62018CO0315(01)
ORDER OF THE COURT HEARING THE APPLICATION FOR INTERIM MEASURES
22 November 2018 (
*1
)
(Appeal — Order of the court hearing the application for interim measures — State aid — Aid granted by the Spanish authorities to certain football clubs — Guarantee given by a public body in connection with loans to three football clubs in the Autonomous Community of Valencia — Decision declaring the aid to be incompatible with the internal market — Order for recovery — Suspension of operation of a measure — Urgency — Statement of reasons — Effective judicial protection)
In Case C‑315/18 P(R),
APPEAL brought under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 8 May 2018,
Valencia Club de Fútbol, SAD, established in Valencia (Spain), represented by J.R. García-Gallardo Gil-Fournier and A. Guerrero Righetto, abogados,
appellant,
the other parties to the proceedings being:
European Commission, represented by B. Stromsky, G. Luengo and P. Němečková, acting as Agents,
defendant at first instance,
Kingdom of Spain,
intervener at first instance,
THE COURT HEARING THE APPLICATION FOR INTERIM MEASURES,
after hearing Advocate General Hogan,
makes the following
Order
1
By its appeal, Valencia Club de Fútbol, SAD (‘Valencia CF’) is seeking to have set aside the order of 22 March 2018 of the President of the General Court of the European Union, Valencia Club de Fútbol v Commission (T‑732/16 R, not published, EU:T:2018:171, ‘the order under appeal’), by which the General Court dismissed its application for suspension of operation of Commission Decision (EU) 2017/365 of 4 July 2016 on the State aid SA.36387 (2013/C) (ex 2013/NN) (ex 2013/CP) implemented by Spain for Valencia Club de Fútbol [SAD], Hércules Club de Fútbol [SAD] and Elche Club de Fútbol [SAD] (OJ 2017 L 55, p. 12, ‘the decision at issue’).
Background to the dispute
2
The appellant, Valencia CF, is a professional football club founded in 1919, which plays in the Spanish premier league (‘La Liga’).
3
In 2012 and 2013, the European Commission was alerted to allegations that State aid in the form of loan guarantees had been granted by the Generalitat Valenciana (regional government of Valencia) in favour of three football clubs in the Autonomous Community of Valencia, including Valencia CF.
4
On 4 July 2016, the Commission adopted the decision at issue. In that decision, it found, in essence, in Article 1, that the Kingdom of Spain had unlawfully granted State aid incompatible with the internal market, including, first, EUR 19193000 to Fundación Valencia Club de Fútbol (‘Fundación Valencia’) in the form of a public guarantee granted by the Instituto Valenciano de Finanzas, the financial institution of the Generalitat Valenciana, to cover a bank loan granted to Fundación Valencia, in order to subscribe for Valencia CF shares in the context of Valencia CF’s capital increase, and, second, EUR 1188000, for the payment of overdue capital, interest and costs of that bank loan. In Articles 2 to 4 of the decision at issue, the Commission ordered the Kingdom of Spain immediately and effectively to recover the State aid in question from Valencia CF, including interest from the date on which the aid was put at the disposal of Valencia CF, and to keep it informed about implementation of that decision.
Procedure before the General Court and the order under appeal
5
By application lodged at the Registry of the General Court on 20 October 2016, the appellant brought an action seeking, in essence, annulment of the decision at issue.
6
By a separate document lodged with the Registry of the General Court on 28 October 2016, the appellant applied for interim measures seeking, first of all, suspension of the operation of Articles 3 and 4 of the decision at issue to the extent that the Commission thereby ordered the recovery of the State aid in question from the appellant, next, in the alternative, that the suspension of operation be subject to a guarantee being deposited in favour of the Instituto Valenciano de Finanzas and, lastly, in the further alternative, that any other measure suspending operation be ordered subject to such conditions as the General Court may see fit.
7
On 4 November 2016, the President of the General Court put questions to the appellant to be answered in writing, to which the appellant responded on 7 November 2016.
8
By order of 10 November 2016, the President of the General Court, under Article 157(2) of the Rules of Procedure of the General Court, granted interim suspension of operation until such time as an order was made disposing of the interim relief proceedings.
9
On 5 December 2016, Fundación Valencia applied to intervene in the interim relief proceedings in support of the forms of order sought by the appellant. That application was dismissed by order of the President of the General Court of 6 April 2017, Valencia Club de Fútbol v Commission (T‑732/16 R, not published, EU:T:2017:272).
