Order — ECLI:EU:T:2014:595
Date: 2014-06-13
Language of the case: Italian
Court formation: President of the Chamber
Subject matter: State aids;Competition
Procedure: Action for annulment;Application for interim measures - successful
Origin: Italy

summary of their comments in paragraphs 68 to 71 of the contested decision, and neither the applicants nor the Italian Republic claim before the Court, that they asserted during the administrative procedure that SACE had conducted a prior analysis of the profitability of the second measure, and thus of its economic rationality, on the basis of the abovementioned documents. During the administrative procedure they stressed the fact that the conditions subscribed by SACE were identical to those accepted by the private reinsurers which participated in the insurance cover for Sace BT. 118 Second, the note of 19 March 2009 was produced by SACE’s Risk Management Division, which was asked to determine whether the estimated profitability of Sace BT’s reinsurance agreement was in line with the risks taken. The Risk Management Division had given a favourable opinion to SACE’s participation in the agreement, primarily on the basis of the report by the insurance broker AON Re Global dated 14 November 2008. That report contained estimations made for Sace BT with a view to the renewal of its reinsurance contract in 2009 based on the analysis of the effect of the 2008 reinsurance contract on Sace BT’s results and present and future capital requirements. In the note of 19 March 2009, SACE’s Risk Management Division did not, however, update the information dating from 2008. Neither the note of 19 March 2009 nor the report by AON Re Global therefore took account of the financial crisis which had hit the European economy at the end of 2008 and which had caused a deterioration in the economic situation in the euro zone in 2009. In addition, that note did not contain the slightest indication to suggest that the extent of the participation in the agreement envisaged by SACE, representing 74.15%, and thus the extent of its risk exposure, had been taken into consideration in evaluating the estimated profitability of such participation. 119 Consequently, the Commission was not required to take a view in the contested decision on the probative value of the note of 19 March 2009 and the report of 14 November 2008. It was sufficient for it to explain adequately why it considered that private operators would not have agreed to subscribe to the second measure on the conditions granted by SACE. 120 It follows that the Commission did not have any relevant written documents when it analysed whether SACE had acted like a private reinsurer. There are therefore questions as to the consequences to be drawn from the failure to communicate to the Commission evidence of a prior economic evaluation, which is relevant and documented, of the estimated profitability of the second measure in the light of all the factors which a private reinsurer acting in market conditions would have taken into consideration. 121 According to case-law (see paragraph 97 above), it is for the Member State or the public body concerned to show that its decision was based on economic evaluations comparable to those which a rational private operator in a similar situation would have had carried out, before adopting the measure in question, in order to determine the future profitability of such an investment. To that end, the provision, during the administrative procedure, of studies by independent consultancy firms which were commissioned prior to the adoption of the measure in question may help to show that the Member State or the public body implemented that measure as an operator on the market (see, to that effect, judgment in Spain and Others v Commission, cited in paragraph 97 above, EU:T:2014:604, paragraph 49). 122 However, the evidence of the economic evaluation required from the public body providing the aid must be assessed in each specific case and varies depending on the nature and the extent of the economic risks involved (see paragraph 98 above). In this case, the evaluation of the profitability of the second measure, which was a commercial transaction, could be conducted on the basis of a relatively limited analysis of the risks assumed and of the appropriateness of the amount of the reinsurance fee in the light of the extent of the risk. 123 In those circumstances, given that the amount of the transaction, while certainly not negligible, was relatively small, the mere fact that SACE did not provide proof that it had conducted a prior economic evaluation of the amount of the premium reflecting the level of risk assumed in order to determine the profitability of the reinsurance cover for Sace BT is not sufficient grounds to consider that it did not act like a private reinsurer in a comparable situation. 124 It is therefore necessary to examine the indicators on which the Commission relied in the contested decision in complaining that SACE had provided the remaining part of the reinsurance cover on the same terms of remuneration as those applied by the private reinsurers for smaller risks. 125 First, of those indicators, the Commission placed particular emphasis on the fact that, despite its many attempts, Sace BT was not able to obtain reinsurance cover above 25.85% from private reinsurers (see paragraph 101, first indent, above). The applicants claim in this regard that the refusal by the private reinsurers in 2009, unlike in the preceding years, to provide reinsurance cover above 25.85% can be explained by the cyclical reduction in their activity in order to address the economic and financial crisis and not by risks linked to Sace BT’s portfolio (see paragraph 104 above). 126 Whilst recognising that the crisis was one of the factors in the private reinsurers’ refusal to participate in Sace BT’s reinsurance contract above 25.85% (see paragraph 100 above), it should be noted that the crisis affected market conditions and increased the risk of losses for all the operators concerned, including SACE, despite its sound asset base and positive business performance, which are invoked by the applicants. The crisis context and the alleged reduction in reinsurance provision could only lead a rational operator to pay greater attention to assessing the risks assumed and the profitability of the operation in question. In this regard, the Commission’s assertion in recital 128 of the contested decision that the financial crisis triggered more restrictive reinsurance conditions (see paragraph 101, second indent, above) is not disputed by the applicants. 