Judgment — ECLI:EU:T:2012:452
Date: 2012-09-20
Language of the case: French
Court formation: Sixth Chamber
Subject matter: State aids;Competition
Procedure: Action for annulment - unfounded
Origin: France

summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which have come to light in the course of the procedure (see Case T‑252/97 Dürbeck v Commission [2000] ECR II‑3031, paragraph 39 and the case-law cited). 56 In the present case, it has not been established or even alleged that the plea alleging that there has been no transfer of State resources is based on elements of fact or law which have come to light in the course of the proceedings. Even if the late submission of that plea could be explained by the fact that judgment was given after the present proceedings were lodged in Joined Cases T‑425/04, T‑444/04, T‑450/04 and T‑456/04 France and Others v Commission [2010] ECR II‑2099, referred to by the Commission in its reply, that judgment cannot be regarded as a new matter justifying tardy submission of that argument. A judgment which merely confirms law which ought to have been known to the applicant when it brought an action cannot be regarded as a new matter allowing a fresh plea to be raised (see, to that effect, Case 11/81 Dürbeck v Commission [1982] ECR 1251, paragraph 17, and Case T‑521/93 Atlanta and Others v European Community [1996] ECR II‑1707, paragraph 39). 57 When questioned on the point at the hearing, the French Republic acknowledged that its line of argument related solely to the requirement that there be an advantage for the purposes of Article 107(1) TFEU, note of which was made in the record of the hearing. 58 Second, as regards the nature and scope of the judicial review, it must be borne in mind that the notion of State aid, as defined in the Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the Union judicature must in principle and having regard both to the specific features of the case before it and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 107(1) TFEU (see, to that effect, Case C‑83/98 P France v Ladbroke Racing and Commission [2000] ECR I‑3271, paragraph 25, and Case C‑487/06 P British Aggregates v Commission [2008] ECR I‑10515, paragraph 111). 59 Next, it must be pointed out that the legality of a Commission decision concerning State aid must be assessed in the light of the information available to the Commission when the decision was adopted (Case 234/84 Belgium v Commission [1986] ECR 2263, paragraph 16, and Case C‑276/02 Spain v Commission [2004] ECR I‑8091, paragraph 31). It follows in particular that, since the concept of State aid must be applied to an objective situation appraised on the date on which the Commission takes its decision, it is the appraisals carried out on that date which must be taken into account in the conduct of the judicial review (Joined Cases C‑341/06 P and C‑342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I‑4777, paragraph 144). 60 The Court finds it appropriate to begin by considering the second plea in law. The second plea: errors of fact and law as regards the existence of an unlimited State guarantee for La Poste 61 By its second plea, the French Republic alleges that the Commission made errors of fact and law in its examination of the question whether there was an unlimited, implied State guarantee in favour of La Poste. This plea consists of four parts aimed at demonstrating that the Commission made a number of errors: – in finding that under French law there is a general principle of State guarantee resulting from the status of EPIC; – in the determination of the inferences to be drawn from the inapplicability of insolvency and bankruptcy procedures under ordinary law to EPICs; – in equating the conditions triggering State liability with an automatic, unlimited State guarantee mechanism for La Poste’s liabilities; – in the determination of the potential consequences of transfers of the public service obligations of a wound-up EPIC. First part: error by the Commission in finding that under French law there is a general principle of State guarantee resulting from the status of EPIC 62 The French Republic submits that the Commission made an error in finding that under French law there is a general principle of State guarantee granted to EPICs. 63 In support of its allegation, the French Republic argues, in essence, firstly, that the case-law of the Conseil d’État precludes the very principle of such a guarantee; secondly, that the extract from the 1995 annual report of the Conseil d’État on which the Commission based itself has no general scope and binding effect, in the light of inter alia an opinion from the Conseil d’État delivered on 8 September 2005; thirdly, that French law on public finances precludes, on principle, any notion of ‘implied guarantee’; and, fourthly, that there are no measures designed to uphold the rights of an EPIC’s creditors in the event of a change in the EPIC’s status. 64 In the present case, the determination of whether there is an unlimited State guarantee involves an accurate and specific examination of the mechanisms put in place by French law in the event of an EPIC such as La Poste defaulting on its creditors. 65 In that regard, it should be borne in mind that, in proceedings concerning State aid, the assessment of facts and evidence falls within the Court’s complete discretion. In addition, in that context, the question whether and to what extent a rule of national law applies to the case in point falls within the scope of a factual assessment by the Court and is subject to the rules on the taking of evidence and on the apportionment of the burden of proof. 