciaierie di Bolzano
v
Commission
, T‑158/96, ECR,
EU:T:1999:335
, paragraph 42). Case-law confers on them essentially the role of information sources for the Commission in the administrative procedure instituted under that provision. It follows that, far from enjoying the same rights of defence as those which individuals against whom a procedure has been instituted are recognised as having, interested parties have only the right to be involved in the administrative procedure to the extent appropriate in the light of the circumstances of the case (judgments of 25 June 1998 in
British Airways and Others
v
Commission
, T‑371/94 and T‑394/94, ECR,
EU:T:1998:140
, paragraphs 59 and 60, and of 6 March 2003 in
Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen
v
Commission
, T‑228/99 and T‑233/99, ECR,
EU:T:2003:57
, paragraph 125).
It has also been held that the right of the interested parties to information does not go beyond the right to be heard by the Commission. In particular, it cannot extend to the general right to comment on all the potentially key points raised during the formal investigation procedure (see judgment of 30 November 2009 in
France
v
Commission
, T‑427/04 and T‑17/05, ECR,
EU:T:2009:474
, paragraph 149 and case-law cited).
In the present case, it must be noted that FT’s procedural rights as an interested party have been fully respected. For example, the Commission made it known to all interested parties, including FT, that the procedure relating to the aid measures at issue had been initiated by publishing in the
Official Journal of the European Union
of 12 March 2003 an invitation to submit observations pursuant to Article 88(2) EC, the opening decision and a summary of that decision. In that decision, the Commission clearly set out the grounds for its provisional finding that the measures at issue constituted State aid (recitals 68 to 71, 81 to 106 and 109 to 115 of the opening decision) and analysed the possible compatibility of that aid with the common market (recitals 121 to 132 of the opening decision). Indeed, as FT expressly acknowledges in its written submissions, it was able effectively to make known its point of view on the various facts and complaints alleged by the Commission in that decision.
It is also clear from the considerations set out in paragraphs 130 to 142 above that the opening decision made sufficient reference to the declaration of 12 July 2002 and that the procedural rights of the interested parties required the Commission neither to adopt a decision extending the procedure nor to give further details of its legal assessment of that declaration during the formal investigation procedure.
Moreover, and in any event, even if the arguments raised by FT in support of this part of the plea are examined from the perspective of the rights of defence in the strict sense, it must be held that those rights have not been disregarded in this case.
It is clear from the file that, even though it was under no obligation to do so, the Commission communicated the reports of 22 March and 28 April 2004 to FT, which commented on them at length in several legal and economic studies presented in the formal investigation procedure with the aim of showing that the declarations from July 2002 were not such as to constitute State aid. It is also clear from the file that FT sent the Commission a report dated 12 January 2004 prepared by one of its legal experts on the basis of the interested parties’ observations, in particular. As to the remainder, reference should be made to the considerations set out in paragraphs 157 to 159 above, which also apply to FT.
In the light of the foregoing, the second part of the first plea must be dismissed as unfounded. The first plea must therefore be dismissed in its entirety.
The second and third pleas, alleging errors of law and manifest errors of assessment in relation to the application of the prudent private investor criterion
Arguments of the parties
By their second plea, the French Republic and FT maintain in particular that the Commission misapplied the prudent private investor criterion.
In that regard, in the first place the French Republic and FT complain that the Commission applied that criterion to the declarations from July 2002, and primarily the declaration of 12 July 2002, although these could not be characterised as State aid since they did not involve an irrevocable commitment of State resources. They reject the Commission’s argument that those declarations and the measures of December 2002 are part of a continuing process of rescuing FT, claiming that none of the ‘events’ in that process, taken in isolation, can be considered State aid and that that process does not have any legal commitment on the part of the State as its starting point. They add that this argument has the paradoxical effect of preventing a Member State from performing its duty to act with the due diligence and care of a prudent investor by ensuring that all the relevant conditions are satisfied before making any commitment. Lastly, the comments made in the declaration of 12 July 2002 were no different from those that a private shareholder would have made in similar circumstances.
In the second place, the French Republic and FT argue that the Commission could not apply the prudent private investor criterion to two separate events, such as the declarations from July 2002 and the measures of December 2002, which were not a single intervention. The State interventions with regard to which, in the judgment on appeal, the Court of Justice held that it could not automatically be excluded that they might be considered a single intervention were the announcement of 4 December 2002 and the shareholder loan offer. The Court of Justice had not therefore considered the declarations from July 2002 and the measures of December 2002 to constitute a single intervention. In any event, the criteria set out by the Court of Justice in paragraphs 103 and 104 of its judgment on appeal for determining cases where consecutive interventions are so closely linked that they are inseparable from one another are obviously not satisfied in this case.
In the third place, the French Republic and FT plead that the Commission misapplied the prudent private investor criterion in considering that the measures of December 2002 should be analysed not on the date on which they were taken but in the light of the situation prior to July 2002, moreover without taking account of events occurring between those two dates. They dispute the Commission’s allegation that the situation in December 2002 was ‘contaminated’ by the declaration of 12 July 2002 and therefore no longer corresponded to normal market conditions. They add that an approach such as that taken by the Commission in this case is clearly contrary to the principle of legal certainty in that it exposes the Member States and the undertakings concerned to a subjective, uncertain and arbitrary interpretation of the concept of State aid.
In their third plea, the French Republic and FT complain that the Commission made manifest errors of assessment when applying the prudent private investor criterion.
In that regard, the French Republic criticises the Commission, in essence, for considering that the declarations from July 2002 could be perceived by the markets as a commitment by the French State. It maintains that, at the time of the declaration of 12 July 2002, the nature of the measures which the French State was contemplating taking with regard to FT had not yet been decided and, in particular, that no investment decision capable of being characterised as a firm commitment by the French State had been taken. It also argues that the Commission’s position is at odds with the very general and imprecise statements by the Minister for Economic Affairs reproduced in that declaration, indicating that any State intervention would be on market conditions and only if it were established that the undertaking was in financial difficulties, which was not the case at that time. As for the contacts between the French Government and the rating agencies during July 2002, far from being unusual or exceptional, these were the responsible activity of a majority shareholder whose prudent conduct involved, in particular, regularly and attentively monitoring the rating of the companies in which it held a stake.
For its part, FT maintains in the first place that the Commission has made a manifest error of assessment in considering that the declarations from July 2002 could not have been made by a reference investor in the same situation as the French State. FT asserts that by the declaration of 12 July 2002 the French State simply sought to use its reputation as a creditworthy and reliable creditor and debtor to influence the response of the markets. It played the particular operating rules of the financial markets to stabilise FT’s economic position, in the same way as a private shareholder could have done in a similar situation. It was clear from that declaration that the French State had not yet firmly and irrevocably decided to intervene. The declarations of 13 September and 2 October 2002 were equally general and imprecise. FT adds in particular that the French State took appropriate action once its half-yearly accounts, showing good operating results but an unbalanced financial structure, were published on 12 September 2002.
In the second place, FT claims that the Commission has failed to show that the declaration of 12 July 2002 had a contaminating effect on the market situation that continued until December 2002.
Regarding the second plea, in the first place the Commission criticises the French Republic and FT for undertaking a static and ‘photographic’ interpretation of the operation in question and a narrow, partial and erroneous reading of the contested decision. However, a compartmentalised analysis of the events which preceded the shareholder loan offer is not possible. The Commission indicates that in recitals 187 and 222 et seq. of the contested decision, it did indeed explain the reasons why it was bound to view the declarations from July 2002 and the shareholder loan offer as a whole. It claims that, given the material and economic link between the declaration of 12 July 2002 and the shareholder loan offer, it was necessary to examine the whole of the French State’s conduct from July 2002 onwards. It adds that the French authorities’ strategy was part of a continuing rescue process for FT not limited to the events of December 2002.