127 The applicants do not put forward any evidence to suggest that the private reinsurers’ assessment of the profitability of a higher level of participation in Sace BT’s reinsurance contract, in the light of the extent of the risks assumed, did not play a key role in that refusal. The applicants do claim that an examination of Sace BT’s reinsurance agreements from 2009 to 2011 shows that ‘the credit rate paid to different reinsurers was the same’, even though the shares reinsured by the different private operators ranged from 2.5% to 10% in 2009 (see paragraph 100 above) and from 5% to 15% in 2010 and 2011. Similarly, it is clear from the applicants’ answer to a written question asked by the Court that from 2005 to 2008, the period in which Sace BT obtained all its reinsurance cover on the market, the amount of the fee stipulated by the annual reinsurance contracts for cover of all Sace BT’s reinsured risks was also paid by Sace BT to the various reinsurers in proportion to their respective levels of participation in those contracts. However, during that period, the levels of cover subscribed by the private reinsurers ranged from 3% to 28%. Those different levels of participation by private reinsurers, on the same terms of remuneration, are nevertheless incommensurate with SACE’s 74.15% participation in Sace BT’s 2009 reinsurance contract. It is not therefore possible to infer from Sace BT’s earlier reinsurance contracts, relied on by the applicants, the correlation which would have been made by private operators in a similar situation between the level of remuneration and the decision to provide reinsurance cover of more than 74%. 128 Second, as regards the controversy as to whether SACE had provided the reinsurance cover at issue to Sace BT in order to compensate for ‘the absence of reinsurance capacity’ on the market, as is stated in the minutes of the meeting of SACE’s board of directors on 26 May 2009, relied on by the Commission, or with a view to mutual profit, as the applicants claim (see paragraph 105 above), it should be noted that it is common ground that Sace BT was not able to obtain, on the market, the remaining part (74.15%) of its reinsurance cover on the terms of remuneration accepted by SACE (see paragraph 100 above). 129 It should also be noted that it is not evident either from the file or from the documents communicated to the Commission in the administrative procedure and produced by the applicants before the Court at its request that the second measure was seen from the point of view of its profitability for SACE. This is true in particular of the minutes of the meeting of SACE’s board of directors on 11 February 2009, during which SACE’s participation in Sace BT’s 2009 reinsurance contract was deliberated for the first time, the minutes of the meeting of the board of directors on 1 April 2009, during which the adoption of the second measure was approved, and the documents submitted to the board of directors at those two meetings. The minutes of 1 April 2009, which record the approval of SACE’s participation in Sace BT’s reinsurance contract for the part not accepted by the private reinsurers and under the same conditions as granted by those reinsurers, explicitly show that that participation was decided, ‘having regard to the unfavourable economic situation [at the time]’, to permit Sace BT to maintain its insurance capacity, in particular in the SME segment. In addition, neither the minutes of the meeting of SACE’s board of directors on 26 May 2009 — which note ‘SACE’s participation in Sace BT’s reinsurance programme in accordance with the deliberations of the board of directors on 11 February and 1 April 2009’ — nor the documents submitted to the board of directors at that meeting contain information on, in particular, the losses recorded by Sace BT from the beginning of 2009 (see paragraph 134 below) which suggests that the profitability of the reinsurance cover at issue for SACE was taken into consideration before that contract in favour of Sace BT was signed on 5 June 2009. 130 Third, in order to demonstrate the inappropriateness of the amount of the fee paid by Sace BT for the level of risks assumed by SACE, the Commission claims in recital 128 of the contested decision that the significant losses in the order of EUR 29.5 million suffered by Sace BT in 2008 entailed major risks with regard to reinsurance. 131 In this regard, the applicants do not dispute the fact, mentioned in footnote 101 to recital 128 of the contested decision, that, according to the minutes of the inspection conducted on 11 October 2010 by the Istituto per la vigilanza sulle assicurazione private (ISVAP, Italian supervisory administrative authority for private insurance) at Sace BT, produced by the Commission at the Court’s request, several private reinsurers which took part in discussions on the renewal of Sace BT’s reinsurance had expressed concerns at the undertaking’s situation. For example, one of the reinsurers explained that the reasons for its refusal to participate in the 2009 excess of loss reinsurance contract included the high level of losses in the preceding two years and the programme costs. In addition, the Commission explained at the hearing, without being contradicted by the applicants or the Italian Republic, the link between the reinsurers’ risk exposure and the financial difficulties suffered by Sace BT in 2008 due to the increase in losses following the crisis. 132 It is true that the applicants and the Italian Republic stated at the hearing that at the time of SACE’s subscription of the remaining part of the reinsurance cover for Sace BT, on 5 June 2009, no loss had yet occurred. However, it is not apparent either from the file or from the evidence adduced by the applicants that the absence of losses during the first quarter of 2009, then in the next two months, was taken into consideration by SACE’s board of directors when it approved the second measure on 1 April 2009 or when the contract was signed on 5 June 2009, as was stated in paragraph 129 above. 133 In addition, it is not established, nor is it claimed by the applicants or the Italian Republic moreover, that the absence of loss before the subscription of the reinsurance cover at issue on 5 June 2009 had been brought to the Commission’s attention in the administrative procedure in order to justify the adoption of the second measure. In accordance with case-law (judgment of 25 June 2008 in Olympiaki Aeroporia Ypiresies v Commission, cited in paragraph 83 above, EU:T:2008:222, paragraph 56; see also, to that effect, judgments of 1 July 2008 in Chronopost and The Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, ECR, EU:C:2008:375, paragraph 144, and Commission v Scott, cited in paragraph 95 above, EU:C:2010:480, paragraph 91), the lawfulness of the contested decision is to be assessed in the light of the information available to the Commission when the decision was adopted. In so far as the applicants and the Italian Republic did not communicate that information to the Commission in the course of the administrative procedure, they cannot therefore, in contesting the lawfulness of the contested decision, rely on the fact that no loss had been recorded in the five months preceding the subscription of the reinsurance cover at issue for Sace BT, such that the risks assumed by SACE were smaller (see, to that effect, judgment of 13 June 2002 in Netherlands v Commission, C‑382/99, ECR, EU:C:2002:363, paragraph 76). Furthermore, and in any event, the Commission rightly pointed out at the hearing that the new argument based on the absence of losses in the first five months of 2009, relied on for the first time during the hearing, was inadmissible under Article 48(2) of the Statute of the Court of Justice of the European Union. That argument cannot be regarded as a development of the vague and unsubstantiated reliance by the applicants in the application on the ‘historic performance favourable to reinsurers’ of Sace BT’s portfolio (see paragraph 104 above). 