ORDER OF THE GENERAL COURT (Ninth Chamber)
23 March 2020 (*)
(Action for annulment — State aid — Complaint — Measure not open to challenge — Inadmissibility)
In Case T‑280/19,
Highgate Capital Management LLP, established in London (United Kingdom), represented by M. Struys, lawyer,
applicant,
v
European Commission, represented by K. Blanck, A. Bouchagiar and
K.‑Ph. Wojcik, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of the Commission’s decision rejecting a complaint relating to unlawful State aid granted to Eurobank Ergasias SA through the acquisition of Piraeus Bank Bulgaria (SA.53105), allegedly contained in the letter of 8 March 2019 from the Commission’s Directorate-General for Competition and in the public statement of 20 March 2019 of the Commissioner responsible for competition,
THE GENERAL COURT (Ninth Chamber),
composed of M.J. Costeira (Rapporteur), President, D. Gratsias and B. Berke, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        In connection with the restructuring of the banking sector in Greece, Piraeus Bank SA and Eurobank Ergasias SA (‘Eurobank’) received State aid through the Hellenic Financial Stability Fund.
2        By its decisions of 26 and 29 November 2015, adopted in State aid control procedures SA.43363 and SA.43364, the European Commission took the view that the aid granted by the Hellenic Republic was compatible with the internal market, in the light of, inter alia, the commitments given by the Hellenic Republic which formed an integral part of the restructuring plans applicable to Piraeus Bank and to Eurobank respectively.
3        According to the restructuring plan for Eurobank, that bank was not, in principle, allowed to acquire stakes. According to the restructuring plan for Piraeus Bank, that bank was required to transfer foreign assets, including its Bulgarian subsidiary, Piraeus Bank Bulgaria AD. Those commitments were applicable until 31 December 2018.
4        In November 2017, Piraeus Bank launched a procedure for the sale of its Bulgarian subsidiary, Piraeus Bank Bulgaria.
5        The applicant, Highgate Capital Management LLP, participated, alongside other bidders, in that procedure and submitted an offer to purchase Piraeus Bank Bulgaria.
6        On 24 October 2018, Piraeus Bank accepted Eurobank’s offer as the best offer.
7        On 7 November 2018, Eurobank’s acquisition of Piraeus Bank Bulgaria was publicly announced.
8        The final closing of the acquisition of Piraeus Bank by Eurobank was planned for the beginning of 2019, that acquisition being subject to approval by the Balgarska narodna banka (Bulgarian National Bank) and the Komisiya za zashtita na konkurentsiyata (Bulgarian competition authority).
9        On 17 January 2019, the applicant lodged a complaint with the Commission pursuant to Article 24 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 248, p. 9) (‘the complaint of 17 January 2019’). In that complaint, the applicant set out, in essence, two reasons why it took the view that the acquisition of Piraeus Bank Bulgaria by Eurobank was unlawful. In the first place, it claimed, that acquisition is incompatible with the commitments arising from the restructuring plans for Piraeus Bank and Eurobank.
In the second place, it claimed, that acquisition involves the grant, by the Hellenic Republic, of State aid in favour of Eurobank.
10      By letter of 8 March 2019 (‘the letter of 8 March 2019’), the
Commission’s Directorate-General (DG) for Competition replied to a letter from the Bulgarian National Bank of 19 February 2019 concerning the acquisition of Piraeus Bank Bulgaria by Eurobank. In its letter, the Commission replied that, in accordance with its practice relating to the monitoring of State aid commitments, the final closing date of an acquisition was the relevant date to be taken into consideration when assessing the compatibility of that acquisition with commitments given. In addition, the Commission claimed that, in so far as the commitments arising from the restructuring plans for Piraeus Bank and Eurobank ended on 31 December 2018 and the final closing date of the acquisition of Piraeus Bank Bulgaria was planned for the first quarter of 2019, there were no further applicable State aid commitments at that date which prevented Eurobank from acquiring Piraeus Bank Bulgaria.
