JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
24 October 2019 (*)(1)
(State aid — Toll-motorway concession — Law providing for an exemption from tolls for certain vehicles — Compensation granted to the concession holder by the Member State for loss of revenue — Shadow toll — Decision declaring aid incompatible with the internal market and ordering its recovery — Procedural rights of the interested parties — Commission’s obligation to exercise particular vigilance — Concept of State aid — Advantage — Improvement of the concessionaire’s expected financial situation — Criterion of the private operator in a market economy — Article 107(3)(a) TFEU — Regional State aid)
In Case T‑778/17,
Autostrada Wielkopolska S.A., established in Poznań (Poland), represented by O. Geiss, D. Tayar and T. Siakka, lawyers,
applicant,
v
European Commission, represented by L. Armati, K. Herrmann and S. Noë, acting as Agents,
defendant,
supported by
Republic of Poland, represented by B. Majczyna and M. Rzotkiewicz, acting as Agents,
intervener,
ACTION under Article 263 TFEU seeking annulment of Commission Decision (EU) 2018/556 of 25 August 2017 on the State aid SA.35356 (2013/C) (ex 2013/NN, ex 2012/N) implemented by Poland for Autostrada Wielkopolska S.A. (OJ 2018 L 92, p. 19),
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni (Rapporteur), President, L. Madise and R. da Silva Passos, Judges,
Registrar: E. Artemiou, Administrator,
having regard to the written part of the procedure and further to the hearing on 6 June 2019,
gives the following
Judgment
Background to the dispute
Background
1        On 10 March 1997, following a public tender, the Republic of Poland granted to the applicant, Autostrada Wielkopolska S.A., a concession for the construction and operation of the section of the A2 motorway between Nowy Tomyśl (Poland) and Konin (Poland) (‘the relevant section of the A2 motorway’) for a period of 40 years.
2        Under the Concession Agreement signed on 12 September 1997, the applicant committed to obtain, at its own cost and risk, external funding for the construction and operation of the relevant section of the A2 motorway and, in exchange, had the right to collect tolls from the users of the motorway. That agreement also allowed it to increase the toll rates to maximise revenue, provided that they did not exceed the maximum rates defined by vehicle category.
3        Upon joining the European Union in 2004, the Republic of Poland was obliged to transpose into Polish law Directive 1999/62/EC of the European Parliament and of the Council of 17 June 1999 on the charging of heavy goods vehicles for the use of certain infrastructures (OJ 1999 L 187, p. 42). Article 7(3) of that directive provides that tolls and user charges may not both be imposed at the same time for the use of a single road section.
4        The Polish Parliament therefore adopted the ustawa o zmianie ustawy o autostradach płatnych oraz o Krajowym Funduszu Drogowym oraz ustawy o transporcie drogowym (Law amending the Law on toll motorways and the National Road Fund and the Law on road transport) of 28 July 2005 (Dz. U. no 155, position 1297) (‘the Law of 28 July 2005’). That law eliminated the double charging of heavy goods vehicles (‘HGVs’) for the use of a single road section. Accordingly, HGVs holding a vignette (toll card) for using national roads in Poland were exempted, as from 1 September 2005, from tolls on motorways covered by concession agreements.
5        Under the Law of 28 July 2005, the concession holders had to be compensated by the National Road Fund for the loss of revenue caused by the exemption from tolls. That law provided that the concession holders were entitled to a reimbursement equivalent to 70% of the amount obtained by multiplying the actual number of journeys by HGVs bearing a vignette by the shadow-toll rate negotiated with the concession holders for each category of HGV. The reduction to 70% set by that law was intended to offset the expected increase in HGV traffic on the motorways which were the subject of a concession, following the exemption of HGVs from tolls. The law in question also provided that the shadow-toll rates could not exceed the real rates applied to the corresponding vehicle category. Finally, it specified that the method of compensation was to be determined in each concession agreement.
6        With regard to the applicant, following negotiations with the Polish authorities, the method of compensation and the shadow-toll rates were set out in Annex 6 to the Concession Agreement (‘Annex 6’), concluded on 14 October 2005.
7        The Republic of Poland explained that the method of compensation laid down by Annex 6 was based on the principle that the expected financial situation of the concession holder should not change following the Law of 28 July 2005. It added that, in order to meet that objective, the expected internal rate of return (‘the IRR’) on the applicant’s investment in the relevant section of the A2 motorway must stay at the same level as it would have been at if there had been no legislative change, that is without the loss of revenue resulting from the Law of 28 July 2005.
8        The parties to Annex 6 (‘the contracting parties’) agreed that the compensation would be calculated in accordance with a two-step procedure, conducted on the basis of financial models showing the actual up-to-date and expected cash flows and allowing the IRR to be calculated. During the first step, the shadow-toll rates which the Republic of Poland was required to pay to the applicant were to be determined. During the second step, those rates were to be verified by 30 November 2007 and, if necessary, changed.
9        Thus, during the first step, the shadow-toll rates were set on the basis of the following three financial models, presented by the applicant:
–        the base model showed the financial situation of the applicant on financial closure in 2000 and assumed that real-toll collection would take place from the beginning until the end of the concession. The IRR was 10.62%;
–        the real-toll model described the financial situation of the applicant that would have prevailed as of December 2004 if HGVs were not exempted from tolls. The IRR was 10.77%;
–        the vignette model described the financial situation of the applicant that would have prevailed as of June 2005 if HGVs were exempted from tolls. In that model, the revenue consisted of shadow-toll compensation for HGVs, and real-toll collection for other vehicles. The shadow-toll rates were set at the maximum levels allowed by the Concession Agreement. The IRR was 8.20%.
10      On the basis of those financial models, the applicant demonstrated that, even applying the maximum shadow-toll rates, the real-toll model’s IRR, of 10.77%, would not be reached. For that reason, it set the shadow-toll rates at the maximum levels allowed by the Concession Agreement.
11      With effect from 1 September 2005, HGVs bearing a vignette were exempted from tolls, and the applicant received monthly compensation calculated on the basis of the number of relevant HGVs using the motorway and the agreed shadow-toll rates.
12      Thereafter, during the second step, the contracting parties were required to check how HGV traffic changed as a result of the exemption from tolls, and to adjust the shadow-toll rates accordingly in order to avoid the overpayment or underpayment of compensation. The applicant was required to submit an up-to-date financial model (‘the verification model’) showing the impact of those rates on the basic financial indicators of the Concession Agreement, including the IRR. If the verification model’s IRR exceeded the real-toll model’s IRR, the shadow-toll rates were required to be lowered in order to eliminate the excess rate of return. On the other hand, if the verification model’s IRR was lower than the real-toll model’s IRR, the rates at issue were required to be increased.
13      The applicant provided the verification model in 2007. In that model, the IRR in June 2006 was 9.20%. The verification report attached to that model and presented by the applicant suggested that the shadow-toll rates should be increased.
14      By letter of 28 November 2007, the Generalna Dyrekcja dróg krajowych i autostrad (Poland’s General Directorate for National Roads and Motorways) informed the applicant that in view of doubts regarding the correctness of assumptions made for the purposes of Annex 6, it did not accept the proposed adjusted shadow-toll rates. Notwithstanding that letter, the applicant continued to receive monthly shadow-toll payments, in accordance with the provisions of that annex. Then, on 13 November 2008, the Polish Minister for Infrastructure made a statement of withdrawal from that annex claiming, inter alia, to have concluded it in error.
15      According to the Republic of Poland, the applicant overvalued the real-toll model’s IRR by using outdated traffic and revenue forecasts. The applicant used a traffic and revenue study carried out by the consulting firm Wilbur Smith Associates (WSA) in 1999 (‘the 1999 WSA study’), whereas an updated study, from June 2004 (‘the 2004 WSA study’), was available. According to the report of 24 September 2010 commissioned by the Polish Ministry of Infrastructure and prepared by PricewaterhouseCoopers (‘the PwC report’), the use of the traffic and revenue assumptions appearing in the 2004 WSA study instead of those appearing in the 1999 WSA study reduced the IRR in the real-toll model from 10.77% to 7.42%.
16      Thus, in the opinion of the Polish Minister for Infrastructure, the applicant received excessive shadow-toll compensation. Since the applicant refused to repay the overcompensation claimed by the Republic of Poland, that Minister requested that legal proceedings be commenced to recover that overcompensation.
17      At the same time, the applicant contested the repudiation of Annex 6 by bringing the case before an arbitral tribunal. By an award of 20 March 2013, the arbitral tribunal decided in favour of the applicant, finding that that annex was valid and that the Republic of Poland should respect its provisions. By a judgment of 26 January 2018, the Sąd Okręgowy w Warszawie, I Wydział Cywilny (Regional Court, Warsaw, first Civil Division, Poland) dismissed the Polish Minister for Infrastructure’s action against the arbitral tribunal’s award of 20 March 2013. That judgment was the subject of an appeal, which is pending before the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland).
18      The system of shadow-toll compensation ceased to apply on 30 June 2011, when the Republic of Poland introduced an electronic toll-collection system that replaced vignettes.
Administrative procedure and the contested decision
19      On 31 August 2012, the Republic of Poland notified to the European Commission a measure consisting of the grant of financial compensation to the applicant, in the form of shadow tolls, due to the loss of revenue caused by the Law of 28 July 2005.
20      On 20 September 2014, the Commission decided to initiate a formal investigation procedure in relation to the notified measure (‘the opening decision’). That decision was published in the Official Journal of the European Union on 20 September 2014 (OJ 2014 C 328, p. 12).
21      On 25 August 2017, the Commission adopted Commission Decision (EU) 2018/556 of 25 August 2017 on the state aid SA.35356 (2013/C) (ex 2013/NN, ex 2012/N) implemented by Poland for Autostrada Wielkopolska (OJ 2018 L 92, p. 19; ‘the contested decision’).
22      In the first place, with regard to the existence of State aid, the Commission considered, first of all, that the applicant constituted an undertaking for the purposes of Article 107(1) TFEU, that the compensation was financed from State resources and that it was imputable to the State (paragraphs 117 to 120 of the contested decision).
23      The Commission then observed that, first, tolls were the main source of income for the applicant, secondly, the applicant was free to set the toll rates at its own discretion within the limits set by the Concession Agreement and, thirdly, the Republic of Poland was obliged, under that agreement, to compensate the applicant if its actions prevented the applicant from changing the toll rates. It observed that the Law of 28 July 2005 had deprived the applicant of the right to charge tolls in respect of HGVs. It therefore took the view that, in the specific circumstances of the present case, the applicant had a right to be compensated as a result of the change in the law (paragraphs 122 to 124 of the contested decision). It nevertheless explained that if such compensation improved the expected financial situation of the concession holder in that it went beyond compensation linked to the direct effects of the legislative change, the concession holder concerned would receive an undue advantage constituting State aid (paragraphs 125 and 126 of that decision). It added that in the present case, a possible indicator of the financial situation of the applicant was the IRR immediately prior to the legislative change (paragraph 128 of the contested decision).
