62016CC0438
OPINION OF ADVOCATE GENERAL
WATHELET
delivered on 7 December 2017 (
1
)
Case C‑438/16 P
European Commission
v
French Republic,
IFP Énergies nouvelles
(Appeal — State aid — Aid scheme implemented by France — Unlimited State guarantee conferred on the Institut français du pétrole (IFP) by the grant of the status of publicly owned industrial and commercial establishment (EPIC) — Concept of an ‘aid scheme’ — Presumption of an advantage arising from a State guarantee — Burden and standard of proof)
1.
By the present appeal, the European Commission asks the Court of Justice to set aside the judgment of the General Court of the European Union of 26 May 2016, France and IFP Énergies nouvelles v Commission (T‑479/11 and T‑157/12, ‘the judgment under appeal’, EU:T:2016:320), whereby the General Court allowed the actions brought by the French Republic and the publicly owned establishment IFP Énergies nouvelles (‘IFPEN’) for annulment of Commission Decision 2012/26/EU of 29 June 2011. (
2
)
2.
Guarantees play a very important role in the law relating to State aid. In the present case the Court is once again called upon to make a determination in the context of French publicly owned industrial and commercial establishments (EPICs) (
3
) and, in particular, on the effect of the unlimited guarantee which, by virtue of their status, the French Republic grants to those establishments and which allows them, in essence, not to be subject to the insolvency and bankruptcy procedures and also to benefit from the designation of the State as being ultimately liable for payment of the debts incurred.
I. Legal context
3.
Article 1 of Regulation (EC) No 659/1999 (
4
) is worded as follows:
‘For the purposes of this Regulation:
(a)
“aid” shall mean any measure fulfilling all the criteria laid down in [Article 107(1) TFEU];
…
(c)
“new aid” shall mean all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid;
(d)
“aid scheme” shall mean any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner and any act on the basis of which aid which is not linked to a specific project may be awarded to one or several undertakings for an indefinite period of time and/or for an indefinite amount;
(e)
“individual aid” shall mean aid that is not awarded on the basis of an aid scheme and notifiable awards of aid on the basis of an aid scheme;
…’
4.
The Commission Notice on the application of Articles [107] and [108 TFEU] to State aid in the form of guarantees (
5
) provides, in point 1.2, entitled ‘Types of guarantee’, that:
‘In their most common form, guarantees are associated with a loan or other financial obligation to be contracted by a borrower with a lender; they may be granted as individual guarantees or within guarantee schemes.
However, various forms of guarantee may exist, depending on their legal basis, the type of transaction covered, their duration, etc. Without the list being exhaustive, the following forms of guarantee can be identified:
…
–
unlimited guarantees as opposed to guarantees limited in amount and/or time. The Commission also regards as aid in the form of a guarantee the more favourable funding terms obtained by enterprises whose legal form rules out bankruptcy or other insolvency procedures or provides an explicit State guarantee or coverage of losses by the State. The same applies to the acquisition by a State of a holding in an enterprise if unlimited liability is accepted instead of the usual limited liability,
…’
5.
Point 2.1 of the Guarantees Notice, entitled ‘General remarks’, states:
‘Article [107(1) TFEU] states that any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market.
These general criteria equally apply to guarantees. As for other forms of potential aid, guarantees given directly by the State, namely by central, regional or local authorities, as well as guarantees given through State resources by other State-controlled bodies such as undertakings and imputable to public authorities, may constitute State aid.
In order to avoid any doubts, the notion of State resources should thus be clarified as regards State guarantees. The benefit of a State guarantee is that the risk associated with the guarantee is carried by the State. Such risk-carrying by the State should normally be remunerated by an appropriate premium. Where the State forgoes all or part of such a premium, there is both a benefit for the undertaking and a drain on the resources of the State. Thus, even if it turns out that no payments are ever made by the State under a guarantee, there may nevertheless be State aid under Article [107(1) TFEU]. The aid is granted at the moment when the guarantee is given, not the moment at which the guarantee is invoked or the moment at which payments are made under the terms of the guarantee. Whether or not a guarantee constitutes State aid, and, if so, what the amount of that State aid may be, must be assessed at the moment when the guarantee is given.
…’
6.
According to point 2.2 of the Guarantees Notice, which concerns aid to the borrower:
‘Usually, the aid beneficiary is the borrower. As indicated under point 2.1, risk-carrying should normally be remunerated by an appropriate premium. When the borrower does not need to pay the premium, or pays a low premium, it obtains an advantage. Compared to a situation without guarantee, the State guarantee enables the borrower to obtain better financial terms for a loan than those normally available on the financial markets. Typically, with the benefit of the State guarantee, the borrower can obtain lower rates and/or offer less security. In some cases, the borrower would not, without a State guarantee, find a financial institution prepared to lend on any terms. …’
II. Background to the dispute and the decision at issue
7.
IFPEN is a publicly owned research establishment active in the fields of oil and gas prospecting and refining and petrochemicals technologies. It is entrusted, in particular, with the task of training engineers and technicians and the task of providing information and documentation in the sectors concerned.
8.
Until 2006, IFPEN was a legal person governed by private law which, in accordance with the provisions of national law in force, operated under the economic and financial supervision of the French Government.
9.
