62011TJ0479(01)
JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
5 October 2020 (
*1
)
(State aid – Oil exploration – State aid scheme implemented by France – Implied and unlimited State guarantee conferred on IFPEN by the grant of the status of EPIC – Advantage – Presumption of an advantage – Proportionality)
In Joined Cases T‑479/11 RENV and T‑157/12 RENV,
French Republic, represented by P. Dodeller, acting as Agent,
applicant in Case T‑479/11 RENV,
IFP Énergies nouvelles, established in Rueil-Malmaison (France), represented by E. Lagathu and É. Barbier de La Serre, lawyers,
applicant in Case T‑157/12 RENV,
v
European Commission, represented by B. Stromsky and D. Grespan, acting as Agents,
defendant,
APPLICATION pursuant to Article 263 TFEU seeking the annulment of Commission Decision 2012/26/EU of 29 June 2011 on State aid granted by France to the Institut Français du Pétrole (Case C 35/08 (ex NN 11/2008)) (OJ 2012 L 14, p. 1),
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins, President, M. Kancheva (Rapporteur) and G. De Baere, Judges,
Registrar: L. Ramette, Administrator,
having regard to the written stage of the procedure and further to the hearing on 28 November 2019,
gives the following
Judgment
Background to the dispute
1
By their actions, the French Republic and IFP Énergies nouvelles (‘IFPEN’), known prior to 13 July 2010 as the Institut Français du Pétrole (French Petroleum Institute), seek the annulment in full of Commission Decision 2012/26/EU of 29 June 2011 on State aid granted by France to the Institut Français du Pétrole (Case C 35/08 (ex NN 11/2008)) (OJ 2012 L 14, p. 1, ‘the contested decision’).
2
IFPEN is a publicly owned research establishment entrusted with three general-interest tasks: research and development in the fields of oil and gas prospecting, refining and petrochemicals technologies; the training of engineers and technicians; and the provision of sector information and documentation (recital 14 of the contested decision).
3
Furthermore, IFPEN has direct and indirect control over three commercial companies, Axens, Beicip-Franlab and Prosernat, with which it has concluded exclusive research and licensing agreements.
4
Until 2006, IFPEN was a legal person governed by private law which, in accordance with provisions of French national law, operated under the economic and financial supervision of the French Government. Under Loi 2005-781, du 13 juillet 2005, de programme fixant les orientations de la politique énergétique (Law No 2005‑781 of 13 July 2005 establishing the energy policy guidelines) (JORF of 14 July 2005, p. 11570), IFPEN was converted, with effect from 6 July 2006, into a legal person governed by public law, more specifically a publicly owned industrial and commercial establishment (EPIC) (recitals 21 to 23 of the contested decision).
5
It is apparent from the documents before the Court, first, that that conversion was motivated by the French authorities’ desire to bring IFPEN’s nature and operating model into line with its financing model. In so far as IFPEN was financed primarily from a budget allocation, the purpose of the conversion was to reduce the discrepancy between the private status of that establishment and the public origin of a significant proportion of its resources. Secondly, that conversion formed part of the process of standardising the status of French research establishments.
6
With regard to the legal status of EPICs in French law, it should be pointed out that such establishments form a category of legal persons governed by public law which perform economic activities. Their legal personality is separate from that of the State, they are financially independent and they exercise certain special powers which usually include the performance of one or more public service tasks. Under French law, legal persons governed by public law are not subject to the ordinary law applicable to insolvency procedures by virtue of the general principle of the immunity from seizure enjoyed by public assets. The inapplicability of insolvency procedures to EPICs has been confirmed by the case-law which the French Cour de cassation (Court of Cassation) has formulated on the basis of Loi 85‑98, du 25 janvier 1985, relative au redressement et à la liquidation judiciaire des entreprises (Law No 85-98 of 25 January 1985 on the compulsory administration and winding-up of undertakings) (JORF of 26 January 1985, p. 1097).
7
The specific features of the legal status of EPICs attracted the attention of the European Commission, which, in Decision 2010/605/EU of 26 January 2010 on State aid C 56/07 (ex E 15/05) granted by France to La Poste (OJ 2010 L 274, p. 1, ‘the La Poste decision’), examined that status for the first time in the light of the rules governing State aid in the European Union. In that decision, the Commission concluded that, because of their status, the economic activities pursued by EPICs benefited from an implied and unlimited State guarantee mobilising public resources. That conclusion was based on the following considerations (recital 25 of the contested decision and recitals 20 to 37 of the La Poste decision):
–
the insolvency procedures provided for under ordinary law are not applicable to EPICs;
–
EPICs are, however, subject to the provisions of Loi 80-539, du 16 juillet 1980, relative aux astreintes prononcées en matière administrative et à l’exécution des jugements par les personnes morales de droit public (Law No 80‑539 of 16 July 1980 on the penalties imposed in administrative matters and on the execution of judgments by legal entities governed by public law) (JORF of 17 July 1980, p. 1799), and its implementing rules. Those provisions expressly identify the State as the authority responsible for covering the debts of publicly owned establishments, give it extensive powers, such as the issuing of mandatory payment orders and the creation of sufficient resources, and organise a principle of last-resort State liability for the debts of legal entities governed by public law;
–
in the event that an EPIC is wound up, the principle generally applicable is that its debts will be transferred to the State or to another public entity, meaning that any creditors of an EPIC are assured of never losing the claims they hold against this type of establishment;
–
EPICs might also have preferential access to ‘Treasury imprest accounts’.
8
In the La Poste decision, the Commission took the view that the implied and unlimited State guarantee inherent in La Poste’s EPIC status constituted State aid within the meaning of Article 107(1) TFEU, in that it allowed La Poste to obtain more favourable borrowing terms than it would have obtained had it been judged solely on its own merits (recitals 256 to 300 of the La Poste decision).
9
It was in the context of the proceedings that led to the adoption of the La Poste decision that, during 2006, the French authorities informed the Commission of IFPEN’s conversion into an EPIC. The Commission was so informed in the course of proceedings initiated in 2005 in connection with the investigation, in the light of the rules governing State aid, of public funding granted to IFPEN by the French authorities (recitals 1 to 3 of the contested decision).
10
The Commission then decided to separate the investigation of whether IFPEN’s conversion into an EPIC was capable of constituting State aid within the meaning of Article 107(1) TFEU from the investigation of IFPEN’s public funding. Accordingly, on 16 July 2008, it closed the investigation of the public funding granted to IFPEN by adopting Decision 2009/157/EC on the aid measure implemented by France for the IFP Group (C 51/05 (ex NN 84/05)) (OJ 2009 L 53, p. 13). On the same day, by a decision published in the Official Journal of the European Union (OJ 2008 C 259, p. 12, ‘the decision initiating the formal procedure’), the Commission decided to initiate a formal investigation procedure concerning the unlimited State guarantee in favour of IFPEN and invited interested parties to submit their comments.
11
In the decision initiating the formal procedure, the Commission noted, in particular, that IFPEN derived an advantage from its conversion into an EPIC, mainly through the more favourable funding terms from which it was considered to benefit on the financial markets. According to the Commission, that advantage, which is financed from State resources, constitutes State aid within the meaning of its Notice on the application of Articles [107] and [108 TFEU] to State aid in the form of guarantees (OJ 2008 C 155, p. 10, ‘the Guarantees Notice’).
12
The French authorities submitted their comments on that decision by letter of 14 October 2008. They subsequently also replied to the Commission’s additional questions and provided information on IFPEN’s dealings with various creditor groups. A meeting between the Commission and the French authorities was also scheduled for 20 May 2010.
13
In addition, one of Axens’ competitors, UOP Limited, an English company established in Guildford (United Kingdom), submitted its comments in response to the decision initiating the formal procedure. The French authorities were able to submit their observations on those comments.
14
On 29 June 2011, the Commission adopted the contested decision.
15
First of all, in the contested decision, the Commission applied the same reasoning it had used in the La Poste decision and also made numerous references to that decision (see, inter alia, recital 98 et seq. of the contested decision), to form the view that IFPEN’s conversion into an EPIC in July 2006 conferred on it the benefit of an implied and unlimited State guarantee. The Commission further considered that that guarantee resulted in a transfer of State resources within the meaning of point 2.1 of the Guarantees Notice, inasmuch as IFPEN paid no premium for that guarantee. There was thus, in the Commission’s opinion, both an advantage to the undertaking and a drain on public resources, as the State waived the remuneration that normally accompanies guarantees. Furthermore, the Commission asserted, the guarantee created the risk of a potential and future claim on the resources of the State, which could find itself obliged to pay IFPEN’s debts (recitals 134 and 135 of the contested decision).
16
With regard to IFPEN’s subsidiaries, on the other hand, the Commission commented that, as commercial companies, they were subject to the insolvency procedures provided for in ordinary law and that, furthermore, their creditors could not automatically trigger the liability of their controlling shareholder. It concluded that those subsidiaries were not covered by the unlimited State guarantee from which IFPEN benefited by virtue of its EPIC status (recitals 176 and 177 of the contested decision).
17
In the second place, the Commission stated that the unlimited State guarantee arising from IFPEN’s EPIC status was capable of constituting State aid in so far as it covered IFPEN’s economic activities. The Commission therefore decided to limit the scope of its investigation into the existence of State aid exclusively to the economic activities carried on by IFPEN, as distinct, on the one hand, from the activities of its subsidiaries, which were not covered by that guarantee, and, on the other hand, from IFPEN’s non-economic activities. The Commission stated that IFPEN’s economic activities were confined to the contract research it carried out on behalf of its subsidiaries and third parties, technology transfers in the fields in which the subsidiaries Axens, Prosernat and Beicip-Franlab were exclusively active and the renting out of infrastructure, procurement of staff and provision of legal services for its subsidiaries (recitals 187 and 189 to 191 of the contested decision).
18
In the third place, the Commission examined, in particular, whether the implied and unlimited guarantee at issue conferred a selective advantage on the group made up of IFPEN and its subsidiaries (‘the IFPEN group’).
19
In that regard, the Commission decided, as a first step, to examine whether IFPEN had itself been able to derive an advantage from the implied and unlimited State guarantee and, as a second step, to ascertain whether it had been able to transfer that advantage to its subsidiaries (recital 192 of the contested decision).
20
As regards the advantage from which IFPEN supposedly benefited, the Commission decided to examine the dealings of that EPIC with banks and financial institutions, suppliers and customers (recitals 193 and 194 of the contested decision).
21
First of all, as regards IFPEN’s dealings with banks and financial institutions, the Commission concluded that IFPEN had not derived any real economic advantage from the State guarantee associated with its EPIC status during the period from its conversion into an EPIC, in July 2006, until the end of 2010 (‘the period at issue’) (recitals 195 to 199 of the contested decision). The Commission nevertheless noted that such a conclusion was valid only retrospectively, since it could not make any presumptions about how market operators would behave in the future or how their perception of the impact of the State guarantee on the risk of default by IFPEN would evolve (recital 200 of the contested decision). As a consequence, the Commission decided to require the French Republic to furnish information relating to the levels and terms of IFPEN’s debt and provide proof that those loans were in line with market conditions, or add the gross equivalent of the aid component to the estimate of the maximum impact of the guarantee. The Commission stated that the obligations imposed on the French Republic and the latter’s commitment to include a written statement in the financing contract for each transaction that the State would not be obliged to act as financial substitute for IFPEN for payment of the claim in the event of IFPEN’s insolvency, while not resolving all the issues surrounding the guarantee, would allow the plea of accepted risk to be relied upon, and any negative repercussions of the guarantee to be limited considerably (recitals 201 and 202 of the contested decision).
22
Next, as regards IFPEN’s dealings with its suppliers, the Commission concluded that IFPEN had benefited from a real economic advantage, consisting in a reduction of prices charged by its suppliers. That price reduction resulted from a more favourable assessment by those suppliers of the risk of default on the part of IFPEN, due to the unlimited State guarantee conferred by its EPIC status (recitals 203 to 215 of the contested decision).
23
Finally, as regards IFPEN’s dealings with its customers, the Commission considered that, in the light of the guarantee granted by the State to IFPEN, its customers were assured that the latter would never be subjected to compulsory winding up, and would therefore always be able to fulfil its contractual obligations, or, if it could not, that customers would be compensated. In the absence of that guarantee, a customer wishing to benefit from the same level of protection would need to obtain a performance bond from a financial intermediary. Therefore, IFPEN benefited from a real economic advantage, consisting in the absence of payment of a premium for a performance bond, or at the very least a best efforts guarantee, which it was able to offer its customers (recitals 216 to 237 of the contested decision).