24      In addition, with regard to the base model, the Commission took the view that it presented the financial situation of the applicant in 2000. It nevertheless considered that the IRR at the beginning of the concession was not relevant, since the Concession Agreement did not guarantee any level of IRR and the IRR could be different at each moment of the period of the concession (paragraph 130 of the contested decision).
25      With regard to the real-toll model, the Commission considered that the applicant should have used the available up-to-date traffic and revenue forecasts contained in the 2004 WSA study. It observed that, compared to the 1999 WSA study, the 2004 WSA study contained significantly lower traffic numbers for vehicle categories 2 and 3 and much lower optimal real-toll rates for vehicles in categories 2, 3 and 4. It took the view that reliance on the real-toll model based on the 1999 WSA study had led to a higher IRR than was reasonably expected at the time of the legislative change, which had resulted in overcompensation in the form of higher shadow-toll payments (paragraphs 135 to 139 of the contested decision).
26      With regard to the verification of the shadow-toll rates, the Commission took the view that the Republic of Poland had assumed the risk of changes in traffic for the period from the introduction of the shadow-toll system until the verification. However, it accepted that verification mechanism, on the grounds that it had made it possible to set the shadow-toll rates at a level which avoided overpayment of compensation. It also noted that the verification was done after a period which was limited compared with the whole duration of the Concession Agreement, but which was sufficient to allow the contracting parties to gather the necessary real traffic data and to build reliable traffic forecasts on that basis (paragraphs 141 and 142 of the contested decision).
27      With regard to the calculation of the overcompensation, the Commission considered that the real-toll model updated by PwC and used by it in its report (‘the PwC real-toll model’) included the traffic and revenue forecasts of the 2004 WSA study and properly represented the updated forecasts at the time of the Law of 28 July 2005. The Commission agreed that the PwC real-toll model’s IRR, of 7.42%, could be regarded as the IRR that could have been expected by the applicant immediately prior to the legislative change. It took the view that, compared to the PwC real-toll model’s IRR, of 7.42%, the IRR of 10.77% used by the applicant in the negotiations was excessive. Similarly, it pointed out that the vignette model’s IRR, of 8.20%, was above 7.42% (paragraphs 147 and 148 of the contested decision).
28      The Commission observed that, to establish the amount of the overcompensation in the period from September 2005 to October 2007, up until the verification, PwC had used the vignette model to recalculate the shadow-toll rates which should have been applied initially as of September 2005 in order to achieve an IRR of 7.42%. The Commission noted that the amount of the compensation based on the recalculated shadow-toll rates was compared with the actual payments made to the applicant. It took the view that, in that period, the overpayments amounted to around EUR 64.7 million (paragraph 149 of the contested decision).
29      The Commission observed that, to establish the amount of the overcompensation in the period after the verification, from November 2007 to June 2011, PwC had used the verification model to recalculate the shadow-toll rates in order to reach an IRR of 7.42%. The Commission noted that the amount of the compensation based on the recalculated shadow-toll rates was compared with the actual payments made to the applicant. It considered that, in that period, the overpayments amounted to around EUR 159 million (paragraph 150 of the contested decision).
30      With regard to the applicant’s argument that the market economy operator test was met, the Commission responded that that test was not met (paragraph 152 of the contested decision).
31      Finally, the Commission concluded that the applicant had received an economic advantage in the form of overcompensation, that it approved the method used by PwC to estimate the overcompensation, that that compensation constituted a selective measure and that the advantage conferred upon the applicant had the potential to distort competition and affect trade between Member States. The Commission therefore considered that the compensation paid to the applicant constituted State aid within the meaning of Article 107(1) TFEU in so far as it overcompensated the applicant for the loss of revenue resulting from the Law of 28 July 2005 (paragraphs 157 to 162 of the contested decision).
32      In the second place, with regard to the legality of the aid, the Commission took the view that as the compensation was made available to the applicant prior to the notification of that measure to the Commission, the Republic of Poland had not respected the prohibition laid down in Article 108(3) TFEU, and that the aid granted was therefore unlawful (paragraph 163 of the contested decision).
33      In the third place, with regard to the compatibility of the aid with the internal market, the Commission assessed the aid in light of the provisions of Article 107(3)(a) and (c) TFEU.
34      With regard to the provisions of Article 107(3)(c) TFEU relating to aid to facilitate the development of certain economic activities or of certain economic areas, the Commission took the view that the aid could not have an incentive effect, as the construction of the motorway was already finished when the aid was granted. Moreover, it considered that, unlike investment aid, that aid was dependent on the number of vehicles using the motorway, so that it did not contribute to the financing of an investment project, but to the recurring operating costs of the beneficiary. It concluded that the aid constituted operating aid, which was, in principle, incompatible with the internal market (paragraphs 166 to 169 of the contested decision).
35      As regards the provisions of Article 107(3)(a) TFEU, relating to regional aid, the Commission pointed out that the relevant section of the A2 motorway was located in a region covered by those provisions. It added that it was necessary, in that regard, to assess whether the operating aid at issue could be considered compatible with the internal market in light of the Guidelines on national regional aid (OJ 1998 C 74, p. 9), as amended on 9 September 2000 (OJ 2000 C 258, p. 5) (‘the 1998 Guidelines’). It took the view that the operating aid resulted only in an increase in the IRR of the project for the investors and, as such, did not contribute to regional development (paragraphs 170 to 174 of the contested decision).
36      The Commission concluded that the State aid that the Republic of Poland granted to the applicant was incompatible with the internal market (paragraph 178 of the contested decision).
37      In the fourth place, the Commission took the view that the aid must be recovered in order to re-establish the situation that existed in the market prior to its being granted (paragraph 182 of the contested decision).
38      The operative part of the contested decision is as follows:
‘Article 1
The overcompensation for the period from 1 September 2005 to 30 June 2011 amounting to [EUR 223.74 million], granted by [the Republic of] Poland to [the applicant] on the basis of the [Law of 28 July 2005], constitutes State aid within the meaning of Article 107(1) of the Treaty.
Article 2
The State aid referred to in Article 1 is unlawful as it was granted in breach of the notification and standstill obligations stemming from Article 108(3) of the Treaty.
Article 3
The State aid referred to in Article 1 is incompatible with the internal market.
Article 4
1.      [The Republic of] Poland shall recover the aid referred to in Article 1 from the beneficiary.
…’
Procedure before the General Court and forms of order sought by the parties
39      By application lodged at the Registry of the Court on 28 November 2017, the applicant brought the present action.
40      By document lodged at the Court Registry on 15 March 2018, the Republic of Poland sought leave to intervene in the present proceedings in support of the form of order sought by the Commission. By decision of 20 April 2018, the President of the Second Chamber of the Court granted leave to intervene.
41      On a proposal from the Judge-Rapporteur, the General Court (Ninth Chamber) decided to open the oral procedure.
42      The parties presented oral argument and replied to the Court’s oral questions at the hearing on 6 June 2019.
43      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
44      The Commission, supported by the Republic of Poland, contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
45      By way of a preliminary point, the applicant states that it raises a separate plea of failure to provide reasoning for the contested decision. It explains that the arguments in support of that plea are set out, in their proper context, as part of the second, third and fifth pleas in law. The applicant then raises five pleas in law: a first plea, alleging an infringement of the right to be involved in the administrative procedure; a second plea, alleging that the Commission infringed Article 107(1) TFEU by using the wrong test to assess whether there was an economic advantage, then applying that test in a manifestly incorrect manner; a third plea, alleging that the Commission infringed Article 107(1) TFEU by failing to apply the private investor test correctly and to provide adequate reasoning; a fourth plea, alleging that the Commission based its finding of incompatibility on wrong premises; a fifth plea, alleging that the Commission made a manifest error of assessment when calculating the amount of State aid.
The first plea, alleging infringement of the right to be involved in the administrative procedure
46      The applicant maintains that the Commission breached its right to due process, and the principles of sound administration and protection of its legitimate expectations. More precisely, it takes the view that it was deprived of the opportunity to participate in the formal investigation procedure to the extent appropriate in light of the circumstances of the case.
47      First, the applicant argues that it did not have the opportunity to comment on the evidence provided by the Republic of Poland. It submits that, during the approximately 3 years following the submission of its comments on 7 October 2014, the Commission exchanged with the Republic of Poland on numerous occasions without informing it of these exchanges and allowing it to submit comments. The relationship between the Republic of Poland and the applicant was adversarial in nature, which increased the risk that the information provided by the Republic of Poland to the Commission was biased, inaccurate or incomplete. In addition, the evidence submitted as part of the arbitration was worthy of examination by the Commission.
48      Secondly, the applicant takes the view that it was not allowed to comment on key evidence and on all the findings on the basis of which the Commission adopted the contested decision. It states that, on 6 May 2016, the Commission requested assistance from the Republic of Poland to open electronic files relating to the financial models, so that the Commission could not have examined those files prior to the adoption of the opening decision. The Commission also makes findings, in the contested decision, based on the conclusions from the study carried out in 2005 by the company Faber Maunsell (‘the Faber Maunsell study’) even though that study is not mentioned in the opening decision.
49      Thirdly, the applicant argues that the possibility that those irregularities may have affected the outcome of the administrative procedure cannot be ruled out. It indicates that, if it had been informed about the Commission’s opinion with regard to the Faber Maunsell study, on one hand, and to PwC’s amendments to the financial models, on the other, it would have sought to rebut that opinion.
50      The Commission, supported by the Republic of Poland, takes the view that the plea is unfounded.
51      According to settled case-law, respect for the rights of the defence is, in all proceedings initiated against a person and which are liable to culminate in a measure adversely affecting that person, a fundamental principle of EU law which must be guaranteed even in the absence of specific rules (see judgment of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraph 51 and the case-law cited).
52      However, the administrative procedure relating to State aid is initiated solely against the Member State concerned. Consequently, the undertakings receiving aid are regarded solely as ‘interested parties’ in that procedure and they cannot themselves seek to engage in an adversarial debate with the Commission in the same way as is offered to the abovementioned Member State (see judgment of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraph 52 and the case-law cited). That conclusion is inevitable even if the Member State concerned and the recipient undertakings thereof, may have diverging interests in the context of such a procedure (see judgment of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraph 54 and the case-law cited).