66 Moreover, contrary to what the French Republic’s line of argument might seem to indicate, the Commission did not find that there was a principle of an implied State guarantee under French law, basing itself essentially on an extract of a report from the Conseil d’État. It is very clear from the contested decision that, in order to establish that there was a State guarantee in favour of La Poste, the Commission inter alia examined the issue whether such a guarantee was precluded under French law (see recitals 120 to 136 of the contested decision). It found that the texts and the case-law did not lead to a definitive conclusion that French law precluded the State from acting as a guarantor for EPICs in respect of commitments they had undertaken with third parties. 67 That finding cannot be called into question. 68 First of all, regarding the issue whether the case-law of the Conseil d’État precludes the very principle of a State guarantee for publicly-owned establishments, it is clear from the parties’ written submissions that they disagree, essentially, on which interpretation should be given to the case-law deriving from the judgment of the Conseil d’État (Assemblée) of 1 April 1938, Sociétés de l’Hôtel d’Albe (Recueil des décisions du Conseil d’État, p. 341). 69 In that judgment, the Conseil d’État refused to uphold the claim of a creditor of an EPIC addressed directly to the relevant State minister, stating that the minister could not be held liable for debts incurred by the EPIC. As rightly observed by the Commission in recital 123 of the contested decision, the situation at issue which gave rise to that judgment is quite different from one where an EPIC is insolvent, which is the only relevant factor for the purpose of considering whether the State guarantee is liable to come into play. According to that judgment, the fact that, under French law, publicly-owned establishments have legal personality and financial independence does not necessarily mean that the State cannot be guarantors of last resort for those establishments. Consequently, the Commission did not make an error of assessment in finding that it could not be inferred from the case-law that the very principle of a State guarantee for EPICs was precluded. 70 Secondly, the French Republic argues that the Commission incorrectly based itself on a sentence taken from the 1995 annual report of the Conseil d’État, when the binding scope and value of that report is doubtful. 71 That line of argument cannot succeed, for a number of reasons. First of all, as pointed out by the Commission, the extract to which the Commission referred (see recital 139 of the contested decision), which itself is taken from a memorandum drawn up in 1995 when a publicly-owned establishment was established to support the financial assistance granted by the French State to assist the recovery of Crédit Lyonnais, is written in unequivocal terms. The Conseil d’État stated clearly that ‘… there was a State guarantee for this establishment which derived without any express legislative provision from the very fact that it was a publicly-owned establishment’. Moreover, the passage taken from that report is merely one of the specific pieces of evidence relied on by the Commission in order to demonstrate the existence of a State guarantee. In particular, recitals 146 and 147 of the contested decision indicate that the Commission referred, in support of its position, to a memorandum from the French Minister for Economic Affairs, Finance and Industry of 22 July 2003, concerning a ‘Census of implied and express guarantee arrangements granted by the State’, and the documents annexed thereto. Contrary to the interpretation advocated by the French Republic, it would appear that that memorandum does not concern only the scenario where the liability of the French State might be incurred in its capacity as shareholder, inter alia on the basis of an action to make good a shortfall in assets, as it refers explicitly in its explanatory notice to the creation of publicly-owned establishments. Lastly, the opinion of the Conseil d’État of 8 September 2005 did not contradict the Commission’s finding on this point. As the French Republic has partially acknowledged, that opinion, which was delivered in relation to the creation of a commission to monitor insurance, mutual companies and pension funds (Commission de contrôle des assurances, des mutuelles et des institutions de prévoyance (CCAMIP)) whilst observing the principle that all legal entities governed by public law must answer to liability actions brought against them, does not rule out the possibility that there may be a State guarantee which may be triggered in the event of a publicly-owned establishment becoming insolvent. 72 Thirdly, the French Republic argues that, since the entry into force of the Organic Law of 1 August 2001 governing the Finance Act (loi organique du 1er août 2001 relative aux lois de finances (LOLF)), no third-party guarantee or debt recovery by the State can be implemented without authorisation under the Finance Act. 73 That standpoint cannot be endorsed. It is clear from decision No 2001-448 DC of the Conseil constitutionnel (Constitutional Council) of 25 July 2001 (Recueil des decisions du Conseil constitutionnel, p. 99) that ‘the purpose of Article 61 [of the Finance Act] is to ensure that Parliament is informed of guarantees given by the State, and not to bring an end to any guarantees given in the past which have not been authorised within the time laid down …’. In the absence of clarification as to the nature of the guarantees referred to by the Constitutional Council in that decision, there is nothing to indicate that the implied guarantees covering pre-existing debts at the time the Finance Act entered into force (1 January 2005) had also lapsed. In that regard the Commission made no error of assessment in stating, in recital 126 of the contested decision, that, in order to determine whether or not the implied guarantee given by the State to La Poste had lapsed as a result of the Finance Act, what had to be considered was not the dates on which the debts were contracted by La Poste, but the date from which La Poste had enjoyed the guarantee. 