Judgment — ECLI:EU:T:2016:474
Date: 2016-09-15
Language of the case: English
Court formation: Sixth Chamber
Subject matter: State aids;Competition
Procedure: Action for annulment - successful
Origin: Denmark

summary of the second expert’s report that were sent to them were insufficient to explain the decision. Furthermore, the Commission’s refusal to provide access to certain information is in itself a breach of important procedural requirements. Even if the applicants accept that the Commission may state the reasons for its decisions by referring to an expert’s report, this implies that that report is available to all directly interested parties. 89 The applicants add that the contested decision does not explain why the Commission did not accept the figure of DKK 275 million, used a date prior to the transaction completion date of 2 July 2012 and did not examine the question whether the transfer of assets was compatible with the market economy investor principle. 90 The Commission considers that the third plea must be rejected as unfounded. Findings of the General Court 91 In accordance with the second paragraph of Article 296 TFEU, legal acts are to state the reasons on which they are based. Furthermore, under Article 41(2)(c) of the Charter of Fundamental Rights, the right to good administration includes the obligation of the administration to give reasons for its decisions. 92 It has consistently been held that the extent of the obligation to state reasons depends on the nature of the measure in question and on the context in which it was adopted. It must disclose clearly and unequivocally the reasoning followed by the institution that adopted the measure, in such a way as to enable the Court to carry out its review, on the one hand, and to enable the persons concerned to ascertain the reasons for the measure so that they can defend their rights and ascertain whether or not the measure is well founded, on the other (judgment of 6 March 2003, Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission, T‑228/99 and T‑233/99, EU:T:2003:57, paragraph 278). 93 It is not, however, 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 the second paragraph 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 (judgment of 6 March 2003, Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission, T‑228/99 and T‑233/99, EU:T:2003:57, paragraph 279). 94 In particular, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned, but it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (judgment of 6 March 2003, Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission, T‑228/99 and T‑233/99, EU:T:2003:57, paragraph 280). 95 It is in the light of those considerations that the applicants’ claims must be examined. 96 First, concerning the head of claim alleging that it is impossible for the other Member States and interested third parties to understand how the Commission calculated the market value and the real economic value of the loan portfolio, and how it arrived at the figures mentioned in recitals 97, 103, 116 and 117 of the contested decision, it must be observed that the applicants may not rely upon an alleged failure to state adequate reasons in respect of a third party. They admit, moreover, that the Commission provided them with the relevant information in that regard during the administrative procedure. It must be noted that, as the Commission observes, the contested decision provided a succinct description of the method used to calculate the market value of NewCo’s assets (recitals 91 to 93) and that used to calculate the real value (recital 116). 97 Therefore, contrary to the applicants’ claims, the contested decision sets out the essential considerations upon which the Commission based its reasoning relating to the calculation of the market value and the real economic value. Furthermore, it must be stated that the applicants were able to put forward, in the context of the second plea in law, numerous arguments aiming to challenge the merits of those calculations, which indicates that they were in a position to understand those calculations. 98 Secondly, concerning the head of claim relating to the independent expert’s report, as a preliminary point, it must be noted that it is open to the Commission to make use of independent experts if it considers it appropriate, as it has done on many occasions in State aid matters. Therefore, in this case, the contested decision cannot be criticised for relying on the expert’s report of 7 June 2012. Moreover, as mentioned above, the contested decision is not limited to referring, in general terms, to the independent expert’s report, but sets out the essential considerations of the Commission’s reasoning. 99 In that context, the argument concerning the refusal to give the applicants access to the two experts’ reports in their entirety must be rejected. As the Commission rightly pointed out, the procedure for the control of State aid is a procedure initiated with regard to the Member State responsible for granting the aid. That procedure not being initiated against the recipient of the aid, the latter may not rely on the rights of the defence (judgment of 24 September 2002, Falck and Acciaierie di Bolzano v Commission, C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraphs 81 and 83). Interested parties have only the right to be involved in the administrative procedure to the extent appropriate in the light of the circumstances of the case (judgment of 25 June 1998, British Airways and Others v Commission, T‑371/94 and T‑394/94, EU:T:1998:140, paragraph 60). Finally, it must be stated that the Commission’s failure to make the experts’ reports available to the applicant is irrelevant for the purposes of establishing whether there has been an infringement of the obligation to state reasons (judgment of 15 June 2005, Corsica Ferries France v Commission, T‑349/03, EU:T:2005:221, paragraph 77). 