24
The Commission considered that the economic advantage derived by IFPEN from the State guarantee was selective, in so far as IFPEN’s competitors, who were subject to insolvency procedures provided for under ordinary law, did not benefit from a comparable State guarantee (recitals 215 and 238 of the contested decision).
25
As regards a potential transfer of the advantage conferred on IFPEN to its private-law subsidiaries, the Commission, referring to the analysis of IFPEN’s dealings with its subsidiaries carried out in Decision 2009/157, concluded that, although relations between IFPEN and Beicip-Franlab were conducted on normal market terms, the subsidiaries Axens and Prosernat had to some extent been able to benefit from the economic advantage enjoyed by IFPEN as a result of the guarantee conferred by its EPIC status. The Commission classified that advantage as selective on the ground that Axens’ and Prosernat’s competitors did not have access to the technologies and human and material resources available to IFPEN on such favourable terms (recitals 226 and 243 to 250 of the contested decision).
26
In the fourth place, the Commission examined the question of distortion of competition and the effect on trade. The Commission stated that the State guarantee ‘… may lead to a reduction in the operating costs of [IFPEN] for the services it supplies to third parties (contract research) and in those of Axens and Prosernat for the services they obtain from their parent (research in their exclusive field, contract research, provision of staff and infrastructures, and provision of administrative services), which has the effect of favouring the [IFPEN] group and therefore of distorting competition within the meaning of Article 107(1) TFEU’. According to the Commission, since the markets on which the IFPEN group operates are wide open to trade within the European Union, the grant of the State guarantee to IFPEN is liable to have an unfavourable impact on competing undertakings which have, or wish to develop, similar economic activities in the markets concerned and, therefore, to distort competition and to affect trade within the meaning of Article 107(1) TFEU (recitals 251 to 253).
27
The Commission concluded that the guarantee constituted State aid within the meaning of Article 107(1) TFEU (recital 255).
28
In the fifth place, the Commission examined the compatibility of that aid, drawing a distinction between, on the one hand, aid in the field of contract research and services provided by IFPEN both on behalf of third parties and on behalf of its subsidiaries, and, on the other, aid to the IFPEN group in the exclusive fields of activity of Axens and Prosernat. The Commission concluded that the State aid granted to the IFPEN group was compatible with the internal market, subject to certain conditions specified in the contested decision.
29
The essential points of the operative part of the contested decision are reproduced below:
‘Article 1
1.   The status of publicly owned industrial and commercial establishment granted by France to [IFPEN] conferred on [IFPEN], from 7 July 2006 onward, an unlimited public guarantee (“the State guarantee”) covering the totality of its activities.
2.   The cover provided by the State guarantee for the non-economic activities of [IFPEN], in particular its training activities with a view to increased, better qualified human resources, its independent [research and development] activities with a view to more extensive knowledge and better understanding, and its activities for the dissemination of research results, does not constitute State aid within the meaning of Article 107(1) TFEU.
3.   The cover provided by the State guarantee for the technology transfer activities carried out by [IFPEN] in the fields provided for by the exclusive development, marketing and use agreement concluded with its subsidiary Beicip‑Franlab does not constitute State aid within the meaning of Article 107(1) TFEU.
4.   The cover provided by the State guarantee for the technology transfer activities carried out by [IFPEN] in the fields provided for by the exclusive agreements concluded with its subsidiaries Axens and Prosernat referred to in Article 3(1) of [Decision 2009/157] constitutes State aid within the meaning of Article 107(1) TFEU.
5.   The cover provided by the State guarantee for the contract research and other services performed by [IFPEN], on behalf of both third parties and the subsidiaries, constitutes State aid within the meaning of Article 107(1) TFEU.
…
Article 3
In the period between 7 July 2006 and 31 December 2009, the cover provided by the State guarantee for the economic activities referred to in Article 1(4) and (5) constituted aid compatible with the internal market.
Article 4
From 1 January 2010 onward, and until the date of expiry of the exclusive agreements between [IFPEN] and its subsidiaries Axens and Prosernat referred to in Article 3(1) of [Decision 2009/157], the cover provided by the State guarantee for the economic activities referred to in Article 1(4) of this decision constitutes aid compatible with the internal market, subject to compliance with the conditions in Articles 5 and 6 of this decision.
Article 5
1.   The annual financial report referred to in Article 4(2) of [Decision 2009/157] shall include, in addition to the information already mentioned in Article 5(1) of that decision, the information listed in paragraphs 2, 3 and 4 of this Article.
2.   The annual financial report shall include the value, interest rate and contractual terms of the loans subscribed to by [IFPEN] during the year under review, and an estimate of the gross grant equivalent of any interest rate subsidy deriving from the State guarantee, unless proof is supplied that these loan contracts are in accordance with normal market conditions, either by comparing their terms with those obtained by [IFPEN] before its change of legal form, or on the basis of a more precise methodology approved in advance by the Commission.
3.   The annual financial report shall include the value of goods and services obtained by [IFPEN] from suppliers to carry out the economic activities referred to in Article 1(4) and (5), during the year under review, and a maximum estimate of the gross grant equivalent of the aid resulting from a more favourable assessment by suppliers of the risk of default of the establishment. This estimate shall be made either by applying a flat rate of 2.5% to the value of acquisitions made, or on the basis of a more precise methodology approved in advance by the Commission.
4.   The annual financial report shall include the value of the economic activities referred to in Article 1(4) and (5) carried out by [IFPEN] during the year under review, and a maximum estimate of the gross grant equivalent of the aid resulting from the lack of payment of a premium corresponding to a performance bond or, at the very least a best efforts guarantee, offered to the beneficiaries of the above-mentioned economic services. This estimate shall be made either by applying a flat rate of 5% to the value of the services provided or on the basis of a more precise methodology approved in advance by the Commission.
Article 6
1.   The total amount of public funding allocated to the activities of [IFPEN] in the exclusive fields of activity of Axens and Prosernat, including the maximum impact of the State guarantee as estimated in Article 5(2), (3) and (4), must be lower than the maximum intensity permitted by the Community framework for State aid for research and development and innovation.
2.   If the threshold referred to in paragraph 1 is exceeded, the surplus aid shall, where appropriate, be refunded by the subsidiary concerned, Axens or Prosernat, to [IFPEN].
Article 7
From 1 January 2010, the cover provided by the State guarantee for the economic activities referred to in Article 1(5) constitutes State aid which is compatible with the internal market, subject to compliance with the conditions in Article 8.
Article 8
1.   The contract research activities and the provision of services carried out by [IFPEN] referred to in Article 1(5) shall remain ancillary to its principal activity of independent public research.
…
3.   France shall submit each year to the Commission a report on the contract research activities and provision of services carried out by [IFPEN] which specifies the ratio of their value to the budget devoted by [IFPEN] to its independent public research activities.
Article 9
1.   The French authorities and [IFPEN] shall include the following written statement in the financing contract for each transaction (for all instruments covered by a contract):
“The issue/programme/loan does not enjoy any form of direct or indirect State guarantee. In the event of insolvency, the State would not be obliged to act as financial substitute for [IFPEN] for payment of the claim.”
2.   The French authorities shall have a similar clause, ruling out State liability, included in any contract relating to contract research services or other services referred to in Article 1(5).
3.   The French authorities shall have a similar clause, ruling out liability of [IFPEN] and the State, included in any contract involving a claim concluded by the public limited companies Axens, Beicip-Franlab and Prosernat.
4.   [IFPEN] shall refrain from issuing any form of suretyship, endorsement, guarantee, or letter of intent or comfort in favour of the public limited companies Axens, Beicip-Franlab and Prosernat which does not comply with normal market terms.
…’
Earlier proceedings before the General Court and the Court of Justice
30
By application lodged at the Registry of the General Court on 9 September 2011, the French Republic brought an action against the contested decision which was registered under number T‑479/11.
31
By application lodged at the Registry of the General Court on 5 April 2012, IFPEN brought an action against the contested decision which was registered under number T‑157/12.
32
By order of 2 December 2013, the President of the Eighth Chamber of the General Court, after having heard the parties, suspended the proceedings in the cases which subsequently gave rise to the judgment of 26 May 2016, France and IFP Énergies Nouvelles v Commission (T‑479/11 and T‑157/12, ‘the initial judgment’, EU:T:2016:320), pending the final decision of the Court of Justice in the case which subsequently gave rise to the judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217).
33
After the Court of Justice, by its judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217), dismissed the appeal brought by the French Republic against the judgment of 20 September 2012, France v Commission (T‑154/10, EU:T:2012:452), by which the General Court had dismissed the action brought by the French Republic against the La Poste decision, the General Court asked the French Republic, IFPEN and the Commission to submit their observations on the conclusions to be drawn from the judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217), for the actions in the cases which subsequently gave rise to the initial judgment.
34
By letter of 5 May 2014, the French Republic withdrew the pleas by which it had disputed that there was an implied and unlimited State guarantee inherent in the status of an EPIC and a connection between the alleged advantage conferred on IFPEN under that guarantee and the transfer of State resources. By letter of the same date, IFPEN also withdrew the plea by which it had disputed that there was an implied and unlimited State guarantee inherent in the status of an EPIC.
35
By decision of 8 September 2015, the President of the Eighth Chamber of the General Court, after having heard the parties, joined the cases which subsequently gave rise to the initial judgment for the purposes of the oral part of the procedure and the decision closing the proceedings.
36
The parties to the joined cases presented oral argument and answered the questions put to them by the Court at the hearing on 8 October 2015.
37
By the initial judgment, delivered on 26 May 2016, the Court upheld in part the actions brought by the French Republic and IFPEN and annulled the contested decision inasmuch as it had classified the guarantee arising from IFPEN’s EPIC status as ‘State aid’ within the meaning of Article 107(1) TFEU and to the extent that it had determined the conclusions to be drawn from that classification. The Court dismissed the actions as to the remainder.
38
In particular, the Court held that, as far as the definition of the advantage in IFPEN’s dealings with its suppliers and customers was concerned, the Commission had infringed its obligation to state reasons and its obligation to provide proof of that advantage and had committed errors of law in choosing to use factoring and the performance bond to calculate the value of the advantage in question. The Court also held that, in order to prove such an advantage, the Commission could not rely on the presumption of an advantage conferred on an EPIC by the implied and unlimited State guarantee inherent in its status, as established by the Court of Justice in the judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217). The Court held, first, that the hypothesis underlying that presumption was not plausible with regard to dealings between IFPEN and its suppliers and, secondly, that, as the Commission had not defined the advantage accruing to IFPEN from the guarantee in its dealings with its customers, the presumption on which it intended to rely was redundant. Furthermore, the Court held that the presumption of an advantage was confined to dealings involving a financing transaction, a loan or, more broadly, credit and could not be extended to dealings between an EPIC and its suppliers and customers. The Court also held that, even though the Commission was able to rely on the presumption established by the Court of Justice in the judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217) to adduce evidence of the existence of the advantage derived by IFPEN from its EPIC status in its dealings with banks and financial institutions, in the present case that presumption had been rebutted. The Court stated that, from the time of IFPEN’s conversion into an EPIC in July 2006 until the end of the period examined in the contested decision, namely the end of 2010, IFPEN did not derive from its EPIC status any real economic advantage in the form of more favourable credit terms granted to it by banks and financial institutions. The Court also found that, since the presumption had been rebutted for the period in question, it could not be relied on again in the future as proof that the guarantee in question conferred an advantage on IFPEN in its dealings with banks and financial institutions without a substantial change in the circumstances in which it was rebutted. In that regard, the Court held that the Commission could not rely on the mere fact that IFPEN was able, by virtue of its status, to take on debt as a basis for forming the view that the advantage accruing to it in the future could be established by way of presumption.
39
Following an appeal brought by the Commission, the Court of Justice, by its judgment of 19 September 2018, Commission v France and IFP Énergies nouvelles (C‑438/16 P, ‘the judgment under appeal’, EU:C:2018:737), set aside the initial judgment and referred the case back to the General Court.
40
The Court of Justice upheld the second ground of appeal put forward by the Commission, finding that the General Court had committed errors of law in holding that the possibility of relying on the presumption established in the judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217), depended on there being actual effects in favour of the beneficiary of the guarantee and that, with respect to IFPEN’s dealings with banks and financial institutions, that presumption had been rebutted. The Court of Justice stated that the presumption in question could be rebutted only in so far as it was shown that, in the light of the economic and legal context of the guarantee associated with the status of the EPIC concerned, the latter had not obtained in the past and, in all plausibility, would not obtain in the future any real economic advantage from that guarantee.