74 Although, as pointed out by the French Republic, the expert appointed by the French authorities expressed doubts as to whether the reasons which led the Constitutional Council to find that guarantees do not lapse merely because they are not expressly authorised by finance legislation apply to implied guarantees as much as to express guarantees, that reading does not have any solid support in the wording of the Constitutional Council’s decision. The Commission was moreover correct in stating, in recital 131 of the contested decision, that it was not bound by the categorisation under French law of the guarantee measure at issue, or even by the fact that it was a guarantee coming within the scope of the Finance Act. 75 Fourthly, nor is the argument, to the effect that the absence of measures aimed at protecting the rights of creditors of EPICs in the event of a change in their status, as was the case when France Télécom, Gaz de France, Électricité de France and Aéroports de Paris were converted into public liability companies, is an indicator that there is no guarantee whatsoever, convincing. 76 The fact that the French State decided to grant explicit guarantees in certain scenarios does not prove that the grant of an implied guarantee was precluded in the present case. That conclusion is not affected by the fact that creditors’ rights are constitutionally protected under French law on an equal footing with the right of property, as evidenced by a number of decisions of the Constitutional Council. Furthermore, the case-law of the Constitutional Council referred to by the French Republic was not included in the evidence submitted to the Commission and which it could therefore have in its possession at the time it adopted the contested decision. It follows that, in accordance with the case-law referred to paragraph 59 above, the case-law of the Constitutional Council relating to the protection of creditors’ rights is not one of the factors in the light of which the lawfulness of the contested decision is to be appraised. 77 The French Republic’s reference, in the reply, to the Conseil d’État’s study report on publicly-owned establishments, adopted by the plenary assembly of the Conseil d’État (Assemblée plénière du Conseil d’État) on 15 October 2009, according to which ‘the very existence of a guarantee granted by the State to publicly-owned establishments is very questionable’, and a scholarly article published on 28 June 2010 following that report, it is clear that those publications, even if they could be relied on in the present proceedings, do not contain any new fact that is directly relevant to the issue whether French law precludes, as a matter of principle, there being an implied State guarantee in favour of EPICs. In that study report, the Conseil d’État merely noted general assessments as to whether it was possible to detect, in the European Union case-law, the existence of State aid ‘based solely on evidence from [the entity’s] statutes’. Ruling on the issue whether competition law called into question the existence of publicly-owned establishments, the authors of that report limited themselves to stating that it was necessary ‘to relativise the risk that relations between the State and its publicly-owned establishments fall systemically to be categorised as State aid within the meaning of Article 87 [EC]’. The scholarly article dated 28 June 2010 concerns a debate which began following the publication of that study report on the fate of entities having the status of publicly-owned establishment, inter alia, although not solely, from the angle of State aid law. It should be noted in regard to the latter aspect that there is no discussion of an essential pillar of the reasoning followed by the Commission in the contested decision, namely the finding that entities enjoying the status of publicly-owned establishment under French law cannot be made subject to the insolvency and bankruptcy procedures under ordinary law. 78 It follows from all of those considerations that the Commission made no error in finding that, contrary to the French authorities’ assertions, French law did not preclude the possibility for the State to grant an implied guarantee to EPICs. The first part of the second plea must accordingly be dismissed. Second part: errors of law and fact by the Commission as to the inferences to be drawn from the inapplicability to La Poste of insolvency and bankruptcy procedures under ordinary law 79 The French Republic considers that, contrary to the view put forward by the Commission, the inapplicability of insolvency and bankruptcy procedures under ordinary law to La Poste, namely Law No 85-98, which is merely a ‘procedural law’, does not mean that La Poste cannot go bankrupt or find itself in a situation of insolvency. The French Republic observes that specific procedures, which do not give creditors any guarantee that they will recover all of their claims, are applicable to EPICs. Law No 80-539 in particular and the legislation adopted to give it effect, the primary objective of which was to regulate situations in which public entities, although solvent, refused to honour certain debts, established a scheme of enforcement remedies, which give the governing body the power to substitute itself for the executive of a publicly-owned establishment so as to release the ‘necessary credits’ – and not State resources – in that establishment’s budget, with a view to satisfying potential creditors. That law, however, confers no authority and even less the obligation on the State, whose role can be compared to that of an ad hoc legal representative, to release State resources for the benefit of potential creditors of publicly-owned establishments. This interpretation is supported both by Opinion No 381-088 of the Conseil d’État (avis n° 381-088 du Conseil d’État) of 25 March 2008 and the French administrative case-law. Lastly, the existence of the programmes identified by the Commission in recitals 174 to 178 of the contested decision, allowing advances to be made to organisations distinct from the State that manage public services, do not mean that an implied guarantee mechanism has been established. 