Opinion of the Advocate General — ECLI:EU:C:2012:535
Date: 2012-09-06
Language of the case: English
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - successful
Origin: Slovakia

summary. 7 – Commission Decision 2007/254/EC of 7 June 2006 on State aid C 25/2005 (ex NN 21/2005) implemented by the Slovak Republic for Frucona Košice a.s., notified under No K(2006) 2082 (OJ 2007 L 112, p. 14). 8 – Case T‑11/07 Frucona Košice v Commission [2010] ECR I‑5453. 9 – Orders of 14 December 1995 in Case C‑173/95 P Hogan v Court of Justice [1995] ECR I‑4905, paragraph 20; and of 17 September 1996 in Case C‑19/95 P San Marco Impex v Commission [1996] ECR I‑4435, paragraph 37; and judgments in Case C‑227/04 P Lindorfer v Council [2007] ECR I‑6767, paragraph 45; Case C‑67/09 P Nuova Agricast and Cofra v Commission [2010] ECR I‑9811, paragraph 48; and Case C‑521/09 P Elf Aquitaine v Commission (‘Elf Aquitaine’) [2011] ECR I‑8947, paragraph 144. 10 – See Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraphs 94, 97 and 100, and the order of 28 June 2011 in Case T‑454/09 P Van Arum v Parliament, not published in the ECR, paragraph 133. 11 – Paragraphs 35 to 41 of the appeal. 12 – Paragraph 34 of the appeal. 13 – See in particular paragraph 212 of the judgment under appeal. 14 – Case C‑259/96 P Council v De Nil and Impens [1998] ECR I‑2915, paragraphs 32 and 33; Case C‑449/98 P IECC v Commission [2001] ECR I‑3875, paragraph 70; Case C‑202/07 P France Télécom v Commission [2009] ECR I‑2369, paragraph 29; and Case C‑280/08 P Deutsche Telekom v Commission [2010] ECR I‑9555, paragraph 136. 15 – See judgment of 25 October 2007 in Case C‑167/06 P Komninou and Others v Commission, not published in the ECR, paragraph 22. 16 – With regard to this assumption made by the General Court, see in particular paragraph 212 of the judgment under appeal. 17 – Footnote does not apply to the English version of this Opinion. 18 – Second sentence of paragraph 89 of the judgment under appeal. 19 – Third sentence of paragraph 89 and paragraph 92 of the judgment under appeal. 20 – Settled case-law; see Case C‑280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I‑7747, paragraphs 74 and 75; Joined Cases C‑341/06 P and C‑342/06 P Chronopost and La Poste v UFEX and Others (‘Chronopost’) [2008] ECR I‑4777, paragraphs 121, 122 and 129, and Case C‑169/08 Presidente del Consiglio dei Ministri (‘Sardegna’) [2009] ECR I‑10821, paragraph 52. 21 – See, inter alia, Sardegna, cited in footnote 20; Case C‑487/06 P British Aggregates v Commission (‘British Aggregates’) [2008] ECR I‑10515; Case C‑452/10 P BNP Paribas and BNL v Commission (‘BNP Paribas’) [2012] ECR; and EDF, cited in footnote 3. 22 – DMT, cited in footnote 5, paragraph 22; see also Case C‑39/94 SFEI and Others [1996] ECR I‑3547, paragraph 60; Case C‑342/96 Spain v Commission [1999] ECR I‑2459, paragraph 41; and EDF, cited in footnote 3, paragraph 78. 23 – Case C‑342/96 Spain v Commission, cited in footnote 22, paragraph 46, and DMT, cited in footnote 5, paragraphs 24 and 25; see also Case T‑152/99 HAMSA v Commission (‘HAMSA’) [2002] ECR II‑3049, paragraph 167. 24 – DMT, cited in footnote 5, paragraph 30 and operative part. 25 – DMT, cited in footnote 5, paragraph 25. This wording contained in the grounds of the judgment seems to be based more closely than the operative part of the judgment in DMT on the Opinion of Advocate General Jacobs of 24 September 1998 in that case. The Advocate General takes State aid to exist where the payment facilities in question are ‘manifestly more generous’ than those which a private creditor would grant in comparable circumstances (points 34, 37 and 45 of the Opinion). This same view is also taken in the judgments of the General Court in HAMSA, cited in footnote 23, paragraph 170, and in Case T‑68/03 Olympiaki Aeroporia Ypiresies v Commission (‘Olympic Airways’) [2007] ECR II‑2911, paragraph 283, although they are as cryptically worded as DMT. 26 – DMT, cited in footnote 5, paragraphs 25, 30 and operative part. 27 – See again in this regard the Opinion of Advocate General Jacobs in DMT, cited in footnote 5, points 34, 37 and 45. 28 – At present, the generally applicable EU legislation for de minimis aid is Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid (OJ 2006 L 379, p. 5). At the time the contested decision was adopted, the applicable regulation was Commission Regulation (EC) No 69/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid (OJ 2001 L 10, p. 30). 