41
The Court of Justice also upheld the Commission’s third ground of appeal. The Court of Justice held that the General Court had committed an error of law in holding that the presumption established in the judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217), was restricted to dealings involving a financing transaction, a loan or, more broadly, credit from the creditor of an EPIC, and in particular to that EPIC’s dealings with banks and financial institutions. However, the Court of Justice stated that, since the presumption established in the judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217), was based on the hypothesis that, thanks to the guarantee associated with its status, the EPIC concerned benefited or could benefit from better financial conditions than those which were normally granted on the financial market, that presumption could only be applied to dealings between the EPIC and its suppliers and customers if such conditions arose in the latter’s dealings on the markets concerned, which the Commission was required to verify.
42
Furthermore, the Court of Justice rejected the Commission’s first ground of appeal in its entirety. In particular, it found that the General Court had not erred in law when it held that, in so far as the conversion of IFPEN into an EPIC could be classified as ‘State aid’, it constituted individual aid within the meaning of Article 1(e) of Regulation No 659/1999.
43
The Court of Justice also observed that, contrary to what was claimed by the Commission, the French Republic and IFPEN had, on several occasions and in sufficient detail, contested the Commission’s conclusions relating to the existence of an advantage for IFPEN in its dealings with banks and financial institutions.
Procedure and forms of order sought after referral back
44
By decision of 19 September 2018, the General Court joined Cases T‑479/11 RENV and T‑157/12 RENV for the purposes of the oral part of the procedure and the decision closing the proceedings. The cases were allocated to the Eighth Chamber of the General Court.
45
In accordance with Article 217(1) of the Rules of Procedure of the General Court, the French Republic, IFPEN and the Commission each lodged written observations. IFPEN’s observations were lodged on 28 November 2018 while those of the French Republic and the Commission were lodged on 29 November 2018.
46
In accordance with Article 217(3) of the Rules of Procedure, the French Republic, IFPEN and the Commission each lodged a supplementary statement on 21 February 2019.
47
By letter of 12 March 2019, IFPEN requested a hearing.
48
In the context of a measure of organisation of procedure, the Court put written questions to the parties. The parties responded within the time allowed.
49
On 28 November 2019, the parties presented oral argument and answered the questions put by the Court.
50
The French Republic claims that the Court should:
–
annul the contested decision in its entirety;
–
order the Commission to pay the costs.
51
IFPEN claims that the Court should:
–
principally, annul the contested decision;
–
in the alternative, annul the invalid parts of the operative part of the contested decision;
–
order the Commission to pay the costs.
52
The Commission contends that the Court should:
–
dismiss the action as unfounded;
–
order the French Republic and IFPEN to pay the costs of the proceedings.
Law
53
In Case T‑479/11, the French Republic now puts forward two pleas in support of its action. The first plea alleges infringement of Article 107(1) TFEU, in that the Commission failed to establish to the requisite legal standard the existence of State aid. The second plea alleges infringement of Article 107(1) TFEU, in that the Commission misconstrued the concept of a selective advantage. By that plea, which is divided into two parts, the French Republic, first, submits that the Commission wrongly concluded that the existence of a guarantee would confer an advantage on IFPEN, both in its dealings with its suppliers and its customers and in its dealings with banks and financial institutions. Secondly, and in the alternative, the French Republic disputes the Commission’s findings concerning the transfer of that advantage to IFPEN’s private-law subsidiaries, Axens and Prosernat.
54
In Case T‑157/12, IFPEN now puts forward four pleas in support of its action.
55
The first plea alleges infringement of Article 107(1) TFEU, in that the Commission failed to establish the existence of a real economic advantage accruing to IFPEN and its subsidiaries. By this plea, which is divided into three parts, IFPEN first of all submits that the Commission did not successfully demonstrate, to the standard of proof required by case-law, the existence of a real economic advantage accruing to IFPEN from the guarantee at issue, in particular in its dealings with suppliers and its dealings with customers. Next, it submits that the Commission failed to demonstrate to the requisite legal standard that that economic advantage had been transferred to its private-law subsidiaries, Axens and Prosernat. Finally, it considers that there is no adequate connection between that economic advantage and the transfer of State resources arising from the guarantee at issue.
56
The second plea alleges an infringement of the Guarantees Notice or, in the alternative, of Article 107(1) TFEU. By this plea, IFPEN submits, in essence, that point 1.2 of the Guarantees Notice cannot be interpreted as validating the existence of an automatic link between the impossibility, on a legal or statutory basis, of being the subject of insolvency proceedings, on the one hand, and the benefit of more favourable funding terms on the markets to an extent such as to constitute a selective advantage, on the other.
57
The third plea alleges errors of assessment in the determination of the value of the advantage granted to IFPEN. By this plea, which is divided into two parts, IFPEN first disputes the relevance of using factoring and performance bonds or best efforts guarantees to estimate the value of the advantage which it is said to have derived from the guarantee at issue in its dealings with suppliers and customers. Secondly, it submits that the Commission’s determination of the extent of the State aid allegedly identified as having been granted both to it and to its subsidiaries was incorrect.
58
Finally, the fourth plea alleges breach of the principle of proportionality. By this plea, IFPEN claims, in essence, that the consequences of recognising the existence of an implied and unlimited State guarantee in favour of EPICs which is such as to constitute State aid, in particular the obligation of prior notification and other obligations imposed on it and the French Republic, are disproportionate.
59
A preliminary point to note is that, given that the existence of an implied and unlimited State guarantee inherent in the status of EPIC is no longer challenged in the present proceedings, in the light of the pleas raised by the French Republic and IFPEN, the Court must, first of all, examine whether the Commission rightly concluded that the fact that that guarantee covered, first, the technology transfer activities carried out by IFPEN in the fields provided for by the exclusive agreements concluded with its subsidiaries Axens and Prosernat and, secondly, the contract research and other services performed by IFPEN, on behalf of both third parties and the subsidiaries, constituted State aid within the meaning of Article 107(1) TFEU.
60
In that connection, the Court will examine, as a first step, whether the Commission was entitled to consider, in the present case, that IFPEN derived an advantage in its dealings with banks and financial institutions and with its customers and suppliers as a result of the implied and unlimited State guarantee associated with its status, and also whether the Commission established to the requisite legal standard that that advantage had been transferred to IFPEN’s subsidiaries, Axens and Prosernat. Next, if appropriate, the Court will need to examine the pleas by which the French Republic and IFPEN dispute that that advantage involves a transfer of State resources.
61
If the Court should find that the Commission was entitled to conclude that State aid had been granted within the meaning of Article 107(1) TFEU in the present case, the Court must then, as a second step, determine whether the conditions laid down by the Commission for that aid to be regarded as compatible with the internal market breach the principle of proportionality, as is submitted by IFPEN.
The pleas alleging an infringement of Article 107(1) TFEU and relating to the existence and calculation of the advantage accruing to IFPEN
62
The first part of the second plea and the fourth plea of the application in Case T‑157/12, and the second part of the first plea and the first part of the third plea of the application in Case T‑479/11 are concerned, in essence, with the existence of the advantage that IFPEN is said to have derived from the State guarantee inherent in its EPIC status and, to a lesser extent, with the estimate of the value of that advantage.
63
The arguments of the French Republic and of IFPEN are concerned, in essence, with the Commission’s demonstration of the existence of the advantage in IFPEN’s dealings with its customers and suppliers. The French Republic, however, also challenges some of the Commission’s observations relating to the advantage that might arise in IFPEN’s dealings with banks and financial institutions.
64
The Court must therefore begin by examining the arguments concerning the advantage which arose in IFPEN’s dealings with its suppliers and customers and then examine the advantage that could arise in IFPEN’s dealings with banks and financial institutions.
The advantage in the case of IFPEN’s dealings with its suppliers and customers
65
In the first place, in their applications, the French Republic and IFPEN argue that the Commission failed to successfully establish to the standard of proof required by the case-law that there was a real economic advantage in favour of IFPEN in its dealings with its suppliers and customers. They state that, while the Commission’s analysis may be prospective, it cannot be entirely hypothetical and must enable a real economic advantage to be defined.
66
According to the French Republic and IFPEN, in the present case, the proof of the existence of an advantage in IFPEN’s dealings with suppliers and customers was based on assumptions not substantiated by evidence. The French Republic and IFPEN comment, in particular, that the Commission did not produce any testimony from suppliers or customers and, a fortiori, did not demonstrate that there was a habitual and automatic expectation on the part of suppliers and customers that insolvency proceedings could not be brought against an EPIC. Moreover, so far as IFPEN’s dealings with customers are concerned, the French Republic and IFPEN point to the confused, even incomprehensible, nature of some parts of the statement of reasons in the contested decision. The French Republic and IFPEN conclude from this that the Commission failed to comply with its investigative obligations in reasoning by supposition rather than by turning to IFPEN’s suppliers and customers for tangible evidence of the conduct attributed to them.
67
In their written observations on the conclusions to be drawn from the judgment under appeal for the resolution of the dispute, the French Republic and IFPEN argue that the Commission was unable to rely on the presumption of an advantage established by the Court of Justice in the judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217), to demonstrate the existence of the advantage derived by IFPEN from the unlimited State guarantee in its dealings with its suppliers and customers without having first ascertained that the conduct of the players on the market justified the assumption of an advantage similar to that found in IFPEN’s dealings with banks and financial institutions. According to the French Republic and IFPEN, there was no such assessment in the contested decision.
68
Furthermore, according to the French Republic, an examination of the economic and legal context of the market affected by IFPEN’s dealings with its suppliers and customers renders the presumption of an advantage similar to that found in IFPEN’s dealings with banks and financial institutions implausible. The French Republic and IFPEN then put forward in their observations various factual matters in order to demonstrate that the presumption of an advantage in IFPEN’s dealings with its suppliers and customers is, in any event, rebutted.
69
In the second place, the French Republic and IFPEN dispute the method chosen by the Commission to estimate the value of the advantage conferred on IFPEN by the guarantee at issue in its dealings with suppliers and customers. In particular, they submit that the factoring and performance bonds or best efforts guarantees chosen by the Commission as comparative indicators are irrelevant when making that estimate.
70
The Commission submits, in its written observations on the conclusions to be drawn from the judgment under appeal for the resolution of the dispute, that the use of a presumption to demonstrate the existence of the advantage in dealings between IFPEN and its customers and suppliers was justified. The Commission observes that, with regard to the market in which IFPEN operates, the economic activities of research organisations include research agreements and provision of services to undertakings and, as is the case with IFPEN, technology transfer activities. The Commission also comments that a research organisation may acquire instruments, equipment and various research resources for its laboratories from suppliers. As for IFPEN’s customers, the Commission notes that they enter into research agreements with IFPEN. According to the Commission, the mere fact that IFPEN’s research projects are characterised by a high level of uncertainty and therefore by the acceptance of a high level of risk by the commercial partners of the research organisation does not mean that those partners are indifferent to the risk of insolvency of the other party to the contract. In fact, on the contrary, the long duration of research and development agreements underlines the interest that IFPEN’s customers have in obtaining protection against the insolvency of their co-contractor, particularly when they are committing to complex research in the long term. According to the Commission, a distinction must be drawn between the risk inherent in the research project and the risk of insolvency of the other party. The guarantee from which IFPEN benefits could therefore constitute a competitive advantage over other research organisations with regard to long-term agreements. In addition, certain research and development agreements involve significant after-sales services, meaning that the commercial partners remain much more dependent on one another than in the context of the purchase of a more standard product or service. Similar reasoning could be used with regard to IFPEN’s dealings with its suppliers where, again, even if some of the supplies are standardised, other supply contracts may relate to very specialised instruments that can only be delivered after a lengthy period. That situation may incentivise the suppliers of a research organisation to forearm themselves against the risk of the other party to the contract becoming insolvent. In the same way, according to the Commission, the high price of such instruments could lead to a deferred payment in instalments which would also present a risk to the supplier and lead to the same incentive. The Commission concludes that the use of a presumption to demonstrate the existence of an advantage arising from the unlimited State guarantee conferred on IFPEN in its dealings with its customers and suppliers was entirely justified.
71
In its further observations, the Commission also disputes the claim made by the French Republic and by IFPEN that the presumption that the unlimited State guarantee allows IFPEN to benefit from an advantage in its dealings with suppliers and customers similar to that found in the dealings of an EPIC with banks and financial institutions is rendered implausible by an examination of the economic and legal context of the market in which IFPEN operates. The Commission also disputes that the presumption of an advantage in IFPEN’s dealings with its suppliers and customers has been rebutted in the present case.
