# C_2015178EN.01001501.xml

| 1.6.2015 | EN | Official Journal of the European Union | C 178/15 |
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1.6.2015

EN

Official Journal of the European Union

C 178/15

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Action brought on 6 March 2015 — Fortischem v Commission

(Case T-121/15)

(2015/C 178/17)

Language of the case: English

Parties

Parties

Applicant: Fortischem a.s. (Nováky, Slovakia) (represented by: C. Arhold, P. Hodál and M. Staroň, lawyers)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | annul Articles 1, 3, 4 and 5 of the decision of the European Commission of 15 October 2014 on State aid SA.33797 (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ; |
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annul Articles 1, 3, 4 and 5 of the decision of the European Commission of 15 October 2014 on State aid SA.33797 (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ;

| — | award the applicant the costs of the present action. |
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award the applicant the costs of the present action.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.

| 1. | First plea in law, alleging breach of Article 107(1) TFUE
  It is submitted that the Commission’s decision that declaring the company Novácke chemické závody, a.s. v konkurze (‘NCHZ’) a strategic company within the meaning of the Slovak Law of 5 November 2009 on certain strategic measures regarding strategically important companies in bankruptcy (‘the Law’) constituted State aid within the meaning of Article 107(1) TFUE is in breach of that Article, since not all of its constituent elements are fulfilled.
  The applicant puts forward that the declaration did not cause a transfer of State resources, since there was no additional burden for the State compared to the situation that would have arisen had the usual insolvency rules been applied. Nor did it confer an economic advantage to NCHZ, since, first, creditors would have opted for continued operation in any way, and the temporary prohibition of lay-offs was only in favour of the State, not of the company. Second, the application of the Law passes the Market Economy Operator Test, since it was economically advantageous for the public creditors.
  Finally, the applicant submits that even if the Commission were right and the application of the Law were to be considered State Aid in favour of NCHZ, the Commission has committed a manifest error of assessment when calculating the amount of State aid. |
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1.

First plea in law, alleging breach of Article 107(1) TFUE

It is submitted that the Commission’s decision that declaring the company Novácke chemické závody, a.s. v konkurze (‘NCHZ’) a strategic company within the meaning of the Slovak Law of 5 November 2009 on certain strategic measures regarding strategically important companies in bankruptcy (‘the Law’) constituted State aid within the meaning of Article 107(1) TFUE is in breach of that Article, since not all of its constituent elements are fulfilled.

The applicant puts forward that the declaration did not cause a transfer of State resources, since there was no additional burden for the State compared to the situation that would have arisen had the usual insolvency rules been applied. Nor did it confer an economic advantage to NCHZ, since, first, creditors would have opted for continued operation in any way, and the temporary prohibition of lay-offs was only in favour of the State, not of the company. Second, the application of the Law passes the Market Economy Operator Test, since it was economically advantageous for the public creditors.

Finally, the applicant submits that even if the Commission were right and the application of the Law were to be considered State Aid in favour of NCHZ, the Commission has committed a manifest error of assessment when calculating the amount of State aid.

| 2. | Second plea in law, alleging an infringement of the obligation to conduct a diligent and impartial examination
  The applicant puts forward that the Commission had the duty, on the one hand, to inform the Slovak Government about the fact that it considered the level of detail of the ex-post-analysis submitted by the latter to be insufficient and, on the other hand, to indicate what additional information or clarification the Slovak Government had to provide. In addition, the applicant submits that the Commission failed to request information on final figures before taking a recovery decision. |
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2.

Second plea in law, alleging an infringement of the obligation to conduct a diligent and impartial examination

The applicant puts forward that the Commission had the duty, on the one hand, to inform the Slovak Government about the fact that it considered the level of detail of the ex-post-analysis submitted by the latter to be insufficient and, on the other hand, to indicate what additional information or clarification the Slovak Government had to provide. In addition, the applicant submits that the Commission failed to request information on final figures before taking a recovery decision.

| 3. | Third plea in law, alleging infringement of Article 296(2) TFUE and the obligation to state reasons
  The applicant submits that the Commission failed to provide any reasoning as to why in this specific case NCHZ would not have continued operating without the application of the Law as well as to address the Slovak Government’s arguments as to the economic interests of the public creditors in continued operation. |
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3.