80 In that regard, the Court observes that the parties agree that Law No 85-98 excluded from its scope all public entities, in particular EPICs. Under Article 2 of that law, now Article L. 620-2 of the Commercial Code, in the version thereof in force until 1 January 2006, ‘[r]ecovery and judicial winding-up shall be applicable to all traders, all persons registered in the business directory, all farmers and all legal entities governed by private law’. The corresponding provision in force on the date of adoption of the contested decision provides, in the same vein, that ‘[t]he safeguard procedure shall be applicable to all persons pursuing commercial activities or crafts, all farmers, all other natural persons pursuing independent professional activity, including the liberal professions subject to legislative or regulatory status or whose title is protected, and also to all legal entities governed by private law’. Moreover, it is apparent from the case-law of the French Cour de cassation, referred to by the French Republic in its written pleadings, that the legislation indicated ‘that property not belonging to private persons shall be administered and alienated according to the specific rules applicable to them; that, in respect of property belonging to public entities, even those pursuing industrial and commercial activities, the principle of non-seizability of that property precludes recourse to private-law enforcement remedies; that only the creditor who has obtained an enforceable favourable judicial decision having acquired the force of res judicata and ordering a public entity to pay, even provisionally, an amount of money, may have enforced the specific rules deriving from Law [No 80-539]’ (see judgment of the Cour de cassation (1st civil chamber) of 21 December 1987, Bureau de recherches géologiques et minières (BRGM) v Sté Llyod continental, Bulletin des arrêts de la Cour de cassation I, No 348, p. 249). 81 The parties disagree, however, as the inferences to be drawn from the inapplicability of ordinary law rules governing compulsory administration or winding-up to EPICs with a view to determining whether there is a State guarantee in favour of La Poste. 82 It should be noted at the outset that, according to the contested decision (see recitals 118 and 119), the Commission took the view that, in order to establish whether there was a guarantee for individual claims, it was appropriate, after examining the national legislation and case-law (see first part of the second plea above), to begin by considering whether, in order to determine whether the procedure followed by a creditor of La Poste in order to settle its claim in the event of La Poste being in financial difficulty was comparable to that followed by the creditor of an undertaking subject to commercial law. Contrary to the impression the French Republic’s line of argument might give, the Commission’s approach was not aimed at finding that an EPIC, by virtue of the fact that it was subject to the application of ordinary law rules governing compulsory administration or winding-up, could not go bankrupt. 83 In the event, the Commission reached the conclusion that the creditors of EPICs were in a more favourable situation than private creditors on the ground that, contrary to what happened under the application of ordinary law rules governing compulsory administration or winding-up, the creditor of a publicly-owned establishment did not run the risk of seeing his claim cancelled because of a judicial winding-up procedure being triggered (see recital 150 of the contested decision). 84 This conclusion is to be endorsed. As acknowledged by the French Republic in the application, Law No 80-539 provides for a mechanism that is different from that established under ordinary law procedures governing compulsory administration or winding-up. That law and the legislation adopted to give it effect implement a claims recovery procedure which, unlike a winding-up procedure under ordinary law, does not, when triggered, extinguish claims but at the most postpones the payment of them. Thus, the creditors of publicly-owned establishments are necessarily in a more favourable situation than creditors of persons coming within the scope of Law No 85-98 which, in the event of insufficient assets on the part of the debtor person or entity, may see their claim cancelled. 85 As shown by the description of the procedures applicable to EPICs under Law No 80-539 (see, inter alia, recitals 23 to 28 of the contested decision), in the event of an EPIC having insufficient assets, the payment of claims will be postponed or the competent governing body will release resources in order to honour the claims. It follows that creditors of publicly-owned establishments are necessarily in a more favourable situation than creditors of persons governed by private law. 86 Moreover, although, as observed by the French Republic and as not disputed by the Commission (see inter alia recital 160 of the contested decision), Law No 80-539 does not provide explicitly that the State is bound to release State resources in order to enforce a judicial decision under Article 1-II of that law, the Commission made no error in asserting that, once a defaulting publicly-owned establishment’s own resources have been exhausted, State funds will in all likelihood be used to honour the debts of the publicly-owned establishment debtor. 87 Nor did the Commission make an error of assessment in referring, in recitals 174 to 176 of the contested decision, to certain financial tasks and programmes with a view to highlighting the existence of State resources which might be used in the event of an EPIC defaulting and, therefore, an indication of the effectiveness of the implied State guarantee in favour of EPICs. 