# C_2013032EN.01001901.xml

| 2.2.2013 | EN | Official Journal of the European Union | C 32/19 |
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2.2.2013

EN

Official Journal of the European Union

C 32/19

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Action brought on 20 November 2012 — Slovenia v Commission

(Case T-507/12)

2013/C 32/30

Language of the case: Slovenian

Parties

Parties

Applicant: Republic of Slovenia (represented by V. Klemenc, State advocate, and A. Grum, assistant State advocate)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

The applicant claims that the General Court should:

| — | annul Commission Decision of 19 October 2012 on the measures in favour of the undertaking ELAN d.o.o., SA.26379 (C-13/2010) (ex NN 17/2010), notified to Slovenia by the Commission by letter SG-Greffe(2012) D/14375 of 20 September 2012, in which it was decided, inter alia, in Article 2 that in 2008 Slovenia had unlawfully given effect to a measure of State aid in favour of Elan, in the form of recapitalisation of that body in the sum of EUR 10 million, contrary to Article 108(3) of the Treaty on the Functioning of the European Union, wherefore Slovenia is obliged to recover from the beneficiary the aid declared illegal, and |
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annul Commission Decision of 19 October 2012 on the measures in favour of the undertaking ELAN d.o.o., SA.26379 (C-13/2010) (ex NN 17/2010), notified to Slovenia by the Commission by letter SG-Greffe(2012) D/14375 of 20 September 2012, in which it was decided, inter alia, in Article 2 that in 2008 Slovenia had unlawfully given effect to a measure of State aid in favour of Elan, in the form of recapitalisation of that body in the sum of EUR 10 million, contrary to Article 108(3) of the Treaty on the Functioning of the European Union, wherefore Slovenia is obliged to recover from the beneficiary the aid declared illegal, and

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

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

| 1. | First plea in law: in the contested decision the Commission misapplied Articles 107(1) TFEU and 345 TFEU and infringed substantive procedural requirements, for it assessed the facts incorrectly and gave defective and/or incorrect reasons for the decision at issue concerning the question whether a recapitalisation measure in 2008 can be attributed to the Republic of Slovenia.
  It is the applicant’s opinion that the Commission, contrary to Articles 107(1) TFEU and 345 TFEU, concluded that the conduct of the members of Elan on the latter’s recapitalisation in 2008 could be attributed to the Republic of Slovenia. The Commission’s conclusion was based on the fact that the State, as owner, appoints the supervisory council; the Commission thereby discriminates, in the applicant’s view, against the twofold system of management of public undertakings.
  The reasoning for the decision is deficient – that is to say, it wants relevant, adequate grounds – and incorrect, in that the Commission argues that there exist strong indications of the State’s being closely involved in the decision-making process of a company with share capital (Kapitalska družba, ‘KAD’) and of a consultancy and management company (Družba za svetovanje in upravljanje, DSU), that is to say, its arguments rest on no more than unreliable evidence and hear-say evidence. The contested decision is quite unsupported by reasons in respect too of the other members of Elan, against whom the Commission intends to level only an allegation of ‘parallel conduct’. In the applicant’s opinion, the factors mentioned by the Commission in the contested decision in no way amount to evidence that would, in accordance with the case-law of the Court of Justice and the General Court, demonstrate the State authorities’ involvement in the adoption of the measure recapitalising Elan in 2008. |
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1.

First plea in law: in the contested decision the Commission misapplied Articles 107(1) TFEU and 345 TFEU and infringed substantive procedural requirements, for it assessed the facts incorrectly and gave defective and/or incorrect reasons for the decision at issue concerning the question whether a recapitalisation measure in 2008 can be attributed to the Republic of Slovenia.

It is the applicant’s opinion that the Commission, contrary to Articles 107(1) TFEU and 345 TFEU, concluded that the conduct of the members of Elan on the latter’s recapitalisation in 2008 could be attributed to the Republic of Slovenia. The Commission’s conclusion was based on the fact that the State, as owner, appoints the supervisory council; the Commission thereby discriminates, in the applicant’s view, against the twofold system of management of public undertakings.

The reasoning for the decision is deficient – that is to say, it wants relevant, adequate grounds – and incorrect, in that the Commission argues that there exist strong indications of the State’s being closely involved in the decision-making process of a company with share capital (Kapitalska družba, ‘KAD’) and of a consultancy and management company (Družba za svetovanje in upravljanje, DSU), that is to say, its arguments rest on no more than unreliable evidence and hear-say evidence. The contested decision is quite unsupported by reasons in respect too of the other members of Elan, against whom the Commission intends to level only an allegation of ‘parallel conduct’. In the applicant’s opinion, the factors mentioned by the Commission in the contested decision in no way amount to evidence that would, in accordance with the case-law of the Court of Justice and the General Court, demonstrate the State authorities’ involvement in the adoption of the measure recapitalising Elan in 2008.

| 2. | Second plea in law: in the contested decision, the Commission misapplied Article 107(1) TFEU and infringed substantive procedural requirements, for it assessed the facts incorrectly and gave defective and/or incorrect reasons for the decision at issue with regard to the conclusion that the measure recapitalising Elan in 2008 had not been effected in accordance with the principle of the private investor operating in a market economy, thus affording Elan a selective advantage.
  The applicant claims in its action that the measure recapitalising Elan in 2008 was effected in accordance with the principle of the prudent private investor operating in a market economy, for the members, when deciding on the recapitalisation measure, relied on the appraisal of the undertaking in which proper consideration was given to the worsening of Elan’s operations in the greater part of the winter season of 2007/2008, and therefore during the first quarter of 2008 too. The worsening state of affairs in 2008 was not, however, so drastic as to affect the reliability of an assessment of the value of the undertaking. The members took their decision as long-term shareholders in an undertaking that had temporarily run into difficulties, but that was in the long term capable not merely of surviving, but also of returning to profitable operation. In its contested decision, the Commission did not satisfactorily explain why it took selective account of an estimate of the value of the undertaking, thus acting arbitrarily. |
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2.

Second plea in law: in the contested decision, the Commission misapplied Article 107(1) TFEU and infringed substantive procedural requirements, for it assessed the facts incorrectly and gave defective and/or incorrect reasons for the decision at issue with regard to the conclusion that the measure recapitalising Elan in 2008 had not been effected in accordance with the principle of the private investor operating in a market economy, thus affording Elan a selective advantage.

The applicant claims in its action that the measure recapitalising Elan in 2008 was effected in accordance with the principle of the prudent private investor operating in a market economy, for the members, when deciding on the recapitalisation measure, relied on the appraisal of the undertaking in which proper consideration was given to the worsening of Elan’s operations in the greater part of the winter season of 2007/2008, and therefore during the first quarter of 2008 too. The worsening state of affairs in 2008 was not, however, so drastic as to affect the reliability of an assessment of the value of the undertaking. The members took their decision as long-term shareholders in an undertaking that had temporarily run into difficulties, but that was in the long term capable not merely of surviving, but also of returning to profitable operation. In its contested decision, the Commission did not satisfactorily explain why it took selective account of an estimate of the value of the undertaking, thus acting arbitrarily.

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