134 Lastly, according to case-law, the retrospective finding, relied on by SACE in the administrative procedure, that the second measure actually permitted that company to procure a substantial economic advantage in 2009, as no loss was recorded in respect of premium income amounting to EUR 1.56 million, is irrelevant in so far as it is based on a situation later than the adoption of the second measure (see paragraph 93 above). 135 Fourth, the Commission notes at the end of recital 128 of the contested decision that the allocation of such a high portion of reinsurance to one single company might not have been in compliance with the general principles of reinsurance, as the ISVAP had observed in the minutes of its inspection at Sace BT on 11 October 2010. In this regard, it is clear from the explanations given by the applicants and from those minutes that in its deliberations on 22 April 2008 Sace BT’s board of directors had decided that the number of reinsurers participating in its reinsurance contract had to guarantee an appropriate allocation of risks between them and that no reinsurer should be required to cover a reinsurance level above 25%. This confirms that Sace BT turned to its parent company in 2009 because it had been able to obtain total reinsurance cover of only 25.85% on the market despite its numerous attempts. 136 This evidence bears out the lack of economic rationality of SACE’s decision to offer its subsidiary cover representing almost three times the maximum of 25% identified by the ISVAP and defined by Sace BT, especially since in practice SACE had never offered reinsurance contracts previously, even though Article 6(4) of its Articles of Association authorises it to offer such contracts provided they are stipulated under market conditions (see paragraph 106 above). 137 Fifth, with regard to the question whether the private reinsurers’ decision to participate in a reinsurance contract and their level of participation depend in particular on the level of remuneration offered in the light of the extent of the risks assumed (see paragraph 108 above), the applicants’ claims must be rejected. The negotiation process for the terms of remuneration offered in a reinsurance contract certainly does not mean that the level of remuneration offered by the reinsurance contract at the end of the negotiations does not have a significant effect on the private reinsurers’ decision whether or not to participate in the contract and on the share of the risk which they might agree to cover. In addition, with regard to the legal process which could permit a reinsurer like SACE, in return for provision of the remaining part of the reinsurance cover for Sace BT, to obtain remuneration higher than that under the 2009 reinsurance contract entered into by private reinsurers at an overall level of 25.85%, the Commission stated at the hearing, in response to a question asked by the Court, that Sace BT’s abovementioned reinsurance contract related to only 25% of the risks reinsured by that company. Consequently, another reinsurance contract, which provided for different remuneration, could have been negotiated in respect of the remaining part of Sace BT’s reinsurance cover for 2009, which neither the applicants nor the Italian Republic disputed at the hearing. 138 Furthermore, the applicants’ argument that according to the prevailing economic literature pricing for a reinsurance contract depends on a number of factors, such as contingent market situations and the propensity of the operators concerned to favour certain categories of risks, does not mean that the extent of the risks assumed is merely a negligible factor in terms of pricing. 139 Lastly, the argument put forward by the applicants (see paragraph 108 above) relating to the practice of the largest international reinsurers does not prove the existence, in the circumstances of the case, of a negligible correlation between the level of risks assumed and the level of remuneration. That argument is based on the letter of 18 April 2013 from AON Benfield Italia SpA Insurance & Reinsurance Brokers to Sace BT, which states that they ‘[could] confirm, based on [their] experience as a leading reinsurance broker, that in principle the cost (fees or charges) of a proportional or XL contract does not depend on the share of participation (and vice versa)’. The applicants further claim that the second measure is equivalent to the common cases where large shares of risk, above 50%, are assumed by parent companies. 140 It is true that the abovementioned letter, although later than the adoption of the contested decision, is based on information available when the second measure was adopted. However, neither the content of the letter nor the argument regarding parent companies relates specifically to excess of loss reinsurance contracts. By virtue of their general nature, those elements cannot invalidate the Commission’s findings based, in the light of the information available to it, on the context of the present dispute, in which private reinsurers refused to participate more broadly in Sace BT’s reinsurance agreement, and on the inappropriateness of the amount of the fee in view of the level of risk assumed, having regard to the extent of SACE’s participation in the reinsurance cover. 141 Sixth, contrary to the applicants’ claims (see paragraph 109 above), SACE’s provision of reinsurance cover for Sace BT on price conditions other than those stemming from market forces does in itself constitute an advantage within the meaning of Article 107(1) TFEU. Furthermore, the applicants do not dispute that SACE itself recognised in the administrative procedure that that reinsurance cover allowed Sace BT to increase its credit insurance provision capacity. In addition, the applicants’ argument that there is no proportional and quantifiable relationship between the share of the activity ceded to reinsurance and the subscribed capacity has no bearing on the Commission’s assertion in recital 130 of the contested decision that without such cover Sace BT would have had to support the risks in question on its balance sheet or offer a premium at least 10% higher in order to obtain reinsurance. Consequently, the applicants cannot legitimately complain that the Commission failed to establish what Sace BT’s credit insurance provision capacity would have been without the reinsurance cover provided by SACE, because the advantage procured by Sace BT, which it would not have obtained in normal market conditions, consisted precisely in the preferential price conditions granted by SACE. 142 In the light of all these considerations, it must be stated that, having regard to the information available to it when the contested decision was adopted, the Commission was entitled to conclude that the second measure had been adopted in favour of Sace BT on preferential price conditions and that the advantage thus conferred on Sace BT consisted in the difference between the reinsurance fee that a private reinsurer would have charged for such a high portion of reinsurance and the fee that was charged by SACE. 143 In those circumstances, the applicants’ arguments raised at the reply stage, which seek to challenge the Commission’s finding in