In the present case, the series of principal events, as described in recitals 36 to 56 of the contested decision, clearly shows the French Republic’s declared intention of supporting FT in order to prevent any further downgrading of its credit rating. In that regard, the financial markets did not question whether or not the declarations from July 2002 were binding and whether or not they embodied an irrevocable commitment. Rather, it was the impression created by the French State that that commitment to support FT was firm and binding which was decisive in the perception both of the rating agencies and of the markets, in the light of the increase in FT’s share price after the declaration of 12 July 2002. Consequently, the question whether or not the declarations from July 2002 constituted aid is no longer relevant, since, by the time those declarations were given concrete expression in December 2002, in the form of the shareholder loan offer, it was established, on the one hand, that the commitment had then become irrevocable and, on the other hand, that it did not satisfy the private investor criterion, in view of the fact that it was no longer taking place under normal market conditions.
According to the Commission, a private investor would not have made declarations such as those made by the French authorities from July 2002. In view of FT’s highly unbalanced financial situation in 2002, of the fact that the debt-reduction plan announced by the management in March 2002 had been judged unworkable, of the fact that FT had lost the confidence of the markets, of the fact that, at the time, no steps had been taken to improve its management and results or any in-depth audit commissioned, of the fact that, by its own admission, the French Government had no clear idea of a solution to FT’s crisis, a prudent private investor would have been more cautious in its declarations intended to reassure the markets. The Commission points out that in this case it did not consider that it had sufficient evidence to establish irrefutably that the declarations from July 2002 constituted an irrevocable commitment of State resources and therefore aid within the meaning of Article 87 EC. It was nevertheless entitled to ascertain whether, in circumstances such as those of July 2002, a prudent private investor would have assumed the same risk, which consisted, first, of an economic risk associated with the credibility of those declarations on the market and, secondly, of a legal risk since those declarations could have been regarded as binding in a number of national legal orders. It inferred from this that, from July 2002 onwards, it had become impossible to compare the behaviour of a public investor with that of a private investor in a normal market situation, since no private investor would have been capable of influencing the market as the French authorities did by their declarations from July 2002. Accordingly, the Commission reached the conclusion that the application of the prudent investor criterion to the situation in the month of December 2002 alone was distorted, since, by that time, it was no longer possible to pass judgment on FT’s situation under normal market conditions.
The Commission rejects the allegation that its position amounts to preventing the Member States from behaving like prudent investors. It confined itself to comparing the behaviour of the French State to that of a private operator throughout the process which led that State to give formal status to its support in the form of a shareholder loan offer, that offer being merely the concrete embodiment of its decision in principle to support FT by appropriate steps announced by the declarations from July 2002. However, the public expression of that clear and categorical commitment vis-à-vis the market involved financial risks which a private investor would not have taken with as much imprudence, at the very least, before having obtained full information on FT’s economic situation. The French authorities themselves admitted, during the administrative procedure, that, on 12 July 2002, they knew neither FT’s exact situation nor the effective means of ensuring its recovery. In such a situation, any prudent shareholder would have avoided making declarations which could give rise to even a future commitment on his part which might jeopardise his own financial situation on the markets.
In the second place, the Commission maintains that it made no error in considering that the declarations from July 2002 and the shareholder loan offer, announced and notified on 4 December 2002, should be analysed together in the light of Article 87(1) EC. It affirms that the criteria set out by the Court of Justice in paragraphs 103 and 104 of the judgment on appeal are satisfied in this case and that it is obvious from the summary of the facts in paragraphs 3 to 19 of that judgment that there are close and inextricable links between those declarations and that offer. In that regard, it maintains, first, that the State interventions at issue were close together in time and were all part of an overall rescue strategy for FT, secondly, that the sole purpose of those various interventions was to prevent FT experiencing a serious liquidity crisis in 2003 and, thirdly, that there was no substantial change to FT’s position between July and December 2002.
In the third place, the Commission disputes the argument advanced by the French Republic and FT that July 2002 could not be the relevant moment for the Commission to apply the prudent private investor criterion to the December 2002 measures. It rejects their claim that it took account only of the situation in July 2002 and therefore disregarded the measures adopted between then and December 2002. According to the Commission, all the measures taken by the French authorities after July 2002 were taken in a context ‘contaminated’ by the declaration of 12 July 2002. Thus, the only reason the banking syndicate was able to come together in September 2002 was because that declaration had made it possible to maintain FT’s rating. It repeats that the shareholder loan offer is merely the concrete embodiment of the decision in principle, made public in July 2002, to support FT. Since the prudent private investor criterion was applied on the date of that concrete embodiment, the Commission cannot be accused of having disregarded the principle of legal certainty.
As regards the third plea, in the first place the Commission argues that the French State’s decision to support FT was ‘clear in principle’ from 12 July 2002 although the details of its commitment were not yet specified at that time. The declaration of 12 July 2002 was part of a ‘credible strategy of commitment by the State to support FT’ and was perceived as such by the markets. A literal analysis of that declaration and of its context showed that the commitment was clear and that it was, moreover, repeated. This was corroborated by the fact that the French authorities contacted the main market operators directly in order that they might act as go-betweens with investors. The Commission adds that it has shown that that market perception was confirmed by the markets’ reaction and by the comments of financial analysts.
According to the Commission, the fact that the French State characterised its behaviour as prudent does not call in question the unconditional character of its commitment. Similarly, the mention of the possible occurrence of financial problems for FT cannot be interpreted as a condition prior or subsequent to that commitment. There are no factors which demonstrate that the market had perceived any condition in that regard. If the Minister for Economic Affairs had intended to make his commitment conditional on compliance with EU law, he would have had to express an explicit reservation to the effect that any subsequent intervention would be notified in advance to the Commission and implemented only after it has been approved.
In the second place, in response to FT’s arguments, the Commission maintains in particular that, in paragraphs 4, 6, 10, 15 and 133 of the judgment on appeal, the Court of Justice confirmed its analysis that the declaration of 12 July 2002 had a definite impact on the market situation, since FT’s investment-grade rating was maintained only ‘as a result of the French State’s comments’. It claims that if that declaration had such an impact, it can only be because the market considered that it was the expression of a credible commitment by the State. It adds that it is clear from FT’s own arguments that the French State expected the declarations from July 2002 to affect the market and that those effects were crucial for the presentation of the shareholder loan offer.
Assessment of the General Court
– Review of the relevant case-law
It should be recalled that under Article 87(1) EC, save as otherwise provided by the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, in so far as it affects trade between Member States, incompatible with the common market.
According to settled case-law, the classification as ‘aid’ within the meaning of Article 87(1) EC requires that all the conditions set out in that provision are fulfilled (see judgment of 2 September 2010 in
Commission
v
Deutsche Post
, C‑399/08 P, ECR,
EU:C:2010:481
, paragraph 38 and case-law cited).
Thus, for a national measure to be classified as State aid within the meaning of Article 87(1) EC, first, there must be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer a selective advantage on the recipient; and fourth, it must distort or threaten to distort competition (see judgment in
Commission
v
Deutsche Post
, cited in paragraph 186 above,
EU:C:2010:481
, paragraph 39 and case-law cited).
So far as the first of those conditions is concerned, it is clear from the case-law that only advantages which are granted directly or indirectly through State resources or constituting an additional charge for the State are to be regarded as aid within the meaning of Article 87(1) EC. The very wording of that provision and the procedural rules laid down in Article 88 EC show that advantages granted from resources other than those of the State do not fall within the scope of the provisions in question (see, to that effect, judgments of 17 March 1993 in
Sloman Neptun
, C‑72/91 and C‑73/91, ECR,
EU:C:1993:97
, paragraph 19; 1 December 1998 in
Ecotrade
, C‑200/97, ECR,
EU:C:1998:579
, paragraph 35, and 13 March 2001 in
PreussenElektra
, C‑379/98, ECR,
EU:C:2001:160
, paragraph 58).
It is also clear from the case-law that it is not necessary to establish in every case that there has been a transfer of State resources for the advantage granted to one or more undertakings to be capable of being regarded as a State aid within the meaning of Article 87(1) EC (see, to that effect, judgments of 15 March 1994 in
Banco Exterior de España
, C‑387/92, ECR,
EU:C:1994:100