53      Thus, the case-law confers on the parties concerned essentially the role of information sources for the Commission in the administrative procedure instituted under Article 108(2) TFEU. It follows that, far from enjoying the same rights of defence as those which individuals against whom a procedure has been instituted are recognised as having, the parties concerned have only the right to be involved in the administrative procedure to the extent appropriate in the light of the circumstances of the case (see judgment of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraph 53 and the case-law cited).
54      In that regard, it should be recalled that, pursuant to Article 108(2) TFEU and Article 6(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), when the Commission decides to initiate the formal investigation procedure in respect of draft aid, it must give interested parties the opportunity to submit their observations. This rule is in the nature of an essential procedural requirement within the meaning of Article 263 TFEU (judgment of 11 December 2008, Commission v Freistaat Sachsen, C‑334/07, EU:C:2008:709, paragraph 55). With regard to that duty, the Court of Justice has ruled that the publication of a notice in the Official Journal was an appropriate means of notifying the persons concerned that the procedure was to be initiated, while also pointing out that the sole aim of this communication is to obtain from persons concerned all information required for the guidance of the Commission with regard to its future action (see judgment of 16 March 2016 Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraph 56 and the case-law cited).
55      Moreover, under Article 6(1) of Regulation No 659/1999, the initiating decision summarises the relevant issues of fact and law, includes a preliminary assessment on the part of the Commission and sets out the reasons for doubts as to the compatibility of the measure with the internal market. Since the purpose of the formal investigation procedure is to allow the Commission to examine in depth and to clarify the issues raised in the decision to open that procedure, in particular by obtaining observations from the Member State concerned and other interested parties, it may happen that in the course of that procedure the Commission is made aware of new factors or that its analysis changes. In that regard, it should be pointed out that, according to the case-law, the Commission’s final decision may differ somewhat from the decision to initiate the formal investigation procedure, without, however, those differences affecting the legality of the final decision (judgment of 2 July 2015, France and Orange v Commission, T‑425/04 RENV and T‑444/04 RENV, EU:T:2015:450, paragraph 134).
56      Nevertheless, the Commission must, however, without being required to submit a final analysis of the aid in question, define sufficiently the framework of its investigation so as not to render meaningless the right of interested parties to put forward their comments (judgment of 31 May 2006, Kuwait Petroleum (Nederland) v Commission, T‑354/99, EU:T:2006:137, paragraph 85). The Court has in particular held that, where the legal rules under which a Member State had notified proposed aid changed before the Commission takes its decision, the Commission had, with a view to giving its decision, as it was obliged to do, on the basis of the new rules, to ask the interested parties to express their views on the compatibility of that aid with those rules (see judgment of 11 December 2008, Commission v Freistaat Sachsen, C‑334/07 P, EU:C:2008:709, paragraph 56 and the case-law cited). It has also been held that it is not only if the Commission realised, once a decision to open the formal investigation procedure has been adopted, that that decision is based either on incomplete facts or on an incorrect legal classification of those facts, that it had to be able, even be under an obligation, to alter its position by adopting a correction decision or a new opening decision, in order to allow the interested parties to submit useful observations (see, to that effect, judgment of 30 April 2019 in UPF v Commission, T‑747/17, EU:T:2019:271, paragraph 76 and the case-law cited). It is only when the Commission changes its reasoning, following the decision to open an investigation, on facts or a legal description of those facts which prove decisive in its assessment of the existence of an aid or its compatibility with the internal market, that it must correct the opening decision or extend it, in order to allow the interested parties to submit useful observations (see, to that effect, judgment of 30 April 2019, UPF v Commission, T‑747/17, EU:T:2019:271, paragraph 77).
57      The first plea in law of the action must be examined in the light of those principles.
58      It should be pointed out at the outset that, as the applicant rightly claims, the present case differs from most of the cases concerning aid granted by the States, in that the Republic of Poland, which had not only divergent but also opposing interests to those of the applicant, argued during the administrative procedure that the notified measure, in so far as it allowed the applicant to receive excessive compensation, constituted State aid incompatible with the internal market. In that context, it was particularly important for the Commission to give the applicant the opportunity to submit meaningful comments in order to ensure that information which could demonstrate that the notified measure did not constitute State aid or was not incompatible with the internal market could be brought to the Commission’s attention. That procedural obligation was all the more important given that the applicant was entitled to compensation because of the exemption from tolls of the relevant section of the A2 motorway and that a dispute between the opponent and the Republic of Poland on the extent of such compensation was pending before the national courts. In such a situation, it was incumbent on the Commission to exercise particular vigilance as regards respect for the applicant’s right to be involved in the administrative procedure.
59      However, although the Commission published the opening decision in the Official Journal and invited the applicant to submit observations on that occasion, it subsequently did not give the applicant the opportunity to submit observations during the approximately 3 years preceding the contested decision. In contrast, it appears from paragraphs 8 to 13 of that decision that, after receiving the applicant’s comments on 7 October 2014, the Commission exchanged views with the Republic of Poland on several occasions without the applicant being involved in the procedure. In particular, the Commission forwarded the applicant’s comments to the Republic of Poland on 26 November 2014 and received the latter’s comments on 23 February 2015. It then requested additional information from the Republic of Poland by letters dated 26 June 2015 and 20 April 2016, to which the latter replied by letters dated 10 and 17 July 2015 and 18 May 2016. Finally, on 7 December 2016, the Commission services and the Polish authorities participated in a teleconference, following which the Commission again requested additional information from the Republic of Poland, which it provided on 23 May 2017.
60      In the particular circumstances referred to in paragraph 58 above, given the duration and intensity of the exchanges with the Republic of Poland after the opening decision, the Commission should have given the applicant the opportunity to submit comments again. By failing to involve the applicant in the administrative procedure to an adequate extent after receiving its comments of 7 October 2014, the Commission failed to exercise the particular vigilance to which it was bound in this case.
61      However, the fact that the Commission failed to involve the applicant in the exchanges with the Republic of Poland which took place after the opening decision, however regrettable it may be, is not such as to lead to the annulment of the contested decision in so far as, in the circumstances of the case, in the absence of such an omission, the legal analysis adopted by the Commission in the latter decision could not have been different.
62      First, it should be noted that, on 20 September 2014, the Commission published the opening decision in the Official Journal and invited interested parties to submit their comments on the notified measure, which the applicant did on 7 October 2014.
63      In this respect, it should be noted that the opening decision mentions, in a sufficiently precise manner, the relevant factual and legal elements in this case, includes a preliminary assessment and sets out the reasons which led the Commission to doubt the method of calculating the compensation granted to the applicant, the level of such compensation and the compatibility of the notified measure with the internal market. In particular, the opening decision states in paragraphs 76 to 78, first, that the Commission’s doubts concerned in particular the IRR of the real-toll collection model, secondly, that, according to the Republic of Poland, the applicant had used a study on traffic and revenue forecasts for 1999 rather than a more recent study for 2004 and, thirdly, that if the IRR of the real-toll collection model were higher than the IRR of the project before the shadow-toll system was introduced, this would result in overcompensation.
64      Secondly, it appears from the documents on the file that the Commission did not rely in the contested decision on facts or a legal classification of those facts, which are decisive for its legal analysis within the meaning of the case-law referred to in paragraph 56 above, which were not mentioned in the opening decision or which were communicated by the Republic of Poland after the opening decision.
65      Thirdly, the applicant’s argument that the evidence submitted in the arbitration should have been examined by the Commission during the administrative phase of the procedure must be rejected, since the applicant does not specify the nature of the evidence in question and, in addition, the Commission was duly informed of the existence and content of the arbitral tribunal’s award, as follows from paragraph 46 of the contested decision and the applicant’s observations of 7 October 2014.
66      Fourthly, the applicant can usefully argue that the Commission only became aware of the electronic files relating to financial models after the opening decision. Indeed, it does not appear from the contested decision that, in order to classify the compensation paid to the applicant in excess of that linked to the direct consequences of the Law of 28 July 2005 as aid incompatible with the internal market, the Commission relied on evidence discovered during the analysis of the electronic files in question. On the contrary, the Commission relied essentially on the fact, already mentioned in the opening decision, that the data from the 2004 WSA study should have been used to calculate the IRR immediately prior to the amendment of the law. Moreover, nothing prevented the applicant from commenting on the financial models used in the PwC report, since that report and its results as regards the IRR and the amount of overcompensation were mentioned in the opening decision (paragraphs 44, 46 and 77 of that decision).
67      Fifthly, the applicant’s argument that the opening decision, unlike the contested decision, did not mention the Faber Maunsell study, cannot succeed. Indeed, the Commission referred to that study in paragraph 138 of the contested decision only to consider that the study could not be used to calculate the IRR of the project. Thus, it merely dismissed, as irrelevant, a study relied on by the applicant itself in its observations. In those circumstances, the Commission cannot be accused of not having mentioned the Faber Maunsell study in the opening decision.
68      Sixthly, although the applicant argued at the hearing that it was unable to express itself, during the administrative phase of the procedure, on the position expressed by the Commission in the defence that the shadow-toll system was always intended as a short-term solution, it is sufficient to note that the contested decision is not based on such consideration, so that the applicant’s argument is ineffective.
69      It follows from the above that the Commission has sufficiently defined the framework for its examination in the opening decision and, in so doing, has enabled the applicant to provide it with all relevant information on the facts and the legal classification of those facts, which are decisive in the contested decision. It also follows from this that, contrary to the applicant’s contention, it is not established that, if the Commission had allowed the applicant to submit further observations due to the exchanges with the Republic of Poland which took place after the opening decision, that could have had an effect on the legal analysis contained in the contested decision, so that such an omission is not such as to lead to the annulment of the contested decision.
70      Consequently, the first plea in law must be rejected.
The second plea, alleging that the Commission infringed Article 107(1) TFEU by using an incorrect criterion to assess the existence of an economic advantage and then manifestly incorrectly applying that criterion
71      The applicant maintains that the Commission infringed Article 107(1) TFEU by concluding, on the basis of a ‘point-to-point’ comparison test, that it had received an economic advantage in the form of excessive shadow-toll compensation.
72      The second plea is divided into two parts concerning, first, the test used to assess whether there was an economic advantage and, secondly, the way in which the Commission applied that test in the contested decision.
The first part of the second plea, concerning the criterion for assessing the existence of an economic advantage
73      The applicant maintains, in essence, that the Commission erred in law in examining, to assess whether there was an economic advantage constituting State aid within the meaning of Article 107(1) TFEU, whether the compensation paid by the Republic of Poland had improved the financial situation which it could have expected immediately prior to the Law of 28 July 2005.