10
On 11 December 2017, the President of the General Court invited the appellant ‘to give up-to-date information about its financial situation, supported by appropriate documentary evidence, including the most recent audited financial statement, and any other kind of relevant information relating to the changes that have taken place since the application for interim relief was lodged’. The appellant complied with that request on 21 December 2017. On 18 January 2018, the Commission stated its position on the replies provided by the appellant.
11
On 24 January 2018, the appellant applied to be allowed to submit its interim financial statements covering the period up to 31 December 2017 and to be allowed to formulate a position on two arguments that the Commission put forward in the position it stated on 18 January 2018. That document was included in the case file and the appellant was given leave to submit its interim financial statements, which it did on 5 February 2018.
12
On 22 March 2018, the President of the General Court made the order under appeal, rejecting the application for interim measures.
13
For that purpose, the President of the General Court first of all examined whether the urgency requirement was satisfied. The President stated in particular, in paragraph 39 of the order under appeal, that, in accordance with settled case-law, when suspension of the operation of an EU act is sought, the grant of the interim measure requested is justified only where the act at issue constitutes the decisive cause of the alleged serious and irreparable damage. He added, in paragraph 41 of that order, that where the harm referred to is of a financial nature, the interim measures sought are justified if it appears that, in the absence of those measures, the party applying for the measure would be in a position that would imperil its financial viability before final judgment is given in the main action, or if its market share would be affected substantially in the light, inter alia, of the size and turnover of its undertaking and, as the case may be, the characteristics of the group to which it belongs.
14
It is apparent from paragraph 47 of the order under appeal that, in order to demonstrate the urgency of the suspension of operation applied for, the appellant argued that immediate recovery of the amounts in question would imperil its financial viability and would significantly and irreversibly alter its position in the football club market.
15
On that point, the President of the General Court found, in paragraph 48 of the order under appeal, that the harm on which the appellant relied was pecuniary harm.
16
After analysing the evidence submitted by the appellant, the President of the General Court found that the appellant’s financial viability was not imperilled, nor did it risk its market shares being significantly and irreversibly altered.
17
Accordingly, the President of the General Court dismissed the appellant’s application for interim measures and set aside his order of 10 November 2016.
Procedure before the Court of Justice and forms of order sought
18
By its appeal, the appellant claims, in essence, that the Court should:
–
set aside the order under appeal;
–
order the suspension of operation of the decision at issue;
–
in the alternative, refer the case back to the General Court; and
–
order the Commission to pay the costs.
19
By a separate document, lodged at the Registry of the Court of Justice on the same day as the appeal, the appellant applied for interim relief.
20
Since the Vice-President and the President of the First Chamber of the Court of Justice were prevented from sitting, on 4 June 2018 the President of the Second Chamber of the Court was appointed to act as the Judge hearing the application for interim relief, under Article 13 of the Rules of Procedure of the Court.
21
By order of 13 June 2018, Valencia Club de Fútbol v Commission (C‑315/18 P(R)–R, not published, EU:C:2018:443), made without hearing the other parties to the proceedings, under Article 160(7) of the Rules of Procedure of the Court, the President of the Second Chamber of the Court of Justice suspended operation of the decision at issue, until adoption of the earlier of the orders (i) disposing of the proceedings for interim relief and (ii) ruling on the present appeal.
22
In its response, lodged at the Registry of the Court of Justice on 18 June 2018, the Commission claims that the Court should:
–
dismiss the appeal; and
–
order the appellant to pay the costs.
The appeal
Admissibility
23
The Commission disputes that the appeal is admissible in so far as, according to the Commission, it is based merely on disagreements between the parties as to how the President of the General Court assessed the facts.
24
It should be noted that, in its appeal, the appellant claims, in essence, first, that the President of the General Court failed to respond to a number of arguments that it advanced at first instance and, second, that he refused to take account of evidence which the appellant had nevertheless announced would be produced at a later date. According to the appellant, the President of the General Court thereby infringed the principle of effective legal protection.
25
On that point, it is sufficient to note that, as emerges from the settled case-law of the Court, in the context of an appeal the purpose of review by the Court of Justice is, in particular, to consider whether the General Court responded to a sufficient legal standard to all the arguments raised by the appellant (order of the Vice-President of 14 June 2016, Chemtura Netherlands v EFSA, C‑134/16 P(R), not published, EU:C:2016:442, paragraph 46; see also, to that effect, judgment of 26 May 2016, Rose Vision v Commission, C‑224/15 P, EU:C:2016:358, paragraph 26 and the case-law cited) and to verify whether the general principles of law and rules of procedure governing the burden of proof and the taking of evidence have been observed (see, to that effect, judgment of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraph 70 and the case-law cited).