, paragraph 14, of 19 May 1999 in
Italy
v
Commission
, C‑6/97, ECR,
EU:C:1999:251
, paragraph 16, and of 16 May 2002 in
France
v
Commission
, C‑482/99, ECR,
EU:C:2002:294
, paragraph 36).
Regarding the condition that the measure in question must amount to the granting of an advantage to its beneficiary, it should be pointed out that it is clear from settled case-law that measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as State aid (see judgment in
Commission
v
Deutsche Post
, cited in paragraph 186 above,
EU:C:2010:481
, paragraph 40 and case-law cited).
Thus, measures which, in various forms, mitigate the burdens normally included in the budget of an undertaking, and which, accordingly, without being subsidies in the strict meaning of the word, are similar in character and have the same effect are considered to constitute aid (see, to that effect, judgment in
Banco Exterior de España
, cited in paragraph 189 above,
EU:C:1994:100
, paragraph 13, and judgment of 19 September 2000,
Germany
v
Commission
, C‑156/98, ECR,
EU:C:2000:467
, paragraph 25).
It is also settled case-law that investment by the public authorities in the capital of undertakings, in whatever form, may constitute State aid within the meaning of Article 87 EC where the conditions set out in that Article are fulfilled (see judgments of 14 September 1994 in
Spain
v
Commission
, C‑278/92 to C‑280/92, ECR,
EU:C:1994:325
, paragraph 20 and case-law cited, and 8 May 2003 in
Italy and SIM 2 Multimedia
v
Commission
, C‑399/00 and C‑328/99, ECR,
EU:C:2003:252
, paragraph 36 and case-law cited).
It is, however, also clear from settled case-law that, pursuant to the principle that the public and private sectors are to be treated equally, capital placed directly or indirectly at the disposal of an undertaking by the State in circumstances which correspond to normal market conditions cannot be regarded as State aid (see judgment in
Italy and SIM 2 Multimedia
v
Commission
, cited in paragraph 192 above,
EU:C:2003:252
, paragraph 37 and case-law cited). Thus, the conditions which a measure must meet in order to be treated as ‘aid’ for the purposes of Article 87 EC are not met if the recipient public undertaking could, in circumstances which correspond to normal market conditions, obtain the same advantage as that which has been made available to it through State resources. In the case of public undertakings, that assessment is made by applying, in principle, the prudent private investor criterion (see, to that effect, judgment of 5 June 2012 in
Commission
v
EDF and Others
, C‑124/10 P, ECR,
EU:C:2012:318
, paragraph 78 and case-law cited).
According to the case-law, it is necessary to distinguish between, on the one hand, the role of a Member State as shareholder of an undertaking and, on the other, that of the State acting as a public authority. The applicability of the prudent private investor criterion ultimately depends on the Member State concerned having conferred, in its capacity as shareholder and not in its capacity as public authority, an economic advantage on an undertaking (see, to this effect, judgment in
Commission
v
EDF and Others
, cited in paragraph 193 above,
EU:C:2012:318
, paragraphs 80 and 81).
It is therefore necessary to determine whether, in similar circumstances, a private investor of a dimension comparable to that of the bodies managing the public sector could have been prevailed upon to make capital contributions of the same size, having regard in particular to the information available and foreseeable developments at the date of those contributions (see judgment in
Italy and SIM 2 Multimedia
v
Commission
, cited in paragraph 192 above,
EU:C:2003:252
, paragraph 38 and case-law cited).
For that purpose it is necessary to assess whether the measure would have been adopted in normal market conditions by a private investor in a situation as close as possible to that of the Member State concerned, and only the benefits and obligations linked to the situation of the State as shareholder — to the exclusion of those linked to its situation as a public authority — are to be taken into account (judgment in
Commission
v
EDF and Others
, cited in paragraph 193 above,
EU:C:2012:318
, paragraph 79).
– Review of the Commission’s reasoning in the contested decision
Having reviewed these principles, it is now necessary briefly to describe the reasoning adopted by the Commission, in the contested decision, for concluding in recital 230 thereof that the prudent private investor criterion is not satisfied in this case.
The Commission starts from the premiss that by the declaration of 12 July 2002, the content of which was confirmed and fleshed out by the declarations of 13 September and 2 October 2002, the French authorities had taken the decision in principle to support FT as far back as July 2002. The shareholder loan offer, announced and notified on 4 December 2002, was only the ‘concretisation’ (or ‘concrete shape/form’) of that decision of principle. The Commission therefore considers that it could not analyse that offer without taking account of the declarations from July 2002, but that it had to adopt an overall approach in that regard (see in particular recitals 185 to 187, 202 to 207, 213, 222 to 224 and 226 of the contested decision).
The Commission then claims that, in view in particular of the difficult financial situation in which FT found itself in July 2002, the markets’ loss of confidence at the time, the lack of an audit of the company before October 2002 and the lack of a realistic debt-reduction plan before December 2002, a prudent private investor would not have made ‘from July 2002’ (or ‘in July 2002’) public declarations such as those made by the French State, likely as they were, from an economic point of view, to seriously place his credibility and reputation on the line and, from a legal point of view, to oblige him from that date to support the company financially (see in particular recitals 206, 210, 217, 221, 228 and 229 of the contested decision).
According to the Commission, the declarations from July 2002 were sufficiently clear, precise and firm for them credibly to attest to the existence, from July 2002, of a firm commitment on the part of the French State to support FT. This was shown in particular by the fact that the declaration of 12 July 2002 led to an ‘abnormal and not negligible’ increase in the value of FT’s shares and bonds and by the comments of certain financial analysts following that declaration, specifically comments contained in a report by Deutsche Bank of 22 July 2002 and in the S & P press release of 12 July 2002 (see paragraph 5 above). The Commission also relies on the fact that the support shown by the French State since July 2002 had been decisive in maintaining FT’s investment-grade rating, given that a downgrading of that credit rating ‘would have had a highly negative impact on the [c]ompany’s financial situation’ (see in particular recitals 186, 190, 191, 207 to 212, 219 to 222, 225 and 227 of the contested decision).
The Commission considers that the declarations from July 2002 therefore ‘contaminated’ the perception of the markets and ‘influenced’ the behaviour of economic operators in December 2002. It concludes that the market conditions in which the shareholder loan offer was announced in December 2002 could not be considered normal, considering that it should therefore base its assessment of the economic rationale of that measure on a market situation that was not ‘contaminated’ by the effect of the declarations from July 2002, that is on the situation prior to that date (see in particular recitals 186, 190, 191, 207 to 212, 219 to 222, 225, 227 and 228 of the contested decision). However, in such a context, it is unlikely that a prudent private investor ‘would have granted a shareholder loan, taking on himself alone a very substantial financial risk’ (recital 229 of the contested decision). Similarly, the Commission states that ‘a downgrading of FT’s credit rating would have rendered any shareholder loan improbable or at the very least more costly’ (recitals 222 and 225 of the contested decision).
– The measure to which the Commission was to apply the prudent private investor criterion
It should be pointed out that the application of the prudent private investor criterion necessarily presupposes that the measures taken by the State in favour of an undertaking confer an advantage deriving from State resources (see, to that effect, judgments in
Commission
v
EDF and Others
, cited in paragraph 193 above,
EU:C:2012:318
, paragraph 89, and
Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen
v
Commission
, cited in paragraph 161 above,
EU:T:2003:57
, paragraphs 180 and 181).
At the hearing on 21 April 2009 in the earlier proceedings before the General Court, in response to a question from the latter, all the parties expressly agreed that the presence of an advantage deriving from State resources was a precondition for the application of the prudent private investor criterion. At the hearing on 24 September 2014 in the present proceedings, when again questioned by the General Court on this point, the French Republic and FT reiterated their position, whereas the Commission tried to go back on its own position, thereby defending an argument contrary to the case-law cited in paragraph 202 above.
It should be added that, in the contested decision, the Commission took an approach in line with the principle set out in paragraphs 202 and 203 above, when, first of all, in recitals 194 to 196 it sought to establish the existence of an advantage granted through State resources and then, in recital 197, it stated that it had to consider whether that advantage ‘satisfie[d] the prudent private investor test’.
In this case, it is clear from the findings made by the Court of Justice in paragraphs 127 to 139 of the judgment on appeal and from the arguments set out in paragraphs 256 to 261 below that in the contested decision it was the announcement of 4 December 2002 and the shareholder loan offer, taken together, which were considered to be the State measure conferring on FT an economic advantage deriving from State resources and characterised as State aid.
Consequently, as the French Republic and FT rightly maintain, it was to those two measures, taken together, that the Commission had to apply the prudent private investor criterion.
However, it must be noted that, as is clear in particular from paragraphs 198 to 201 above, in the contested decision the Commission applied that criterion primarily to the declarations from July 2002 in order to conclude that the shareholder loan offer, as announced and notified on 4 December 2002, constituted State aid.