74      The applicant argues that, in the decision of 2 October 2002 State aid No N 264/02 — United Kingdom London Underground Public Private Partnership (OJ 2002 C 309, p. 14; ‘the London Underground decision’), the Commission considered that, in cases involving complex long-term agreements, there was no advantage pursuant to Article 107(1) TFEU in two scenarios, namely if an alteration did not lead to a material improvement compared to the situation at the outset of the concession period, or if a material improvement was reasonable and at market price.
75      The applicant states, relying on the London Underground decision, that the Commission should have examined whether it had received an economic advantage by taking into account its financial situation at the outset of the concession period rather than its financial situation in 2005. It takes the view that the Commission should also have verified whether a material improvement in its financial situation at the outset of that period was reasonable and at market price. It indicates that the Commission failed to explain why it had departed from its decision-making practice.
76      In that regard, the applicant argues, first, that, when assessing whether to participate in a tender, an undertaking assesses the agreed compensation and the risks involved in the project. It maintains that, in the present case, it successfully managed those risks up until 2005 and it would be unfair if it were put in a position where the risk linked to the motorway construction had not existed. Secondly, it is unreasonable to build traffic projections for the long term in the ramp-up period of a project. According to the applicant, when Annex 6 was signed, the only point of reference was the economic equilibrium of the concession at the time of financial ‘close’ in 2000 (including the 1999 WSA study), that the Republic of Poland and the lenders had agreed with the applicant. It claims that it is on this basis that it has agreed to waive direct public subsidies.
77      The applicant also states that, if the Commission had examined whether a material improvement in its financial situation was reasonable and at market price, it would have found, first of all, that the vignette model’s IRR, of 8.20%, and even the real-toll model’s IRR, of 10.77%, were below the level of return accepted by the Commission in similar projects. Thus, in relation to another section of the A2 motorway, the Republic of Poland and the Commission accepted that the market return for motorway projects in Poland was more than 11%. The Commission would then have found that, with regard to the relevant section of the A2 motorway, the difference between the vignette model’s IRR, of 8.20%, and the PwC real-toll model’s IRR, of 7.42%, was a very small improvement, which was reasonable in the case of a contract awarded under a negotiated procedure, especially given the risk disadvantages of the shadow-toll system. Safeguards could have been put in place to ensure that no overcompensation would occur until the end of the concession.
78      Finally, the applicant produces, in Annex C2 to the reply, a report by the Republic of Poland’s advisers, demonstrating that that Member State knew that the real-toll model had not been updated with more recent traffic data.
79      The Commission, supported by the Republic of Poland, disputes the applicant’s arguments.
80      In the first place, it is sufficient to observe that, according to case-law, the question whether a measure constitutes State aid must be assessed solely in the context of Article 107(1) TFEU and not in the light of an alleged earlier decision-making practice of the Commission (see judgment of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 136 and the case-law cited).
81      Consequently, the applicant cannot rely on the grounds which, in its view, the Commission has adopted in the so-called London Underground decision.
82      In the second place, it must be borne in mind that, according to settled case-law of the Court, classification of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires all the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Secondly, the intervention must be liable to affect trade between Member States. Thirdly, it must confer a selective advantage on the recipient. Fourthly, it must distort or threaten to distort competition (see judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 53 and the case-law cited).
83      According to equally settled case-law of the Court, measures which, whatever their form, are likely directly or indirectly to favour certain undertakings, or which fall to be regarded as an economic advantage that the recipient undertaking would not have obtained under normal market conditions, are regarded as State aid (see judgments of 2 September 2010, Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 40 and the case-law cited, and of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 65 and the case-law cited).
84      In the present case, it should be noted that the Commission set out in the contested decision the reasons why, in order to assess the existence of an economic advantage, it was necessary to examine whether the compensation had improved the applicant’s expected financial situation such that it could be assessed immediately prior to the Law of 28 July 2005. The Commission indicated that the right to compensation by way of the consequences of the amendment to the law meant that the concession holder had the right to receive, from the State, compensation which reinstated its expected financial situation immediately prior to the change of the Law of 28 July 2005 (paragraph 126 of that decision). It clarified, with regard to the basic model, which presented the applicant’s financial situation in 2000, that the IRR which the concessionaire could expect at the beginning of the concession period was immaterial, because the Concession Agreement did not guarantee any level of IRR, but rather transferred market and financial risks as well as opportunities to the concessionaire. It stated that the IRR could be different in each moment in time of the duration of the concession depending on the realisation of the risks and opportunities. It concluded that the relevant IRR in the present case could not be that which the applicant could have expected immediately prior to the change of the law (paragraph 130 of that decision). In addition, it replied, in paragraphs 153 and 154 of the same decision, to the applicant’s argument relating to the London Underground decision. In that respect, it stated that the IRR was a mere indicator of the financial situation used to calculate the correct compensation, and not the price paid by the Republic of Poland to the applicant for accepting Annex 6 and that, in those circumstances, that value could not be used to compare prices.
85      In those circumstances, the contested decision is sufficiently reasoned as regards the criterion used to assess the existence of an economic advantage.
86      In the third place, the Commission was right to examine whether the compensation paid by the Republic of Poland had improved the applicant’s expected financial situation such that it could be assessed immediately prior to the Law of 28 July 2005.
87      The purpose of Annex 6 was, in accordance with the Law of 28 July 2005, to compensate the applicant for the consequences of the amendment of the law. Consequently, since the applicant’s expected financial situation could evolve over time and since the Concession Agreement did not guarantee any level of return, the Commission was justified in taking into account, in assessing that financial situation, the time preceding the Law of 28 July 2005 rather than the beginning of the concession period.
88      Next, Annex 6 was not intended to allow even a limited improvement in the applicant’s expected financial situation, since it was intended solely, in accordance with the Law of 28 July 2005, to compensate it for the loss of revenue generated by the exemption from tolls. In those circumstances, the Commission did not err in law either by failing to examine whether the improvement in the financial situation resulting from the implementation of Annex 6 was reasonable and corresponded to the market price. The approach taken by the Commission in the contested decision, which consisted in examining whether the compensation paid by the Republic of Poland exceeded the compensation linked to the direct consequences of that law and unduly improved the applicant’s expected financial situation, was therefore justified in the light of the objective set by the Polish legislature. Moreover, it must be noted that, contrary to what the applicant claims, the overcompensation assessed in that decision cannot be regarded as corresponding to a ‘very small’ improvement in the financial situation which it could have expected immediately prior to the amendment of the law.
89      The applicant’s other arguments have to be disregarded.
90      First, it should be pointed out that the criterion used by the Commission to assess the existence of an economic advantage, reiterated in paragraph 86 above, does not exclude taking into account the risk associated with the construction of the motorway and the way in which, in the present case, the applicant managed that risk until 2005. On the contrary, the real-toll collection model takes into account the way in which the applicant managed the risks of the project until the Law of 28 July 2005 and integrates operating and capital expenditure, revenue and traffic for the period 1997-2005. If the applicant’s argument that it was necessary to assess the existence of an improvement in relation to its expected financial situation at the beginning of the concession period were to be accepted, it is the Republic of Poland which would have to assume the risks associated with traffic and the construction of the motorway, whereas the Concession Agreement provides the opposite.
91      Secondly, the relevance of the criterion for assessing the existence of an economic advantage used in the contested decision is not called into question by the uncertainties inherent in the performance of traffic forecasts. Indeed, although it may indeed prove difficult, in order to assess the financial situation expected of a concessionaire, to formulate long-term traffic forecasts during the start-up period of a motorway construction project, it is nevertheless justified to do so, contrary to what the applicant claims. In that regard, traffic and revenue forecasts made in 2004 are a priori more reliable and representative of the reality of the applicant’s expected financial situation immediately prior to the Law of 28 July 2005 than those made in 1999, even though the latter were taken into account when the applicant decided, in 2000, to conclude the project financing agreements and not to seek direct public subsidies.
92      Thirdly, the applicant is not entitled to rely on the IRR found for other motorway projects to try to demonstrate that the Commission should have examined whether the improvement in its financial situation was reasonable and in line with market price. Indeed, the loss of revenue that Annex 6 was intended to compensate for clearly does not depend on the IRR on other motorways. Shareholders’ expectations as to the level of return on their investment can obviously vary according to the motorway concerned, each Concession Agreement having its own specific features. Therefore, the fact that the IRR for the operation of the relevant section of the A2 motorway was lower than the one established for the management of another part of the Polish motorway network cannot justify the payment of compensation for improving, even in a limited manner, the applicant’s expected financial situation.
93      Fourthly, the applicant claims that guarantees have been put in place to ensure that no overcompensation is paid to it. Those safeguards included an absolute cap on the shadow-toll rate of 90.16 Polish zlotys (PLN) for category IV HGVs, a prohibition on dividend payments or payments of subordinated interest or principal to investors before 2018, the reimbursement of the European Investment Bank (EIB) loan granted by the Republic of Poland, and a profit-sharing mechanism.
94      However, even if the factors referred to in paragraph 93 above were capable of demonstrating that no overcompensation could be paid to the applicant, that does not make it possible to establish that the Commission committed an error of law in examining whether the compensation received by the applicant had improved the financial situation it could have expected at the time immediately preceding the Law of 28 July 2005. In addition, the applicant does not specify, in the first part of the second plea, how those factors were actually such as to ensure that the compensation did not improve its expected financial situation immediately prior to that law. Therefore, that argument has to be rejected.
95      Finally, the applicant produced, in Annex C2 to the reply, a report by the Republic of Poland’s advisers, which demonstrates that that Member State knew that the real-toll model had not been updated with new traffic forecasts. It argues that production of that document at the reply stage is justified by a new argument appearing in paragraph 17 of the defence.
96      The Commission contests the admissibility of Annex C2 to the reply and the applicant’s arguments.
97      In that regard, without the need for the Court to rule on the admissibility of Annex C2 to the reply, it must be noted that neither the criterion for assessing the existence of an economic advantage disputed by the applicant in the first part of the second plea, nor indeed the contested decision as a whole, are based on the fact that the Polish authorities discovered a posteriori the use of the 1999 WSA study in the real-toll collection model. That circumstance is referred to in the contested decision only as a contextual element in the context of the presentation of the dispute between the applicant and the Republic of Poland. Consequently, the applicant’s argument to challenge the position of the Polish authorities in this respect is ineffective.
98      The first part of the second plea in law must therefore be rejected.
The second part of the second plea, concerning the application of the criterion for assessing the existence of an economic advantage
99      The applicant maintains that the Commission made manifest errors of assessment in finding that there was an economic advantage. First, the Commission was wrong to rely solely on the IRR to understand the applicant’s financial situation. Secondly, the Commission erred in concluding that the IRR immediately prior to the legislative change was 7.42%. Thirdly, the Commission was wrong to not take account of credit ratios.
