# C_2022303EN.01001501.xml

| 8.8.2022 | EN | Official Journal of the European Union | C 303/15 |
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8.8.2022

EN

Official Journal of the European Union

C 303/15

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Request for a preliminary ruling from the Administrativen sad — Varna (Bulgaria) lodged on 13 May 2022 — TS, HI v Ministar na zemedelieto, hranite i gorite

(Case C-325/22)

(2022/C 303/21)

Language of the case: Bulgarian

Referring court

Administrativen sad — Varna

Parties to the main proceedings

Applicants: TS, HI

Defendant: Ministar na zemedelieto, hranite i gorite

Questions referred

| 1. | Is a beneficiary of unlawfully granted State aid under a swap contract by which it acquired land in a forest area (owned by the State under private law) excluded from the definition of the term ‘undertaking’ where, as evidenced by its annual balance sheets, it carries out an economic activity by offering goods and services on the market concerned, but, in accordance with recital 127 of (Commission Decision (1) [EU] 2015/456 of 5 September 2014 on the aid scheme No SA.26212 [11/C] [ex 11/NN — ex CP 176/A/08] and SA.26217 [11/C] [ex 11/NN — ex CP 176/B/08], which applies to swaps of forest land in Bulgaria [notified under document C(2014) 6207]), does not directly or indirectly carry out economic activities with the land acquired by way of the swap, because national law provides for an objective prohibition preventing the beneficiary from changing the designated use of the land and from carrying out construction on the land removed from the forest stock or from selling that land? |
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1.

Is a beneficiary of unlawfully granted State aid under a swap contract by which it acquired land in a forest area (owned by the State under private law) excluded from the definition of the term ‘undertaking’ where, as evidenced by its annual balance sheets, it carries out an economic activity by offering goods and services on the market concerned, but, in accordance with recital 127 of (Commission Decision (1) [EU] 2015/456 of 5 September 2014 on the aid scheme No SA.26212 [11/C] [ex 11/NN — ex CP 176/A/08] and SA.26217 [11/C] [ex 11/NN — ex CP 176/B/08], which applies to swaps of forest land in Bulgaria [notified under document C(2014) 6207]), does not directly or indirectly carry out economic activities with the land acquired by way of the swap, because national law provides for an objective prohibition preventing the beneficiary from changing the designated use of the land and from carrying out construction on the land removed from the forest stock or from selling that land?

| 2. | Must the provision of Article 107 TFEU be interpreted and applied in such a manner that, with regard to the status of ‘undertaking’ and in the application of the criteria for an ‘undertaking’, and having regard to the data collected in relation to the completed first stage of the administrative procedure for prior consent, the investment project as applied for and factually described of the beneficiary of unlawfully obtained State aid, which is to be realised on State-owned forest land acquired by means of a swap and which is a prerequisite for the initiation of a subsequent procedure concerning the removal from the forest stock of the land acquired for the purpose of the construction, must be taken into account as a legally relevant circumstance, irrespective of the fact that it has become objectively impossible for the investment project to be realised due to the moratorium imposed by parliament and the subsequently adopted statutory provision containing an express prohibition preventing a change of the designated use of the land acquired from the State and preventing construction on that land? |
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2.

Must the provision of Article 107 TFEU be interpreted and applied in such a manner that, with regard to the status of ‘undertaking’ and in the application of the criteria for an ‘undertaking’, and having regard to the data collected in relation to the completed first stage of the administrative procedure for prior consent, the investment project as applied for and factually described of the beneficiary of unlawfully obtained State aid, which is to be realised on State-owned forest land acquired by means of a swap and which is a prerequisite for the initiation of a subsequent procedure concerning the removal from the forest stock of the land acquired for the purpose of the construction, must be taken into account as a legally relevant circumstance, irrespective of the fact that it has become objectively impossible for the investment project to be realised due to the moratorium imposed by parliament and the subsequently adopted statutory provision containing an express prohibition preventing a change of the designated use of the land acquired from the State and preventing construction on that land?

| 3. | Must Article 107 TFEU and Article 16(3) of Council Regulation (EU) 2015/1589 (2) be interpreted as precluding, for the purposes of determining the amount of State aid received by way of a swap of forest land (owned by the State under private law), national legislation such as the provisions of points 2 and 4 of Paragraph 1a (Supplementary Provisions) of the Zakon za darzhavnata sobstvenost (Law on State ownership) which prevents the establishment of a market price for the land due to the fact that it sets market indicators and valuation criteria for the calculation which result in a deviation from the actual value of the land, and, in that sense, does such national legislation infringe the principle of effectiveness? |
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3.

Must Article 107 TFEU and Article 16(3) of Council Regulation (EU) 2015/1589 (2) be interpreted as precluding, for the purposes of determining the amount of State aid received by way of a swap of forest land (owned by the State under private law), national legislation such as the provisions of points 2 and 4 of Paragraph 1a (Supplementary Provisions) of the Zakon za darzhavnata sobstvenost (Law on State ownership) which prevents the establishment of a market price for the land due to the fact that it sets market indicators and valuation criteria for the calculation which result in a deviation from the actual value of the land, and, in that sense, does such national legislation infringe the principle of effectiveness?

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(1)  Commission Decision (EU) 2015/456 of 5 September 2014 on the aid scheme No SA.26212 (11/C) (ex 11/NN — ex CP 176/A/08) and SA.26217 (11/C) (ex 11/NN — ex CP 176/B/08) implemented by the Republic of Bulgaria in the context of swaps of forest land (notified under document C(2014) 6207) (OJ 2015 L 80, p. 100).

(2)  Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).

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