88 In the light of the foregoing, the conclusions set out in recitals 179 and 180 of the contested decision as to the consequences arising from the application of Law No 80-539, as indicia of the existence of an unlimited State guarantee in favour of EPICs, must be endorsed. Third part: the Commission erred in equating the possibilities of incurring State liability in the event of default by an EPIC with an automatic, unlimited guarantee of liabilities 89 By the third part of the second plea, the French Republic submits that, contrary to the Commission’s assertions, the creditors of La Poste could not count on State liability regularly coming into play in the event of default by it. It disputes, inter alia, the finding that State liability may be automatically triggered merely because the financial situation of a publicly-owned establishment at a given moment did not enable it to honour its debts. In the French Republic’s submission, State liability coming into play, which is subject to strict conditions under the case-law of the Conseil d’État, must not be equated with an automatic and unlimited guarantee mechanism. It submits in that respect that, in order for State liability to be incurred, not only must the loss suffered by the creditor be abnormal and specific, there must also be a causal link between the action or failure to act by the State and the loss suffered. 90 It should be borne in mind as a preliminary point that only objective findings leading to the conclusion that the State is legally bound to settle the claims of the creditors of an EPIC such as that at issue in the present case would permit a finding that there is a State guarantee (see, to that effect, Case T‑442/03 SIC v Commission [2008] ECR II‑1161, paragraph 126). 91 In the present case, the parties agree that there are undeniably differences between, on the one hand, a guarantee mechanism consisting in the State substituting itself, automatically and indefinitely, for a debtor in the event of the debtor being unable to meet its financial commitments and, on the other, a liability scheme under which the liability arises out of something which is directly attributable to the person liable and which involves factors specific to each scenario being taken into account. 92 In the contested decision, the Commission’s reasoning is based on the decision of the Conseil d’État of 18 November 2005, Société fermière de Campoloro et autre (Recueil des decisions du Conseil d’État, p. 515), which, according to recital 124 of that decision, establishes that a scheme of State liability in proceedings for the recovery of the debts of publicly-owned establishments displays all the characteristics of a guarantee mechanism. The recital in principle of that decision is worded as follows: ‘In the event of a failure on the part of a local or regional authority to ensure the application of a judgment no longer open to appeal, after proper notice, the legislature here sets out to give the representative of the State the power to step into the shoes of that authority, in order to release or create the resources that will allow the judgment to be enforced in its entirety. The representative of the State consequently has a duty, subject to judicial review, to take the measures necessary in the light of the situation of the authority and the requirements of the public interest. Such measures include the possibility of selling assets belonging to the authority, provided they are not indispensable to the proper operation of the public services for which the authority is responsible. If the prefect refuses or neglects to exercise the prerogatives conferred on him by law, a creditor of the authority is entitled to bring an action against the State in case of serious fault committed in the exercise of the supervisory power. In addition, if, having regard to the situation of the local or regional authority, and in particular to an insufficiency in its assets, or by reason of requirements of the public interest, the prefect legitimately refuses to take certain measures with a view to ensuring that the judgment is enforced in full, the State as holder of public authority may be liable for any injury caused to a creditor of the local or regional authority if the injury is of an abnormal and specific kind.’ 93 The Commission’s reasoning is also based on a 1995 memorandum from the Conseil d’État (recital 139 of the contested decision) and on the judgment of the European Court of Human Rights of 26 September 2006 in Société de gestion du port de Campoloro et Société fermière de Campoloro v France (No 57516/00) (recital 204 et seq. of the contested decision). 94 The Commission made no error in coming to the conclusion that, in essence and in the light of those judgments, State liability could be incurred where the arrangements arising from the implementation of Law No 80-539 did not enable a creditor of an EPIC, such as La Poste in the present case, to recover its claim. 95 None of the arguments put forward by the French Republic are such as to cast doubt on that conclusion. 96 First, it is apparent from the case-law of the Conseil d’État, referred to in paragraph 92 above, that a creditor is entitled to bring an action against the State in case of serious fault committed in the exercise of the supervisory power and also hold the State as holder of public authority liable where, having regard to the situation of the legal entity governed by public law in question, including the insufficiency of its assets, or due to imperative reasons in the public interest, that creditor has suffered an abnormal and specific loss arising from the refusal by the prefect to take the steps necessary to protect that creditor’s rights. 