Order;Information — ECLI:EU:T:2020:110
Date: 2020-03-13
Language of the case: Finnish
Court formation: Sixth Chamber
Subject matter: State aids;Competition
Procedure: Action for annulment;Application for interim measures - unfounded
Origin: Finland

Summary of the pleas in law on which the application is based – General reference to other documents not annexed to the application – Reference to the application lodged by another applicant against the same decision adopted in the sphere of competition law – Inadmissibility (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 76(d)) (see paragraphs 17, 18) 2. State aid – Administrative procedure – Obligations of the Commission – Whether possible for the beneficiary of the aid to rely on rights as extensive as defence rights as such – Absence – Right of the beneficiary of the aid to be involved in the procedure to the extent appropriate – Scope (Art. 108(2) TFEU; Council Regulation 2015/1589, Art. 6(1)) (see paragraphs 27-31) 3. State aid – Examination by the Commission – Administrative procedure – Obligation of the Commission to give notice to the interested parties to submit their comments – Right of the beneficiary of the aid to be sufficiently involved in the procedure – Beneficiary undertaking identified in the decision initiating the formal investigation procedure subsequently taken over by another company – Final decision extending the obligation to recover the aid to the acquiring undertaking owing to the economic continuity – Obligation for the Commission to adopt a decision correcting or extending the decision initiating the formal investigation procedure – Absence (Art. 108(2) TFEU) (see paragraphs 32-41) 4. State aid – Examination by the Commission – Administrative procedure – Obligation of the Commission to give notice to the interested parties to submit their comments – Right of the beneficiary of the aid to be sufficiently involved in the procedure – Beneficiary undertaking identified in the decision initiating the formal investigation procedure subsequently taken over by another company – Final decision extending the obligation to recover the aid to the undertaking taking over owing to the economic continuity – Right of the undertaking taking over to be involved in the formal investigation procedure – Scope (Art. 108(2) TFEU) (see paragraphs 42-48) 5. State aid – Examination by the Commission – Administrative procedure – Obligation of the Commission to give notice to the interested parties to submit their comments – Right of the beneficiary of the aid to be sufficiently involved in the procedure – Beneficiary undertaking identified in the decision initiating the formal investigation procedure subsequently taken over by another company – Final decision extending the obligation to recover the aid to the undertaking taking over owing to the economic continuity – Right of the undertaking taking over to be involved in the formal investigation procedure – Violation – Annulment of the decision declaring the aid incompatible with the internal market and ordering its recovery – Condition – Possibility of the administrative procedure having a different outcome were it not for that violation (Art. 108(2) TFEU) (see paragraphs 49-65) 6. State aid – Recovery of unlawful aid – Determination of the debtor in the event of a transfer of assets – Undertaking receiving the aid taken over by another company during the formal investigation procedure – Extension of the obligation to recover to the company taking over in the event of economic continuity – Assessment of the existence of a situation of economic continuity – Judicial review – Scope (Art. 108(2) TFEU) (see paragraphs 75-81) 7. State aid – Recovery of unlawful aid – Determination of the debtor where assets transferred – Undertaking receiving the aid taken over by another company during the formal investigation procedure – Extension of the obligation to recover to the company taking over in the event of economic continuity – Assessment of the existence of a situation of economic continuity – Criteria – Takeover of the undertaking receiving the aid at a price lower than the market price – Assessment (Art. 108(2) TFEU) (see paragraphs 84-115) 8. State aid – Recovery of unlawful aid – Determination of the debtor where assets transferred – Undertaking receiving the aid taken over by another company during the formal investigation procedure – Extension of the obligation to recover to the acquiring company in the event of economic continuity – Assessment of the existence of a situation of economic continuity – Criteria – Extent and timing of the transaction for the takeover of the undertaking receiving the aid – Assessment (Art. 108(2) TFEU) (see paragraphs 116-125) 9. State aid – Recovery of unlawful aid – Determination of the debtor in the event of a transfer of assets – Undertaking receiving the aid taken over by another company during the formal investigation procedure – Extension of the obligation to recover to the company taking over in the event of economic continuity – Assessment of the existence of a situation of economic continuity – Criteria – Economic logic of the transaction for the takeover of the undertaking receiving the aid – Assessment (Art. 108(2) TFEU) (see paragraphs 126-130) 10. EU law – Principles – Protection of legitimate expectations – Conditions – Specific assurances given by the authorities – Absence (see paragraphs 150-152) 11. State aid – Recovery of unlawful aid – Restoration of the prior situation – Breach of principle of proportionality – Absence (Art. 108 TFEU) (see paragraphs 154-158) Résumé The company Helsingin Bussiliikenne (‘the former HelB’), wholly owned by the City of Helsinki (Finland), operated bus routes in the Helsinki area and offered charter transport and bus leasing services. In December 2015, the City of Helsinki sold the former HelB to the company Viikin Linja Oy. In accordance