72
Moreover, the Commission maintains that, contrary to the French Republic and IFPEN’s submission, the use of factoring and the performance bond to calculate the advantage derived by IFPEN from the unlimited State guarantee in its dealings with its suppliers and customers is appropriate. The Commission observes in that regard that the use of ‘reasoning in terms of the cost of equivalent risk cover’ in order to estimate the value of the advantage that IFPEN could have derived from the guarantee at issue was justified by the difficulties that it had to overcome in making that estimate, in particular, difficulties arising from the absence on the market of any service comparable to a guarantee against the risk of insolvency marketed as such.
73
First of all, it must be borne in mind that, for a measure to be classified as State aid within the meaning of Article 107(1) TFEU, four conditions must all be met. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must entail an advantage accruing exclusively to certain undertakings or certain sectors of activity. Fourth, it must distort or threaten to distort competition (see, to that effect, judgment of 23 March 2006, Enirisorse, C‑237/04, EU:C:2006:197, paragraphs 38 and 39 and the case-law cited, and of 29 September 2000, CETM v Commission, T‑55/99, EU:T:2000:223, paragraph 39 and the case-law cited).
74
The concept of aid embraces not only positive benefits, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, therefore, without being subsidies in the strict sense of the word, are similar in character and have the same effect. Also, State measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the beneficiary undertaking would not have obtained under normal market conditions, are regarded as aid (see judgment of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 94 and the case-law cited).
75
Next, it must be borne in mind that it is for the Commission to provide the proof of the existence of State aid within the meaning of Article 107(1) TFEU (see, to that effect, judgment of 12 September 2007, Olympiaki Aeroporia Ypiresies v Commission, T‑68/03, EU:T:2007:253, paragraph 34 and the case-law cited). In that regard, according to the case-law, in assessing whether the beneficiary undertaking enjoys an economic advantage which it would not have obtained under normal market conditions, the Commission has an obligation to make a complete analysis of all factors that are relevant to the transaction at issue and its context, including the situation of the beneficiary undertaking and of the relevant market (judgments 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 251, and of 3 March 2010, Bundesverband deutscher Banken v Commission, T‑163/05, EU:T:2010:59, paragraph 37).
76
As regards the administration of proof in the sector of State aid, it is settled case-law that the Commission is required to conduct a diligent and impartial examination of the contested measures, so that it has at its disposal, when adopting the final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible for that purpose (see judgment of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 63 and the case-law cited).
77
However, as the Court of Justice has held, in the course of that examination, the Commission may rely on a simple presumption that the grant of an implied and unlimited State guarantee in favour of an undertaking which is not subject to the ordinary compulsory administration and winding-up procedures results in an improvement in its financial position through a reduction of charges which would normally encumber its budget. Consequently, in the context of the procedure relating to existing schemes of aid, to prove the advantage obtained by such a guarantee to the beneficiary undertaking, it is sufficient for the Commission to establish the mere existence of that guarantee, without having to show the actual effects produced by it from the time that it is granted (judgment of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraphs 98 and 99, and judgment under appeal, paragraph 110).
78
With regard to the extent of judicial review of the contested decision in the light of Article 107(1) TFEU, according to the case-law, the concept of State aid, as set out in that provision, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the European Union judicature must, in principle, having regard both to the specific features of the case before them 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 judgment of 2 March 2012, Netherlands and ING Groep v Commission, T‑29/10 and T‑33/10, EU:T:2012:98, paragraph 100 and the case-law cited).
79
It is also clear from the case-law that judicial review is limited with regard to whether a measure comes within the scope of Article 107(1) TFEU, where the appraisals by the Commission are technical or complex in nature. It is, however, for the Court to decide whether that is the case (see judgment of 2 March 2012, Netherlands and ING Groep v Commission, T‑29/10 and T‑33/10, EU:T:2012:98, paragraph 101 and the case-law cited).
80
In that regard, although the Commission enjoys a broad discretion the exercise of which involves economic assessments which must be made in a European Union context, that does not imply that the European Union judicature must refrain from reviewing the Commission’s interpretation of economic data. According to the case-law, not only must the EU judicature establish, among other things, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see judgment of 2 March 2012, Netherlands and ING Groep v Commission, T‑29/10 and T‑33/10, EU:T:2012:98, paragraph 102 and the case-law cited).
81
First, as the Court of Justice held in the judgment under appeal, the measure at issue, namely the conversion of IFPEN into an EPIC, did not come within the concept of ‘aid scheme’ referred to in Article 1(d) of Regulation No 659/1999, but, in so far as it could be classified as ‘State aid’, it constituted individual aid for the purposes of Article 1(e) of Regulation No 659/1999. It follows that the Commission could not limit itself to examining the general characteristics of that measure to demonstrate that it constituted State aid (judgment under appeal, paragraphs 64 to 73 and 82).
82
Secondly, it must be noted that the presumption of an advantage established by the Court of Justice in the judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217), referred to in paragraph 77 above, is based on the hypothesis that, thanks to the guarantee associated with its status, the EPIC concerned benefits or could benefit from better financial conditions than those which are normally granted on the financial markets. Therefore, the application of that presumption to the EPIC’s dealings with suppliers and customers is justified only in so far as such more advantageous conditions arise also in the latter’s dealings on the markets concerned (judgment under appeal, paragraph 150).
83
Consequently, when the Commission seeks to apply that presumption, it must examine the economic and legal context of the market affected by the dealings in question. In particular, the Commission is required to verify whether the conduct of players on the market concerned justifies a hypothesis of an advantage similar to that found in the EPIC’s dealings with banks and financial institutions (judgment under appeal, paragraph 150).
84
It is in the light of these considerations that the complaints made by the French Republic and IFPEN should be assessed.
– The complaint alleging a lack of evidence of an advantage in IFPEN’s dealings with its suppliers
85
It must be observed that it is clear from recitals 203 and 214 of the contested decision that the Commission considers there to be a fall in price as a result of a more favourable assessment by co-contractors of the risk of default on the part of an entity which they know to be protected from the risk of compulsory winding up by its status as a publicly owned establishment.
86
In recital 204 of the contested decision, the Commission outlined the method which it had used to calculate the fall in price, as follows:
‘To estimate the fall in price resulting from the more favourable assessment of the risk of default made by suppliers in the case of an EPIC, the Commission will look at the cost of equivalent risk cover. In the absence of a State guarantee, a supplier to [IFPEN] wishing to benefit from a comparable guarantee (i.e. to cover itself in full against the risk of default of the other party) could have recourse to the services of a specialised credit institution or insurance undertaking. Such cover against the risk of default is commonly offered by specialised factoring companies.’
87
The observations set out in recitals 203 and 204 of the contested decision, read in conjunction with recital 214 of the same decision, highlight the fact that the Commission assumed that there was a fall in price as a result of suppliers making a more favourable assessment of the risk of default on the part of IFPEN, without verifying the soundness of that assumption, and that it then sought to assess the extent of that fall in price by means of an indicator that did not measure the fall in price itself, but only the value of a guarantee that it regarded as comparable to the guarantee from which IFPEN benefited. That conclusion is supported by the absence in the contested decision of any analysis of the prices actually charged by IFPEN’s suppliers before and during the period in question.
88
The Commission was invited, by means of a measure of organisation of procedure, to clarify whether the assertion that the advantage from which IFPEN benefited in its dealings with its suppliers had consisted of a fall in the price charged by the suppliers was based on any such analysis and, if so, in which part of the contested decision that analysis had been carried out.
89
In response to that measure of organisation of procedure, the Commission explained that, in recitals 203 and 204 of the contested decision, it had ‘assumed that the existence of an implied and unlimited guarantee was likely to influence the perception held by IFP[EN]’s suppliers of the risk of non-payment by [IFPEN], which ought logically to translate into a series of advantages granted in return to the beneficiary of the guarantee (in particular, a price reduction)’. In its response, the Commission also stated that ‘the conclusion that the guarantee at issue gave IFPEN a real economic advantage in its dealings with its suppliers, consisting in a fall in the prices charged by the latter, [was] based not on an empirical and concrete analysis of how IFP[EN]’s suppliers set prices on that market, but on a presumption supplemented by certain empirical observations’ and that, ‘in other words, it [was] demonstrated indirectly and based largely on logic’. In conclusion, the Commission stated that it was re-examining the reasons given in the contested decision in the light of the requirements set out in the judgment under appeal.
90
It should also be noted that, at the hearing, the Commission itself stated that, with regard to dealings between IFPEN and its suppliers and customers, there was information in the contested decision which suggested that the Commission had reasoned by presumption, as well as certain market factors, but there was no full demonstration in due and proper form of what the Court of Justice had considered necessary in the judgment under appeal. According to the Commission, that explained the conclusion to its response to the Court’s question referred to in paragraph 89 above.
91
It must therefore be held that, as the Commission acknowledged in its written submissions before the Court and subsequently stated at the hearing, the contested decision does not contain the demonstration required by the Court of Justice in the judgment under appeal that the conduct of the players on the market in question justified the hypothesis that there was an advantage in the dealings between IFPEN and its suppliers similar to that found in the dealings between an EPIC and banks and financial institutions.
92
The Commission was therefore wrong to conclude, in recitals 203 and 214 of the contested decision, that IFPEN had benefited from a real economic advantage consisting of a fall in the prices charged by its suppliers as a result of those suppliers making a more favourable assessment of a risk of default on its part.
93
In the light of the foregoing, there is no need to examine the arguments by which the French Republic and IFPEN dispute the relevance to the action of factoring in estimating the value of the advantage accruing to IFPEN as a result of the guarantee in question in its dealings with its suppliers. The Commission could not estimate the value of an advantage the existence of which has not been demonstrated.
– The complaint alleging a lack of evidence of an advantage in IFPEN’s dealings with its customers
94
It is apparent from the contested decision that the Commission defined the advantage which IFPEN was able to derive from the State guarantee inherent in its status as an EPIC in its dealings with its customers as the absence of payment of a premium for a performance bond, or at the very least a best efforts guarantee, which it was able to offer its customers.
95
That definition is based on a finding substantiated only by comments made by UOP Limited, according to which, in the field of technology transfer, acquirers were particularly sensitive to the guarantees that their providers were able to give them, in terms of cover of contractual and non-contractual liability (recital 216 of the contested decision). On the basis of that finding, having dismissed as irrelevant the fact that the guarantee in question did not cover IFPEN’s non-contractual liability, the Commission stated the following:
‘(220)
… in view of the State guarantee granted to [IFPEN], its customers are assured that [IFPEN] will never be subjected to compulsory winding up and therefore will always be able to fulfil its contractual obligations, or failing that that they will be compensated for any such breach.
(221)
By analogy with the arguments … set out in recitals 204 et seq. with regard to dealings with suppliers, the Commission considers that in the absence of a State guarantee, a customer wishing to enjoy the same level of protection would take out a performance bond from a financial intermediary (a bank or insurance company, for example) to ensure the completion of the contract between it and [IFPEN]. The purpose of such protection would be to guarantee financial compensation for the customer for loss caused by (total or partial) breach of contract.’
96
In the subsequent recitals of the contested decision, the Commission calculated the cost of a performance bond or best efforts guarantee and considered that the maximum rate applied in such a guarantee was 5% of the turnover generated by the service covered (recitals 223 to 225 of the contested decision). It also sought to determine which of IFPEN’s economic activities would be services covered by ‘such a guarantee’ (recitals 226 to 235 of the contested decision). In recital 236 of the contested decision, the Commission stated the following:
‘… in the pursuit of its economic activities [IFPEN] has benefited from a real economic advantage, consisting in the absence of payment of a premium for a performance bond, at the very least for best efforts, which it was able to offer in respect of its research activities to its customers, including to its subsidiaries Axens and Prosernat in their exclusive fields. The Commission cannot quantify this advantage precisely, but in view of the specific nature of the risk covered, the Commission considers that in any case it would not exceed, service by service, year by year, the sums shown in Table 5 in this recital …’.
97
It is apparent from the recitals of the contested decision quoted in paragraphs 95 and 96 above that the advantage from which IFPEN allegedly benefited in its dealings with its customers stems from the fact that, in view of the unlimited State guarantee associated with its EPIC status, it can offer those customers the assurance that it will never be subjected to compulsory winding up and therefore will always be able to fulfil its contractual obligations, or failing that, that they will be compensated for any such breach whereas, without that assurance, those customers would be obliged to take out a performance bond from a financial intermediary.