11      On 20 March 2019, in response to a question raised by a Member of the European Parliament concerning the proposed acquisition of Piraeus Bank Bulgaria by Eurobank, the Commissioner responsible for competition made the following public statement (‘the public statement of 20 March 2019’):
‘To find aid to ailing banks compatible with the internal market, the Commission is, amongst other things, seeking a commitment from the bank and the Member State that the former will not make acquisitions during its restructuring period, thereby preventing the use of the aid received in mergers and acquisitions. However, once this “acquisition ban” commitment has expired, on 31 December 2018 in this case, the Commission has no longer any competence under State aid rules to intervene in acquisitions made by the bank.
Concerning Eurobank’s announced acquisition of Piraeus Bank Bulgaria, the closing date of the sale is expected to take place during the 1st
quarter of 2019. The Commission takes that closing date into account to conclude that the transaction no longer falls under Eurobank’s acquisition ban. The closing date is seen as the relevant date, since the binding offer or Share Purchase Agreement can contain conditions (such as regulatory approvals) that prevent the sale from closing in case they are not fulfilled.
The Commission is in regular contact with the Greek authorities and receives updates on the bank’s compliance with the Commitments through the appointed Monitoring Trustee. Besides, the Commission has received a complaint from an unsuccessful bidder for Piraeus Bank Bulgaria and deals with this complaint in line with its standard procedures.’
12      By letter of 19 April 2019, the applicant, pursuant to Article 265 TFEU, requested the Commission to issue a decision on the complaint of 17 January 2019 within two months of the date of that letter and informed it that, if this were not done, it would bring an action for failure to act.
13      On the same day, the applicant sent a second letter to the Commission. In that letter, the applicant requested the Commission to provide it with a copy of the letter of 8 March 2019. The applicant claimed that the letter of 8 March 2019 amounted to a decision partially or wholly rejecting its complaint of 17 January 2019, in so far as the Commission took the view that the acquisition of Piraeus Bank Bulgaria by Eurobank did not breach the commitments arising from the restructuring plans for Piraeus Bank and Eurobank. The applicant claims that it had been misled by the Commission inasmuch as the latter had informed the applicant on 16 April 2019 that no decision had yet been made.
14      By email of 25 April 2019, the Commission’s DG for Competition informed the applicant that its request for access to the letter of 8 March 2019 would be treated in accordance with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
15      The applicant brought the present action on 30 April 2019.
Facts arising after the action had been brought
16      On 2 May 2019, the Commission’s DG for Competition sent the applicant a first letter of preliminary assessment of the complaint of 17 January 2019. In that letter, the Commission stated that the acquisition of Piraeus Bank Bulgaria by Eurobank did not breach the commitments arising from the restructuring plans for Piraeus Bank and Eurobank. Likewise, that acquisition did not involve the grant of State aid in favour of Eurobank. Moreover, the Commission stated that that preliminary assessment did not express its definitive position on the complaint of 17 January 2019, but only a view of the services of the Commission’s DG for Competition,
on the basis of a prima facie examination under Article 24(2) of Regulation 2015/1589 and pending any additional comments from the applicant.
17      On 23 May 2019, the Commission refused the applicant access to a copy of the letter of 8 March 2019 on the ground that the document was covered by the exceptions provided for in Article 4 of Regulation No 1049/2001.
18      On 1 June 2019, the applicant replied to the first letter of preliminary assessment on the complaint of 17 January 2019.
19      On 14 June 2019, Piraeus Bank announced, by means of a press release, that the acquisition of Piraeus Bank Bulgaria by Eurobank had been completed.
20      On 19 June 2019, the Commission’s DG for Competition sent the applicant a second letter of preliminary assessment of the complaint of 17 January 2019. In that letter, the Commission stated that the applicant was not an interested party within the meaning of Article 1(h) of Regulation
2015/1589 as regards implementation of the Commission’s decisions on the approval of State aid in favour of Eurobank and Piraeus Bank. The Commission also pointed out that that preliminary assessment did not express its definitive position on the complaint of 17 January 2019, but only a view of the services of the DG for Competition on the basis of a new prima facie examination.