100    It is necessary to examine successively the three sets of arguments raised by the applicant to challenge the Commission’s assessment of whether the compensation paid by the Republic of Poland had improved the applicant’s expected financial situation immediately prior to the Law of 28 July 2005.
–       The alleged failure to take into account all relevant aspects of the applicant’s financial situation
101    The applicant maintains that the Commission wrongly relied on the IRR alone, whereas it should have taken into account all the relevant aspects of its financial situation.
102    The contested decision is, first of all, vitiated by a failure to provide reasoning, since it does not indicate which IRR the Commission considered relevant. In particular, paragraphs 132 and 148 of the contested decision are contradictory, with paragraph 132 stating that the shadow-toll system yielded an IRR ‘below’ 10.77%. The applicant adds that, in any event, the IRR under the shadow-toll system was not as high as 10.77%.
103    The applicant then considers that the Commission wrongly took the view that the IRR fully reflected its financial situation. In its view, the Commission should have taken account of all the respective advantages and disadvantages of the real-tolls and of the shadow tolls provided for by Annex 6. In particular, the Commission should have taken into consideration the disadvantages of the shadow tolls, that is the inflation risk, the exchange-rate risk, the regulatory risk, the operating and capital-expenditure risk, the inability to optimise tolls and the inability to receive a higher return.
104    With regard to the inflation risk and the exchange-rate risk, the applicant argues that the absolute cap on the shadow-toll rates, set at PLN 90.16 for vehicles in category IV, was not applicable under the real-toll system and thus transferred those risks to the applicant. It adds that the IRR could address only part of the impact of the cap, that is the reduction in the projected revenues. Thus, in the event, inter alia, of hyperinflation in Poland, the shadow-toll compensation paid would have remained fixed at 70% of PLN 90.16 for vehicles in category IV. The applicant takes the view that the Commission should therefore have examined whether the Republic of Poland should pay it a ‘premium’ to cover the inflation risk. With regard to the exchange-rate risk, the applicant states that, in the event that the shadow-toll rates reached the cap, if the Polish zloty had lost value, the applicant would have run the risk of not being able to service its debts denominated in euros.
105    According to the applicant, the Commission should also have taken into account, first, that it was exposed to increased regulatory risk as a result of the Republic of Poland’s infringement of its contractual obligations and, secondly, that the switch to a shadow-toll system led to an increase in HGV traffic and an increase in operating and even capital expenditure, thirdly, that, in the shadow-toll system, it was no longer able to set tolls at the optimal level, fourthly, that the system removed or reduced the possibility for it to ‘gain more than initially contemplated’ by limiting the income per vehicle to 70% of a tariff subject to an absolute cap without the possibility of adjusting tolls to increase revenues.
106    The applicant concludes that those disadvantages were such that a higher IRR under the shadow-toll system than the PwC real-toll model’s IRR, of 7.42%, did not result in an improvement in its financial position. To determine whether there was an improvement in its financial position, the Commission should have compared, on one hand, the PwC real-toll model’s IRR, of 7.42%, and, on the other hand, the IRR following the implementation of Annex 6, minus the many disadvantages of the shadow tolls.
107    However, the applicant’s argument must be rejected, as the Commission rightly argues.
108    First, the applicant is not entitled to maintain that the contested decision is not sufficiently reasoned with regard to the relevant IRR to assess its expected financial situation immediately prior to the amendment of the law. In the contested decision, the Commission makes it unambiguously clear that that IRR of the PwC model of effective collection of the 7.42% toll constitutes the IRR that the applicant could expect immediately prior to the amendment of the law (paragraph 147 of that decision). It also clearly noted, in paragraph 148 of that decision, that this IRR was lower than both the IRR of the real-toll collection model of 10.77% and the IRR of 8.20% of the vignette model, the latter two having been used by the applicant, in the context of the negotiations on the compensation method, to justify fixing shadow-toll rates at the maximum permitted levels.
109    In this respect, there is no contradiction in the contested decision as regards the level of the IRR of the vignette toll model. Both paragraphs 132 and 148 of that decision refer to an IRR of 8.20% in that model. As the Commission points out, it does not therefore appear from the contested decision that the IRR of the vignette model was 10.77%, which corresponds to the IRR of the real-toll collection model alone. Moreover, the contested decision contains, in paragraph 134, an uncontested table summarising the IRRs in the different financial models applied by the contracting parties.
110    Next, it does not appear from Annex 6 that the contracting parties intended to take into account the alleged disadvantages of the shadow-toll system now used by the applicant, let alone that they have concluded an agreement in this respect. In particular, that annex does not include any consideration relating to the increase in the risks alleged by the applicant.
111    In particular, it should be pointed out that, during the negotiations between the contracting parties on the fixing of shadow-toll rates, the IRR of the vignette model, calculated by the applicant itself, was not presented as including an element of compensation for one of the disadvantages alleged by the applicant.
112    In addition, the existence, in the shadow-toll system implemented by Annex 6, of inconveniences likely to significantly affect the applicant’s expected financial situation is not established. First, with regard to inflation and exchange rate risks, it should be noted that, pursuant to Annex 6, shadow-toll rates were indexed to fluctuations in the inflation rate and exchange rate, and increased, in addition, every 6 months from 1 September 2007, by an additional factor called WWR. Through the verification mechanism, the Republic of Poland has also taken on board the risks related to traffic and revenue developments and ensured that the IRR would remain at the same level as expected before the amendment of the law during the period from 1 September 2005 to 31 December 2006. In those circumstances, the mere existence of a shadow-toll rate cap, not indexed to fluctuations in the inflation rate and the exchange rate, cannot be considered as having transferred the inflation and exchange rate risk to the applicant and as justifying the payment of a ‘premium’ to the applicant. Secondly, the existence of an increased regulatory risk is not demonstrated, whereas the process of accession of the Republic of Poland to the Union was known when the Concession Agreement was concluded, the amendment of the law transposing the obligations under Union law into Polish law was not unforeseeable and the Republic of Poland compensated the applicant for the loss of revenue caused by the amendment of the law. Thirdly, the considerations relating to the increase in operating expenses could not hold, since that risk was borne by the applicant under that contract and the financial models presented by the latter, in particular the vignette model and the verification model, included operating expenses. Finally, as regards the impossibility of fixing tolls at the optimal level and the impossibility of benefiting from a higher return than initially planned, it should be noted (i) that the applicant remained free to set the toll rates applicable to vehicles other than HGVs equipped with a vignette, so that it could adapt its commercial strategy to market developments, and that (ii) it had used, as of 1 September 2005, all the possibilities to increase its actual tariffs for HGVs by fixing them at the maximum levels authorised by that contract. The disadvantages alleged by the applicant could therefore not significantly affect its anticipated financial situation.
113    In those circumstances, the Commission did not err in assessing whether the shadow-toll system provided for in Annex 6 had improved the applicant’s expected financial situation, without taking into account the disadvantages alleged by the applicant.
–       Level of the IRR immediately prior to the legislative change
114    The applicant maintains that the Commission wrongly found that the IRR immediately prior to the legislative change was 7.42%.
115    First, the applicant takes the view that the Commission’s findings in relation to the 2004 WSA study, used to calculate the PwC real-toll model’s IRR, are manifestly wrong. It states that the probative value of traffic studies is limited and that, in the absence of a reliable traffic study, the contracting parties found common ground in a methodology whereby the applicant’s initial expectations in terms of return were used as a basis for the calculation but were reduced, by applying the cap, to a level that the State considered acceptable.
116    In addition, the applicant argues that the 2004 WSA study was not commissioned to help to calculate the shadow-toll compensation and is not an update of the 1999 WSA study. The 2004 WSA study was commissioned as part of preparatory works to reach the financial ‘close’ of another section of the A2 motorway. It indicates that, if the contracting parties had planned to use the 2004 WSA study, they would have appointed their own expert to verify whether the data in that study was collected in an appropriate way.
117    The applicant adds that the Commission wrongly rejected more recent studies than the 2004 WSA study. It argues that it provided the General Directorate for National Roads and Motorways with actual traffic data. In addition, other studies were available in 2005, including a study by the banks’ traffic adviser and the Faber Maunsell study. The applicant indicates that the latter study was commissioned by the Republic of Poland for the very purpose of determining the shadow-toll compensation and that the Commission wrongly decided, relying exclusively on a statement by the Republic of Poland, that that study concentrated on traffic forecasts alone.
118    Secondly, the applicant states that, to update the real-toll model and conclude that the IRR immediately prior to the legislative change was 7.42%, the Commission wrongly relied on an inadequate and subjective report by PwC. PwC, at the request of the Republic of Poland, merely replaced certain cells in an Excel file pertaining to traffic data, without questioning the underlying assumptions. The Commission did not assess whether the methodology used by PwC to calculate the IRR was lege artis, thus vitiating its decision through a failure to provide reasoning.
119    The applicant’s argument cannot be accepted, as the Commission maintains.
120    First, the Commission rightly concluded that the applicant should have used, in the real-toll collection model, the traffic and revenue forecasts of the 2004 WSA study rather than those of the 1999 WSA study.
121    First of all, as mentioned in paragraph 91 above, in order to assess the financial situation expected of a concessionaire, it is justified to formulate long-term traffic forecasts during the start-up phase of a motorway project. In that regard, contrary to what the applicant claims, it does not appear from the documents in the file that the contracting parties had agreed to compensate for the unreliability of the traffic studies by a cap on shadow-toll rates.
122    In addition, the documents in the file show that WSA produced a series of studies, prepared by the same advisor, using the same methodology, in order to develop traffic and revenue forecasts for the A2 motorway. For example, it first carried out a study for the European Bank for Reconstruction and Development (EBRD) on the traffic and revenues of the A2 motorway. Next, the 1999 WSA study, prepared for another bank, updated that first study and developed the financial model used to estimate the project’s IRR when the accounts were closed in 2000. Then, the 2004 WSA study, prepared for the applicant itself, was developed as the applicant was considering the implementation of the new section of the A2 motorway. However, the terms of that study show that it was intended to update the traffic and revenue forecasts previously made, with, admittedly, particular attention to the new section of the A2 motorway, but by updating those forecasts for the relevant section of that motorway. Finally, the 2006 WSA study, which includes an update of the forecast under the shadow-toll scenario, was used to verify the 2007 shadow-toll rates.