97 Moreover, the outcome of the dispute in the case relating to the port of Campoloro (France), as resulting from Société de gestion du port de Campoloro et Société fermière de Campoloro v France, was that, despite the arguments put forward by the applicant, the State proceeded to take over the obligation to ensure payment to creditors, thereby setting the precedent that the State could ultimately be held liable. As observed in recital 208 of the contested decision, in the judgment referred to above the European Court of Human Rights considered that it was for the State to ensure that creditors were paid, as they had borne a specific and exorbitant burden due to the non-payment of the amounts that they ought to have received. 98 Secondly, as regards the assertion that in order for State liability to be incurred there must be a causal link proven between the State’s action and the loss suffered by the creditors, suffice it to note that, as acknowledged by the French Republic, when an EPIC that has been entrusted with a public service task does not meet its debt obligations and is ordered to pay them by court decision, the State is automatically appointed to recover the necessary funds. Should it refuse to have the EPIC bear the costs of the claim in question by recourse to all necessary measures, including the sale of assets, it places itself in a situation that is likely to trigger its liability. As observed by the Commission, the State cannot be required to proceed with the sale of all of La Poste’s assets. In accordance with the requirement of continuity of public service, which under French law is a constitutional principle and is imposed on State authorities through Law No 80-539, the assets necessary for the EPIC to accomplish its public service task cannot be transferred. 99 Thirdly, the French Republic argues that the Commission referred, first, to the case-law of the European Court of Human Rights relating to the non-implementation of judicial decisions, which itself gave rise to an infringement of the right of property, in particular Société de gestion du port de Campoloro et Société fermière de Campoloro v France (see recitals 204 to 211 of the contested decision) and, second, the theory of appearance, in that the creditors of the EPICs were led to believe in the existence of a State guarantee. It is clear that recourse to that theory was put forward merely superfluously. The Commission thus stated, in recital 227 of the contested decision, that ‘[u]se of the theory of appearance enables what has been demonstrated to be confirmed’. Therefore, the argument to the effect that the theory of appearance cannot apply in a scenario such as the present case, where the establishment of claims is at issue, must be held to be ineffective. An incorrect ground need not lead to annulment of the measure thereby vitiated if it is superfluous and there are other grounds which provide a basis for it (see judgment of 7 April 2011 in Case C‑321/09 P Greece v Commission, not published in the ECR, paragraph 61 and the case-law cited). Fourth part: error by the Commission as to potential consequences of the transfer of the obligations of a wound-up EPIC 100 The French Republic argues that any possible upholding of certain claims linked to La Poste’s public service obligations is unrelated to the status of EPIC. Whilst recognising that the principle of continuity of public service entails, in the event of a publicly-owned establishment ceasing to exist, a transfer of those tasks and of the assets allocated to the accomplishment thereof, it considers that there is nothing preventing an EPIC from ceasing to exist, provided that the public service tasks it performs may be continued. 101 It is clear that the French Republic’s line of argument, which is not such as to invalidate the finding that the Commission found correctly that there was an unlimited State guarantee solely on the basis of findings made in relation to the first three parts of this plea, must be held to be ineffective (see the case-law cited in paragraph 99 above). 102 In any event, the French Republic explicitly recognised that the principle of continuity of public service entailed, in the event of a publicly-owned establishment performing a public service task ceasing to exist (which is the situation with La Poste), a transfer of that task and of the assets used to perform that task and, therefore, a transfer of the rights and obligations allocated to that task. The transfer of the rights and obligations attached to a public service task entails, in principle and as evidenced by the findings made by the Commission, a concomitant transfer of the rights and obligations of the establishment charged with that task. 103 It follows from all of those considerations that the second plea must be dismissed. The third plea: alleged infringement of the notion of advantage under Article 107(1) TFEU 104 The third plea relied on by the French Republic is divided into two parts. First part: the Commission found incorrectly that the existence of a State guarantee, assuming it was established, gave rise to an advantage for La Poste 105 In the first part, the French Republic submits that, even if it were established that there is an unlimited State guarantee in favour of EPICs, it has not been demonstrated that it gives rise to an advantage for La Poste. It submits, in essence, that it was on the basis of analyses done by ratings agencies, which echo directly the Commission’s conclusions relating to other EPICs and the Commission’s recommendation to the French authorities of 4 October 2006 (see paragraph 10 above), that there was found to be a guarantee and, therefore, an advantage for La Poste. Thus it was by entirely circular reasoning that the Commission found that there was an advantage granted to La Poste. 