with the terms of the deed of sale, Viikin Linja Oy was renamed Helsingin Bussiliikenne Oy (‘the applicant’). Having received a complaint, the Commission initiated a formal investigation procedure concerning several equipment and capital loans granted by the City of Helsinki between 2002 and 2012 in favour of the former HelB and its predecessor HKL-Bussiliikenne (‘the measures at issue’). The decision initiating the procedure was published in the Official Journal of the European Union, (1) and interested parties were invited to submit their comments within one month of that publication. The Commission, which was informed in June 2015 of the imminent sale of the former HelB to the applicant, received no comments from the applicant. By decision of 28 June 2019 (‘the contested decision’), (2) the Commission found that the measures at issue constituted State aid incompatible with the internal market which the Republic of Finland was obliged to recover from the beneficiary. Finding that there was economic continuity between the former HelB and the applicant, the Commission extended the obligation to repay the unlawful aid to the applicant. The applicant brought an action for annulment against that decision, which is dismissed by the Sixth Chamber, Extended Composition, of the General Court. In its judgment, the Court addresses for the first time the procedural obligations incumbent on the Commission, in the context of the formal investigation procedure provided for in Article 108(2) TFEU, to an entity which continues the economic activity of the initial beneficiary of State aid and which, because of the application of the criterion of economic continuity, is subject to the obligation to repay the aid. Findings of the Court In support of its action for annulment, the applicant complained, inter alia, that the Commission had not given it the opportunity to be heard before the contested decision was adopted. According to the applicant, the Commission was required, following the transfer of the former HelB, to correct or supplement the decision to initiate the formal investigation procedure or, at least, allow it to submit its comments. The Court begins by recalling that, under Article 108(2) TFEU and Article 6(1) of Regulation 2015/1589, (3) the Commission is obliged, when it decides to initiate the formal investigation procedure in respect of an aid measure, to give interested parties an opportunity to submit their comments. That obligation creates a right for those parties to be involved in the administrative procedure followed by the Commission, to an extent appropriate to the circumstances of the case. While it thus guarantees the opportunity for views to be made known, that obligation does not, however, create rights of defence for the benefit of interested parties. As regards, next, the applicant’s argument that the Commission ought to have corrected and broadened the decision to initiate the formal investigation procedure in order to enable it to submit comments properly following the takeover of the former HelB, the Court notes that the Commission is under an obligation to rectify only where there is a discrepancy between the opening decision and the final decision, particularly on facts or a legal classification of those facts decisive for the examination of the measures at issue. In examining the aid exclusively with regard to the former HelB, which had been clearly identified as the beneficiary of the measures at issue in the decision to initiate the formal investigation procedure, the Commission did not alter its analysis either of the beneficiary or of the existence of aid or its compatibility with the internal market. The fact that, in the contested decision, the obligation to recover the unlawful aid is extended to the applicant in accordance with the criterion of economic continuity cannot, in that context, be equated with an alteration of the beneficiary of the aid at issue, or to an extension of the subject matter of the procedure. By contrast, the Court upholds the applicant’s argument that the Commission had not sufficiently involved it in the formal investigation procedure. Given that the Commission, having been informed of the transfer process since June 2015, had decided to examine the question of economic continuity between the former HelB and the applicant, it should have involved the applicant, as the actual beneficiary of the measures at issue, in that procedure. By failing to put the applicant in a position to submit its comments on the question of economic continuity, the Commission violated its procedural right guaranteed by Article 108(2) TFEU. In that regard, the Court points out, however, that that failure to respect the applicant’s procedural right to be involved in the formal investigation procedure constitutes not a breach of an essential procedural requirement, but a procedural irregularity, which can entail the annulment of the contested decision in whole or in part only if it is shown that in the absence of such irregularity the decision being challenged might have been substantively different. The applicant has not established that, had it been given the opportunity, by being involved in the procedure, to submit the comments that it would have wished to forward on the question of economic continuity, those comments would have been capable of altering the Commission’s assessment in that regard. The Court therefore also rejects its complaint alleging violation of procedural rights. 1 Decision C(2015) 80 final of 16 January 2015 on measure SA.33846 (2015/C) (ex 2014/NN) (ex 2011/CP) – Finland – Helsingin Bussiliikenne Oy (OJ 2015 C 116, p. 22). 2 Commission Decision (EU) 2020/1814 of 28 June 2019 on State aid SA.33846 – (2015/C) (ex 2014/NN) (ex 2011/CP) implemented by Finland for Helsingin Bussiliikenne Oy (OJ 2020 L 404, p. 10). 3 Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9).