recital 129 of the contested decision that the conclusion of the reinsurance contract had to be analysed together with the capital injections in order to determine whether a private parent company would have agreed to provide its subsidiary with reinsurance cover on preferential terms in relation to the market price, where the subsidiary does not obtain such cover at the proposed price, must be rejected. – The alleged failure to state reasons for the assessment of the aid amount 144 As regards the method employed by the Commission to determine the aid amount to be recovered, the contested decision simply states in recital 128 that ‘[i]n line with the Commission’s case practice, the Commission considers that the fee for such a high portion of reinsurance and risk should have been at least 10% higher than the fee charged by the private reinsurers for the smaller part of reinsurance and risk’ and that ‘[f]or an amount of EUR 1.56 million paid by Sace BT to SACE, the aid amounts to EUR 156 000’. The contested decision makes reference in this regard to Commission Decision 2014/532/EU of 23 November 2011 on State aid No C 28/10 implemented by Portugal for the short-term export-credit insurance scheme (OJ 2014 L 244, p. 59), in which the Commission developed a method for calculating the amount to be recovered based on reasonable assumptions and on common market practice (‘the decision of 23 November 2011’). 145 The applicants complain that the Commission did not explain why it considers that the amount of the fee paid by Sace BT should have been 10% higher than the amount of the fee charged by the private reinsurers. 146 In order to establish that the fee paid to SACE was inadequate compared with the fee paid by Sace BT to the other participants in the reinsurance contract, the Commission merely referred to the decision of 23 November 2011. The statement of reasons for that decision in respect of the theoretical quantification of the market price of cover provided by the State equal to 110% of the price charged by the private insurer in the case of each client is incomprehensible. In addition, in the present case the Commission did not explain why that method of calculation, which was developed for a proportional public insurance scheme, which operates as (‘top-up’) mechanism for sharing risks with private insurers and which is entirely distinct from excess of loss reinsurance, could be applied analogously to the second measure. Furthermore, the Commission erred in considering that the principle of positive correlation between the volume of risk and the level of the fee, which was established for proportional insurance, was applicable to reinsurance. 147 The Commission claims that in view of the difficulty in determining the amount of the premium which would have been charged by private operators, in that the only fact known with any certainty was their refusal jointly to cover more than 25.85% of the risk, it adopted a cautious approach. The calculation made to obtain the percentage of 10% was based on the Portuguese precedent examined in the decision of 23 November 2011, for which the Commission had developed a method to calculate the increase in the premium in relation to an increase in the risk as a result of higher exposure in terms of insurance. 148 The main and only relevant difference between the two cases lies in the fact that SACE not only carried out an additional (‘top-up’) operation to cover the part of the risk not covered by the market operators, but also assumed a percentage of the risk much higher than that accepted by the private operators, the main one of which had assumed 10% of the risks. 149 According to case-law, if the Commission does decide to order the recovery of a specific amount, as in the present case, it must, pursuant to its obligation to conduct a diligent and impartial examination, assess as accurately as the circumstances of the case will allow, the actual value of the benefit received from the aid by the beneficiary (judgment in Dunamenti Erőmű v Commission, cited in paragraph 112 above, EU:T:2014:236, paragraph 177). 150 In addition, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 8 September 2011 in Commission v Netherlands, C‑279/08 P, ECR, EU:C:2011:551, paragraph 125 and the case-law cited). 151 In the present case, in determining the aid amount, in the contested decision the Commission simply referred to its ‘case practice’, which consists only in the decision of 23 November 2011. 152 In this regard, it should be recalled that according to case-law aid is a legal concept which must be interpreted on the basis of objective factors. The classification of a measure as State aid cannot therefore depend on a subjective assessment by the Commission and must be determined regardless of any previous administrative practice of that institution, assuming that it is established (see judgment in Spain and Others v Commission, cited in paragraph 97 above, EU:T:2014:604, paragraph 46 and the case-law cited). 153 Consequently, in order to establish the existence of aid, the Commission cannot simply refer to its ‘case practice’. It must carry out a diligent and impartial analysis, in the light of the applicable rules, of all the objective factors at its disposal. The same is true where the Commission determines the aid amount to be recovered. Consequently, in this case, the Commission could not simply refer to the decision of 23 November 2011, but was required to conduct a diligent and impartial examination of the objective factors available in order to determine the aid amount as accurately as possible. 154 In addition, in the present case the Court is required to review the lawfulness of the contested decision and not to rule on whether or not there is a proper statement of reasons for the decision of 23 November 2011, as the applicants claim (see paragraph 146 above). Accordingly, the Commission cannot fulfil its obligation to state reasons in these circumstances simply by referring to a methodology developed in another case without any explanation of the relevance of that methodology in assessing the reinsurance premiums paid by Sace BT to SACE in a different factual context (see paragraphs 152 and 153 above). 155 In those circumstances, if the Commission wished to apply to this case the method for calculating the sum to be recovered developed in the decision of 23 November 2011, it had to explain why it considered that that method was relevant and to disclose the reasoning followed in this instance in applying it in the light of the material in the file. 156 In this respect, the applicants rightly argue that in the contested decision the Commission neither specified the method of calculation applied nor stated the reasons, having regard of the nature and the characteristics of the excess of loss reinsurance at issue, for applying a method of calculating the fee developed for a proportional public credit insurance scheme. 