98
As the French Republic and IFPEN note, the reasoning used by the Commission in defining the advantage from which IFPEN benefited in its dealings with its customers is based on the hypothesis that, under normal market conditions, customers of research institutes such as IFPEN use performance bonds or best effort guarantees to protect themselves against the risk of the institute becoming insolvent and that, when offered a guarantee such as the one from which IFPEN benefits, the latter’s customers no longer need to use such a performance bond or best efforts guarantee.
99
However, apart from the comments made by UOP Limited, appearing in recital 216 of the contested decision and according to which ‘… in technology transfer … acquirers are particularly sensitive to the guarantees that their providers are able to give them in terms of cover of both contractual and non-contractual liability’, the Commission did not undertake any study of the market that would justify the validity of the hypotheses summarised in paragraph 98 above.
100
Although the contested decision does contain further explanations relating to the best efforts guarantee or the performance bond in recitals 221 to 236, it must be observed that they only concern the calculation of the value of the alleged advantage, as is clear from the reference to the reasoning appearing in recitals 204 et seq. of the contested decision concerning the quantification of the alleged advantage in dealings between IFPEN and its suppliers. It must be noted in that regard that the Commission stated in its defence that a best efforts guarantee and a performance bond should not be compared to the unlimited State guarantee from which IFPEN benefits, which is much wider in scope than the former two and that it is very clear from the contested decision that the Commission used those types of guarantee as comparison tools, in order to obtain the most accurate estimate possible of the value of the advantage conferred on IFPEN by the State guarantee in its dealings with its customers. The Commission makes it clear, in recital 236 of the contested decision, that it based that part of its reasoning on a possible quantification of the advantage already received, rather than on the ability of the measure to procure an advantage.
101
It must therefore be found that the Commission used hypothetical reasoning. It must, however, be noted that the Commission cannot, in the present case, justify that reasoning by relying on the presumption of an advantage established by the Court of Justice in the judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217).
102
It must be observed that the Commission’s decision does not contain any prior examination of the economic and legal context of the market in question, as provided for in the case-law cited in paragraph 83 above, which would allow the hypothesis of an advantage in IFPEN’s dealings with its customers similar to that encountered in dealings between an EPIC and the banks and financial institutions to be regarded as plausible, something that the Commission in fact expressly admitted at the hearing, as the Court has pointed out in paragraph 90 above.
103
It follows that, as regards the definition of the advantage derived by IFPEN from the implied and unlimited State guarantee conferred on it by its EPIC status in its dealings with its customers, the Commission failed in its obligation to provide proof of that advantage in accordance with the case-law cited in paragraph 75 above. The Commission was therefore wrong to conclude, in recital 236 of the contested decision, that, because of the guarantee at issue, IFPEN had benefited from a real economic advantage, consisting in the absence of payment of a premium for a performance bond, or at the very least a best efforts guarantee, which it was able to offer to its customers in respect of its research activities, including to its subsidiaries Axens and Prosernat in their exclusive fields.
104
It follows that there is no need to examine the arguments by which the French Republic and IFPEN dispute the relevance to the action of performance bonds or best efforts guarantees in estimating the value of the advantage derived by IFPEN from the guarantee in question in its dealings with customers.
105
In the light of all the foregoing considerations, as regards the existence of an advantage which IFPEN was able to derive from the guarantee in question in its dealings with its suppliers and customers, the Commission has not discharged the burden of proof as defined by the case-law cited in paragraph 75 above.
The advantage in the case of IFPEN’s dealings with banks and financial institutions
106
In the proceedings in Case T‑157/12, IFPEN submitted that it had not derived any advantage from the State guarantee in its dealings with banks and financial institutions, which the Commission itself acknowledged in recital 199 of the contested decision. It argued that there was therefore no need to revisit that question.
107
In Case T‑479/11, the French Republic also pointed out that the Commission had acknowledged in recital 199 of the contested decision that, over the period between its change of legal form and 2010, IFPEN had not derived any real economic advantage from its EPIC status in its dealings with banks and financial institutions.
108
In addition, the French Republic maintained that the Commission’s assertion in recital 200 of the contested decision – which it disputed – that an actual economic advantage could arise in future in IFPEN’s dealings with banks and financial institutions, was not based on any evidence.
109
In that regard, the French Republic challenged the Commission’s assertion in the defence that it was for the French authorities to demonstrate that, with effect from 1 January 2011, IFPEN’s borrowing terms would still be comparable to those which it used to obtain prior to its change in status. The French Republic claimed that this was impossible to prove due to the unpredictable nature of the economic environment. The French Republic noted that the Commission itself had acknowledged that it could not make assumptions concerning future conduct by market operators.
110
At the hearing of 8 October 2015, the French Republic had relied on Article 12 de la loi 2010/1645, du 28 décembre 2010, de programmation des finances publiques pour les années 2011 à 2014 (Article 12 of Law No 2010/1645 of 28 December 2010 on public finance planning for the years 2011 to 2014) (JORF of 29 December 2010, p. 22868), which states that ‘notwithstanding any provision to the contrary in the texts applicable to them, French bodies falling within the classification of central government for the purposes of Council Regulation (EC) No 2223/96 of 25 June 1996 on the European system of national and regional accounts in the Community, other than the State, the Caisse d’amortissement de la dette sociale (Social Debt Redemption Fund), the Caisse de la dette publique (Public Debt Fund) and the Société de prises de participation de l’État (State-owned investment company), may not take out with a credit institution a loan with a term greater than 12 months or issue a debt security with a term greater than 12 months’ and ‘the list of the bodies to whom this prohibition applies shall be drawn up by joint order of the Ministers responsible for the economy and the budget’. According the French Republic, as a result of that provision, IFPEN was unable to take out with a credit institution a loan with a term greater than 12 months, which, in any event, excluded the possibility of an advantage arising in future in IFPEN’s dealings with banks and financial institutions. The Commission had contended that that argument was inadmissible, on the ground that the French authorities did not rely on the text of that law during the formal investigation procedure.
111
In its observations on the conclusions to be drawn from the judgment under appeal, the French Republic claims that the case-law relied on by the Commission to dispute the admissibility of the argument concerning Article 12 of the Law of 28 September 2010 is irrelevant given the objective and public nature of the said law. Moreover, the French Republic argues that, in accordance with the case-law, the power of review exercised by the Court must extend to all the relevant data submitted by the applicant, regardless of whether those data predate or post-date the contested decision, and whether the data were submitted previously in the context of the administrative procedure or, for the first time, in the context of the proceedings currently before the Court. In that regard, the French Republic comments, in particular, that, since neither the presumption of an advantage nor the need to rebut that presumption for the future had been discussed during the administrative procedure, it cannot be criticised for not having brought Article 12 of the Law of 28 September 2010 to the attention of the Commission.
112
The French Republic adds that the prohibition under Article 12 of the Law of 28 September 2010 was reproduced in Loi 2014-1653, du 29 décembre 2014, de programmation des finances publiques pour les années 2014 à 2019 (Law No 2014-1653 of 29 December 2014 on public finance planning for the years 2014 to 2019) (JORF of 30 December 2014, text No 1), and in Loi 2018-32, du 22 janvier 2018, de programmation des finances publiques pour les années 2018 à 2022 (Law No 2018-32 of 22 January 2018 on public finance planning for the years 2018 to 2022 (JORF of 23 January 2018, text No 1). The French Republic points out the Order of 4 September 2018 drawing up the list of various central government bodies which are prohibited from taking out with a credit institution a loan with a term greater than 12 months or issuing a debt security with a term greater than 12 months (JORF No 230 of 5 October 2018, text No 22).
113
In its observations on the conclusions to be drawn from the judgment under appeal, IFPEN submits that the Commission itself rejected the application of the presumption of an advantage established by the Court of Justice in the judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217), including its future application. It claims that this is clear from recital 200 of the contested decision, in which the Commission concluded its examination of a potential advantage to IFPEN in its dealings with banks and financial institutions by stating, with regard to dealings subsequent to the contested decision, that the Commission ‘[could not] make assumptions concerning future conduct by market operators or about their perception of the impact of the State guarantee on the risk of default of the publicly owned establishment IFP’. According to IFPEN, the conclusion that assumptions could not be made is all the more significant given that, in the contested decision, the Commission did not reach a clear conclusion as to the existence of an advantage in its favour. Thus, although Article 107 TFEU requires the Commission, on which the burden of proof falls, to prove the existence of an advantage rather than the possibility of an advantage, the Commission merely mentioned, as regards the past, a potential advantage which had not materialised (recital 199 of the contested decision) and, as regards the future, the fact that assumptions could not be made about the future conduct of market operators (recital 200 of that decision).
114
In any event, IFPEN considers that the simple presumption of an advantage is rebutted not only in relation to the past, as demonstrated by an analysis of the cost of the loans which it took out between its change of status and November 2018, but also in relation to the future.
115
In the latter regard, IFPEN submits that the implausibility of any future advantage in its favour is confirmed by all of the background information submitted by the French authorities to the Commission during the administrative procedure. IFPEN refers to three particular matters: first, the fact that its conversion into an EPIC had no effect on its financial situation or on its funding terms, in accordance with a principle of general continuity established by Article 95-VI of the Law of 13 July 2005; second, IFPEN’s excellent financial management, which resulted in a continued increase in its own resources; third, the lack of any borrowing at more than one year over the five previous years, and only one instance of borrowing at less than one year, for a negligible sum, as noted in recitals 197 and 198 of the contested decision.
116
Using arguments similar to those of the French Republic, IFPEN claims that the implausibility of any future advantage in its favour is also demonstrated by Article 12 of the Law of 28 September 2010.
117
Furthermore, according to IFPEN, it cannot be said that IFPEN and the French Republic had many opportunities to inform the Commission of the existence of that text during the administrative procedure, as the text was published on 29 December 2010, more than a month after the response of the French authorities to the most recent request for information made to them during the administrative procedure; nor can it be claimed that the reason why the text was not produced during the administrative procedure was the wish to use it in contentious proceedings.
118
Finally, IFPEN claims that the Commission’s argument that Article 12 of the Law of 28 December 2010 structurally reduced its borrowing options but still enabled it to secure an advantage over one year on a loan of a large amount is refuted by the data produced by three banking institutions.
119
In its observations on the conclusions to be drawn from the judgment under appeal, the Commission submits that the Court of Justice confirmed that it was not required to demonstrate the real effects produced by the guarantee in IFPEN’s dealings with banks and financial institutions because there was a simple presumption that the guarantee constituted an advantage in those dealings. According to the Commission, it is apparent from the judgment under appeal that, for that presumption to be rebutted, it was not sufficient to find that the guarantee had historically not had any real effect on dealings between IFPEN and banks and financial institutions, but it was also necessary to demonstrate that, when the economic and legal context of the guarantee associated with the status of the EPIC in question was taken into account, the EPIC would not, in all plausibility, obtain any real economic advantage from that guarantee in the future.
120
At the hearing, the Commission disputed IFPEN’s argument that it had not relied on a presumption in the contested decision concerning the relative advantage in dealings between IFPEN and banks and financial institutions.
121
In addition, the Commission claims that, in accordance with the case-law, the arguments of the French Republic and IFPEN seeking to rebut that presumption for the future must be dismissed as inadmissible to the extent that they are based on factual matters which post-date the contested decision or which were not brought to the Commission’s attention by the French Republic and IFPEN during the administrative procedure, even though that procedure had given rise to numerous exchanges about the national legislation applicable to IFPEN.
122
Furthermore, the Commission disputes the arguments raised by the French Republic and IFPEN, assuming that they are even admissible, that Article 12 of the Law of 28 December 2010 had the effect of rebutting the presumption of an advantage in future dealings between IFPEN and banks and financial institutions.
123
In that regard, it must be noted that, as the Court of Justice held in the judgment under appeal, the mere fact that IFPEN benefited from a State guarantee was such as to enable the Commission to rely on the presumption of an advantage, as developed by the Court of Justice in the judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217), since that presumption is based on the idea that, thanks to the guarantee associated with its status, an EPIC benefits or could benefit from better financial terms than those normally available on the financial markets (judgment under appeal, paragraph 116).
124
It must also be noted that, despite IFPEN’s claims to the contrary, the Commission did indeed use reasoning in the present case based on a presumption that an advantage existed in dealings between IFPEN and banks and financial institutions.
125
First, having examined the data provided by the French Republic in recitals 196 to 198 of the contested decision, the Commission concluded, in recital 199 of that decision, that such an advantage had not materialised over the period between IFPEN’s change of status and 2010.