21      On 18 July 2019, the applicant replied to that second letter of preliminary assessment.
Procedure and forms of order sought
22      By application lodged at the Court Registry on 30 April 2019, the applicant brought the present action.
23      By separate document lodged at the Court Registry on the same day, the applicant requested that the present action be decided under an expedited procedure, in accordance with Article 152 of the Rules of Procedure of the General Court. On 20 May 2019, the Commission lodged its observations on that request. By decision of 24 May 2019, the Court (Second Chamber) refused the application for an expedited procedure.
24      By separate document lodged at the Court Registry on 13 May 2019, the applicant submitted an application for interim measures seeking first, suspension of the operation of a Commission decision rejecting a complaint relating to allegedly unlawful State aid granted to Eurobank Ergasias
through the acquisition of Piraeus Bank Bulgaria (SA.53105) and, second, the grant of other interim measures.
25      By separate document lodged at the Court Registry on 15 July 2019, the Commission raised a plea of inadmissibility under Article 130 of the Rules of Procedure. The applicant submitted its observations on that plea on 6 September 2019.
26      By document lodged at the Court Registry on 15 August 2019, the Hellenic Financial Stability Fund sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.
27      By order of 12 July 2019,
Highgate Capital Management v Commission (T‑280/19 R, not published, EU:T:2019:545), the President of the Court dismissed the application for interim measures and ordered that the costs be reserved.
28      Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Ninth Chamber, to which the present case was accordingly allocated.
29      By order of 23 October 2019, the Court (Ninth Chamber) ordered the Commission to produce the letter of 8 March 2019. The Commission complied with that demand within the prescribed period.
30      By order of 25 November 2019, the Court (Ninth Chamber), after weighing up the matters referred to in Article 103(2) of the Rules of Procedure, ordered the Commission to produce a non-confidential version of the letter of 8 March 2019 in order for it to be communicated to the applicant.
31      The Commission complied with that request within the prescribed period and the document
which it produced was
sent to the applicant.
32      The applicant set out its observations on that document on 20 December 2019.
33      In the application, the applicant claims that the Court should:
–        annul the Commission decision rejecting the complaint of 17 January 2019;
–        order the Commission to pay the costs.
34      In its plea of inadmissibility, the Commission contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicant to pay the costs.
35      In its observations on the plea of inadmissibility, the applicant claims that the Court should:
–        reject the plea of inadmissibility;
–        order the Commission to pay the costs.
Law
Admissibility of the action
36      Under Article 130(1) and (7) of the Rules of Procedure, if the defendant so requests, the Court may give a ruling on inadmissibility or lack of competence without going to the substance of the case. In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking any further steps in the proceedings.
37      In support of the plea of inadmissibility, the Commission raises two grounds of inadmissibility alleging, first, that there is no measure against which an action for annulment can be brought under Article 263 TFEU and, second,
that the applicant does not have the status of ‘an interested party’ within the meaning of Article 24 of Regulation 2015/1589.
38      In the context of the first ground of inadmissibility, the Commission claims, in essence, that the present action relates to a fictitious or non-existent act. The letter of 8 March 2019 and the public statement of 20 March 2019 (together, ‘the contested measures’), which, according to the applicant, represent the decision allegedly adopted by the Commission, do not relate to the Commission’s position on the complaint of 17 January 2019. On the contrary, the contested measures were taken in connection with different proceedings that have no effect on the examination of that complaint, which is still ongoing.
39      In its observations on the plea of inadmissibility, the applicant submits that, despite the lack of a formal Commission decision, the contested measures reveal a
final Commission decision partially rejecting the complaint of 17 January 2019 to the extent that that complaint was based on the breach of commitments arising from the restructuring plans for Piraeus Bank and Eurobank. It is evident from the contested measures that the Commission took the view that the acquisition of Piraeus Bank Bulgaria by Eurobank was not incompatible with those commitments, on the ground that the relevant date for compliance with those commitments was the final closing date of that acquisition.