26
The appeal is therefore admissible.
Substance
27
The appellant submits two grounds in support of its appeal.
The first ground of appeal
28
By its first ground, the appellant criticises the President of the General Court for having failed to examine the urgency criterion in the light of non-pecuniary or non-financial harm, even though, in the pleadings and the documents which it produced on 24 January and 5 February 2018, which were included in the General Court’s case file, the appellant drew attention to other types of harm such as, for a 100-year-old football club, damage to its brand image and other sport-related damage. The President of the General Court thereby only partially analysed urgency and therefore infringed the principle of effective legal protection.
29
The Commission disputes the appellant’s line of argument.
30
As a preliminary issue, it should be noted that, although, in its appeal, the appellant claims that the principle of effective legal protection was infringed, the arguments that it advances in support of that ground seek, in essence, to demonstrate that, notwithstanding arguments to that effect submitted in the appellant’s pleadings of 24 January and 5 February 2018, the President of the General Court failed to adopt a position on the urgency criterion in the light of non-pecuniary harm.
31
It should be recalled on that point that a ground of appeal alleging that the General Court failed to rule on arguments relied on at first instance amounts, in essence, to relying on a breach of the obligation to state reasons, which derives from Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute, and from Article 119 of the Rules of Procedure of the General Court (order of the Vice-President of the Court of 14 June 2016, Chemtura Netherlands v EFSA, C‑134/16 P(R), not published, EU:C:2016:442, paragraph 46 and the case-law cited).
32
In the order under appeal, after recalling, in paragraph 34 of that order, first, that the judge hearing an application for interim relief may order suspension of operation of an act and other interim measures, if it is established that their grant is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, the order must be made and produce its effects before a decision is reached in the main action and, second, that those requirements are cumulative, meaning that applications for interim measures must be dismissed wherever one of those conditions is not satisfied, the President of the General Court examined first of all whether the urgency requirement was satisfied.
33
In paragraph 47 of the order under appeal, the President of the General Court emphasised that, in order to demonstrate the urgency of the suspension of operation applied for, the appellant had argued that immediate recovery of the amounts in question would imperil its financial viability and would significantly and irreversibly alter its position in the football club market.
34
On that point, he stated, first of all, in paragraph 48 of the order under appeal, in respect of the sum of EUR 20381000 by way of principal and the sum of EUR 2 949 523.62 by way of interest calculated up to 5 November 2016, the amounts under the order for recovery, that the harm claimed by the appellant in that respect was pecuniary harm.
35
As a second point, regarding whether the appellant had successfully demonstrated that the harm relied upon was serious and irreparable, the President of the General Court, on the basis of the audited financial statements for the 2016/17 financial year, which ended on 30 June 2017, produced by the appellant, found in paragraph 50 of the order under appeal that it was apparent from those financial statements, first, that the appellant had set aside a provision for the amounts corresponding to the sum under the order for recovery; second, that, at the time, the appellant had access to two still available lines of credit from its majority shareholder, the first for EUR 12 million and the second for EUR 42 million; and third, that the majority shareholder had at the time agreed to provide financial support to enable the appellant to continue its activities. The President of the General Court added, fourth, that the appellant had not argued that those lines of credit were no longer in place or that the majority shareholder had gone back on its undertaking to provide the financial support needed to ensure that the appellant could continue its activities.
36
As a third point, the President of the General Court noted, in paragraph 51 of the order under appeal, that, in the light of those factors, it was for the appellant to substantiate the reasons for which its financial viability was imperilled or that there was a risk that its market shares would be permanently and irreparably altered.
37
He nevertheless emphasised, as a fourth point, in paragraph 52 of the order under appeal that, in its arguments relating to its financial situation, the appellant had failed to refer to the available lines of credit of EUR 54 million and to the financial support agreed by its majority shareholder and had not explained why, notwithstanding that support, the President should find that its financial viability was imperilled.
38
As a fifth point, in paragraphs 54 and 55 of the order under appeal, concerning the alleged risk that the appellant’s market shares would be significantly and irreparably altered, the President of the General Court stated that the appellant’s arguments were based, in essence, on the assumption that its tight financial situation meant that it could not pay the amounts referred to in the order for recovery without very serious repercussions on its ability to complete player transfers and on its positioning on the market of leading football clubs. However, the appellant failed to mention the lines of credit and the support from its majority shareholder referred to in paragraph 37 of this order.