126
Second, in recital 200 of the contested decision, the Commission stated that the conclusion that the State guarantee had not conferred an advantage on IFPEN in its dealings with banks and financial institutions over the period in question applied only to the past since it ‘[could not] make assumptions concerning future conduct by market operators or about their perception of the impact of the State guarantee on the risk of default of [IFPEN]’.
127
Also in recital 200 of the contested decision, the Commission stated that, ‘in the context of the annual reports that the French authorities will be called upon to send the Commission in the future, they should furnish information relating to the levels and terms of [IFPEN]’s debt, providing proof that these loans are in line with market conditions, or adding the gross equivalent of the aid component to the estimate of the maximum impact of the guarantee using a methodology similar to that described in [the contested decision]’.
128
It is therefore apparent from recital 200 of the contested decision that the Commission implicitly, but necessarily, presumed that the advantage existed in dealings between IFPEN and banks and financial institutions by considering that it could not exclude such an advantage for the future and by placing a consequential obligation on the French authorities to show that there was no such advantage or, if there was, that it remained within the limits of the maximum permitted impact of the guarantee.
129
It should be recalled that, as the Court of Justice stated in the judgment under appeal, in order for such a presumption to be rebutted, it must be shown that, in light of the economic and legal context in which the guarantee associated with the EPIC status concerned takes place, the latter did not obtain in the past and, according to any plausibility, will not obtain in the future, any real economic advantage from that guarantee (judgment under appeal, point 117).
130
In the present case, it must be noted that the Commission itself found, in recital 199 of the contested decision, that the advantage in dealings between IFPEN and banks and financial institutions did not materialise over the period between IFPEN’s conversion into an EPIC and 2010 and, therefore, acknowledged that the presumption of an advantage had been rebutted for the past.
131
It is therefore necessary to determine whether the arguments put forward by the French Republic and IFPEN are capable of rebutting the presumption of an advantage for the future under the conditions established by the Court of Justice in the judgment under appeal and recalled in paragraph 129 above.
132
In that regard, it is settled case-law that the legality of a decision concerning State aid must be assessed by reference to the information available to the Commission at the time of adoption of that decision (see judgment of 23 November 2017, SACE and Sace BT v Commission, C‑472/15 P, not published, EU:C:2017:885, paragraph 76 and the case-law cited).
133
Accordingly, IFPEN’s arguments concerning an analysis of the funding terms offered to it by banking establishments between 2011 and 2018, and the approach it made to banks in order to show that short-term credit was granted to it in 2016 on commercial market conditions, must be dismissed as inadmissible, since they are based on information that post-dates the adoption of the contested decision. The same goes for the French Republic’s argument that the prohibition on certain public bodies taking out with a credit institution a loan with a term greater than 12 months, introduced by Article 12 of the Law of 28 December 2010, was systematically reproduced in public finance planning laws published after the date of the contested decision.
134
In relation to the French Republic’s argument concerning Article 12 of the Law of 28 December 2010, it must be borne in mind that, in accordance with the case-law, the Commission is required to conduct a diligent and impartial examination of the contested measures, so that it has at its disposal, when adopting the final decision, the most complete and reliable information possible for that purpose (see judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑53/16, EU:T:2018:943, paragraphs 223 and 224 and the case-law cited).
135
However, it must also be recalled that, according to the case-law, it cannot be complained that the Commission failed to take into account matters of fact or of law which could have been submitted to it during the administrative procedure but which were not, since the Commission is under no obligation to consider, of its own motion and on the basis of prediction, what information might have been submitted to it (see judgment of 13 December 2018, Ryanair and Airport Marketing Services v Commission, T‑53/16, EU:T:2018:943, paragraph 223 and the case-law cited).
136
In the present case, it must be observed that it is common ground between the parties that the French Republic and IFPEN did not bring that text to the knowledge of the Commission during the formal investigation procedure and that it does not appear from the file that the Commission knew about the text in question when the contested decision was adopted.
137
Accordingly, it must be found that the French Republic’s argument concerning Article 12 of the Law of 28 December 2010 must be rejected as inadmissible.
138
That finding cannot be called into question by the arguments put forward by the French Republic.
139
First, it must be noted that the case-law resulting from the judgment of 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38), cited by the French Republic, is irrelevant in the present case.
140
It is true that the Court of Justice held in paragraph 72 of the judgment of 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38), that the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings applying Articles 101 TFEU and 102 TFEU which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the appellants, and taking into account all the elements submitted by the latter, whether those elements predate or post-date the contested decision, whether they were submitted previously in the context of the administrative procedure or, for the first time, in the context of the proceedings before the General Court, in so far as those elements are relevant to the review of the legality of the Commission decision (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 72).
141
However, it is clear from the actual wording of paragraph 72 of the judgment of 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38), referred to above, that that case-law relates to the review of the legality of decisions adopted on the basis of Articles 101 and 102 TFEU and not to the review of the legality of decisions adopted on the basis of Article 107 TFEU.
142
Secondly, the French Republic cannot claim that it should have been permitted to rely on the text of Article 12 of the Law of 28 January 2010 to rebut the presumption of an advantage to IFPEN in its dealings with banks and financial institutions before the Court solely because it was unable to rely on that text at the time of the formal investigation procedure, since that procedure did not give rise to any discussion concerning the said presumption.
143
It must be observed that, in the decision to initiate the formal investigation procedure, the Commission had stated that, notwithstanding the explanations provided by the French authorities, in view of the characteristics of the State guarantee enjoyed by IFPEN by virtue of its EPIC status, it could not exclude the fact that IFPEN benefited from an economic advantage due to the applicability of the principle of last-resort State responsibility. The Commission also stated that the advantage arose from a more favourable assessment by creditors of the credit repayment risk, thanks to the unlimited State guarantee and that it could translate into more favourable financing conditions. It follows that it was up to the French Republic, which participated in the formal investigation procedure, to provide the information which it considered capable of calling into question the Commission’s assessment in the decision to initiate the formal investigation procedure of the existence of an economic advantage in dealings between IFPEN and banks and financial institutions, including, if appropriate, the text of Article 12 of the Law of 28 December 2010.
144
In any event, even supposing that the French Republic could rely on the text of Article 12 of the Law of 28 December 2010 in the present proceedings, it must be found that that text was not, in itself, capable of rebutting the presumption of an advantage in dealings between IFPEN and banks and financial institutions at the date on which the Commission adopted the contested decision.
145
Article 12(1) of the Law of 28 December 2010 provided that, ‘notwithstanding any provision to the contrary in the texts applicable to them, French bodies falling within the classification of central government for the purposes of Council Regulation (EC) No 2223/96 of 25 June 1996 on the European system of national and regional accounts in the Community, other than the State, the Caisse d’amortissement de la dette sociale (Social Debt Redemption Fund), the Caisse de la dette publique (Public Debt Fund) and the Société de prises de participation de l’État (State-owned investment company), may not take out with a credit institution a loan with a term greater than 12 months or issue a debt security with a term greater than 12 months’ and ‘the list of the bodies to whom this prohibition applies shall be drawn up by joint order of the Ministers responsible for the economy and the budget’.
146
Therefore, it must be noted that, contrary to the French Republic’s submissions at the hearing, the mere reference to the classification of central government for the purposes of Council Regulation (EC) No 2223/96 of 25 June 1996 on the European system of national and regional accounts in the Community administrations (OJ 1996 L 310, p. 1) could not lead to the conclusion that that provision was applicable to IFPEN, given that the provision itself stated that the list of bodies to whom it was to apply would be drawn up by a ministerial order.
147
It must also be observed that, in reply to a question posed by the Court, the French Republic stated that IFPEN was included on the list of French bodies falling within the classification of central government referred to in Article 12 of the Law of 28 December 2010 annexed to the order of 28 September 2011 drawing up the list of the said bodies prohibited from taking out with a credit institution a loan with a term greater than 12 months or issuing a debt security with a term greater than 12 months (JORF No 232 of 6 October 2011, p. 16907).
148
As regards IFPEN’s argument that the background information submitted by the French authorities to the Commission during the administrative procedure, referred to in paragraph 115 above, was sufficient to rebut the presumption of an advantage in IFPEN’s dealings with banks and financial institutions for the future, it must be noted, as did the Commission, that that information, which related to the past, was insufficient to exclude the existence of an advantage in the future, given that IFPEN’s statutes contained a provision allowing for the possibility of IFPEN taking out loans of unlimited length or amount.
149
In the light of the foregoing, it must be found that the French Republic and IFPEN have not succeeded in rebutting the presumption of an advantage in IFPEN’s dealings with banks and financial institutions for the future.
150
It must therefore be held that the Commission was entitled to consider that the State guarantee enjoyed by IFPEN by virtue of its EPIC status conferred an economic advantage on IFPEN.
151
Therefore, notwithstanding the finding, in paragraph 105 above, that the Commission did not discharge the burden of proof concerning the existence of an advantage that IFPEN was able to derive from the implied and unlimited State guarantee in its dealings with its suppliers and customers, the pleas alleging an infringement of Article 107(1) TFEU and relating to the existence and calculation of an advantage accruing to IFPEN must be rejected as unfounded.
The pleas alleging an infringement of Article 107(1) TFEU and relating to a transfer of the advantage to IFPEN’s subsidiaries, Axens and Prosernat
152
The arguments concerning a transfer of the advantage from which IFPEN allegedly benefited as a result of the implied and unlimited State guarantee inherent in its EPIC status to its private-law subsidiaries, Axens and Prosernat, are set out in the second part of the second plea of the action in Case T‑157/12 and in the second part of the third plea of the action in Case T‑479/11.
153
IFPEN and the French Republic claim that the Commission did not demonstrate to the requisite legal standard that the economic advantage from which IFPEN allegedly benefited as a result of the State guarantee in question was transferred to its private-law subsidiaries, Axens and Prosernat.
154
IFPEN maintains, in that regard, that the statement of reasons in the contested decision was insufficient. It claims, further, that, since the Commission is required, in every decision, to examine the specific facts of the case, its approach of basing the reasoning in the contested decision by analogy on the reasoning used in Commission Decision C(2005) 5412 (final) of 21 December 2005 on State aid N 531/2005 France – Measures relating to the creation and operation of Banque Postale (‘the Banque Postale decision’) is inappropriate and unfounded. In that regard, IFPEN comments that that decision took into account the particular architecture of the La Poste group’s operations, which is different from that of the IFPEN group, and that the scientific nature of the activities of IFPEN and its subsidiaries can in no way be compared to postal activities. Furthermore, IFPEN maintains that it is apparent from recital 246 of the contested decision that the Commission, having found no sign of a transfer of the advantage in its accounting, based its demonstration of such a transfer on the presumption that the advantage had been transferred by means of a failure to price into the services provided by IFPEN to the subsidiaries the costs associated with the cover provided by the unlimited guarantee.
155
The French Republic submits, first, that the Commission misinterpreted the Banque Postale decision and, secondly, that it ignored the fact that the research services and other services provided by IFPEN were invoiced on the basis of costs incurred by IFPEN plus a margin and therefore that commercial relations between IFPEN and its subsidiaries were concluded under normal market conditions. The French Republic also maintains that the Commission committed an error of law in regarding the reasoning it had followed in its Decision 2009/157 as transposable to the full range of relations between IFPEN and its subsidiaries, whereas it should have limited itself to those relations established in the context of the exclusive agreements negotiated between IFPEN and its subsidiaries Axens and Prosernat.
156
In addition, the French Republic asserts that, contrary to the Commission’s arguments, it is apparent from the operative part of the contested decision that the question of the transfer of the advantage to the subsidiaries is inseparable from the rest of that decision.
157
The Commission submits that the question of whether an advantage was transferred is subsidiary for the purposes of demonstrating the existence of State aid in favour of IFPEN as a result of its EPIC status and can seek to achieve only a partial annulment of the contested decision, namely the part concerning the transfer of the aid to the subsidiaries. According to the Commission, the question of whether an advantage was transferred to IFPEN’s subsidiaries is separable from the preliminary question of whether an advantage existed in favour of IFPEN.
158
The Commission also disputes the arguments of the French Republic and IFPEN and contends that the present pleas should be dismissed.
159
As a preliminary matter, it must be recalled that Article 1(4) of the contested decision deals with the cover provided by the State guarantee for the technology transfer activities carried out by IFPEN in the fields provided for by the exclusive agreements concluded with Axens and Prosernat.
160
It must be observed that, as is apparent from recitals 249 and 250 of the contested decision, the economic advantage in the exclusive fields of activity of the subsidiaries Axens and Prosernat, deriving from the cover provided by the State guarantee granted to IFPEN, is a selective advantage because it allows the subsidiaries to access IFPEN’s technologies and human and material resources on more favourable terms than their competitors.