157 First, it is true that the Portuguese export-credit insurance scheme to which the Commission refers differs from the present circumstances. It was an export-credit co-insurance scheme and not a scheme for reinsurance of an insurer. Furthermore, the Portuguese scheme, which was to last from 1 January 2009 to 31 December 2010 (recital 23 of the decision of 23 November 2011), was introduced in the context of the 2009 financial crisis and was not directed at the specific financial situation of a single insurer, like Sace BT, which suffered losses. In particular, according to recitals 20 and 21 of the decision of 23 November 2011, the amount covered by the Portuguese public credit insurance scheme, only as a supplement to the cover provided by a private insurer, could never exceed the amount covered by the private insurer. Against this background, in recital 68 of the decision of 23 November 2011 the Commission criticised the fact that the fees paid to public insurers were lower than fees charged on the market when, according to the Commission, those fees should have been higher on account of the higher level of risk assumed. In contrast, in the present case, the Commission complains that SACE accepted the same remuneration as the private insurers for a higher part of the reinsurance cover than was accepted by the private reinsurers. The circumstances of two cases are therefore entirely different. 158 It is true that the Commission submitted in the defence that the differences between the two measures were irrelevant because in both cases the public body which provides supplementary cover assumes a higher part of the risk, which will normally be reflected in a higher insurance premium (see paragraph 148 above). 159 However, neither that assertion nor the grounds of the contested decision explain why, in view of the level of risk, the market price for the reinsurance cover provided by SACE should be calculated using the same method as for the market price for supplementary insurance cover provided under the Portuguese public credit insurance scheme. The contested decision thus fails to state any reasons in respect of the possibility of applying to this case, in an entirely different legal context, the method of calculating the fee developed by the Commission in the decision of 23 November 2011. In recital 128 of the contested decision the Commission merely states that a ‘rational investor would have asked for a fee that takes into account the higher level of risk assumed’ and that the fee ‘should have been at least 10% higher than the fee charged by the private reinsurers for the smaller part of reinsurance and risk’, referring, without any explanation, to recitals 68 and 93 of the decision of 23 November 2011. 160 Furthermore, the Commission’s argument that the methodology used was favourable for the applicants cannot remedy that defective statement of reasons. Without a clear and relevant explanation in relation to the case at issue, it is not possible to determine whether the 10% correction is favourable or unfavourable for the applicants. In addition, the Commission must define the appropriate corrective measure to put an end to the distortion of competition resulting from the contested measure. It cannot fulfil that task simply by referring to a methodology which it considers to be advantageous for the beneficiary. 161 Accordingly, the second plea in law must be upheld in so far as it alleges an inadequate statement of reasons for the Commission’s assessment of the aid amount at 10% of the amount of the fee paid by Sace BT to SACE. The third plea in law, alleging infringement of Article 107(1) TFEU and errors of assessment and errors in law in the application of the private investor test in respect of the third and fourth measures 162 In the contested decision (recitals 132 to 168) the Commission concluded that the third and fourth measures constituted an advantage for Sace BT, relying on two kinds of considerations. It stated in recitals 135 to 144 of the contested decision that SACE had not acted like a prudent private investor in that, when adopting those measures, it had not evaluated whether providing the additional capital was an economically more beneficial scenario for it as a shareholder than the liquidation of the subsidiary. For this reason alone, the two capital contributions at issue must, according to the Commission, be classified as aid. 163 The Commission also found, ‘for the sake of completeness’, in recitals 145 to 167 of the contested decision that by comparing the scenario of the liquidation of Sace BT with the chosen path to inject further capital into that subsidiary, a prudent private investor would have preferred to let Sace BT go bankrupt, or sell it, if a buyer could be found, instead of proceeding with its recapitalisation. That analysis also showed that SACE did not behave like a private investor. 164 The applicants challenge both the absence of a prior economic analysis claimed by the Commission and the validity of its retrospective analysis of the profitability of the third and fourth measures. 165 It is necessary first to examine the parties’ arguments on whether SACE conducted an appropriate profitability analysis before investing EUR 70 million in Sace BT. 166 As a preliminary point, the applicants state that it follows, inter alia, from paragraphs 27 and 29 of the Commission communication on the application of Articles [107 TFEU] and [108 TFEU] and of Article 5 of Commission Directive 80/723/EEC to public undertakings in the manufacturing sector (OJ 1993 C 307, p. 3) that, when applying the private investor in a market economy test, the Commission is required to respect the wide margin of assessment enjoyed by the public investor and to find that aid exists only where it is apparent that there are no objective grounds for the public investor reasonably to expect an investment to have an acceptable rate of return, even in the long term. 167 In this case, the applicants complain that the Commission held that being in a crisis situation had no effect on the conditions to be applied for the test. 168 First, the applicants claim in this regard that the Commission was required to investigate with the utmost objectivity and attention the economic reality on the market and the way in which the investment decisions of a hypothetical private shareholder were influenced by ‘the high level of uncertainty and urgency’ (recital 166 of the contested decision) resulting from the deterioration of the global economic situation from the second quarter of 2007. 169 Second, the applicants allege that in the course 2008 and 2009, in view of the significant losses suffered by many undertakings operating in the credit insurance sector and the small number of potential buyers, the shareholders in many companies, including those outside Italy, made capital contributions. At the hearing the applicants complained in particular that the Commission did not conduct an investigation to compare, for the purposes of the application of the private investor test, Sace BT’s situation with that of other insurers, including the complainant, Coface, which was recapitalised in July 2009 and in March 2010 in an amount of EUR 225 million, after suffering losses of EUR 163 million in 2009. 170 Third, the applicants dispute the Commission’s interpretation of the judgment in Commission v EDF and Others, cited in paragraph 91 above (EU:C:2012:318). Paragraph 84 of that judgment stresses the need to take the ‘circumstances’ into consideration. Consequently, the public investor’s compliance with the requirement of a detailed business plan, or at least updated financial data showing that the investment will yield an acceptable economic return, should be assessed in the light of the context of the economic crisis and the inability to make reliable projections. 