Thus, it was only because, initially, the Commission considered that the declarations from July 2002 did not satisfy that criterion that, subsequently and incidentally, it was able to claim that that offer was not made under circumstances corresponding to normal market conditions and should therefore be analysed in the light of the situation prior to July 2002, when the offer would have been highly improbable.
Even though the contested decision is somewhat confused on this point, it is clear, from the decision and from the explanations given by the Commission in its written submissions and at the hearing on 24 September 2014 (see paragraph 225 below), that the proposition advanced by the Commission is that the declarations from July 2002 had a ‘contaminating’ effect on the market situation because they supposedly did not satisfy the prudent private investor criterion.
Moreover, as the French Republic and FT rightly point out, although the Commission has maintained that it took into account the ‘declarations made by the [French] Government between July and December 2002’ (recital 203 of the contested decision) or ‘these declarations … taken together’ (recital 213 of the contested decision) for the purpose of its analysis of the prudent private investor criterion, it should be noted that, in reality, it based that analysis almost exclusively on the declaration of 12 July 2002 alone (see, in particular, recitals 221 and 229 of the contested decision).
That finding of the key nature of the declaration of 12 July 2002 for the application of the prudent private investor criterion is confirmed by several statements made by the Commission in its written submissions to the General Court. In these, it explains in particular that that declaration entailed risks that ‘a private investor would not have taken at the time’ and that ‘from July 2002 it had already become impossible to compare the behaviour of a public investor with that of a private investor in a normal market situation’, since ‘all the events that occurred after July [2002] took place in a market context that was “contaminated” by [that declaration]’ (paragraphs 96 to 98 and 138 of the defence in Case T‑425/04, paragraphs 69 to 74 and 82 of the rejoinder in Case T‑425/04, paragraphs 106 to 109 of the Commission’s written observations of 17 July 2013 in Case T‑425/04 RENV, paragraphs 85 to 87 and 164 of the defence in Case T‑444/04, paragraphs 59 to 64 and 73 of the rejoinder in Case T‑444/04, paragraphs 78 to 81 of the Commission’s written observations of 17 July 2013 in Case T‑444/04 RENV).
The application of the prudent private investor criterion, in essence, to the declarations from July 2002 alone and, in particular, to the declaration of 12 July 2002 is all the more erroneous given that, as the Commission noted in recitals 188, 189, 218 and 219 of the contested decision, it did not have sufficient evidence to take a position on whether those declarations were, in themselves, likely to constitute State aid.
It certainly cannot be disputed that the declarations from July 2002 conferred an economic advantage on FT.
In that regard, it should be noted that in the contested decision the Commission has demonstrated to the required legal standard that those declarations, in particular, allowed FT’s rating to be maintained at investment grade, enabled the financial markets to regain confidence, made it possible, easier and cheaper for FT to gain access to new loans necessary in order to refinance its short-term debts to the amount of EUR 15 billion and, in the final analysis, helped to stabilise its very fragile financial situation which, in June and July 2002, was on the point of deteriorating substantially (see in particular recitals 212, 221, 222 and 225 of the contested decision).
It should be added that, contrary to what FT claims, the Commission was justified in considering that the advantageous effects arising from the declarations of support reiterated since July 2002 remained until December 2002. This is shown in particular by the statement issued by S & P on 17 December 2002 in response to the announcement of 4 December 2002 (see paragraph 33 above) and by that issued by Moody’s in February 2003 (see paragraph 34 above).
However, it has not been demonstrated that the advantage referred to in paragraph 214 above derives from State resources. According to the case-law, for the purposes of establishing the existence of State aid, the Commission must establish a sufficiently direct link between, on the one hand, the advantage given to the beneficiary and, on the other, a reduction of the State budget or a sufficiently concrete economic risk of burdens on that budget (see, to that effect, judgment of 8 September 2011 in
Commission
v
Netherlands
, C‑279/08 P, ECR,
EU:C:2011:551
, paragraph 111).
In that regard, suffice it to point out that it is clear from recitals 188, 189, 218 and 219 of the contested decision that the Commission itself considered that it did not have sufficient evidence to establish irrefutably that the declarations from July 2002 were such as to commit State resources. Moreover, in its response to a written question from the General Court in these cases, the Commission, referring to those recitals, stated that ‘there [was] no doubt that [it had] not settled the question of how those declarations, which could be considered legally and economically binding under the relevant national law, could therefore be characterised, as such, as aid measures committing State resources’. The Commission added that in so saying it intended to emphasise the existence of ‘real risks’ that those declarations might, on the one hand, be perceived as legally binding and, on the other, have economic consequences, but that, out of caution, it had not wanted to conclude that there was a commitment of State resources on the basis of those risks alone.
It must be concluded from the foregoing that the Commission erred in law by applying the prudent private investor criterion, as a priority and in essence, to the declarations from July 2002 and, in particular, to the declaration of 12 July 2002.
– The relevant moment at which the Commission had to apply the prudent private investor criterion
According to the case-law, when assessing a measure in the light of Article 87 EC, account must be taken of all the relevant features and their context (judgment of 15 December 2009 in
EDF
v
Commission
, T‑156/04, ECR,
EU:T:2009:505
, paragraph 221). Similarly, the Court of Justice has held that, in order to examine whether or not the State has adopted the conduct of a prudent investor operating in a market economy, it is necessary to place oneself in the context of the period during which the financial support measures were taken in order to assess the economic rationality of the State’s conduct (judgment in
France
v
Commission
, cited in paragraph 189 above,
EU:C:2002:294
, paragraph 71).
It must also be recalled that, according to the case-law, in order to determine whether an intervention by the public authorities in the capital of an undertaking has the character of State aid, it is necessary to determine whether, in similar circumstances, a private investor of a comparable dimension could have been prevailed upon to make capital contributions of the same size, having regard in particular to the information available and foreseeable developments at the date of those contributions (see paragraph 195 above).
According to the case-law referred to in paragraphs 219 and 220 above, the relevant moment at which the Commission must apply the prudent private investor criterion is therefore when the State financial support measure that may be characterised as State aid is adopted.
It follows that, in the present case, not only should the Commission have applied the prudent private investor criterion primarily to the announcement of 4 December 2002 coupled with the shareholder loan offer (see paragraphs 202 to 218 above) but, in so doing, it should also have placed itself in the context of the period in which that measure was taken by the French State, that is December 2002.
However, quite apart from the fact that the Commission applied the prudent private investor criterion to that measure only later and incidentally, in order to do so it placed itself in the context of the situation prior to July 2002 (see in particular recital 228 of the contested decision).
The Commission cannot justify its position by arguing that the market conditions in December 2002 were ‘contaminated’ or abnormally distorted by the declarations from July 2002 and, in particular, by the declaration of 12 July 2002.
In that regard, it should be pointed out that, when questioned on this point by the General Court at the hearing on 24 September 2014, the Commission stated that the only legal basis for its argument concerning the ‘contaminating’ effect of those declarations was Article 87 EC and, more particularly, the prudent private investor criterion.
However, as already noted in paragraphs 212 to 217 above, in the contested decision the Commission did not take a stance on whether the declarations from July 2002, which it has not demonstrated as involving a commitment of State resources, were in themselves likely to constitute State aid.
It is true that, according to the case-law referred to in paragraph 220 above, the comparison of the State’s behaviour with that of a private investor must be made in the light of the information available and the developments foreseeable at the time of the financial contributions at issue. This means that no account can be taken of events and information subsequent to the granting of the aid, but in no way prevents the Commission from taking account of earlier events forming part of the context of the aid at issue and of their effects. In order to assess the economic rationality of the French State’s behaviour, the Commission could therefore take account of all the factors characterising that context which, in this case, was not confined to the events of December 2002.
In other words, the Commission was fully entitled to include in its analysis the declarations from July 2002 as ‘earlier facts which are objectively relevant’ (recital 185 of the contested decision) and as ‘mak[ing] it possible to better understand the reasons for and scope of the December 2002 measures’ (recital 186 of the contested decision).