161
Accordingly, in order for the measure referred to in Article 1(4) of the contested decision to be regarded as State aid under Article 107(1) TFEU, it is necessary to demonstrate that the advantage was transferred from IFPEN to its subsidiaries Axens and Prosernat.
162
It must also be recalled that Article 1(5) of the contested decision relates to the cover provided by the State guarantee for the contract research and other services performed by IFPEN on behalf of both third parties and the subsidiaries.
163
It must be observed that, by definition, for that measure to be regarded as State aid, there is no need to demonstrate that the advantage was transferred from IFPEN to its subsidiaries Axens and Prosernat in relation to the contract research and other services performed by IFPEN on behalf of third parties, or on behalf of its subsidiaries outside the fields provided for in the exclusive agreements.
164
By contrast, it must be pointed out that, in order for the cover provided by the State guarantee of the contract research and other services performed by IFPEN on behalf of those subsidiaries in the fields provided for in the exclusive agreements concluded with them to be regarded as State aid, it is essential to demonstrate that the advantage was transferred from IFPEN to its subsidiaries Axens and Prosernat. If so established, then it is IFPEN’s subsidiaries, Axens and Prosernat, which are the beneficiaries of the aid since, as a result of the exclusive agreements, those services can only be performed by IFPEN on their behalf.
165
It follows that, as the Commission essentially submits, the plea alleging that a transfer of the advantage has not been demonstrated must be rejected as ineffective in that it seeks to challenge the classification of the measure referred to in Article 1(5) of the contested decision as State aid, since that relates to the cover provided by the State guarantee for the contract research and other services performed by IFPEN on behalf of both third parties and the subsidiaries outside of the field of the exclusive agreements.
166
It is in the light of these considerations that the complaints made by the French Republic and IFPEN must be examined.
167
First, in relation to IFPEN’s complaints that the Commission wrongly based its demonstration of the transfer of the advantage from IFPEN to its subsidiaries on an inappropriate analogy with the reasoning used in the Banque Postale decision and, therefore, failed in its obligation to state sufficient reasons, it must be stated that this is based on an erroneous premiss.
168
In recital 240 of the contested decision, the Commission stated that, ‘given that in French law a shareholder in a group of companies does not bear general vicarious liability for its subsidiaries, there [was] no reason to take the view that [IFPEN], and consequently the French State, can be liable for the payment of claims held by third parties in respect of the economic activities of Axens and Prosernat, in particular if those subsidiaries were to be subjected to compulsory winding up’.
169
The Commission therefore excluded the possibility that Axens and Prosernat could benefit from a direct transfer of the advantage from which IFPEN had allegedly benefited in its dealings with its creditors.
170
However, the Commission considered in recitals 241 to 247 of the contested decision that Axens and Prosernat had benefited from an indirect transfer of the advantage in question, according to the following reasoning:
‘(241)
However, it should be noted that in [the Banque Postale decision] cited above, although it took the view … that as a public limited company La Banque Postale remained subject to ordinary law with regard to compulsory administration and winding-up and did not therefore itself enjoy an unlimited State guarantee, the Commission nevertheless examined the question of a possible transfer to the subsidiary of the effects of the public guarantee conferred on its sole shareholder.
(242)
More precisely, the Commission took the view that the operating structure of the group resulted in permeability between the shareholder (La Poste) and the subsidiary (La Banque Postale), owing to the combined effect of (i) the use by the subsidiary of human and material resources made available by the parent and (ii) the remuneration of these resources on the basis of the costs borne by the parent, in such a way that in the event of an economic advantage of a nature to cause the costs of La Poste to fall, the remuneration paid by La Banque Postale to its parent would have been reduced accordingly, resulting in an (at least partial) transfer of this economic advantage to the subsidiary.
(243)
In the same way, in decision C 51/2005, the Commission considered that there was a measure of porosity, in particular in the prices applied by [IFPEN] for the services supplied to Axens and Prosernat in their exclusive fields, such that the intra-group business relations did not follow a market-driven logic, but on the contrary offered the possibility of cross-subsidisation of the economic activities of the subsidiaries via public funds made available by the parent. …
(244)
In the case cited above relating to La Banque Postale, the Commission considered it necessary for the French authorities to enter into commitments permitting a mechanism to be put in place which neutralised at the level of the subsidiary any advantages that might be enjoyed by the parent. …
(245)
In the present case, the French authorities have given a commitment, with regard to the borrowing terms of [IFPEN’s] subsidiaries (Axens, Beicip-Franlab and Prosernat), to state in writing in the financing contract for each transaction (for any instrument covered by a contract) that “Pursuant to French law (in particular the need for express statutory authority for each guarantee), the present financing transaction shall not enjoy any form of direct or indirect State guarantee”.
(246)
As regards the use by the subsidiaries of human and material resources made available by their parent, as noted by the Commission in decisionC 51/2005, “if there is any subsidisation of economic activities, it results from the level of the remunerations paid by the subsidiaries concerned to the parent company and is reflected in [IFPEN]’s accounts”. In the examination of [IFPEN]’s accounts, the only cost components not taken into account by the Commission for the year 2006 in decision C 51/2005, and for the following years in the annual reports sent by the French authorities, are those relating to the cover provided by the unlimited guarantee for the services provided by [IFPEN] to its subsidiaries. Since the premium corresponding to a performance bond, at the very [least] for best efforts, was not paid to the State, it was not possible for it to be priced into the services supplied to the subsidiaries either.
(247)
Consequently, it must be held that the economic advantage conferred on the publicly owned establishment by the guarantee it enjoys by virtue of its legal form was transferred in this way to its private-law subsidiaries Axens and Prosernat.’
171
In addition, in recital 269 of the contested decision, the Commission stated that ‘the pricing of [IFPEN]’s contract research services is established on the basis of their total production cost, to which a margin is applied, the rate of which varies according to the outcome of the negotiations with the customer …’ and that ‘the only cost component which [IFPEN] does not seem to have taken into account is an insurance premium to be paid by [IFPEN] for the performance bond (or best efforts guarantee)’.
172
It follows from the aforementioned recitals that the basis for demonstrating a transfer of the advantage from IFPEN to its subsidiaries Axens and Prosernat was a finding that the services supplied by IFPEN were underpriced. That finding stemmed, first, from Decision 2009/157 in which the Commission found that, with regard to 2006, there was a measure of porosity, in particular in the exclusive fields of Axens and Prosernat, that allowed for cross-subsidisation, and, secondly, from the fact that the annual reports supplied by the French authorities for the years 2007 to 2009 to show that the pricing of the services performed by IFPEN on behalf of its subsidiaries was in line with market prices did not take account of the fact that IFPEN did not invoice its subsidiaries, as customers, for the cover provided for those services by the State guarantee enjoyed by IFPEN by virtue of its EPIC status.
173
Therefore, despite what IFPEN maintains to the contrary, the Commission did not base its demonstration of the transfer of the advantage from IFPEN to its subsidiaries Axens and Prosernat on a simple analogy with the reasoning used in the Banque Postale decision, but took into account the specific circumstances of the internal relations in the IFPEN group.
174
For that reason, the French Republic’s complaint that the Commission misinterpreted the Banque Postale decision must also be dismissed as ineffective.
175
Secondly, in view of the finding referred to in paragraph 172 above concerning the reasoning which the Commission used as its basis for demonstrating a transfer of the advantage from IFPEN to its subsidiaries Axens and Prosernat, IFPEN’s argument that the Commission based that demonstration purely on the presumption of a transfer of the advantage through the failure to price the costs associated with the cover provided by the State guarantee for the services performed by IFPEN on behalf of its subsidiaries must equally be dismissed as unfounded.
176
Thirdly, with regard to the French Republic’s argument essentially claiming that the Commission could not rely on Decision 2009/157 to demonstrate the transfer of the advantage from IFPEN to its subsidiaries in the context of the contract research and other services performed by IFPEN on behalf of those subsidiaries outside their exclusive fields, it must be held that, as that argument does not relate to the transfer of the advantage in the fields covered by the exclusive agreements, it must be dismissed as ineffective for the reason set out in paragraph 165 above.
177
Fourthly, the French Republic complains that the Commission did not take into account the fact that contract research and other services are invoiced by IFPEN to its subsidiaries on market conditions.
178
In that regard, first, it must be pointed out that the Commission did take that fact into account in relation to the demonstration of the transfer of the advantage from IFPEN to its subsidiaries Axens and Prosernat outside the field of their exclusive activities. As the Commission observes in its defence, it is apparent from recital 269 of the contested decision that, although the description supplied by the French authorities of the way in which IFPEN’s prices were fixed showed that the pricing of IFPEN’s contract research services, outside the field of its exclusive relations with its subsidiaries, was established on the basis of their total production cost, to which a margin was applied, it did not, however, mention an insurance premium paid to the State in return for its unlimited guarantee.
179
Secondly, as the Commission also asserts, it is apparent from recital 246 of the contested decision that, in order to demonstrate the transfer of the advantage from IFPEN to its subsidiaries Axens and Prosernat, in their exclusive field of activity, the Commission relied on Decision 2009/157, recitals 146 and 147 of which make it clear that payments made by Axens and Prosernat to IFPEN for services performed in their exclusive fields were lower than their cost price and involved a transfer of State aid. It must be noted that the French Republic has not disputed Decision 2009/157 and also has not called into question the conclusions of that decision relating to payments made by Axens and Prosernat to IFPEN for services performed in their exclusive fields in the course of the present proceedings.
180
The French Republic’s complaint alleging that the Commission did not take into account the fact that contract research and other services are invoiced by IFPEN to its subsidiaries at market price must therefore be rejected as unfounded.
181
In the light of the foregoing considerations, the pleas alleging an infringement of Article 107(1) TFEU and relating to a transfer of the advantage from IFPEN to its subsidiaries Axens and Prosernat must be dismissed as unfounded.
The plea alleging an infringement of Article 107(1) TFEU and relating to the transfer of State resources
182
By an argument presented in the third part of the second plea of the action in Case T‑157/12, IFPEN submits, for the sake of completeness, that there is not a sufficient connection between the advantage from which it allegedly benefits and the transfer of State resources arising from the unlimited guarantee. Both in relation to its dealings with its suppliers and those with its customers, any connection between an alleged price decrease or the alleged use of the performance bond on the one hand, and the transfer of State resources on the other, is objectively artificial and entirely built on hypothetical constructions not based on any objective data.
183
In that regard, it must be noted that, although IFPEN’s arguments are presented in the part of its action dealing with the existence of the advantage, they refer to another condition for the existence of State aid within the meaning of Article 107(1) TFEU, namely the commitment of State resources.
184
Furthermore, it must be noted that those arguments only apply to dealings between IFPEN and its suppliers and customers.
185
It follows that, given that the Court found in paragraph 105 above that the Commission had failed to demonstrate that the implied and unlimited State guarantee in favour of IFPEN had granted, or was capable of granting, an advantage for the exclusive benefit of IFPEN in its dealings with its suppliers and customers, the present plea must be rejected as ineffective.
The plea alleging an infringement of the principle of proportionality
186
The arguments relating to an infringement of the principle of proportionality are put forward by IFPEN in the fifth plea of its action in Case T‑157/12.
187
These arguments are divided into two parts. By the first part, IFPEN submits essentially that, since the Commission failed to adduce objective evidence of the existence of an implied and unlimited State guarantee in favour of EPICs and, therefore, based its reasoning on a series of unverified hypotheses, the requirement to systematically make the creation of an EPIC subject to an obligation of prior notification and, subsequently, to a series of administrative compatibility reports, is disproportionate. The breach of the principle of proportionality is all the more evident given, first, that the principles applicable to EPICs predate the Treaty of Rome and the French Government has put forward a solid legal argument to demonstrate the erroneous nature of the Commission’s theory and, secondly, that the French Government has provided a sufficient solution to allay the doubts raised by the Commission as to the existence of a guarantee in favour of EPICs, by proposing to amend the decree implementing the Law of 16 July 1980.
188
By the second part, IFPEN maintains that the contested decision requires the French authorities and, consequently, IFPEN itself, to comply with a certain number of obligations which are clearly disproportionate both in relation to the objective pursued and to the very limited scope, in its case, of the effects of EPIC status.