29 – This is also recognised by the Court in DMT (cited in footnote 5, paragraph 30 and operative part) by the wording ‘having regard to the size of the economic advantage so conferred’. 30 – See in particular paragraph 137 of the judgment under appeal in which the General Court found that the amount expected in a bankruptcy procedure is ‘virtually equal to’ the sum paid by Frucona pursuant to the arrangement. 31 – It is clear from paragraph 137 of the judgment under appeal that the minimum proceeds from a bankruptcy procedure actually estimated in the contested decision was incorrectly calculated (SKK 239 million). If the calculation error made by the Commission is adjusted, this gives SKK 225.5 million according to the findings of the General Court. See below, points 97 to 104 of this Opinion. 32 – See point 11 of this Opinion and paragraph 22 of the judgment under appeal. 33 – DMT, cited in footnote 5, paragraph 30 and operative part. 34 – See my Opinion of 26 May 2011 in Case C‑275/10 Residex Capital IV [2011] ECR I‑13043, point 67. 35 – As is shown by DMT (cited in footnote 5), national courts may, within the scope of their powers – in particular to enforce the standstill clause under the third sentence of Article 108(3) TFEU (formerly the third sentence of Article 88(3) EC) – be required to apply the private creditor test. They must then conduct the private creditor test in the same way as the Commission. 36 – See again in this regard EDF, cited in footnote 3, paragraph 78. 37 – See, with regard to the private investor test, EDF, cited in footnote 3, paragraphs 86 and 104. 38 – Case C‑525/04 P Spain v Lenzing [2007] ECR I‑9947, paragraph 59. 39 – See also the Opinions of Advocate General Mischo in Case C‑480/98 Spain v Commission [2000] ECR I‑8717, points 35 and 36, and of Advocate General Poiares Maduro in Case C‑276/02 Spain v Commission, cited in footnote 4, points 37 to 39. 40 – See my statements above in points 52 to 56 of this Opinion. 41 – The procedure before the Commission is an administrative procedure, whereas the procedure before national courts on the basis of the third sentence of Article 88(3) EC (third sentence of Article 108(3) TFEU) may also be a civil-law procedure. However, this makes no difference with regard to the question of the standard of assessment at issue here. 42 – See also – in relation to an administrative merger control procedure – my Opinion in Case C‑413/06 P Bertelsmann and Sony v Impala [2008] ECR I‑4951, points 206 to 211. 43 – Last sentence of paragraph 89 of the judgment under appeal; see also paragraph 92 of that judgment. The General Court took a similar approach in HAMSA, cited in footnote 23, paragraph 172, in which it simply examined whether a winding up of the firm in question would have allowed a private creditor ‘to recover a greater portion of those claims’. 44 – Opinion of Advocate General Poiares Maduro in Case C‑276/02 Spain v Commission, cited in footnote 4, point 36. 45 – Paragraph 128 of the judgment under appeal. 46 – Case C‑83/98 P France v Ladbroke Racing and Commission [2000] ECR I‑3271, paragraph 25; British Aggregates, cited in footnote 21, paragraph 111; and BNP Paribas, cited in footnote 21, paragraphs 100 and 104; see also HAMSA, cited in footnote 23, paragraph 159, and Olympic Airways, cited in footnote 25, paragraph 284. 47 – See HAMSA, cited in footnote 23, paragraphs 165 and 171, in which it is examined whether the method applied by the Commission stands up to legal review. 48 – See, with regard to the private investor test, EDF, cited in footnote 3, paragraphs 86 and 104; see also, with regard to the private creditor test, the Opinion of Advocate General Poiares Maduro in Case C‑276/02 Spain v Commission, cited in footnote 4, point 37: ‘taking into account all the factors’. 49 – Paragraphs 123 to 129 of the judgment under appeal; in paragraph 123 of that judgment express reference is made to recitals 40 and 54 to the contested decision. 50 – Paragraph 123 of the judgment under appeal. I will discuss in points 114 and 115 of this Opinion whether the General Court distorted the substance of the contested decision with that finding. 51 – Case C‑56/93 Belgium v Commission [1996] ECR I‑723, paragraph 11; Case C‑525/04 P Spain v Lenzing, cited in footnote 38, paragraph 56; and Case C‑290/07 P Commission v Scott [2010] ECR I‑7763, paragraph 64; see also HAMSA, cited in footnote 23, paragraph 127, and Olympic Airways, cited in footnote 25, paragraph 285. 52 – Chronopost, cited in footnote 20, paragraph 143, and Case C‑290/07 P Commission v Scott, cited in footnote 51, paragraph 66, last sentence. 