Order — ECLI:EU:T:2018:170
Date: 2018-03-22
Language of the case: Spanish
Court formation: President of the Chamber
Subject matter: State aids;Competition
Procedure: Action for annulment;Application for interim measures - unfounded
Origin: Spain

summary of the Kingdom of Spain’s observations set out in recital 38 of the contested decision sheds no further light on the Commission’s assessment of the relevance of the counter-guarantee provided by Aligestión for the purposes of determining an advantage, either (see, to that effect, judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 84). Furthermore, it should be noted that, even though the French version of the contested decision – specifically mentioned by the Commission – gives the impression that the Kingdom of Spain was referring exclusively to security in the form of pledges on shares in the applicant and equivalent security provided in the context of the other measures covered by the contested decision, the Spanish version of that decision – the only authentic version – can, on the contrary, be read as meaning that the Kingdom of Spain acknowledged the existence of other security. 69 It follows that the reasoning contained in the contested decision in respect of the counter-guarantee provided by Aligestión is limited to the finding that the counter-guarantee was provisional until the pledging of the shares in the applicant by Fundación Hercules. It does not specify whether that is in itself the reason why the counter-guarantee was not taken into account for the purposes of establishing the existence of aid or the amount thereof. A fortiori, it fails to explain why that would be the case. 70 It is apparent from points 3.2(d) and 4.2 of the guarantee notice that the security given at the time of adoption of the guarantee or of the operation of the underlying loan is a factor relevant to determining the existence and level of aid. The counter-guarantee provided by Aligestión is therefore, in principle, a relevant factor. What is more, nothing in the guarantee notice suggests that a security should be dismissed as irrelevant on the grounds that it is only ‘provisional’ in nature. 71 It follows that, with regard to the legal rules governing the matter in question, in this case Article 107(1) TFEU and the guarantee notice, the interested parties, on the one hand, and the Court, on the other, were entitled to expect that the contested decision would make reference to the Commission’s reasoning concerning the impact of the counter-guarantee provided by Aligestión on the finding as to the existence of aid and, where applicable, the amount thereof. 72 Furthermore, one aspect of the reasoning is of fundamental importance in the context of the contested decision, account being had that it concluded that the value of the only security examined was ‘close to zero’ (recital 93 of the contested decision), even though the level of collateral provided to IVF was all the more crucial given that the rating of the undertaking in question, in this case the applicant, was poor (category CCC, see recital 83 of the contested decision). 73 It should, moreover, be noted that the contested decision makes no mention of a time limit within which the shares in the applicant had to be pledged to IVF by Fundación Hércules, even though it indicates that it was that event that would release Aligestión from its obligations under the ‘provisional’ counter-guarantee granted to IVF. The contested decision therefore contains no information indicating the period during which the ‘provisional’ counter-guarantee was to apply or, therefore, the likelihood of it being in force in the event that the guarantee issued by IVF were activated. 74 Therefore, the contested decision neither expressly states (see paragraph 67 above) nor implies that the counter-guarantee provided by Aligestión was of short term. Even supposing, as the Commission appears to argue, that the indication of the term of the counter-guarantee provided by Aligestión could constitute a contextual factor liable to reduce the extent of its obligation to state reasons, it must be pointed out that the contested decision contains no such indication. 75 It follows that the Commission should have explained, in the contested decision, how, if it all, it took that counter-guarantee into account. 76 In the light of the foregoing, the contested decision must be found to be vitiated by a failure to state reasons. 77 In view of that failure to state reasons, the Court is not in a position to rule on the merits of the arguments put forward by the applicant under the second part of its first plea. 78 It is therefore appropriate to annul the contested decision, to the extent that it affects the applicant, for failure to state reasons, without there being any need to examine the rest of the action. Costs 79 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant. 80 Article 138(1) of the Rules of Procedure provides that the Member States and institutions which have intervened in the proceedings are to bear their own costs. Therefore, the Kingdom of Spain is to bear its own costs. On those grounds, THE GENERAL COURT (Fourth Chamber) hereby: 1. Annuls Commission Decision (EU) 2017/365 of 4 July 2016 on State aid SA.36387 (2013/C) (ex 2013/NN) (ex 2013/CP) implemented by Spain for Valencia Club de Fútbol, SAD, Hércules Club de Fútbol, SAD and Elche Club de Fútbol, SAD, to the extent that it concerns Hércules Club de Fútbol, SAD; 2. Orders the European Commission to bear its own costs and to pay those incurred by Hércules Club de Fútbol; 3. Orders the Kingdom of Spain to bear its own costs. Kanninen Schwarcz Calvo-Sotelo Ibáñez-Martín Delivered in open court in Luxembourg on 20 March 2019. [Signatures] * Language of the case: Spanish.