39
As can be seen from the foregoing considerations, with the exception of the appellant’s argument that it would be unable to complete player transfers, to which the President of the General Court replied in paragraph 55 of the order under appeal, summarised in the preceding paragraph of this order, the President of the General Court did not, as the appellant claims in its appeal, take a specific position on the other possible forms of non-pecuniary harm to which it referred in its pleadings of 24 January and 5 February 2018.
40
It is appropriate to recall that it is clear from settled case-law that judgments of the General Court must contain an adequate statement of reasons to enable the Court of Justice to exercise its power of review. In that regard, it is sufficient that the reasoning is clear and comprehensible and that it is moreover such as to justify the finding which it seeks to substantiate (see, to that effect, order of the President of the Court of 18 October 2002, Commission v Technische Glaswerke Ilmenau, C‑232/02 P(R), EU:C:2002:601, paragraph 56, and order of the Vice-President of the Court of 19 December 2013, Commission v Germany, C‑426/13 P(R), EU:C:2013:848, paragraph 66).
41
It is also clear from equally settled case-law of the Court of Justice that that Court does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and that the General Court’s reasoning may therefore be implied on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (order of the Vice-President of the Court of 14 June 2016, Chemtura Netherlands v EFSA, C‑134/16 P(R), not published, EU:C:2016:442, paragraph 47 and the case-law cited).
42
In the present case, it should be noted that all the harm that the appellant alleges in its pleadings of 24 January and 5 February 2018 is based in essence, as the General Court stated, in paragraphs 54 and 55 of the order under appeal, on the premiss that the appellant would have to apply for a preventive restructuring procedure in order to pay the amounts under the order for recovery or, at the very least, that it would be unable to pay its debts to its players and coaches, to regulatory bodies or to clubs affiliated to the professional football league.
43
Indeed, in its pleading of 24 January 2018, the appellant argued, first of all, that applying for a preventive restructuring procedure ‘could lead to administrative relegation in the national competition’ or cause the sporting entity to be expelled thereby causing it to lose its status as an affiliate, which would force the defaulting club to register in a ‘non-professional’ competition. The appellant added that applying for that procedure could prevent it from obtaining a licence from the Union of European Football Associations (UEFA). It went on to state that the main financial consequences for it of that situation would be the loss of income from national and international competitions, of ‘A team players’ as the result of low or non-existent transfer fees and of income from television broadcasting rights, advertising revenue and merchandising income. Lastly, the appellant noted that the risk of not participating in professional competitions for one or possibly two seasons would have a devastating effect on it, causing irreparable harm to the image of the club, causing the ‘A team players’ to leave en masse and the loss of several million euros from the club’s regular income.
44
In its pleading of 5 February 2018, the appellant also claimed that, according to the statutes of the professional football league, the fact that a club is unable to pay its debts to players, coaches, regulatory bodies or affiliated clubs is treated as a very serious breach that can lead to disciplinary proceedings and severe penalties, such as relegation, loss of affiliate status or forfeiture of its licence. The mere fact of applying for a preventive restructuring procedure could thus prevent the appellant from meeting its short-term financial obligations, and therefore from participating in professional competitions in the following season, which would have devastating financial and economic consequences and would cause irreparable damage to the club’s image.
45
However, the appellant did not establish before the General Court that the premiss referred to in paragraph 42 of this order was correct. Indeed, as the President of the General Court found in paragraphs 48 to 55 of the order under appeal, a finding that was for him alone to make and has not in any way been challenged before the Court of Justice as being inaccurate or distorted, it appears that the appellant, which, according to the findings of the President of the General Court, has access to available lines of credit of EUR 54 million and to the financial support agreed by its majority shareholder, has not explained why the President should find, notwithstanding those lines of credit and that support, that there is a risk to its financial viability.
46
Since there is no such risk and no preventive restructuring procedure has been commenced, the President of the General Court did not infringe the obligation to state reasons when he dismissed the application for interim relief without taking a specific position on the appellant’s arguments alleging non-pecuniary or non-financial harm that it claims would result from commencement of such a procedure.
47
The first ground of appeal must therefore be rejected.