However, although the ‘information available’ may relate to events and objective factors from the past, such as the declarations from July 2002, those earlier events and factors cannot be regarded as decisively constituting, in themselves, the relevant reference framework for applying the prudent private investor criterion. On the contrary, given the necessity of a forward-looking analysis based on the information available, the fact that events and factors from the past are taken into account does not mean that more recent events and objective factors cannot be taken into account, if they may be decisive for that forward-looking analysis, either because they invalidate the earlier facts or because they determine the future development of the beneficiary’s economic situation and of its position on the market. Thus, even if the earlier events are objective facts having determined, at least in part, the origin of the more recent events, they cannot render those more recent events insignificant if it appears that the latter, such as restructuring measures, had a real effect on that development.
In the present case, the Commission has manifestly disregarded that premiss since it failed to take account of a number of relevant factors which effectively determined the French State’s decision in December 2002, that is, in addition to restoring the confidence of the financial markets and preserving FT’s credit rating, primarily the restructuring and rebalancing measures taken within FT, including the Ambition 2005 plan drawn up by its new management between October and December 2002, which provided in particular for the implementation of a plan, the ‘TOP plan’, to improve the company’s operational performance. It also failed to take into consideration other key factors, such as the commitment given in September 2002 by a banking syndicate to underwrite that part of an increase in the capital of FT which was intended for private investors, the sale by FT of some EUR 2.5 billion in non-strategic assets between July and December 2002, the appointment of a new management team for the company in October 2002, and the resolution in November 2002 of the dispute between FT and the German operator Mobilcom. Taken as a whole, those factors brought about a marked improvement in FT’s operational prospects and performance during the second half of 2002, as the French Republic very convincingly showed in its answer to a written question from the General Court in the present proceedings. It must be added that, in recital 260 of the contested decision, the Commission notes that it would not be appropriate to rely only on the declarations from July 2002 in quantifying the aid at issue, since ‘although reference to the market situation before [those] declarations makes it possible to factor in the effect on the markets of the prior declarations of the French authorities, it does not make it possible to isolate that effect from any other effects of events such as the change of FT’s management or the Ambition 2005 plan’.
It is clear from recital 228 of the contested decision and from the Commission’s written submissions that it did not actually weigh up those various determining factors when applying the prudent private investor criterion. It even deliberately refused to take them into consideration in that context, because it considered it ought to give preference, retroactively and on the basis of its ‘contamination’ argument, to outdated factors in particular from June and July 2002.
Under those circumstances, it is appropriate to regard as artificial and manifestly in error the approach adopted by the Commission, which took the view that, in order to take account of an alleged ‘contamination’ effect produced by the declarations from July 2002, it was necessary to treat the factual situation in which the French State finally adopted definite support measures in December 2002 as being the same as the economic and financial situation of FT prior to the declaration of 12 July 2002. Consequently, the Commission was not justified in maintaining that it should base its assessment not on the market situation in December 2002 but on the market situation before it was ‘contaminated’ by those declarations.
Finally, the Commission’s reasoning that a prudent private investor would not have made declarations such as those made by the French Government from July 2002 is based on a manifest error of assessment, which is an additional ground for rejecting the ‘contamination’ argument on which it relies.
It should be recalled that this reasoning is based on the premiss that the declarations from July 2002, and chiefly the declaration of 12 July 2002, were ‘likely ... from a purely economic point of view, to seriously place [the] credibility and reputation [of the French State] on the line and, from a legal point of view, even to oblige [it] from that date to support [FT] financially come what may’ (recital 229 of the contested decision). According to the Commission, those declarations were ‘sufficiently clear, precise and firm for them to attest to the existence of a credible commitment on the part of the [French] State’ to support FT (recital 208 of the contested decision). At the very least, market operators would have perceived the existence of such a firm commitment (recitals 206, 213, 220 and 221 of the contested decision). However, according to the Commission, in view of the crisis situation in which FT found itself in July 2002, a prudent private investor would not have publicly made such declarations of support, likely as they were to involve such financial risks, at the very least before having obtained full information of the company’s economic situation (recital 229 of the contested decision).
In that regard, first of all, it should be noted that the assumption that the declarations by the public authorities might simply be perceived by the market as revealing a firm commitment on their part is not sufficient for a conclusion that those declarations are likely to have harmful economic or legal consequences of the kind referred to by the Commission. Such a conclusion presupposes that the declarations in question are sufficiently clear, precise and firm as to definitely involve such a commitment. A finding of the existence of aid must in fact be based on objective findings and not on the perception of market operators alone (see, to that effect, judgment of 26 June 2008 in
SIC
v
Commission
, T‑442/03, ECR,
EU:T:2008:228
, paragraph 126). Thus, the well-recognised fact (see paragraph 214 above) that the declarations from July 2002 had a positive effect on the perception of market operators, in particular allowing FT’s rating to be maintained at investment grade and the financial markets to regain confidence, cannot be conclusive.
Next, it is clear from an analysis of the nature of the declarations from July 2002 that they involved no firm commitment on the part of the French State capable of producing the harmful effects alleged by the Commission.
Thus, first, as regards the declaration of 12 July 2002, it should be noted that that declaration was made by the Minister for Economic Affairs, above all, in his capacity as representative of the French State qua FT’s majority shareholder (‘[w]e are the majority shareholder’). In that capacity, he gave the express assurance that, whatever its method of intervention might be, the French State intended to behave like a prudent investor (‘[t]he State shareholder will behave like a prudent investor’). In that regard, the Commission has not adduced any evidence that the intention to make the French State’s future intervention subject to compliance with the prudent private investor criterion was merely a display and not genuine and serious at the time of that declaration.
Furthermore, the declaration of 12 July 2002 was vague and imprecise as regards the possible measures of support which the French State might take at a later, still unspecified, stage (‘will behave like a prudent investor and would take appropriate steps’). In the light of the open-ended and vague nature of those comments, the Commission was not justified in finding that an alleged commitment given by the French State, of which only the ‘means of intervention, i.e. the detailed arrangements for carrying [it] out’ were yet to be specified (recital 209 of the contested decision), was clear, since any such clear commitment necessarily presupposes identification of the nature and scope of that possible future intervention. As is confirmed by the Deutsche Bank report of 22 July 2002, on which the Commission itself relied in recital 221 of and footnote 146 to the contested decision, in the light of the declaration of 12 July 2002, the market could not yet determine the nature and scope of that future intervention by the French State (‘[FT] benefited from the market’s increased confidence that the [French] Government will in one way or another support the credit’; that ‘implicit [French] Government support … could take the form of banks or the [French] Government providing the necessary loans at market prices’). In addition, by way of confirmation of the future, conditional and imprecise character of such intervention, the declaration of 12 July 2002 expressly rejected the possibility of a capital increase for FT, even though the French State was to pursue precisely that option in December 2002 (‘No, certainly not! I am simply saying that we shall take appropriate measures when the time comes. If it is necessary …’).
That reading is borne out in the light of the factual context in which the declaration of 12 July 2002 was made. As the Commission seems to acknowledge itself (see paragraph 179 above), at that stage, in the absence of relevant information on the exact extent of the financial difficulties faced by FT, on the future reaction of the financial markets caused by that declaration and on the movements and trends which began following the proposed restructuring of FT, the French State could not yet know and determine, with sufficient precision, the nature, scope and conditions for the granting of any measures of support for that company. It is, on the contrary, apparent from all the acts of the French authorities performed on 12 July 2002, including the fact that they directly contacted the rating agencies, that those authorities were seeking to reassure the financial markets rapidly as to the French State’s potential and future support for FT with the sole aim of preventing further downgrading of its rating and denial of its access to new loans on the bond market, without however specifying the concrete form of that possible support at that precise moment. Indeed, prematurely specifying the concrete form of any measures of support could have run the risk of pointlessly restricting the refinancing options which might subsequently become available for FT’s debt while creating the need to notify such measures to the Commission under Article 88(3) EC. Moreover, because of its precipitate character, such an approach would have been liable to undermine the confidence of creditors and investors in the reliability of the French State’s action. In those circumstances, contrary to what is stated in recital 212 of the contested decision, the fact of having contacted the rating agencies could not be construed as a factor supporting the firm character of the alleged commitment given by the French State, but only as a first step intended to relieve the pressure to which FT’s position on the financial markets was subject in July 2002.