53 – Order of 25 April 2002 in Case C‑323/00 P DSG Dradenauer Stahlgesellschaft v Commission [2002] ECR I‑3919, paragraph 43; and judgments in Case C‑525/04 P Spain v Lenzing, cited in footnote 38, paragraph 57, last sentence; and Case C‑290/07 P Commission v Scott, cited in footnote 51, paragraph 66, first sentence. 54 – Paragraphs 123 to 129 of the judgment under appeal, in particular paragraph 129 of that judgment. 55 – See paragraphs 123 to 127 of the judgment under appeal. 56 – The Commission has repeatedly stated, in particular at the hearing, that in the present case the duration of the bankruptcy procedure would not have played a major role in the decision taken by a private creditor. This has been strongly opposed by Frucona. 57 – See paragraphs 124 to 126 of the judgment under appeal. 58 – See in particular paragraphs 128 and 137 of the judgment under appeal. 59 – See my Opinion in Case C‑441/07 P Commission v Alrosa [2010] ECR I‑5949, point 84. 60 – Paragraphs 134 to 137 of the judgment under appeal. 61 – Paragraphs 123 to 129 of the judgment under appeal. 62 – Paragraphs 116 to 120, 128, 137 and 185 to 190 of the judgment under appeal. 63 – Paragraphs 113 and 121 of the judgment under appeal. 64 – Footnote does not apply to the English version of this Opinion. 65 – See above, points 26 and 27 of this Opinion. 66 – Case C‑164/98 P DIR International Film and Others v Commission (‘DIR’) [2000] ECR I‑447, paragraphs 38 and 49; Joined Cases C‑442/03 P and C‑471/03 P P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission [2006] ECR I‑4845, paragraphs 60 and 67; and British Aggregates, cited in footnote 21, paragraph 141. 67 – Case C‑70/88 Parliament v Council [1990] ECR I‑2041, paragraph 22, and Case C‑133/06 Parliament v Council [2008] ECR I‑3189, paragraph 57; see also Case C‑539/09 Commission v Germany [2011] ECR I‑11235, paragraph 56. 68 – See again in this regard the case-law cited in footnote 66. 69 – See, to that effect, Case C‑431/07 P Bouygues and Bouygues Télécom v Commission [2009] ECR I‑2665, paragraph 68, and Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Others v Commission [2012] ECR, paragraphs 121 and 122. 70 – See in particular paragraphs 149 to 151 and 168 of the judgment under appeal. 71 – Paragraph 137 of the judgment under appeal. 72 – DIR, cited in footnote 66, paragraph 42, and British Aggregates, cited in footnote 21, paragraph 142. 73 – See above, points 92 to 94 of this Opinion. 74 – On 9 July 2004, the date on which the Tax Office accepted Frucona’s proposed arrangement, SKK 1.2 million was equivalent to around EUR 30 079 (rate of exchange as per OJ 2004 C 178, p. 1). On 17 December 2004, the date on which Frucona paid the Tax Office the excise duty agreed in the arrangement, SKK 1.2 million was equivalent to around EUR 31 061 (rate of exchange as per OJ 2004 C 313, p. 1). 75 – Paragraph 137 of the judgment under appeal. 76 – See above, in particular point 60 of this Opinion. 77 – Paragraphs 124 to 128 of the judgment under appeal. 78 – See above, points 48 to 51 of this Opinion. 79 – See above, points 61 and 62 of this Opinion. 80 – Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 50 and 159; Case C‑413/08 P Lafarge v Commission [2010] ECR I‑5361, paragraph 16; and Case C‑71/09 P Comitato ‘Venezia vuole vivere’ and Others v Commission [2011] ECR I‑4727, paragraph 152. 81 – Case C‑229/05 PKK and KNK v Council [2007] ECR I‑439, paragraph 37; Case C‑260/05 P Sniace v Commission [2007] ECR I‑10005, paragraph 37; and ‘Venezia vuole vivere’, cited in footnote 80, paragraph 153. 82 – Paragraph 123 of the judgment under appeal. 83 – See again paragraph 123 of the judgment under appeal. 84 – These circumstances are described in greater detail in paragraphs 124 to 128 of the judgment under appeal. They were also the subject of an in-depth and highly contentious discussion in the proceedings before the Court. 85 – The Commission could have been guided in this connection – whether rightly or wrongly – by the case-law according to which, in stating the reasons for its decisions, it is not required to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance (Chronopost, cited in footnote 20, paragraph 89; Case C‑413/06 P Bertelsmann and Sony v Impala, (‘Impala’) [2008] ECR I‑4951, paragraph 167, and Elf Aquitaine, cited in footnote 9, paragraph 154). 86 – Case C‑95/04 P British Airways v Commission [2007] ECR I‑2331, paragraph 137; Impala, cited in footnote 85, paragraph 29; Case C‑352/09 P ThyssenKrupp Nirosta v Commission [2011] ECR I‑2359, paragraph 180; and Elf Aquitaine, cited in footnote 9, paragraph 68.