189
Thus, in the first place, IFPEN observes that the contested decision requires the French authorities and, consequently, IFPEN itself, to produce every year, from 1 January 2010 onward and until the date of expiry of the exclusive agreements, a financial report including the information listed in Article 5 of that decision. According to IFPEN, the Commission’s requirement to include in the annual report an estimate of the uplift effect of the alleged unlimited guarantee resulting from a more favourable assessment by suppliers of IFPEN’s risk of default and from the lack of payment of a premium corresponding to a performance bond is a waste of its own resources, such an exercise being totally artificial and not a reflection of economic reality. The fact that such an ‘uplift’ does not exist in IFPEN’s accounts and that, after several years, the Commission has been unable to find acceptable comparison rates confirms the excessively artificial ‐ or even fanciful ‐ nature of any suggestion of an ‘uplift’. In addition, IFPEN notes that, between the date of the adoption of the contested decision and the date when the present action was lodged, the French authorities, as required by Article 3(2) of Decision 2009/157, gave notification of the renewal of the industrial research agreements between IFPEN and its subsidiaries Axens and Prosernat in their fields of exclusive activity. According to IFPEN, the contested decision expressly makes a favourable examination of the compatibility of those agreements conditional on compliance with the whole of the contested decision. That is because, in practice, the contested decision requires the French authorities to produce an annual report until the date of expiry of the exclusive agreements, in other words, for 10 years, which is clearly disproportionate in view of the objective of reviewing State aid the existence of which could legitimately be doubted.
190
In the second place, IFPEN complains that the Commission required the French authorities to include in IFPEN’s contracts the clauses set out in Article 9 of the contested decision, which, it claims, constitutes an extremely restrictive measure that is particularly unjustified given that the Commission’s finding that State aid existed was based on a series of unconfirmed hypotheses and manifest errors of assessment.
191
In relation to the first part of the first plea, it must be observed that this is based on the premiss that the Commission failed to demonstrate that EPIC status conferred the benefit of an implied and unlimited State guarantee on IFPEN.
192
However, it must first be recalled that the Court of Justice held in the judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217), that, in order to prove the existence of such a guarantee, which does not result expressly from any legislative or contractual document, it was permissible for the Commission to rely on the method of a firm, precise and consistent body of evidence to determine whether there was, in domestic law, a real obligation on the State to use its own resources for the purposes of covering losses of an EPIC in default and therefore, in accordance with settled case-law, a sufficiently concrete economic risk of burdens on the State budget (judgment of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 65).
193
Secondly, it should also be recalled that, when asked by the Court about the consequences of the judgment of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217) on the present dispute, IFPEN stated, in its letter of 5 May 2014, that it regarded the consideration set out in paragraph 192 above to be applicable in the present case and, therefore, withdrew its first plea alleging an error of law in that the Commission had exceeded the recognised limits on its interpretation of national law in the context of State aid legislation.
194
It follows that the first part of the present plea, to the extent that it has not been withdrawn by IFPEN, must be dismissed as unfounded.
195
With regard to the second part of the present plea, IFPEN submits that the obligations imposed on the French Republic and, indirectly, on IFPEN itself, by Article 5 and Article 9(1) to (3) of the contested decision are disproportionate.
196
It should be borne in mind that, according to the case-law, the principle of proportionality, which is one of the general principles of EU law, requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 24 May 2007, Maatschap Schonewille-Prins, C‑45/05, EU:C:2007:296, paragraph 45).
197
In the present case, it must be observed that Article 4 of the contested decision makes clear that the measure referred to in Article 1(4) thereof constitutes aid compatible with the internal market, subject to compliance with the conditions in Articles 5 and 6 of that decision, from 1 January 2010 onward, and until the date of expiry of the exclusive agreements between IFPEN and its subsidiaries Axens and Prosernat.
198
Under Article 5(1) of the contested decision, ‘the annual financial report referred to in Article 4(2) of decision C 51/2005 shall include, in addition to the information already mentioned in Article 5(1) of that decision, the information listed in paragraphs 2, 3 and 4 of this Article’.
199
Article 5(2) of the contested decision provides that ‘the annual financial report shall include the value, interest rate and contractual terms of the loans subscribed to by [IFPEN] during the year under review, and an estimate of the gross grant equivalent of any interest rate subsidy deriving from the State guarantee, unless proof is supplied that these loan contracts are in accordance with normal market conditions, either by comparing their terms with those obtained by [IFPEN] before its change of legal form, or on the basis of a more precise methodology approved in advance by the Commission’.
200
Article 5(3) of the contested decision provides that ‘the annual financial report shall include the value of goods and services obtained by [IFPEN] from suppliers to carry out the economic activities referred to in Article 1(4) and (5), during the year under review, and a maximum estimate of the gross grant equivalent of the aid resulting from a more favourable assessment by suppliers of the risk of default of the establishment’ and that ‘this estimate shall be made either by applying a flat rate of 2.5% to the value of acquisitions made, or on the basis of a more precise methodology approved in advance by the Commission’.
201
Under Article 5(4) of the contested decision, ‘the annual financial report shall include the value of the economic activities referred to in Article 1(4) and (5) carried out by [IFPEN] during the year under review, and a maximum estimate of the gross grant equivalent of the aid resulting from the lack of payment of a premium corresponding to a performance bond or, at the very least a best efforts guarantee, offered to the beneficiaries of the above-mentioned economic services’ and ‘this estimate shall be made either by applying a flat rate of 5% to the value of the services provided or on the basis of a more precise methodology approved in advance by the Commission’.
202
It follows from those provisions that Article 5 of the contested decision, in essence, imposes requirements on IFPEN to ensure that aid granted to it by the State is compatible with the internal market. It requires IFPEN to provide the Commission, every year, with information about the terms of the loans that it has subscribed to, the value of goods and services obtained from suppliers to carry out its economic activities, with a maximum estimate of the gross grant equivalent of the aid and, finally, the value of the economic activities with a maximum estimate of the gross grant equivalent of the aid.
203
In that regard, it should be noted that, in cases where a State measure can be classified as State aid, within the meaning of Article 107(1) TFEU, it is subject to a notification requirement under Article 108(3) TFEU. The requirement to give the necessary information to the Commission to assess the compatibility of aid cannot, therefore, be regarded as contrary to the principle of proportionality per se.
204
In addition, it must be noted that, as the Commission submits, the obligations imposed on IFPEN form part of the continuity of obligations imposed on it by Decision 2009/157, which has not been disputed either by IFPEN or by the French Republic.
205
Furthermore, it must be observed that, as the Commission also submits, the production of an annual report in the context of an aid scheme is common practice and proportionate to the objective of State aid control.
206
However, in the present case, it must be observed that, while the obligation imposed by Article 5(2) of the contested decision relates to the presumption of an advantage in favour of IFPEN in its dealings with banks and financial institutions, which the Court found the Commission was entitled to use to classify the measure referred to in Article 1(4) of that decision as State aid, the same cannot be said of the obligations imposed by Article 5(3) and (4) thereof.
207
It must be held that the obligations imposed by those provisions relate to the advantage from which IFPEN was alleged to have benefited in its dealings with suppliers and customers, the existence of which, as the Court found in paragraph 105 above, had not been demonstrated by the Commission. It follows that those obligations cannot, by definition, be regarded as appropriate and necessary within the meaning of the case-law referred to in paragraph 196 above.
208
Furthermore, it must be observed that Article 9(1) to (3) of the contested decision requires the French authorities, in essence, to include in contracts concluded by IFPEN a clause excluding liability of the State and in contracts concluded by IFPEN’s subsidiaries a clause excluding liability of IFPEN and of the State.
209
However, IFPEN merely submits, in that regard, that the requirement to include the non-liability clauses are particularly onerous for it, without explaining why the different clauses referred to in Article 9 of the contested decision are not necessary or appropriate in the present case.
210
Such a complaint must therefore be dismissed as inadmissible in view of the case-law according to which, under Article 21, first paragraph, of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to Article 53, first paragraph thereof, and Article 76(d) of the Rules of Procedure, an application must contain a brief statement of the pleas in law on which the application is based. That statement must be sufficiently clear and precise to enable the defendant to prepare its defence and for the General Court to rule on the action, if necessary without further information. The application must, therefore, specify the nature of the plea in law on which the action is based, so that a mere abstract reference to that plea does not satisfy the requirements of the Rules of Procedure. Similar requirements are called for where a submission is made in support of a plea in law (see judgment of 7 June 2018, Winkler v Commission, T‑369/17, not published, EU:T:2018:334, paragraph 53 and the case-law cited).
211
The second part of the present plea, alleging infringement of the principle of proportionality, must therefore be upheld to the extent that it relates to Article 5(3) and (4) of the contested decision and must be rejected as inadmissible as to the remainder.
212
It follows that the Court must uphold IFPEN’s action in Case T‑157/12 in part.
213
By contrast, given that all of the pleas raised by the French Republic have been dismissed, the Court must dismiss the action in Case T‑479/11.
The extent of the annulment
214
IFPEN seeks, principally, the annulment of the contested decision in its entirety and, in the alternative, the annulment of the invalid parts of the operative part of the contested decision.
215
In that regard, it must be observed that the plea that the Court has upheld – the plea alleging infringement of the principle of proportionality – relates only to the conditions of compatibility of the measures constituting State aid in Article 1(4) of the contested decision.
216
In view of all of the foregoing, Article 5(3) and (4) of the contested decision must be annulled, as must Article 6(1) thereof to the extent that it refers to the maximum impact of the State guarantee as estimated in Article 5(3) and (4) of that decision, and the actions must be dismissed as to the remainder.
Costs
217
Under Article 219 of the Rules of Procedure, in judgments delivered after its judgment has been set aside and the case referred back to it, the General Court is to decide on the costs relating to the proceedings instituted before the General Court and to the proceedings on the appeal before the Court of Justice.
218
Given that, in the judgment under appeal, the Court of Justice set aside the initial judgment and reserved the costs, it is for the General Court to decide, in the present judgment, on all the costs relating to the proceedings brought before it, including the proceedings at first instance, and on the costs relating to the appeal proceedings in Case C‑438/16 P.
219
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. Under Article 134(3), where each party succeeds on some and fails on other heads, each party is to bear its own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.
220
Since the French Republic, IFPEN and the Commission were all partly unsuccessful in the proceedings at first instance, each party is to bear its own costs incurred in those proceedings.
221
The French Republic, IFPEN and the Commission are to bear their own costs incurred in the appeal proceedings.
222
Since the French Republic has been unsuccessful in Case T‑479/11 RENV, it is to bear its own costs and to pay those incurred by the Commission in those proceedings, in accordance with the form of order sought by the Commission.
223
Since IFPEN and the Commission have each been unsuccessful in Case T‑157/12 RENV, given that the Court has decided to annul the contested decision in part and to dismiss the action as to the remainder, IFPEN and the Commission are to bear their own costs incurred in those proceedings.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.
Annuls Article 5(3) and (4), together with Article 6(1) to the extent that it refers to the maximum impact of the State guarantee as estimated in Article 5(3) and (4), of Commission Decision 2012/26/EU of 29 June 2011 on State aid granted by France to the Institut Français du Pétrole (Case C 35/08 (ex NN 11/08));
2.
Dismisses the actions as to the remainder;
3.
Orders the European Commission, the French Republic and IFP Énergies nouvelles to bear their own costs in Cases T‑479/11 and T‑157/12;
4.
Orders the French Republic, IFP Énergies nouvelles and the Commission to bear their own costs incurred in Case C‑438/16 P;
5.
Orders the French Republic to bear its own costs and to pay those incurred by the Commission in Case T‑479/11 RENV;
6.
Orders IFP Énergies nouvelles and the Commission to bear their own costs in Case T‑157/12 RENV.
Collins
Kancheva
De Baere
Delivered in open court in Luxembourg on 5 October 2020.
[Signatures]
Table of contents
Background to the dispute
Earlier proceedings before the General Court and the Court of Justice
Procedure and forms of order sought after referral back
Law
The pleas alleging an infringement of Article 107(1) TFEU and relating to the existence and calculation of the advantage accruing to IFPEN
The advantage in the case of IFPEN’s dealings with its suppliers and customers
– The complaint alleging a lack of evidence of an advantage in IFPEN’s dealings with its suppliers
– The complaint alleging a lack of evidence of an advantage in IFPEN’s dealings with its customers
The advantage in the case of IFPEN’s dealings with banks and financial institutions
The pleas alleging an infringement of Article 107(1) TFEU and relating to a transfer of the advantage to IFPEN’s subsidiaries, Axens and Prosernat
The plea alleging an infringement of Article 107(1) TFEU and relating to the transfer of State resources
The plea alleging an infringement of the principle of proportionality
The extent of the annulment
Costs
(
*1
)	Language of the case: French.