Contrary to what the Commission argues in recital 210 of the contested decision, the mere fact that, at the time of the declaration of 12 July 2002, FT was already facing serious refinancing difficulties does not in any way alter either the open-ended and vague character of that declaration as a whole or its significance in the light of the factual context in which it was made. Consequently, even assuming that those difficulties existed at that stage, the fact that that declaration did not correctly reflect the critical situation of FT’s short-term debt at the time is not decisive (‘if [FT] were to face any difficulties’; ‘if [FT] were to face any financing problems, which is not the case today, the [French] State would take whatever decisions were necessary to overcome them’).
Furthermore, in the context of its literal interpretation of the declaration of 12 July 2002, the Commission cannot reasonably maintain that ‘[t]here is nothing to show that the market had knowledge of any such condition (recital 210 of the contested decision), since that subjective perception on the part of certain market operators is not decisive for the purpose of characterising the nature of such a declaration (see paragraph 235 above). Moreover, that consideration takes no account of the fact that, on the contrary, at that stage, Deutsche Bank was incapable of anticipating the nature and scope of any future intervention by the French State in favour of FT (see paragraph 238 above).
Secondly, as regards the declaration of 13 September 2002, it must be pointed out that that declaration is also future-oriented, conditional and imprecise as to any measures envisaged by the French State in the long term (‘[t]he [French] State will help [FT] implement th[e] plan [for improving FT’s accounts] and will contribute to a very substantial strengthening of [FT]’s capital base, according to a timetable and in a manner to be determined in the light of market conditions’), since the only certainty lies in the affirmation of a future contribution ‘to a very substantial strengthening of [FT’s] capital base’ and in the fact that this will be made under ‘market conditions’. Furthermore, like the declaration of 12 July 2002, the declaration of 13 September 2002 omits to specify further the nature, scope and conditions of the French State’s future intervention in favour of FT and makes any measures of support subject to the criterion of necessity (‘[i]n the meantime, the [French] State will, if necessary, take steps to prevent [FT] from being faced with any financing difficulties’).
Thirdly, as regards the declaration of 2 October 2002, it is no less vague and provides no appreciable clarification as compared with the content of the declaration of 13 September 2002 (‘[t]he [French] State will assist in implementing the recovery measures and will contribute, for its part, to the strengthening of [FT]’s own capital base in a manner to be determined … the [French] State will [in the meantime], if necessary, take steps to prevent [FT] from being faced with any financing difficulties’). By that declaration, the French State confines itself to anticipating vaguely some future and potential assistance on its part in order to strengthen FT’s capital base, the nature, scope and conditions for the grant of which are not yet determined. At the same time, along the same lines as the earlier declarations, some possible intermediate French State assistance, the particulars of which are not further clarified, is made subject to the need to resolve any potential financial problems faced by FT.
It follows from the foregoing considerations that, contrary to what the Commission submits, because of their open-ended, imprecise and conditional character, in particular as regards the nature, scope and conditions of any State intervention in favour of FT, and in the light of the factual context in which they were made, the declarations from July 2002 cannot be interpreted as involving a concrete and firm commitment by the French State to provide specific support for FT.
Accordingly, the declarations from July 2002 cannot have created any legal obligation incumbent on the French State, in particular an obligation to support FT financially from 12 July 2002.
For the same reasons, it cannot be held that, irrespective of any legal obligation, those declarations created a genuine expectation on the part of the market and that, if the French State had not honoured its promise, the loss of its credibility and reputation on those markets would have had certain economic costs for it as an owner of or shareholder in companies, as a major economic player and as a major borrower on the financial markets (recitals 217 and 221 of the contested decision). First of all, a mere expectation on the part of the market cannot as such create any legal obligation whatsoever to act along particular desired lines (see paragraph 235 above). Next, the Commission has not demonstrated that non-compliance with any promise of support by the French State for an undertaking is capable of jeopardising its credibility and reputation on the financial markets. Furthermore, as is clear from the considerations in paragraph 238 above and paragraph 247 below, the conduct of the French authorities from July 2002 was specifically designed to avoid the harmful consequences alleged by the Commission by allowing uncertainty to persist as to the nature, scope and exact conditions of any future intervention. Finally, and in any event, as Advocate General Mengozzi pointed out in his Opinion in Joined Cases
Bouygues and Others
v
Commission and Others
, C‑399/10 P and C‑401/10 P, ECR,
EU:C:2012:392
, point 64, it should be recalled that the Commission ultimately refrained from adopting a definitive position on whether the declarations from July 2002 were capable of causing the State to lose credibility on the financial markets in such a way as to expose it to a financial risk in the form of an increase in the costs of its future transactions.
It is true that, by the declarations from July 2002 and thereby taking advantage of its reputation with the financial markets as a solvent and reliable creditor and debtor, the French State intentionally sought to influence the reaction of those markets, to restore their confidence and, in particular, to secure the maintenance of FT’s rating with the aim of preparing for its solid refinancing at less cost at a later stage. However, as FT rightly points out in its written observations of 31 May 2013, the French State thereby merely made use of the particular rules by which the financial markets operate in order to stabilise FT’s economic position in the short term, specifically with the aim of satisfying the entrepreneurial and financial conditions necessary for the adoption of more concrete measures of support which would have to be taken subsequently. In so doing, the French State adopted precisely the prudent and diligent attitude of a private investor who ensures that all the necessary conditions are satisfied before entering into an irrevocable commitment to support or invest. In that context, the Commission’s largely unsubstantiated claim that no private investor would have been able to influence the market as the French State did with its declarations from July 2002 cannot be accepted. It cannot be ruled out from the outset that a private investor of international scale and considerable economic weight might follow the same strategy and obtain the same results with the financial markets.
It follows from all the foregoing considerations that the Commission manifestly erred in law and in fact when it applied the prudent private investor criterion on the basis of the situation from July 2002.
– The question of whether the shareholder loan offer, announced and notified on 4 December 2002, was the concretisation of the declarations from July 2002
The Commission cannot justify its manifestly erroneous application of the prudent private investor criterion by its argument, set out in essence in recitals 185, 187 and 226 of the contested decision, that the shareholder loan offer, announced and notified on 4 December 2002, was merely the concretisation of the earlier declarations made by the French State and, more precisely, of a decision of principle to support FT financially allegedly taken as far back as 12 July 2002.
By that argument, the Commission considers, in essence, that it was justified in assessing as a whole the declarations from July 2002, the announcement of 4 December 2002 and the shareholder loan offer as a whole in order to arrive at the conclusion that the French State’s conduct did not satisfy the prudent private investor criterion.
It is true that the shareholder loan offer, announced and notified on 4 December 2002, is consistent with the French State’s reasoning and strategy from July 2002, which had the objective and consequence of restoring the confidence of the markets in order to be able to refinance FT’s short-term debt under more favourable conditions (see paragraph 247 above).
However, it nevertheless does not follow that the declarations from July 2002 already contained, in themselves, the anticipation of specific financial support on the lines of that which eventually took concrete form in December 2002.
It follows from the considerations set out in paragraphs 233 to 244 above that, unlike the announcement on 4 December 2002, which made public the offer to open a EUR 9 billion credit line in favour of FT, the declarations from July 2002 had an open-ended, imprecise and conditional character as regards the nature, scope and conditions of any future intervention by the French State. The French State cannot therefore be considered to have planned such concrete financial support as far back as July 2002. In reality, given that substantially different character of the declarations from July 2002, the French State’s decision in December 2002 to announce and make a shareholder loan offer amounted to a significant break in the series of events which led to the refinancing of FT.