100 Thirdly, as regards the alleged failure to state adequate reasons concerning the gross capital relief effect of the measures in the amount of DKK 375 million, instead of DKK 275 million, it must be noted that recital 116 of the contested decision states that the Commission arrived at that result on the basis of information provided by the Danish financial supervisory authority, in the application of its Impaired Assets Communication. Furthermore, the applicants put forward numerous arguments aiming to challenge the merits of that calculation in the context of the fifth head of claim of the second plea in law, which indicates that they were in a position to understand that calculation. In particular, it is apparent from paragraph 146 of the application and paragraph 73 of the reply that they understood that the amount of capital relief resulted from a reduction in the liquidity risk buffer of DKK 275 million and a reduction in the buffer against other risks, in particular credit risk, of DKK 100 million. The obligation to state reasons must be distinguished from the question whether the reasons given are sound, which goes to the substantive legality of the contested measure (judgment of 5 October 2012, Evropaïki Dynamiki v Commission, T‑591/08, not published, EU:T:2012:522, paragraph 157). This head of claim cannot, therefore, be upheld. 101 Fourthly, concerning the alleged failure to state adequate reasons relating to the reference date for the evaluation of the loan portfolio, it follows from the contested decision, in particular from recitals 27, 29 and 94 and footnotes Nos 30 and 72, that the loan portfolio was assessed on the basis of its composition as of 31 December 2011, taking into consideration the evolution of its quality until 2 July 2012, namely, the transaction completion date. It is apparent from, in particular, the expert’s report of 16 September 2013, to which the contested decision refers, that the Commission adopted that approach because, despite its later completion date, the transaction was intended to have retroactive effects as of 31 December 2011. 102 In that respect it must be noted that, according to the case-law, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in circumstances known to that person which enable him to understand the scope of the measure concerning him (judgments of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 71, and of 6 October 2015, Technion and Technion Research & Development Foundation v Commission, T‑216/12, EU:T:2015:746, paragraph 97). Having been sent by the Commission to the applicants during the administrative procedure and attached to the application, the expert’s report of 16 September 2013 forms part of the circumstances known to the latter. This head of claim must therefore be rejected. 103 Fifthly, concerning the head of claim alleging failure to state adequate reasons for the Commission’s refusal to apply the market economy creditor principle, it is undisputed that the contested decision is based on the application of the private investor principle. According to the case-law, the statement of the reasons on which a decision adversely affecting a person is based must allow the Court to exercise its power of review as to the legality of the decision and must provide the person concerned with the information necessary to enable him to decide whether or not the decision is well founded (judgment of 11 July 1985, Remia and Others v Commission, 42/84, EU:C:1985:327, paragraph 26). 104 It must be noted that, in the present case, the Commission provided the legal considerations having decisive importance in the context of the decision. It follows from the contested decision that it was based on the application of the private investor principle, thereby enabling the applicants to challenge the merits of that decision and the Court to carry out its power of review in the context of the first plea. In those conditions, irrespective of whether the contested decision is well founded on that point, that claim alleging inadequacy of the reasons stated must be rejected. 105 In light of the foregoing, the third plea in law must be rejected as unfounded. Costs 106 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 bear its own costs and to pay those incurred by the applicants, in accordance with their pleadings. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Annuls Commission Decision 2014/884/EU of 11 March 2014 on State aid SA.34445 (12/C) implemented by Denmark for the transfer of property-related assets from FIH to the FSC; 2. Orders the European Commission to pay the costs. Frimodt Nielsen Dehousse Collins Delivered in open court in Luxembourg on 15 September 2016. [Signatures] * Language of the case: English.