123    Accordingly, the 2004 WSA study updated the traffic and revenue forecast of the 1999 WSA study, taking into account the actual traffic and revenue trends in the relevant section of the A2 motorway and the economic development of Poland. It therefore contains more relevant traffic and revenue forecasts than those contained in the 1999 WSA study and more accurately reflects the reality of the market at the time of the amendment of the law. Moreover, there is no evidence in the file to suggest that the additional appointment of an expert was necessary to be able to use the 2004 WSA study in the real-toll collection model.
124    Annex 6 also refers, in Article 4(d)(ii)(A), to the financial model that the contracting parties had agreed should be used for the calculation of the IRR immediately prior to the legislative change. Specifically, it referred to ‘Wilb[u]r Smith shareholders’ case, which is the update as of 31 December 2004’. Although that model does not specify which traffic and revenue forecasts should be used as input data, the most recent forecasts prepared by WSA were, in this context, more relevant than the 1999 WSA study.
125    Moreover, the other information and studies relied on by the applicant are not such as to call into question the relevance of the 2004 WSA study to assess its expected financial situation immediately prior to the Law of 28 July 2005. First, the actual traffic data provided by the applicant to the General Directorate for Roads and Motorways are clearly not of the same nature as traffic and revenue forecasts. Secondly, the study carried out in 2005 by the banks’ traffic adviser concerns the shadow-toll scenario, whereas the assessment of the applicant’s expected financial situation immediately prior to the amendment of the law was based on the real-toll collection scenario. Thirdly, it is clear from paragraph 138 of the contested decision that the Faber Maunsell study relied on by the applicant does not take into account the revenue forecasts, so that that study could not be used to calculate the project’s IRR. In that respect, that decision is sufficiently reasoned, since it sets out the reason why the latter study was irrelevant. Moreover, it should be pointed out that, contrary to the applicant’s argument, a study relating solely to traffic forecasts cannot have the same relevance as the 2004 WSA study, which also covered revenue forecasts, and that, in so far as the applicant questions the reasoning of the contested decision as regards the content of the Faber Maunsell study, it did not produce that study.
126    Secondly, the Commission was able to validly rely on the PwC model of real-toll collection to conclude that the IRR immediately prior to the amendment of the law was 7.42%. Indeed, that model uses the 2004 WSA study, the data of which are more relevant than the 1999 WSA study, as noted in paragraphs 123 and 124 above. Moreover, contrary to the applicant’s contention, paragraphs 146, 147 and 157 of the contested decision show that the Commission examined whether PwC’s method for updating the real-toll collection model was appropriate and gave sufficient reasons for its decision in this respect. Finally, the applicant is not justified in claiming that the PwC report is inadequate and subjective. In that regard, it must be noted that that report did not call into question the assumptions of the model for the effective collection of tolls, presented by the applicant itself, and that, in any event, the applicant does not claim that those assumptions are incorrect.
127    Consequently, the Commission’s conclusion that the IRR expected by the applicant immediately prior to the amendment of the law was 7.42% is not vitiated by any manifest error of assessment.
–       Failure to take into account credit ratios
128    The applicant maintains that the Commission erred in not taking into account credit ratios to assess whether there was an improvement in its financial situation. It indicates that a positive IRR outlook was of no help if, at some point before the end of the period between 2005 and 2037, it was incapable of repaying its loans. The Commission should therefore have examined whether shadow-toll rates set at a level to achieve the PwC real-toll model’s IRR, of 7.42%, allowed the credit ratio requirements to be met. The applicant adds that, according to the PwC report, taking into account the shadow-toll rates recalculated to achieve an IRR of 7.42%, it would have incurred a cash shortfall in the year of repayment of the EIB loan.
129    That argument cannot be accepted.
130    Indeed, as the Commission rightly argues, the objective of Annex 6 was, in accordance with the Law of 28 July 2005, to compensate the applicant for the loss of revenue caused by the amendment of the Law and not to improve its financial situation towards its creditors.
131    The contracting parties had accordingly agreed, in Annex 6, that the shadow-toll rates would be verified in 2007 and that, in the event that the shadow-toll rates were not high enough to comply with the credit ratios and would not allow the applicant to repay its debt, they would be raised to a level allowing such reimbursement. However, they also agreed that once that debt had been repaid, those tariffs would be adjusted downwards so that the IRR would remain at the level initially established according to the real-toll collection model. According to that annex, if the debts were not repaid before the end of 2018, the downward adjustment of the shadow-toll rates would be made after that date.
132    Consequently, the provisions of Annex 6 relating to the repayment of the debt, which had the effect solely of granting an advance on the payment of the compensation in so far as this would be necessary to ensure such repayment, have no impact on the IRR taken into consideration by the Commission and evaluated, according to the real-toll collection model, at 7.42% before the amendment of the law. In those circumstances, the applicant is not entitled to criticise the Commission for not having taken into account the credit ratios when determining whether the compensation paid by the Republic of Poland had improved its financial situation.
133    It follows that the second plea must be rejected.
The third plea in law, alleging that the Commission infringed Article 107(1) TFEU by failing to apply the private investor test correctly and by failing to develop an adequate statement of reasons
134    The applicant maintains that the Commission wrongly applied the private investor test. It takes the view that the Commission, first, wrongly applied that test as an exception, secondly, made a manifest error of assessment and, thirdly, failed to take account of the relevant information which a private investor, in a situation comparable to that of the Republic of Poland, would have examined.
135    The Commission, supported by the Republic of Poland, disputes the applicant’s arguments. In particular, the Republic of Poland argues that the private operator criterion was not applicable in the present case.
136    In the first place, the applicant maintains that the Commission erred in examining the private investor test as an exception. The Commission found that there was overcompensation, determined the amount of that overcompensation, and only then proceeded to apply the private investor test. It did not address the impact of Annex 6 on the Republic of Poland’s economic situation. Moreover, it did not give its view on the applicability of that test, vitiating its decision through a failure to provide reasoning.
137    It should be borne in mind that, having regard to the objective of Article 107(1) TFEU of ensuring undistorted competition, the definition of ‘aid’, within the meaning of that provision, cannot cover a measure granted to an undertaking through State resources where it could have obtained the same advantage in circumstances which correspond to normal market conditions. The assessment of the conditions under which such an advantage was granted is therefore made, in principle, by applying the private operator principle (see, to that effect, judgments of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 78, and of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraphs 21 and 22).
138    It should also be borne in mind that the private operator principle is one of the factors that the Commission is required to take into account for the purposes of establishing the existence of aid and is not, therefore, an exception that applies only if a Member State so requests, when it has been found that the constituent elements of ‘State aid’, as laid down in Article 107(1) TFEU, exist (see, to that effect, judgments of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 103; of 3 April 2014, Commission v Netherlands and ING Groep, C‑224/12 P, EU:C:2014:213, paragraph 32; and of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 23).
139    It is clear from that case-law that, when it appears that the private creditor test might be applicable, it is for the Commission to examine that possibility, irrespective of any request to that effect (see, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 25).
140    In the present case, the applicant, the beneficiary of the aid, claimed, in the context of the formal investigation procedure, that the private investor test was applicable and fulfilled. Although the Commission did not expressly rule on the applicability of that criterion, it assessed whether the conditions for the application of that criterion were met.
141    Accordingly, since the Commission has taken into account the private investor test, even though the Republic of Poland had not invoked that test, the applicant is incorrect to submit that the Commission considered that test to be an exception within the meaning of the case-law referred to in paragraph 138 above.
142    Moreover, the applicant is not entitled to claim that the Commission found that there was overcompensation, determined the amount of that overcompensation, and only then proceeded to apply the private investor test. Indeed, although the Commission did consider the amount of the overpayment as a result of the PwC report (paragraphs 146 to 150 of the contested decision), before addressing the private investor test (paragraphs 151 and 152 of that decision), it definitively decided on the existence of an economic benefit and on the amount of the overpayment only after considering the private investor test (paragraph 158 of that decision).
143    Moreover, the applicant has no grounds for criticising the Commission for having solely taken an interest in the applicant’s financial situation in the context of the application of the private investor test and for not addressing the impact of Annex 6 on the economic situation in the Republic of Poland.
144    In that regard, it should be borne in mind that, for the application of the private operator test, it is necessary to determine whether the same advantage as that made available to the beneficiary undertaking through State resources would have been granted by a private investor in normal market conditions (see, to that effect, judgment of 1 October 2015, Electrabel and Dunamenti Erőmű v Commission, C‑357/14 P, EU:C:2015:642, paragraph 144 and the case-law cited).
145    Yet, it appears from paragraph 152 of the contested decision that the Commission rightly orientated itself from the point of view of a hypothetical rational private economic entity in order to assess whether that entity would have conferred the same advantage as that granted to the applicant by the Republic of Poland.
146    Finally, although it is true that the Commission did not indicate in the contested decision whether the private investor test was applicable, it did explain why the conditions for applying that test were not met. In so doing, the Commission did not vitiate its decision with a lack of reasoning, since it clearly indicated the reasons why, even assuming the test to be applicable, the applicant could not have obtained the advantage at issue under normal market conditions.
147    In the second place, the applicant argues that the Commission made a manifest error of assessment, in paragraph 152 of the contested decision, in taking the view that the private investor test was not met.
148    On one hand, the Commission vitiated its decision through a failure to provide reasoning in indicating that the shadow-toll rates were higher than required by law and higher than required by the Concession Agreement, without stating to which law it referred or mentioning a specific article of the Concession Agreement. Furthermore, the applicant argues that, although the Commission intended to refer to Polish law, only the Polish courts are competent to interpret that law. In that regard, the Commission erred, and vitiated the contested decision through a failure to provide reasoning, in interpreting that law differently to the arbitral tribunal, without providing an explanation for that. The Commission’s assumptions in relation to national law are therefore unclear, unsupported and contrary to the competent body’s decision.
149    On the other hand, the applicant states that, according to the contested decision, there were doubts as to whether a private investor would have agreed to calculate compensation using the 1999 WSA study and not the 2004 WSA study. A finding of doubts, which is the relevant criterion for commencing a formal investigation procedure, does not indicate whether the Commission ultimately considered that the use of the 1999 WSA study was manifestly outside the range of options which a private investor would have considered, so that the contested decision lacks reasoning. In addition, the Commission did not provide any reasoning for its finding but simply stated the result of its assessment.
150    The applicant adds that, in any event, a private investor would not be focused solely on the financial model based on the 1999 WSA study, but would have examined the inherent limitations of traffic studies, and would have nominated its own expert, and would not have dismissed the Faber Maunsell study.
151    However, when the Commission examined the application of the private investor test, it neither vitiated its decision with a failure to state reasons nor committed the manifest error of assessment alleged by the applicant.