The Commission’s argument is particularly implausible since the French State first had to wait and see whether, following the declarations from July 2002 and their hoped-for effect, namely the restoration of the financial markets’ confidence and the maintenance of FT’s credit rating, and following the restructuring and rebalancing measures taken within FT, the economic conditions for such State intervention were actually fulfilled. As was noted in paragraph 239 above, at the stage of those declarations, in the absence of relevant information, in particular, as to the future reaction of the financial markets and the success of the measures taken, the French State could not yet know and determine, with sufficient certainty, the nature, scope and conditions of any measure of support for FT, including any capital increase which the Minister for Economic Affairs had still expressly rejected in July 2002. It was clearly not until December 2002 that the French State considered that the economic conditions for such financial assistance were fulfilled, which confirms the occurrence of a significant break in the series of events at that stage.
– The question of whether the declarations from July 2002 and the announcement of 4 December 2002, coupled with the shareholder loan offer, together constituted a ‘single intervention’
In its written observations of 17 July 2013, the Commission states that, in the judgment on appeal, the Court of Justice did not rule on whether the declarations from July 2002 and the announcement of 4 December 2002, coupled with the shareholder loan offer, could be regarded, together, as a ‘single intervention’ within the meaning of paragraphs 103 to 105 of that judgment. It states that the criteria mentioned in paragraphs 103 and 104 of the judgment on appeal are nevertheless perfectly capable of being applied to the present case and that those various consecutive interventions must be regarded as inextricably linked.
In paragraphs 127 to 131 of the judgment on appeal, the Court of Justice held, applying the criteria set out in paragraphs 103 and 104 of that same judgment, that the Commission was justified in considering the announcement of 4 December 2002 and the shareholder loan offer, taken together, as constituting a single State intervention, since those two interventions were so closely linked to each other that they were inseparable from one another. It is also clear that it is that single intervention which was identified by the Commission in the contested decision as being the unlawful aid measure in question.
It must be noted that, as the French Republic and FT pointed out at the hearing on 24 September 2014, the contested decision is not based on the premiss that the declarations from July 2002 are also included within the ambit of that single intervention as constituent parts of the aid measure at issue.
It is true that, in the contested decision, the declarations from July 2002 are analysed together with the single State intervention characterised as State aid, in this case the announcement of 4 December 2002 coupled with the shareholder loan offer, but only as forming part of the ‘context’ of that intervention. This is confirmed by the Court of Justice in the judgment on appeal, when it states that ‘it follows from [recital] 185 of the contested decision that the subject-matter of the decision concerned the shareholder loan which was notified to the Commission, and that the declarations from July 2002 were taken into consideration only in as much as they were objectively relevant to the assessment of that loan’ (judgment on appeal, paragraph 73), that ‘[t]hus the Commission examined those declarations only in so far as they formed the basis for that measure’ and that ‘it follows from Article 1 of the contested decision that the decision limits itself to characterising the shareholder loan as State aid which is incompatible with the common market, and … refers to the declarations from [July] 2002 only as forming the context of that aid’ (judgment on appeal, paragraph 75).
The argument, incidentally incorrect (see paragraphs 249 to 254 above), put forward by the Commission in the contested decision to the effect that the shareholder loan offer is the concrete embodiment of a decision of principle, taken on 12 July 2002, to support FT does not go as far as the argument that the declarations from July 2002, like the announcement of 4 December 2002 and the shareholder loan offer, are constituent parts of a single intervention characterised as State aid.
Moreover, while the Commission states, in its written observations of 17 July 2013 and in its answers to the written questions from the General Court in these proceedings, that the criteria set out in paragraphs 103 and 104 of the judgment on appeal are also satisfied as regards the declarations from July 2002, it nevertheless does not conclude that they must be seen as constituent parts of the measure characterised as State aid in the contested decision. What the Commission infers from the fact that those declarations and the shareholder loan offer are, in its view, inextricably linked, is that it was justified in considering all those interventions as being part of the same continuous process of support for FT by the French State, in adopting an ‘overall approach’ in this instance (see paragraph 176 above) and, thus, in analysing all those different interventions in the light of Article 87(1) EC. As to the remainder, the Commission emphasises that it took account of the declarations from July 2002 only as forming the context for the aid in question. Likewise, at the hearing on 24 September 2014, the Commission argued that, by paragraphs 102 to 104 of the judgment on appeal, the Court of Justice had validated the overall approach to the process which the Commission had advocated from the outset. It also indicated that it was unable to state whether the declarations from July 2002 and the announcement of 4 December 2002, coupled with the shareholder loan offer, should be considered, taken together, as constituting a ‘single intervention’ within the meaning of the judgment on appeal and whether such a finding would mean that all those consecutive interventions are one and the same State aid, leaving it for the General Court to rule on those questions.
In other words, the Commission does not draw from its statements based on paragraphs 103 and 104 of the judgment on appeal any arguments other than those which it put forward in the earlier proceedings before the General Court and the Court of Justice and which have already been rejected as erroneous or vitiated by a manifest error of assessment in paragraphs 202 to 254 above.
It follows from all the foregoing considerations that the second and third pleas raised by the French Republic and FT should be upheld in so far as they seek a finding of errors of law and manifest errors of assessment in the application of the prudent private investor criterion and hence a misinterpretation of the concept of State aid within the meaning of Article 87(1) EC. Consequently, Article 1 of the contested decision must be annulled.
In those circumstances, there is no longer any need to examine the French Republic’s fourth plea, alleging a failure to state adequate reasons.
3.
The claim for annulment of Article 2 of the contested decision
It should be recalled that the French Republic and FT seek to obtain the annulment of the contested decision in its entirety, that is including Article 2 thereof, even though they raise no specific argument in support of that aspect of their action.
However, in paragraphs 141 and 142 of the judgment on appeal, with regard to Article 2 of the contested decision, the Court of Justice refers only to the claim for annulment of that article brought by the Bouygues Companies and therefore proposes to refer only that claim back to the General Court.
In view of the scope of the actions brought by the French Republic and FT, as reviewed in paragraph 264 above, and point 2 of the operative part of the judgment on appeal, which uses the word ‘claims’ in the plural, the General Court considers that it is also seised of the claims brought by those parties for annulment of Article 2 of the contested decision.
In that regard, it should be considered that, in the light of the annulment of Article 1 of the contested decision, on the basis of the second and third pleas put forward by the French Republic and FT, their claims for annulment of Article 2 of that decision, which finds that there is no need to recover the aid referred to in Article 1, have lost their purpose.
The annulment of Article 1 of the contested decision produces an effect
erga omnes
, which is capable of giving it the force of
res judicata
with absolute effect [judgments of 1 June 2006 in
P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya
v
Commission
, C‑442/03 P and C‑471/03 P, ECR,
EU:C:2006:356
, paragraph 43, and 4 March 2009 in
Tirrenia di Navigazione and Others
v
Commission
, T‑265/04, T‑292/04 and T‑504/04,
EU:T:2009:48
, paragraph 159].
The consequence of that annulment is the disappearance with retroactive effect of the finding of the existence of aid incompatible with the common market contained in Article 1 of the contested decision. It follows that the declaration of non-recovery of that aid, contained in Article 2 of that decision, also loses its purpose with retroactive effect.
In those circumstances, there is no need to adjudicate on the claims of the French Republic and FT for annulment of Article 2 of the contested decision.
Costs
In the judgment on appeal, the Court of Justice reserved the costs. It is therefore for the General Court to rule in the present judgment on all the costs relating to the various proceedings, in accordance with Article 219 of the Rules of Procedure of the General Court.
Pursuant to Article 134(3) of the Rules of Procedure, each party is to bear its own costs where each party succeeds on some and fails on other heads. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
In the present case, the forms of order sought by the French Republic and FT have been granted in so far as they seek annulment of Article 1 of the contested decision on the basis of the second and third pleas which they relied on. On the other hand, their first plea has not been allowed. It has also been held that there was no need to adjudicate on their claims for annulment of Article 2 of the contested decision. A fair assessment of the circumstances of the case will be that the Commission will bear its own costs and eight tenths of the costs incurred by the French Republic and FT. The French Republic and FT will each bear two tenths of their own costs.
The Federal Republic of Germany, which intervened in the dispute, will bear its own costs, pursuant to Article 138(1) of the Rules of Procedure.