Third plea in law, alleging infringement of Article 296(2) TFUE and the obligation to state reasons

The applicant submits that the Commission failed to provide any reasoning as to why in this specific case NCHZ would not have continued operating without the application of the Law as well as to address the Slovak Government’s arguments as to the economic interests of the public creditors in continued operation.

| 4. | Fourth plea in law, alleging an infringement of Articles 107(1) and 108(2) TFUE and Article 14(1) of the Procedural Regulation by extending the recovery aid to the Applicant
  The applicant puts forward that there was no State aid in its favour, since the sales price was at market rate. According to the applicant, the Commission’s argumentation and doubts as to whether the prices paid by Via Chem and subsequently by Fortishem for the NCHZ assets represented market prices is flawed for several reasons. It is submitted that first, as the burden of proof lies with the Commission, it is not sufficient for the Commission to express doubts. Second, since the sale was conducted within the scope of a bankruptcy procedure under the control of a bankruptcy court with the obligation to act in the interests of the creditors of the insolvent company, there is an assumption that the assets were sold at the highest price possible. Third, the tender procedure was open, transparent and unconditional and therefore guaranteed the highest price achievable on the market; the commitment option did not have any impact on sales price. Fourth, notwithstanding the fact that the conditions of the sale between Via Chem and Fortischem are not of any relevance due to the market price of the first sale, the sales price negotiated between private market economy operators is assumed to be a market price even without a tender procedure.
  The applicant further puts forward that it is obvious that the transfer of the NCHZ assets to Via Chem and later to the applicant cannot be considered an attempt to circumvent the Commission’s recovery decision for two reasons. First, the case is so far from the typical circumvention case that even the Commission admits that it has no evidence of the intention to evade recovery. Second, it nevertheless comes to the conclusion that there is economic continuity, so that it can extend the recovery to the applicant. However, the Commission’ conclusion follows a flawed analysis based on an incorrect interpretation of the individual criteria, a disregard for the burden of proof and a false understanding of the overall concept of economic continuity in State aid cases.
  Finally, the applicant submits that the Commission’s approach is economically destructive and unnecessary from a competition law perspective. According to the applicant, the Commission is trying to create new, much stricter case law, according to which the scope of the transaction shall be the decisive criterion, the sales price being at most an auxiliary criterion, if at all. |
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4.

Fourth plea in law, alleging an infringement of Articles 107(1) and 108(2) TFUE and Article 14(1) of the Procedural Regulation by extending the recovery aid to the Applicant

The applicant puts forward that there was no State aid in its favour, since the sales price was at market rate. According to the applicant, the Commission’s argumentation and doubts as to whether the prices paid by Via Chem and subsequently by Fortishem for the NCHZ assets represented market prices is flawed for several reasons. It is submitted that first, as the burden of proof lies with the Commission, it is not sufficient for the Commission to express doubts. Second, since the sale was conducted within the scope of a bankruptcy procedure under the control of a bankruptcy court with the obligation to act in the interests of the creditors of the insolvent company, there is an assumption that the assets were sold at the highest price possible. Third, the tender procedure was open, transparent and unconditional and therefore guaranteed the highest price achievable on the market; the commitment option did not have any impact on sales price. Fourth, notwithstanding the fact that the conditions of the sale between Via Chem and Fortischem are not of any relevance due to the market price of the first sale, the sales price negotiated between private market economy operators is assumed to be a market price even without a tender procedure.

The applicant further puts forward that it is obvious that the transfer of the NCHZ assets to Via Chem and later to the applicant cannot be considered an attempt to circumvent the Commission’s recovery decision for two reasons. First, the case is so far from the typical circumvention case that even the Commission admits that it has no evidence of the intention to evade recovery. Second, it nevertheless comes to the conclusion that there is economic continuity, so that it can extend the recovery to the applicant. However, the Commission’ conclusion follows a flawed analysis based on an incorrect interpretation of the individual criteria, a disregard for the burden of proof and a false understanding of the overall concept of economic continuity in State aid cases.

Finally, the applicant submits that the Commission’s approach is economically destructive and unnecessary from a competition law perspective. According to the applicant, the Commission is trying to create new, much stricter case law, according to which the scope of the transaction shall be the decisive criterion, the sales price being at most an auxiliary criterion, if at all.

| 5. | Fifth plea in law, in the alternative, infringement of Articles 107(1), 108(2) TFUE and Article 14(1) of the Procedural Regulation by not limiting the extension of the Recovery Decision to 60 % of the alleged State aid |
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5.

Fifth plea in law, in the alternative, infringement of Articles 107(1), 108(2) TFUE and Article 14(1) of the Procedural Regulation by not limiting the extension of the Recovery Decision to 60 % of the alleged State aid

| 6. | Sixth plea in law, alleging an infringement of Article 296 TFUE by giving inadequate reasons with respect to the economic continuity
  The applicant puts forward that it follows from the observations made with respect to the first plea that he Commission’s reasoning is insufficient to enable the Court to conduct a judicial review of the contested decision, and that it is not possible for the applicant to understand the reasons that led the Commission to conclude on economic continuity. |
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6.

Sixth plea in law, alleging an infringement of Article 296 TFUE by giving inadequate reasons with respect to the economic continuity

The applicant puts forward that it follows from the observations made with respect to the first plea that he Commission’s reasoning is insufficient to enable the Court to conduct a judicial review of the contested decision, and that it is not possible for the applicant to understand the reasons that led the Commission to conclude on economic continuity.

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