171 Fourth, the applicants claim that the Commission followed a dogmatic approach in the present case consisting in comparing the decisions of a public investor with those of a hypothetical private investor, characterised by an ability to provide an automatic justification for the economic logic of its business decisions, by developing detailed economic projections, estimations of future profitability or detailed, full cost/profit analyses, corroborated where necessary by reports by external consultants. In the absence of such documentation, the Commission found a lack of economic rationality for the operation. 172 Such a theoretical approach spared the Commission from complex investigations of the ‘market economy’ as it operates in practice. The Commission thus turned the private investor test in a procedural rule, which is contrary to the principle of equal treatment of public and private undertakings under Article 345 TFEU. 173 Fifth, the applicants acknowledge that in so far as the context did not permit reliable projections to be made, even in the short term, Sace BT’s 2010-2011 business plan, on which SACE’s management relied, only contained projections for those two financial years and envisaged a balanced budget for 2011. However, the contested decision (recital 141) is erroneous in that it holds that in the administrative procedure SACE did not communicate objective and verifiable information providing the business justifications for the adoption of the two measures at issue. 174 Sixth, the applicants claim that when the third and the fourth measures were adopted SACE’s management used an accurate, rational economic evaluation of the future profitability of those investments, based on the following considerations: – after establishing Sace BT, as part of a business strategy of diversification of the risks insured by the Group, through an initial investment of more than EUR 100 million, SACE decided to protect the value of its initial capital contribution to Sace BT rather than liquidating it and losing almost all that contribution; – Sace BT made its first public operating profit of EUR 59 000 in 2007, in accordance with projections, and did not start to record losses until after the beginning of the crisis, in an economic context where, in the credit insurance sector in particular, there was a dramatic increase in the volume of losses and a corresponding reduction in the solvency margins of the undertakings in that sector; – in that context, SACE considered that Sace BT’s inability to generate profits before the crisis, when it was still a start-up, did not stem from structural problems, poor business management or ‘systemic’ problems within the credit insurance market; – SACE therefore took the view that it was reasonable not to withdraw from the plan to diversify activities which had just been initiated merely because the economic climate was negative and the investment had not yet grown; – the capital contribution in question, which was intended to restore the undertaking’s financial stability and to guarantee its solvency in accordance with Italian sectoral rules, was to allow Sace BT to achieve an adequate return once the macroeconomic situation had normalised and draconian personnel measures had been implemented as from January 2009 — and not, as the Commission claims in the defence, in December 2009 — when the 2010-2011 business plan was revised; – the liquidation of Sace BT at the market price was considered, then rejected as less advantageous. The capital injections into Sace BT corresponded to 17.8% of the net profits achieved by SACE in 2009 (and around 1.3% of its share capital). Conversely, liquidation would have been devastating economically, as it would have been seen as a signal of a hidden internal cash flow crisis for the shareholder, which would have damaged SACE’s public image and exposed it to the risk of a sharp fall in value or a deterioration of its rating well in excess of the amount of around EUR 24 million represented by Sace BT’s estimated remaining capital at the end of the 2009 financial year. 175 The Commission disputes those arguments in their entirety. 176 The parties’ positions differ in respect of the requirements relating to evidence of a prior economic evaluation of the profitability of the investment which must be provided by the public investor concerned. It must therefore be examined, first, whether the contested decision is vitiated by an error in law in this regard (see paragraphs 177 to 189 below), before then determining whether the Commission made an error of assessment in this case in holding that the third and fourth measures were not compliant with the private investor test (see paragraphs 190 to 199 below). 177 In the first place, with respect to the requirements linked to the public investor test, the applicants acknowledge that the public investor must prove that it carried out an economic evaluation prior to or at the same time as the granting of the economic advantage. They consider, however, that in a context of a serious economic crisis, a rational private investor could conduct accurate, rational prior economic evaluations even if it is not able to rely on analyses of future profitability. 178 In this regard, it should be recalled that, for the purposes of applying the private investor test, the evidence required from the public investor concerned of an economic evaluation conducted prior to the decision to make an investment must be assessed by making a comparison with the economic evaluations which a rational private investor in a similar situation would have had carried out before proceeding with the investment, having regard to the available information and foreseeable developments. The content and the degree of accuracy of such assessments may therefore depend in particular on the circumstances of the case, the market situation and the economic climate (see paragraph 98 above). 179 Thus, in a context of an economic crisis, the assessment of the required evidence of a prior evaluation must be made in the light of, as the case may be, the inability to make reliable, detailed forecasts of developments in the economic situation and the performance of different operators. In those circumstances, it cannot be concluded from the mere absence of a detailed business plan for the subsidiary, containing accurate, full estimations of its future profitability and detailed cost/profit analyses, that the public investor did not act as a private investor would have done. 180 In addition, it cannot be ruled out that, within the scope of the margin of assessment which it enjoys in its prior economic evaluation of the profitability of an investment (see paragraph 188 below), a rational private investor would, like SACE, consider that its subsidiary’s difficulties did not stem from structural problems or poor management, but from economic problems within the market concerned (see paragraph 174 above) and would proceed on the basis of the prospect of a gradual restoration of the economic situation. However, even in this case, a rational private investor which is unable to make detailed, full projections would not decide to inject additional capital into one of its subsidiaries which has recorded significant losses without conducting prior evaluations, even general evaluations, showing that there are reasonable probabilities of future profit, and without analysing various scenarios and various options, including, if necessary, the possible sale or liquidation of the subsidiary. 