40      Additionally, in the observations on the non-confidential version of the letter of 8 March 2019, the applicant submits that that document confirms the existence of a Commission decision rejecting its complaint of 17 January 2019. That letter, the applicant argues, contains no ‘preliminary position’ of the Commission and does not suggest that the complaints procedure is still ongoing. By contrast, that letter establishes that the Commission had already rejected the complaint of 17 January 2019, at least in so far as that complaint was based on the breach of commitments arising from the restructuring plans for Piraeus Bank and Eurobank, since the Commission maintains that, at the relevant date, there were no more applicable State aid commitments which prevented Eurobank from acquiring Piraeus Bank Bulgaria.
41      Furthermore, in the observations on the non-confidential version of the letter of 8 March 2019, the applicant claims that that letter confirms that the Commission’s defence strategy breaches the requirements of a fair trial and good administration and is intended to deprive the applicant of its right to an effective legal remedy, in breach of its rights of defence.
42      According to consistent case-law, any provisions adopted by the institutions of the European Union, whatever their form, which are intended to have binding legal effects are regarded as actionable measures, within the meaning of Article 263 TFEU. Those binding legal effects of a measure must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure (see, to that effect, judgments of 13 February 2014, Hungary v Commission, C‑31/13 P, EU:C:2014:70, paragraphs 54 and 55 and the case-law cited, and of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraphs 47 and 48).
43      Furthermore, it is, in principle, those measures which definitively determine the position of the Commission upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the complainant, that constitute acts open to challenge for the purposes of Article 263 TFEU, and not intermediate measures the purpose of which is to prepare for the final decision, which do not have those effects
(see judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 48 and the case-law cited).
44      In the present case, since the form of the contested measures is not decisive, it is necessary to examine the substance of those measures in order to assess whether they produce legally binding effects, in particular in respect of the applicant, or whether the existence of such a legally binding measure must be inferred, taking into account objective criteria, such as the content of those measures, their context and the intention of those who drafted them.
45      In this respect, first, it must be held that the letter of 8 March 2019 was sent by the Commission’s DG for Competition to the Bulgarian National Bank in reply to a question which it had put to the Commission. In that letter, it is stated, inter alia, that the Commission’s practice relating to the monitoring of State aid commitments is to take into account the final closing date of an acquisition as the relevant date for examining the compatibility of the acquisitions with the commitments given. In addition, the Commission stated that, in so far as the commitments arising from the restructuring plans for Piraeus Bank and Eurobank ended on 31 December 2018 and the final closing date of the acquisition of Piraeus Bank Bulgaria was planned for the first quarter of 2019, there were no further applicable State aid commitments
at that date which prevented Eurobank from acquiring Piraeus Bank Bulgaria (see paragraph 10 above).
46      Second, it must be held that the public statement of 20 March 2019 is a reply of the Commissioner responsible for competition to a question raised by a Member of the Parliament concerning the proposed acquisition of Piraeus Bank Bulgaria by Eurobank. In that statement, it is asserted that the Commission takes into account the closing date of Eurobank’s announced acquisition of Piraeus Bank Bulgaria as the relevant date to conclude that the transaction no longer comes under Eurobank’s acquisition ban. Moreover, reference is made to ‘a complaint from an unsuccessful bidder’, stating that that complaint is ongoing (see paragraph 11 above).
47      As regards the context of the contested measures, it must be noted from the outset that they were not addressed to the applicant. The letter of 8 March 2019 contains a reply from the Commission to the Bulgarian National Bank, while the public statement of 20 March 2019 corresponds to a reply of the Commissioner responsible for competition to a question raised by a Member of the Parliament.
48      Furthermore, the contested measures were taken outside the scope of the administrative procedure relating to the complaint of 17 January 2019. By the letter of 8 March 2019, the Commission seeks to provide a response to the Bulgarian National Bank concerning its practice relating to the monitoring of State aid commitments and, therefore, it seeks to fulfil its obligation of sincere cooperation, under which the EU institutions and national authorities are required, in full mutual respect, to assist each other in carrying out the tasks which flow from the Treaties, in accordance with Article 4(3) TEU. As regards the public statement of 20 March 2019, this was issued in a political context which goes beyond the strict performance of administrative functions by the Commissioner responsible for competition.