106 The grant of a guarantee on terms which are not equivalent to market conditions, such as an unlimited guarantee granted without consideration, is, as a rule, liable to confer an advantage on the recipient of those terms, in that that party thereby enjoys an improvement in its financial position through a reduction of charges which would normally encumber its budget. In response to a question put at the hearing, the French Republic acknowledged that, under the 2008 Notice, it was a fact that, once an undertaking, by virtue of its legal status, was exempt from bankruptcy or equivalent proceedings, it was able to obtain more favourable credit terms and, therefore, to enjoy an advantage for the purposes of Article 107(1) TFEU. 107 It should be recalled that, according to settled case-law, the definition of aid is more general than that of subsidy, because it includes not only positive benefits, such as subsidies themselves, but also State measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the word, are similar in character and have the same effect (see Joined Cases C‑328/99 and C‑399/00 Italy and SIM 2 Multimedia v Commission [2003] ECR I‑4035, paragraph 35, and Joined Cases C‑393/04 and C‑41/05 Air Liquide Industries Belgium [2006] ECR I‑5293, paragraph 29 and the case-law cited). According to settled case-law, in order to determine whether a State measure constitutes State aid, it is necessary to establish whether the recipient undertaking receives an economic advantage which it would not have obtained under normal market conditions (see C‑39/94 SFEI and Others [1996] ECR I‑3547, paragraph 60, and Commission v Netherlands, paragraph 87 and the case-law cited). 108 An unlimited State guarantee enables its recipient inter alia to obtain more favourable credit terms than what it would have obtained on its own merits alone and, therefore, eases the pressure on its budget. 109 It should be noted that it was only with a view to establishing that La Poste enjoyed more favourable terms of credit and, therefore, a financial advantage, that the Commission referred to the findings of the ratings agencies and, more specifically, to the principal findings. The Commission observes in that regard that, since Fitch and Standard & Poor’s are two leading ratings agencies and it is established that the market takes account of their ratings in assessing the credit to be granted to a given undertaking, a rating by either or both of those agencies which is better than would have been given without a guarantee is liable to procure an advantage for La Poste that it would not have obtained under normal market conditions. 110 The French Republic was thus incorrect in finding that the Commission used circular reasoning. The reference to the ratings methods employed by recognised agencies was merely to confirm that the State guarantee for EPICs was liable to give rise to an advantage for them in the form of more favourable credit terms (see, inter alia, recital 257 of the contested decision) and not to establish that such a guarantee existed. 111 In any event, the statement that those findings merely reflect the Commission’s assertions lack a factual basis. Nor has the French Republic demonstrated that the reason behind the ratings agencies’ taking into account of a State guarantee was Commission Decision 2005/145/EC of 16 December 2003 on the State aid granted by France to EDF and the electricity and gas industries (OJ 2005 L 49, p. 9). The mere fact that the documents originating from the ratings agencies referred to by the Commission are subsequent to that decision is not sufficient to prove that the reason behind the ratings agencies’ taking into account of a State guarantee was necessarily the adoption of that decision. The Commission cannot be criticised for referring to documents contemporaneous to the contested decision rather than to reports dating from well before the date of adoption of that decision. 112 Accordingly, the first part of the third plea is unfounded. Second part: the Commission was incorrect in finding that the alleged State guarantee was liable to give rise to an advantage for La Poste because of the positive influence it had on its financial rating 113 In the second part, the French Republic argues that the Commission found incorrectly that there was an advantage because of the positive influence the guarantee was liable to have on its rating. It submits, first of all, that the Commission disregards the fact that La Poste’s rating results from the ratings agencies’ apprehension of State support as a whole, which requires that a number of factors must be taken into account, not only whether or not there is a guarantee. It states, second, that even if there were no such guarantee, the rating given to La Poste by the ratings agencies, which are particularly sensitive to the fact that it is owned by the State, remains unchanged. Like those agencies, the Commission does not distinguish clearly between what derives from La Poste’s status and what derives from the ownership of its capital. 114 The French Republic’s line of argument cannot be accepted. 115 First of all, it should be noted that the Commission does not deny that, in addition to the State guarantee which an undertaking may enjoy, the financial rating takes account of all the parameters indicating the expected support from the State (see recital 280 of the contested decision). 116 Next, the French Republic has not succeeded in proving that the finding, made on the basis of methodological documents drawn up by the ratings agencies, according to which the ratings agencies were, in general, aware of the legal status of the entities rated, in this case the fact that they enjoyed the status of EPIC, was incorrect. 117 In the light of the foregoing, the third plea must be dismissed. The first plea: error of law by the Commission in not establishing the existence of State aid to the requisite legal standard 118 The French Republic submits that the Commission did not satisfy its obligations in terms of burden of proof or level of proof in State aid matters. Inter alia the Commission based its examination on negative presumptions, conjecture and speculation and, therefore, failed to demonstrate positively the existence of aid in favour of La Poste, contrary to the principles enshrined in the case-law. This is true both as regards the demonstration of the existence of an implied guarantee by the French State in favour of La Poste (see recitals 129, 134, 136, 152, 154, 160, 161, 165, 169, 179, 195, 202 and 251) and in the examination of whether there is an advantage, by examining precisely the effects of the disputed measure, as required by the case-law. It is not sufficient to demonstrate that the measure is ‘liable’ to give rise to an advantage in order to categorise it as State aid, particularly when it is existing aid. Lastly, the French Republic states in the reply that the Commission failed to adduce proof that the alleged advantage for La Poste resulted from a transfer of State resources. 