The second ground of appeal
48
By its second ground of appeal, the appellant contends that, in answer to a question put by the President of the General Court seeking up-to-date information about its financial situation, it informed him that a firm of auditors would imminently complete a report on its interim financial statements as at 31 December 2017. According to the appellant, in its pleadings of 21 December 2017 and 24 January and 5 February 2018, it emphasised how important it was that full interim financial statements and the aforementioned report were submitted before the President of the General Court ruled on the application for interim relief. The principle of effective judicial protection required that the President of the General Court should rule on the application for interim relief only when he had received those documents.
49
The Commission maintains that the second ground of appeal is unfounded.
50
As a preliminary point, in its pleading of 21 December 2017, the appellant informed the President of the General Court that, on 7 February 2018, it would be able to send him draft interim financial statements as at 31 December 2017 and, if the President of the General Court saw fit, a limited examination of the interim financial statements and the notes to the interim statements once, on 31 March 2018, it had obtained the report of the auditing firm referred to in paragraph 48 of this order.
51
In its pleading of 24 January 2018, the appellant also applied to submit its interim financial statements as at 31 December 2017 so that, according to the appellant, the President of the General Court would have as up-to-date as possible an overview of its financial situation before making his order.
52
The President of the General Court granted that application and the appellant submitted those interim financial statements on 5 February 2018. In the pleading accompanying those statements, the appellant proposed that, ‘given their importance’, it would provide the President of the General Court with the full interim financial statements, together with the aforementioned report, by the auditing firm, which would be completed by 31 March 2018.
53
It is not in dispute that the President of the General Court did not accept that proposal and made the order under appeal on 22 March 2018.
54
The President of the General Court did not thereby err in law.
55
It must be recalled that, according to settled case-law, an application for interim measures must by itself enable the defendant to prepare its observations and the court hearing the application to rule on it, as necessary, without any other supporting information, since the essential elements of fact and law on which the application is based must be found in the actual text of that application (order of the Vice-President of the Court of 6 September 2016, Inclusion Alliance for Europe v Commission, C‑378/16 P–R, not published, EU:C:2016:668, paragraph 17 and the case-law cited).
56
Taking into account the expedition which naturally characterises proceedings for interim relief, it is a reasonable requirement to make of the party seeking the interim measures that, save in exceptional cases, he submit at the time when the application is made all the evidence available in support of that application, so that the court hearing the application can assess, on that basis, whether the application is well founded (order of the Vice-President of the Court of 6 September 2016, Inclusion Alliance for Europe v Commission, C‑378/16 P–R, not published, EU:C:2016:668, paragraph 18 and the case-law cited).
57
Even assuming that, as in the present case, an item of evidence only becomes available after the application for interim relief has been lodged, it is apparent from the case-law that the President of the General Court is the sole judge of whether the information available concerning the cases before that court needs to be supplemented (see, to that effect, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 67, and the order of the Vice-President of the Court of 17 May 2018, United States of America v Apple Sales International and Others, C‑12/18 P(I), not published, EU:C:2018:330, paragraph 22).
58
In the present case, the President of the General Court found, in paragraph 36 of the order under appeal, that in the light of the evidence in the case file, he had before him all the information necessary to determine the application for interim relief.
59
Furthermore, whether or not the evidence before it is sufficient is a matter to be appraised by the General Court alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the substantive inaccuracy of the findings of the General Court is apparent from the documents in the case (judgments of 16 July 2009, Der Grüne Punkt — Duales System Deutschland v Commission, C‑385/07 P, EU:C:2009:456, paragraph 163, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 58 and the case-law cited).
60
However, no such inaccuracy or distortion has been alleged at any time in this appeal. On the contrary, the appellant emphasised in the appeal that the audit report on the limited examination of the full interim financial statements prepared by the auditing firm, eventually provided to it on 23 March 2018, merely ‘confirmed the club’s financial situation, as shown by the club’s provisional financial statements as at 31 December 2017’.
61
The second ground of appeal must therefore be rejected and accordingly the appeal in its entirety must be dismissed.
Costs
62
Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
63
Since the Commission has applied for costs to be paid by the appellant and the appellant has been unsuccessful, the latter must be ordered to pay the costs incurred in these appeal proceedings and in the interim relief proceedings in Case C‑315/18 P(R)‑R.
On those grounds, the court hearing the application for interim measures hereby orders:
1.
The appeal is dismissed.
2.
Valencia Club de Fútbol, SAD shall pay the costs of these appeal proceedings and of the interim relief proceedings in Case C‑315/18 P(R)‑R.
[Signatures]
(
*1
)	Language of the case: Spanish.