49      As regards the content of the contested measures, it is admittedly true that they provide their addressee with indications as to the Commission’s position on information which is, moreover, relevant to the examination of the complaint of 17 January 2019, that is to say, the relevant date for examining the compatibility of the acquisition with State aid commitments given (see paragraphs 10 and 11 above).
50      However, it also follows from the content of the contested measures that they are only views or opinions, which do not bind the Commission and do not prejudge its final position on the complaint of 17 January 2019, which depends on the examination of, inter alia, the information submitted by the applicant in support of that complaint.
51      As regards the Commission’s intention underlying the contested measures, it can be inferred from their context and their content that those measures are not intended to define, at the end of the preliminary examination stage, the Commission’s position on the complaint of 17 January 2019.
52      On the contrary, it is evident from the case file that the administrative procedure relating to the complaint of 17 January 2019 was still ongoing at the date of the contested measures.
Thus, at a date subsequent to those measures, the Commission sent the applicant two letters of preliminary assessment explaining that those
letters did not express its final position on the complaint (see paragraphs 16 and 20 above).
53      The applicant has thus failed to demonstrate that it follows from the contested measures that, in March 2019, the Commission had already adopted a decision on the complaint of 17 January 2019.
54      In addition, in connection with its observations on the non-confidential version of the letter of 8 March 2019, the applicant raises an alleged breach of its right to an effective legal remedy. In this respect, it suffices to recall that, although the conditions of admissibility of an action laid down Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, such an interpretation nevertheless cannot have the effect of setting those conditions aside (see, to that effect, judgment of 21 January 2016, SACBO v Commission and INEA, C‑281/14 P, not published, EU:C:2016:46, paragraph 46 and the case-law cited).
55      In the present case, the applicant’s right to an effective legal remedy is ensured by the possibility of bringing an action for annulment against the decision of the Commission, which is still outstanding, on the complaint of 17 January 2019 and, where appropriate, by the possibility of bringing an action for failure to act in respect of a possible failure to comply with the reasonable time limit for dealing with that complaint.
56      It follows from all of the foregoing that it is not possible to accord a legally binding nature to the contested measures, in particular in respect of the applicant, and, therefore, to infer the existence of a measure which is open to challenge and against which an action may be brought
on the basis of Article 263 TFEU.
57      The first ground of inadmissibility raised by the Commission must therefore be upheld and the present action must be dismissed in its entirety as inadmissible, without there being any need to examine the second ground of inadmissibility.
Application to intervene
58      Pursuant to Article 144(3) of the Rules of Procedure, where the defendant lodges a plea of inadmissibility or of lack of competence, as provided in Article 130(1) of those rules, a decision on the application to intervene is not to be given until after the plea has been rejected or the decision on the plea reserved.
59      In the present case, since the action is being dismissed in its entirety as being inadmissible, there is no need to rule on the application to intervene, in accordance with Article 142(2) of the Rules of Procedure.
Costs
60      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 pay the costs, including those relating to the proceedings for interim measures, in accordance with the form of order sought by the Commission, with the exception of the costs relating to the application to intervene.
61      In addition, under Article 144(10) of the Rules of Procedure, if, as in the present case, the proceedings in the main case are concluded before a decision has been taken on the application to intervene, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene. Given that notice of the application to intervene was not served on the main parties and that, therefore, they were not in a position in which they might incur costs, it must be held that the Hellenic Financial Stability Fund is to bear its own costs in that regard.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby orders:
1.      The action is dismissed as being inadmissible.
2.      There is no need to rule on the application to intervene of the Hellenic Financial Stability Fund.
3.      Highgate Capital Management LLP shall pay the costs, including those relating to the proceedings for interim measures, with the exception of those relating to the application to intervene.
4.      The Hellenic Financial Stability Fund shall bear its own costs relating to the application to intervene.
Luxembourg, 23 March 2020.
E. Coulon
M.J. Costeira
Registrar
President
*      Language of the case: English.