119 It follows from the case-law that the Commission cannot assume that an undertaking has benefited from an advantage constituting State aid solely on the basis of a negative presumption, based on a lack of information enabling the contrary to be found, if there is no other evidence capable of positively establishing the actual existence of such an advantage. In that perspective, the Commission is, at the very least, required to ensure that the information at its disposal, even if incomplete and fragmented, constitutes a sufficient basis on which to conclude that an undertaking has benefited from an advantage amounting to State aid (see, to that effect, Case C‑520/07 P Commission v MTU Friedrichshafen [2009] ECR I‑8555, paragraph 56). 120 In that regard the nature of the evidence the Commission must adduce depends, to a large extent, on the nature of the State measure at issue. In particular, proof of the existence of an implied State guarantee may be inferred from a bundle of converging facts having a certain degree of reliability and coherence, taken inter alia from an interpretation of the relevant provisions of national law and, in particular, be inferred from the legal effects flowing from the legal status of the recipient undertaking. In that regard, memoranda and interpretation bulletins may be considered relevant for demonstrating that a State has granted an implied financial guarantee which, by definition, is not explicitly provided for by national law, to an undertaking having a particular status. 121 In the present case, the considerations set out in the examination of the second plea show that the Commission made a positive finding as to the existence of an unlimited State guarantee in favour of La Poste. It took into account a number of concordant facts which provided a sufficient basis to establish that La Poste, by virtue of its status as an EPIC, enjoyed an implied, unlimited State guarantee. Those objective indicia are derived, first of all, from the objective fact that La Poste was not subject to the ordinary law rules governing the compulsory administration or winding-up of firms in difficulty (recital 117 of the contested decision); secondly, that Law No 80-539, to which La Poste was subject, did not produce the same effects as a winding-up procedure under ordinary law and put the creditors of EPICs in a much more favourable situation than creditors of private persons (recitals 148 to 180 of the contested decision); and, thirdly and for the sake of completeness, that, ‘in the unlikely event that the procedure laid down by [Law No 80-539] does not result in payment’ (recital 184 of the contested decision), the creditor could also obtain satisfaction in having recourse to the liability of the State (recitals 185 to 222 of the contested decision). 122 The fact that the Commission found it appropriate to show, in response to the arguments put forward by the French authorities during the administrative procedure, that nothing in French law precluded the existence of an implied State guarantee in favour of EPICs (see recitals 120 to 138 of the contested decision), is merely the point of departure in the reasoning it set out clearly in recitals 116 to 255 of the contested decision. Accordingly it cannot be argued that the Commission relied on mere negative presumptions and speculation in order to establish that point. As stated in paragraph 71 above, the Commission referred explicitly to a 1995 memorandum from the Conseil d’État (recital 139 of the contested decision) and to a memorandum from the French Minister for Economic Affairs, Finance and Industry of 22 July 2003 (recitals 146 and 147 of the contested decision), which are drafted in the most unambiguous terms possible. 123 Similarly, the Commission adduced sufficient evidence in order to establish that that guarantee constituted an advantage. It follows from the case-law that the Commission is not required to demonstrate the actual effects of the disputed measure in respect of aid already granted (see 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, paragraph 110 and the case-law cited). It is not necessary to draw any distinction whatsoever between existing aid and unlawful aid. 124 Moreover, the actual effect of an advantage conferred by a State guarantee may be presumed. Such a guarantee enables the borrower to enjoy a lower interest rate or provide a lower level of security. It follows from the case-law that even an advantage granted in the form of a potential additional burden for the State is liable to constitute State aid (Case C‑200/97 Ecotrade [1998] ECR I‑7907, paragraph 43, and Joined Cases T‑204/97 and T‑270/97 EPAC v Commission [2000] ECR II‑2267, paragraph 80). This is most often the situation with guarantees which are generally linked to a loan or other financial obligation entered into by a borrower with a lender. 125 The first plea in law must accordingly also be dismissed as unfounded. 126 It follows from all those considerations that the action must be dismissed in its entirety. Costs 127 Under Article 87(2) 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 French Republic has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by the Commission. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders the French Republic to pay the costs. Kanninen Wahl Soldevila Fragoso Delivered in open court in Luxembourg on 20 September 2012. [Signatures] * Language of the case: French.