152    The Commission considered, in essence, in paragraph 152 of the contested decision, that the Law of 28 July 2005 and the Concession Agreement imposed on the Republic of Poland an obligation to compensate the applicant only up to the amount equal to the estimated loss of revenue due to the relevant legislative change. It stated that it cannot be argued that paying more than what was required by the Law of 28 July 2005 and the Concession Agreement would be acceptable to a hypothetical, rational private operator. It added that it was highly doubtful that such an entity would agree to calculate the compensation on the basis of the 1999 WSA study rather than the more recent 2004 study. It concluded that the private investor test was not met.
153    In so doing, the Commission first of all gave sufficient reasons for the contested decision with regard to the application of the private investor test. It pointed out that the Law of 28 July 2005 and the Concession Agreement only required compensation to be paid to the applicant for the loss of revenue caused by the amendment of the Law. By using the wording ‘the law’ in the second sentence of paragraph 152 of that decision, it clearly referred to the Law of 28 July 2005, mentioned in the previous sentence of that decision. The applicant cannot, moreover, usefully argue that the contested decision does not refer to a specific article of the Concession Agreement, since the Commission did not consider that the overcompensation paid to the applicant infringed the provisions of an article of that agreement. Moreover, the Commission was not required to refer to the arbitral award, which was not binding on it for the application of Article 107(1) TFEU and which, moreover, did not state that the data from the 1999 WSA study were more relevant than those from the 2004 WSA study in assessing the applicant’s expected financial situation immediately prior to the amendment of the law. In considering that it was ‘doubtful’ that a reasonable private business entity would agree to calculate the compensation on the basis of the 1999 WSA study rather than on the basis of the more recent 2004 study, it made it sufficiently clear that it did not appear from the documents in the file that such an entity would have used the 1999 WSA study and motivated its assessment by emphasising the more recent nature of the 2004 WSA study.
154    Next, the considerations adopted by the Commission in paragraph 152 of the contested decision are not vitiated by a manifest error of assessment. In that regard, taking into account the factors referred to in paragraphs 122 to 125 above, there is no reason to believe that a private operator, assuming that it could be placed in a situation similar to that of the Republic of Poland, would have accepted, taking into account the objective of ensuring compensation solely for the adverse consequences of the Law of 28 July 2005, to rely on the data from the 1999 WSA study rather than the more recent data from the 2004 WSA study, or would have required, in such a context, the additional appointment of an expert or would have preferred to use the data from the Faber Maunsell study.
155    In the third place, the applicant argues that the Commission neither sought nor took into account the relevant evidence which a private investor would have examined, that is, on one hand, the risks of ‘no deal’ and, on the other, the advantages of Annex 6. It states that, taking account of that evidence, Annex 6 was not manifestly outside the range of options which a private investor would consider, since the difference between the PwC real-toll model’s IRR, of 7.42%, and the vignette model’s IRR, of 8.20%, is only 0.78%.
156    On one hand, with regard to the risks for a private investor of ‘no deal’, the applicant explains, first, that such an investor would take account of the risk of failed negotiations. It would take account of the fact that, according to the Republic of Poland’s advisers, the Republic of Poland’s key demands had been fulfilled.
157    Secondly, a private investor would take account of the litigation risk of ‘no deal’. The applicant would have had the right, in the absence of adequate compensation, to terminate the Concession Agreement and claim damages. The applicant’s lenders and/or investors could also have sought damages. In the event of termination, under Article 20.3 of the Concession Agreement, the Republic of Poland would have been liable to pay damages of at least EUR 1.4 billion, consisting of the amount of outstanding debt and the net present value of outstanding distributions to subordinated investors.
158    Thirdly, a private investor would have taken into consideration the consequences of ‘no deal’ taking account of the EIB-loan guarantee. Lower compensation would have given rise to a risk of the applicant’s terminating the Concession Agreement for good cause or being unable to repay the EIB loan and, in both cases, would have exposed the Republic of Poland to immediate repayment of that loan, including a prepayment penalty.
159    Fourthly, in the event of termination of the Concession Agreement, the Republic of Poland would have had to seek a new operator of the motorway or operate the motorway itself. In that regard, the minimum operating costs of the motorway would amount to a total of PLN 2.2 billion, information which a private investor would not ignore. The Commission should have asked the Republic of Poland to quantify the operating costs and should have taken account of that information.
160    On the other hand, with regard to the advantages of Annex 6 for a private investor, the applicant states that those advantages are the corrollary for such an investor of the disadvantages of that annex, described in paragraphs 103 to 105 above, for the applicant. A private investor would have taken account, in particular, of the applicant’s taking over the inflation risk and the exchange-rate risk, would have asked for information on the value of such advantages and would have duly examined them.
161    Nevertheless, the applicant’s line of argument cannot succeed.
162    It follows from settled case-law that, when it appears that the private operator principle might be applicable, it is for the Commission to ask the Member State concerned to provide it with all the relevant information enabling it to determine whether the conditions for applying that test are satisfied (see, to that effect, judgments of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 104; of 3 April 2014, Commission v Netherlands and ING Groep, C‑224/12 P, EU:C:2014:213, paragraph 33; and of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 24 and the case-law cited).
163    Moreover, when applying the private operator test, the Commission must carry out an overall assessment, taking into account all relevant evidence in the case enabling it to determine whether the recipient company would manifestly not have obtained comparable facilities from such a private operator (see, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 59).
164    In that regard, all information liable to have a significant influence on the decision-making process of a normally prudent and diligent private operator, who is in a situation as close as possible to that of the Member State, must be regarded as being relevant (see, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 60).
165    However, in the first place, as regards the risks incurred by a private operator in the absence of a transaction alleged by the applicant, it should be pointed out that such a private operator, assuming that it could be placed in a situation similar to that of the granting authority as a party to a Concession Agreement, would have concluded an amendment to that contract only to compensate the applicant, in accordance with the Law of 28 July 2005, for the sole loss of revenue caused by the toll exemption. Consequently, in calculating the amount of compensation granted to the applicant, a private operator would not take into account the alleged risks to its own financial situation in the event of failure of the negotiations and would not agree, for that reason, to pay higher compensation. Indeed, none of the risks listed in paragraphs 156 to 159 above make it possible to calculate the loss of revenue that Annex 6 was intended to compensate. Moreover, those risks were not discussed by the contracting parties during the negotiation of that annex and were not taken into account when calculating the amount of compensation paid to the applicant pursuant to that annex.
166    In particular, it should be recalled that the Commission essentially confined itself in the contested decision to challenging the application of Annex 6 with regard to the data used in the financial models. However, the multiple financial risks allegedly incurred by a private operator in the absence of a transaction have nothing to do with the relevance of the data used in the financial models. As a result, there is no reason to believe that a private operator would have agreed to use the irrelevant data from the 1999 WSA study rather than the 2004 WSA study to account for those risks.
167    Accordingly, first, the risk of failure of the negotiations and the risk of litigation were not taken into account by a private operator in the negotiations to calculate the amount of compensation due to the applicant, since those risks have nothing to do with the loss of revenue caused by the amendment of the law. In addition, those considerations also concern the applicant, which also had an interest in ensuring that the negotiations were successful and that litigation relating to a claim for damages was avoided. Although the applicant points out that the Republic of Poland’s advisers indicated that the State’s main requests had been met during the negotiation of Annex 6, it does not establish or even claim that the advisers considered that the risk of failure of the negotiations and the litigation risk should be taken into account in determining the IRR immediately prior to the amendment of the law.
168    Secondly, the risk linked to the applicant’s failure to repay the EIB loan would not have justified, on the part of a private operator, the payment of compensation in excess of the loss of revenue caused solely by the amendment of the law. In that respect, the contested decision did not call into question the mechanism of Annex 6 with regard to the EIB loan, which allowed both the repayment of that loan and the payment to the applicant of compensation calculated on the basis of the IRR immediately prior to the amendment of the law.
169    Thirdly, the risk linked to the assumption by a private operator of the operating costs of the motorway was not taken into account for the payment of compensation to the applicant, since that risk does not correspond to the loss of revenue caused by the amendment of the law. Consequently, a private operator would not have granted the applicant greater compensation to take into account the possibility that it would itself have to bear the operating costs of the motorway in the event of termination of the Concession Agreement. Moreover, as stated in paragraph 112 above, the operating expenses of the motorway, in so far as they were borne by the applicant, were included in the financial models submitted by the latter and were duly taken into account in calculating the amount of compensation due pursuant to the Law of 28 July 2005.
170    In the second place, as regards the alleged advantages of Annex 6, the applicant submits that these advantages are the corollaries of the disadvantages of that annex for itself, as described in paragraphs 103 to 105 above. In this respect, as noted in paragraphs 110 to 112 above, those disadvantages have not been discussed by the contracting parties and their existence is, in any event, not established. For the same reasons, there is no evidence that a private operator would have taken into account the alleged advantages of that annex in calculating the amount of compensation paid to the applicant and would have agreed, for that reason, to pay it compensation calculated on the basis of an IRR higher than that of the PwC model for real-toll collection.
171    Consequently, the applicant is not justified in claiming that the Commission should have sought and taken into account the information relating to the factors set out in paragraphs 156 to 160 above in assessing whether the applicant could have obtained the same economic advantage under normal market conditions. Nor is it justified in arguing that, in view of those factors, a private investor was likely to grant it compensation comparable to that granted to it by the Republic of Poland.
172    The third plea must therefore be rejected, without it being necessary to examine the Republic of Poland’s argument that the private operator test was not applicable in the present case.
The fourth plea in law, claiming that the Commission based its conclusion as to the incompatibility of the aid on incorrect considerations
173    The applicant maintains that the Commission based its conclusion that the aid was incompatible on the erroneous finding that that aid only benefited ‘investors’. It confirms that it used the compensation not to pay dividends but to pay for increased operating costs and to service its debt, as the Commission itself explained in paragraph 175 of the contested decision, thus contradicting the reasoning in paragraph 174 of that decision. Moreover, the Commission did not verify whether the compensation paid led to an improvement in its financial situation in relation to the credit ratios, but relied on speculation that Annex 6 may lead to early repayment of loans and subsequent payments to investors, and not on accurate and verifiable facts, which constitutes a manifest error of assessment.
174    The Commission, supported by the Republic of Poland, challenges the applicant’s arguments.
175    It should be noted that the applicant does not dispute, by this plea, that the measure in question does not fulfil the conditions laid down in Article 107(3)(c) TFEU on aid to facilitate the development of certain economic activities or of certain economic areas. In particular, it does not dispute the grounds of the contested decision, referred to in paragraph 34 above, that the aid in question constituted operating aid.
176    In contrast, the applicant’s argument is intended, in essence, to call into question the Commission’s assessment under the provisions of Article 107(3)(a) TFEU on regional aid.