181 According to case-law, in order to assess whether a public investor’s contribution to an undertaking’s capital is compliant with the private investor test, the conduct of a private investor with which the conduct of a public investor must be compared need not be the conduct of an ordinary investor laying out capital with a view to realising a profit in the relatively short term. That conduct must at least be the conduct of a private holding company or a private group of undertakings pursuing a structural policy — whether general or sectorial — and be guided by prospects of profitability in the longer term (judgments of 21 March 1991 in Italy v Commission, C‑305/89, ECR, EU:C:1991:142, paragraph 20, and Spain and Others v Commission, cited in paragraph 97 above, EU:T:2014:604, paragraph 41). 182 The fact remains that the inability to make detailed, full projections cannot relieve a public investor of its task of carrying out an appropriate prior evaluation of the profitability of its investment, comparable to that which a private investor would have had carried out in a similar situation, having regard to the available and foreseeable information (see paragraph 180 above). In this regard, the Commission rightly notes that if the Member State does not submit to it the required evidence of a prior evaluation, it is not obliged to conduct additional analyses (see paragraph 97 above). 183 Consequently, the fact relied on by the applicants (see paragraph 169 above) that in the course of the period in question a large number of private insurance companies were recapitalised in order to cover significant losses suffered by reason of the economic crisis was not such as to exempt a public investor like SACE from its obligation to conduct a prior evaluation of the future profitability of its subsidiary and to communicate to the Commission appropriate evidence of a prior evaluation (see paragraph 182 above). Furthermore, it cannot be ruled out that those recapitalisations also gave rise to aid within the meaning of Article 107(1) TFEU. Consequently, the Commission was not required to compare Sace BT’s situation with that of other insurers. 184 In these circumstances, it must be stated that in the contested decision the Commission merely applied the well-established case-law according to which, whilst it is for the Commission to apply the private investor test and to request the Member State concerned to provide it with all relevant information to that end, it is the responsibility of that Member State or, in this case, the public undertaking concerned to provide evidence showing that it conducted a prior economic evaluation of the profitability of the measure in question, comparable to that which a private investor would have had carried out in a similar situation (see paragraphs 96, 97 and 112 above). 185 Contrary to the applicants’ claims (see paragraphs 171 and 172 above), that requirement does not establish a procedural rule or shift the burden of proof for the existence of State aid on the Commission, but merely requires the public investor concerned to provide the Commission with the necessary information to enable it to determine whether the attitude of the public undertaking was comparable to the attitude of a rational private investor, which would have conducted a prior economic evaluation based on the available information and foreseeable developments which was appropriate having regard to the nature, the complexity, the size and the context of the operation in question (see paragraphs 178 and 179 above). 186 Where the public undertaking provides the Commission with evidence of the required nature, the Commission must, however, conduct an overall assessment, taking into account, in addition to the information provided by that undertaking, all other relevant evidence enabling it to determine whether the measure in question is compliant with the private investor test. The public undertaking concerned thus has the opportunity in the administrative procedure to produce additional evidence which is generated after the adoption of the measure but is based on the available information and foreseeable developments at the time of adoption. 187 In those circumstances, the applicants’ arguments based, on the one hand, on the principle of equal treatment between the public and private sectors and, on the other, on the private investor’s margin of assessment (see paragraphs 166 and 172 above) must be rejected. First, in so far as the requirement of a prior economic evaluation seeks only to compare the conduct of the public undertaking concerned with that of a rational private investor in a similar situation, that requirement is consistent with the principle of equal treatment between the public and private sectors, implying that the Member States may invest in economic activities and that the 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 (judgment in Spain and Others v Commission, cited in paragraph 97 above, EU:T:2014:604, paragraph 79). 188 Second, the margin of assessment available to the public investor, according to case-law, cannot relieve it of the task of conducting an appropriate prior economic evaluation. It is true that a distinction may be made between an estimate of the probable return on a project, where there is a certain margin of assessment for the public investor, and the examination which that investor makes in order to determine whether the return seems to it to be sufficient in order to make the investment in question, where the margin of assessment is narrower, since it is possible to compare the transaction in question with other possibilities for investing the capital (judgment in Spain and Others v Commission, cited in paragraph 97 above, EU:T:2014:604, paragraph 71). However, the margin of assessment available to the public investor in respect of the estimate of the probable return on a project cannot exempt the investor from the obligation to conduct an economic evaluation based on an analysis of the available information and foreseeable developments which is appropriate having regard to the nature, the complexity, the size and the context of the operation (see paragraphs 98 and 180 above). 189 Consequently, in these circumstances, the Commission cannot be criticised for having erred in law in applying the private investor test in the present case. 190 In the second place, it must be determined whether the Commission made an error of assessment in considering in the contested decision that SACE had not conducted an evaluation of the profitability of the capital contributions at issue comparable to that which, in the circumstances of the case, a private investor in a similar situation would have had carried out. 191 In this regard, it must be stated that the documents before the Court, and in particular the minutes of the meeting of SACE’s board of directors on 1 April 2009, in the course of which the need of a recapitalisation of Sace BT totalling EUR 70 million had been planned, and the minutes of the meeting on 26 May 2009, in the course of which the third measure relating to a capital contribution of EUR 29 million was adopted, produced by the Commission, do not contain the slightest evidence to suggest that SACE conducted an economic evaluation, even a general evaluation, to determine whether the additional capital contribution was an economically profitable option. Those minutes refer only to the need to constitute adequate assets for Sace BT to cover the reserves at the end of 2009. 