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

1.
Annuls Article 1 of Commission Decision 2006/621/EC of 2 August 2004 on the State Aid implemented by France for France Télécom;

2.
Rules that there is no need to adjudicate on the claims for annulment of Article 2 of Decision 2006/621;

3.
Orders the European Commission to bear its own costs and eight tenths of the costs incurred by the French Republic and by Orange, formerly France Télécom;

4.
Orders the French Republic and Orange, formerly France Télécom, each to bear two tenths of their own costs;

5.
Orders the Federal Republic of Germany to bear its own costs.

Frimodt Nielsen
Dehousse
Wiszniewska-Białecka
Collins
Ulloa Rubio
Delivered in open court in Luxembourg on 2 July 2015.
[Signatures]
Table of contents

Background to the dispute

1. General background to the case

2. Administrative procedure

3. Contested decision

Earlier proceedings before the General Court and the Court of Justice

1. Earlier proceedings before the General Court

2. Earlier proceedings before the Court of Justice

Procedure and forms of order sought by the parties following referral of the case

In Law

1. Admissibility of the action in Case T‑444/04 RENV

2. The claim for annulment of Article 1 of the contested decision

Preliminary observations

The first plea, alleging infringement of essential procedural requirements and of the rights of the defence

Infringement of essential procedural requirements

– Arguments of the parties

– Assessment of the General Court

Infringement of the rights of the defence

– Arguments of the parties

– Assessment of the General Court

The second and third pleas, alleging errors of law and manifest errors of assessment in relation to the application of the prudent private investor criterion

Arguments of the parties

Assessment of the General Court

– Review of the relevant case-law

– Review of the Commission’s reasoning in the contested decision

– The measure to which the Commission was to apply the prudent private investor criterion

– The relevant moment at which the Commission had to apply the prudent private investor criterion

– The question of whether the shareholder loan offer, announced and notified on 4 December 2002, was the concretisation of the declarations from July 2002

– The question of whether the declarations from July 2002 and the announcement of 4 December 2002, coupled with the shareholder loan offer, together constituted a ‘single intervention’

3. The claim for annulment of Article 2 of the contested decision

Costs
(
*1
)	Language of the case: French