177    In that respect, the Commission considered that the relevant section of the A2 motorway was in a disadvantaged region under Article 107(3)(a) TFEU. It added that it had to be assessed whether the operating aid at issue could be considered compatible with the market under the 1998 Guidelines. It indicated that, under point 4.15 of those guidelines, operating aid that is normally prohibited could however be exceptionally granted in regions eligible under Article 107(3)(a) TFEU provided that (i) it is justified in terms of its contribution to regional development and its nature and (ii) its level is proportional to the handicaps it seeks to alleviate. It added that, according to this point, it was for the Member State to demonstrate the existence of the handicaps and noted that, according to the Republic of Poland, the aid did not contribute to regional development (paragraphs 170 to 173 of the contested decision). It then considered that the operating aid in question had only increased the IRR of the project for investors and, as such, did not contribute to regional development, so that the criteria set out in point 4.15 of the 1998 Guidelines were not met. In addition, it clarified that it did not matter that the compensation for the applicant was not used to return profits to the shareholders, but that it was intended for the repayment of the EIB loan (paragraphs 174 and 175 of that decision).
178    It should be borne in mind that Article 107(3)(a) TFEU provides that aid to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment may be considered to be compatible with the internal market. As regards a derogation from the general principle of the incompatibility of State aid with the internal market, Article 107(3)(b) TFEU must be interpreted strictly (see judgment of 14 October 2010, Nuova Agricast and Cofra v Commission, C‑67/09 P, EU:C:2010:607, paragraph 74 and the case-law cited).
179    It is settled case-law that the Commission enjoys a broad discretion in the application of Article 107(3) TFEU, the exercise of which involves complex economic and social assessments (see judgment of 8 March 2016, Greece v Commission, C‑431/14 P, EU:C:2016:145, paragraph 68 and the case-law cited). In that context, judicial review of the manner in which that discretion is exercised is confined to establishing that the rules of procedure and the rules relating to the duty to give reasons have been complied with, and to verifying that the facts relied on are accurate and that there has been no error of law, manifest error in the assessment of the facts or misuse of powers (see judgment of 22 December 2008, Régie Networks, C‑333/07, EU:C:2008:764, paragraph 78 and the case-law cited).
180    Thus, the Commission is entitled to refuse the grant of aid where that aid does not induce the recipient undertakings to adopt conduct likely to assist attainment of one of the objectives referred to in Article 107(3) TFEU. Such aid must thus be necessary for the attainment of the objectives specified in that provision, with the result that, without it, market forces alone would not succeed in getting the recipient undertakings to adopt conduct likely to assist attainment of those objectives. Aid which improves the financial situation of the recipient undertaking but is not necessary for the attainment of the objectives specified in Article 107(3) TFEU cannot be considered to be compatible with the internal market (see judgment of 13 June 2013, HGA and Others v Commission, C‑630/11 P to C‑633/11 P, EU:C:2013:387, paragraph 104 and the case-law cited).
181    In the exercise of that discretion, the Commission may adopt guidelines in order to establish the criteria on the basis of which it proposes to assess the compatibility, with the internal market, of aid measures envisaged by the Member States (judgment of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 39).
182    Under the heading ‘Operating aid’, point 4.15 of the 1998 Guidelines reads as follows:
‘4.1.5. Regional aid aimed at reducing a firm’s current expenses (operating aid) is normally prohibited.
Exceptionally, however, such aid may be granted in regions eligible under the derogation in Article [107(3)(a) TFEU] provided that (i) it is justified in terms of its contribution to regional development and its nature and (ii) its level is proportional to the handicaps it seeks to alleviate … It is for the Member State to demonstrate the existence of any handicaps and gauge their importance.’
183    In the present case, the Commission did not make a manifest error in considering, in paragraph 174 of the contested decision, that the operating aid in question had led only to an increase of the IRR in the project. Indeed, it appears from the reasons of the contested decision relating to the existence of the aid, which are not vitiated by the errors alleged by the applicant in the second and third pleas in law, that the compensation paid to the applicant, resulting from the inclusion of a higher IRR than that which the applicant could have expected immediately prior to the amendment of the law, constitutes an economic advantage in the form of operating aid. Consequently, the Commission, which gave sufficient reasons for its decision in this respect, was able to conclude, without committing a manifest error of assessment, that the operating aid in question, since it had the sole effect of increasing the IRR of the project, did not contribute to regional development and did not fulfil the criteria set out in point 4.15 of the 1998 Guidelines.
184    Moreover, it is correct and without contradicting itself that the Commission took the view, in paragraph 175 of the contested decision, that the fact that the compensation for the applicant be used to pay dividends to shareholders or to repay the EIB loan was irrelevant for the purposes of assessing the compatibility of the measure. Indeed, neither the payment of dividends to shareholders nor the repayment of the EIB loan as such contributes to regional development. In this respect, the applicant is not justified to complain that the Commission did not examine the impact of the operating aid in question on credit ratios, which are indicators that are not directly linked to regional development. Moreover, the applicant cannot usefully argue that the compensation is partly justified by increased operating expenses since those expenses, integrated into the financial models, were taken into account by the Commission in calculating the IRR and determining the amount of overcompensation.
185    Consequently, the Commission did not commit either the material inaccuracy or the manifest error of assessment claimed by the applicant in considering that the aid was not compatible with the internal market.
186    The fourth plea in law must therefore be dismissed.
The fifth plea in law, alleging that the Commission committed a manifest error of assessment in calculating the amount of State aid
187    In the fifth plea, the applicant takes the view, by way of a preliminary point, that the decision is vitiated by a failure to provide reasoning. It then argues, first, that there cannot be any overcompensation for the period from September 2005 to November 2007 and, secondly, that the Commission should have taken account of the credit ratios in calculating the amount of State aid.
188    The Commission, supported by the Republic of Poland, disputes the applicant’s arguments.
189    By way of a preliminary point, the applicant maintains that the Commission relied solely on the PwC report to determine the amount of State aid. In so doing, the Commission failed to carry out its own assessment or provide adequate reasoning.
190    However, the Commission explained, in particular in paragraphs 146 to 150 of the contested decision, the reasons why the amount of aid came to EUR 223.74 million. Although it used the PwC report to determine the amount of aid, it set out in detail the content of the report and, in paragraph 157 of that decision, considered that it agreed with the method applied by PwC to estimate the overpayment. In so doing, it validly assessed the amount of the aid and gave sufficient reasons for the contested decision.
191    Next, the applicant argues, in the first place, that there cannot be any overcompensation for the period from September 2005 to October 2007. Under the verification mechanism laid down by Annex 6, the shadow-toll rate was determined in 2007 only. An adjustment for the period prior to October 2007 was unnecessary, since the shadow-toll rates were subsequently set at a level to achieve the agreed IRR. The absence of overcompensation for the period prior to October 2007 certainly had the consequence that the Commission underestimated the amount of the overcompensation for the period from November 2007 to June 2011, but that amount is necessarily lower than the sum of EUR 223.74 million. The payment of shadow-toll compensation ceased in 2011, while the contracting parties expected ex ante that that compensation would be paid until 2037. At the time that the PwC report was issued, the recovery of the entire alleged overcompensation was therefore not possible. The Commission could therefore not do as PwC did, because it would thereby consider an ex post development.
192    The applicant’s argument must however be rejected. The amount of overcompensation assessed by the Commission corresponds to the difference between the payments actually made to the applicant and the amounts which the applicant should have received on the basis of the IRR established according to the PwC model for real-toll collection. For the period from September 2005 to October 2007, the overpayment thus corresponds to the difference between the payments actually made to the applicant and the compensation calculated on the basis of the IRR which it could have expected immediately prior to the amendment of the law. Thus, the IRR of 10.77% of the real-toll collection model used by the applicant to set shadow-toll rates in the period prior to October 2007 was already too high compared to the IRR it could expect and the verification mechanism provided for in Annex 6 only confirmed the error in that IRR. In those circumstances, that mechanism cannot call into question the fact that the applicant should not have initially benefited from the payment of such large sums during the period from September 2005 to October 2007.
193    Moreover, the verification mechanism provided for in Annex 6 was based on a comparison between the IRR of the verification model and the IRR of the real-toll collection model and made it possible to adjust shadow-toll tariffs in the light of actual traffic data after the implementation of the shadow-toll system. Such a mechanism does not have the same purpose as the reasoning followed by the Commission to calculate overcompensation, since the Commission has, in that reasoning, called into question the level of the IRR of the real-toll collection model.
194    In the second place, the applicant claims that the Commission could not assess the amount of aid without verifying whether the shadow-toll rates recalculated by PwC were capable of meeting the credit ratio requirements specified in Article 4(d)(ii)(C) of Annex 6. It adds that an increase in the shadow-toll rates, required in order to meet the credit ratios, could reduce the amount of overcompensation, potentially to zero.
195    However, the applicant erroneously claims that the application of the provisions of Annex 6 relating to credit ratios could reduce the amount of overcompensation. Indeed, as has been stated in essence in paragraph 132 above, these forecasts had the effect solely of granting an advance on the payment of the compensation in so far as that would be necessary to ensure the repayment of the debt. Thus, even if, pursuant to Article 4(d)(ii)(C) of that Annex, a higher-than-expected shadow-toll rate were to be set in the first few years in order to ensure repayment of the debt, that rate would then be reduced so that the compensation paid to the applicant would ultimately correspond to the IRR immediately prior to the amendment of the law. Another interpretation of the provisions of that annex, which would ultimately allow the applicant to benefit from compensation in excess of that corresponding to the IRR, does otherwise not comply with the provisions of the Law of 28 July 2005, which provided for compensation to concessionaires for the sole loss of revenue caused by that law. In those circumstances, the applicant is not entitled to claim that those forecasts could have had an impact on the amount of the overcompensation.
196    It follows from the foregoing that the fifth plea in law and the plea raised at the outset, alleging failure to state reasons for the contested decision, must be rejected. Accordingly, the action must be dismissed in its entirety.
Costs
197    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. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those of the Commission in accordance with the latter’s pleadings.
198    In accordance with Article 138(1) of the Rules of Procedure, Member States which intervene in the proceedings are to bear their own costs. The Republic of Poland shall therefore bear its own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Autostrada Wielkopolska S.A. to bear its own costs and to pay those incurred by the European Commission;
3.      Orders the Republic of Poland to bear its own costs.
Gervasoni
Madise
da Silva Passos
Delivered in open court in Luxembourg on 24 October 2019.
E. Coulon
S. Gervasoni
Registrar
President
*      Language of the case: English.
1      The present judgment is published by extracts.