192 In addition, it should be noted that the applicants have not produced any evidence that a prior economic evaluation was conducted. In addition, whilst claiming that the third and fourth measures are based on an accurate, rational economic evaluation of the future profitability of those investments, they do not indicate the information based on which such an evaluation was conducted, but merely make general claims (see paragraph 173 above). 193 Against this background, the Commission rightly notes that the only specific evidence relied on by the applicants is the 2010-2011 business plan adopted by Sace BT’s board of directors on 4 August 2009. The applicants do not dispute that that plan was taken into consideration only when SACE adopted the fourth measure. In addition, the plan covers a period of just two years and does not envisage a return to profitability in the medium or long term. 194 It is true that, as is shown by the minutes of the meeting of Sace BT’s board of directors on 4 August 2009, produced by the applicants at the Court’s request, under the plan Sace BT would return to break-even accounts in 2011. 195 However, the plan did not contain any evidence of an analysis of the profitability of the capital injections. Furthermore, whilst projecting a significant improvement in Sace BT’s credit insurance ratios, which would allow it to return to break-even, the plan provided only few main financial ratios and figures for 2010 and 2011 in support of that estimate. It did not detail how the reduction of costs would be achieved or how risks would be assessed and referred in general terms, in respect of 2010, to maintaining a risk selection policy and, in respect of 2011, to the forecast of an improvement of the economic and market scenario. 196 It is further clear from Sace BT’s 2010-2011 business plan and from the minutes of the meeting of its board of directors on 4 August 2009 that Sace BT’s objectives were focused on pursuing a competition policy to increase the company’s market share, which was 8.2% in 2008, in order to achieve a market share of 15% in 2011. 197 Therefore, in the absence of any projection that Sace BT could generate profits after 2011, at least in the longer term, the Commission was entitled to hold that the evidence of a prior evaluation contained in the business plan and the abovementioned minutes did not satisfy the requirements of the private investor test. 198 Even if it were accepted that a private investor in a similar situation could have taken account of the fact that the losses suffered by Sace BT were cyclical in nature and, counting on a gradual improvement of the economic situation, preferred in the short term to increase its subsidiary’s market shares, the fact remains that it would have conducted a more rigorous evaluation of the economic rationality of the capital contributions at issue, in view of the nature and the size of those operations, in order to assess the prospects of its subsidiary’s profitability in the longer term and, if the estimates were satisfactory, without even obtaining an estimate of the costs of liquidating its subsidiary (see paragraph 161 above). 199 In the light of all these considerations, the Commission did not make an error of assessment in holding that, in the absence of an appropriate prior economic evaluation of their economic profitability, the two capital contributions in question were not compliant with the private investor test (see paragraph 182 above). 200 In those circumstances, the third plea in law must be rejected without it being necessary to examine the validity of the additional retrospective assessment conducted by the Commission, for the sake of completeness, of the profitability of the capital contributions at issue compared with the liquidation scenario (see paragraphs 163 and 164 above). 201 Accordingly, the second paragraph of Article 2 of the contested decision must be annulled (see paragraph 161 above). The action is dismissed as to the remainder. Costs 202 Under Article 87(3) of its Rules of Procedure, where each party succeeds on some and fails on other heads, the General Court may order that the costs be shared or that each party bear its own costs. Under Article 87(4) of the Rules of Procedure, the Member States which intervened in the proceedings must bear their own costs. Since both parties have been partially unsuccessful, each party should be ordered to bear its own costs, including those relating to the interim proceedings. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Annuls the second paragraph of Article 2 of Commission Decision 2014/525/EU of 20 March 2013 on the measures SA.23425 (11/C) (ex NN 41/10) implemented by Italy in 2004 and 2009 for Sace BT SpA; 2. Dismisses the action as to the remainder; 3. Orders Servizi assicurativi del commercio estero SpA (SACE) and Sace BT to bear their own costs, including those relating to the interim proceedings; 4. Orders the European Commission to bear its own costs, including those relating to the interim proceedings; 5. Orders the Italian Republic to bear its own costs, including those relating to the interim proceedings. Van der Woude Wiszniewska-Białecka Ulloa Rubio Delivered in open court in Luxembourg on 25 June 2015. [Signatures] Table of contents Background to the dispute Communication on export-credit insurance SACE Sace BT Administrative procedure and the contested decision Procedure and forms of order sought Law The first plea in law, alleging that the measures at issue cannot be imputed to the Italian State Criteria established by case-law for determining whether an aid measure granted by a public undertaking can be imputed to the State Assessment of the indicators relied on by the Commission in this case The second and third pleas in law, essentially relating to infringement of the private investor in a market economy test and the obligation to state reasons Preliminary remarks on the case-law relating to the private investor in a market economy test The second plea in law, alleging infringement of Article 107(1) TFEU, errors of assessment and errors in law in the application of the private investor test and an inadequate statement of reasons in respect of the second measure – The comparison of SACE’s conduct with the conduct of a private reinsurer – The alleged failure to state reasons for the assessment of the aid amount The third plea in law, alleging infringement of Article 107(1) TFEU and errors of assessment and errors in law in the application of the private investor test in respect of the third and fourth measures Costs * Language of the case: Italian 1 Confidential data omitted.