Under Law No 2005-781, (
6
) IFPEN was converted, with effect from 6 July 2006, into a legal person governed by public law, more specifically into an EPIC (see point 2 of this Opinion).
10.
Under French law, establishments of that type have separate legal personality from the French State and financial autonomy, and also certain special powers, which generally include the performance of one or more public service tasks. As legal persons governed by public law, such establishments are not subject to the ordinary law applicable to insolvency procedures by virtue of the general principle of the immunity from seizure enjoyed by public assets.
11.
The specific features of the legal status of EPICs attracted the attention of the Commission, which, in Decision 2010/605/EU, (
7
) examined that status in the light of the rules governing State aid in the European Union. In that decision, the Commission concluded, in essence, that, because of their status, EPICs benefited from an implied and unlimited State guarantee. According to the Commission, that guarantee constituted State aid within the meaning of Article 107(1) TFEU, in that it allowed the EPIC concerned (La Poste, in this case) to obtain more favourable borrowing terms than it would have obtained had it been judged solely on its own merits.
12.
It was during the proceedings that led to the adoption of the ‘La Poste’ decision that, in 2006, the French authorities informed the Commission of IFPEN’s conversion from a legal person governed by private law into an EPIC. In particular, that information was conveyed to the Commission in the course of proceedings initiated in 2005 in connection with the investigation, in the light of the rules governing State aid, of public funding granted to IFPEN by the French authorities.
13.
The Commission then decided to separate the investigation of whether IFPEN’s conversion into an EPIC was capable of constituting State aid within the meaning of Article 107(1) TFEU from the investigation of IFPEN’s public funding. Thus, on 16 July 2008, by Decision 2009/157/EC, (
8
) it closed the examination of the public funding granted to IFPEN. However, on the same day, by a notice published in the Official Journal of the European Union (State aid C 35/08 (ex NN 11/08) — Unlimited State guarantee for the IFP — Invitation to submit comments pursuant to Article [108(2) TFEU] (OJ 2008 C 259, p. 12)), it decided to initiate a formal investigation procedure concerning the French State’s unlimited guarantee in favour of IFPEN and invited interested parties to submit their comments.
14.
On 29 June 2011, the Commission adopted the decision at issue. For the purposes of the present appeal, it should be observed that in that decision the Commission, in the first place, considered, on the basis of reasoning analogous to that which it had applied in the ‘La Poste’ decision, that the conversion of IFPEN into an EPIC had conferred on that establishment, with effect from 6 July 2006, the benefit of a free, unlimited and implied State guarantee (‘the free and unlimited guarantee’).
15.
In that regard, the Commission observed, in essence, that the particular features associated with the status of EPIC implied that the State plays the role of last-resort guarantor of IFPEN’s debts. There is thus both an advantage for that establishment and a drain on public resources, as the State waives the remuneration that normally accompanies guarantees. Moreover, the guarantee creates the risk of a potential and future claim on the resources of the State, which could find itself obliged to pay IFPEN’s debts.
16.
In the second place, the Commission examined whether that free and unlimited guarantee conferred a selective advantage on IFPEN, within the meaning of Article 107(1) TFEU, in its dealings with banks and financial institutions, suppliers and customers.
17.
First of all, as regards dealings with banks and financial institutions, the Commission concluded that IFPEN had not derived a real economic advantage from the State guarantee inherent in its status as an EPIC during the period between its conversion into an EPIC, in July 2006, and the end of 2010 (‘the period concerned’). Furthermore, the Commission emphasised that such a conclusion was valid only retrospectively, since it could not make any presumptions about how market operators would behave in the future or how their perception of the impact of the State guarantee on the risk of default of payment by IFPEN would evolve.
18.
Next, as regards dealings with suppliers, the Commission concluded that IFPEN had benefited from a real economic advantage consisting in a fall in the prices charged by its suppliers. That price reduction was the result of a more favourable assessment by those suppliers of the risk of default of payment by IFPEN, as it could not be placed in compulsory winding up owing to its status as an EPIC (recital 203 of the decision at issue). In that regard, the Commission considered, in essence, that in the absence of the State guarantee a supplier wishing to benefit from a comparable guarantee would have to call on the services of a specialised credit institution or insurance undertaking. The price reduction could therefore be estimated in terms of the costs of equivalent risk cover.
19.
Last, as regards dealings with customers, the Commission considered that, in view of the State guarantee granted to IFPEN, its customers were assured that IFPEN would never be subjected to compulsory winding up and would therefore always be able to fulfil its contractual obligations or, failing that, that they would be compensated for any such breach (recital 220 of the decision at issue). In the absence of that guarantee, a customer wishing to enjoy the same level of protection would take out a performance bond from a financial intermediary. IFPEN therefore benefited from a real economic advantage, which it was able to offer to its customers, consisting in the absence of payment of a premium corresponding to a performance bond, at the very least a best efforts guarantee (recital 236 of the decision at issue).
20.
In the third place, the Commission considered that that economic advantage was selective, inasmuch as IFPEN’s competitors, subject as they were to ordinary-law insolvency procedures, did not benefit from a comparable guarantee.
21.
In the last place, the Commission examined the compatibility with the FEU Treaty of that State aid in the light of the rules set out in the Community framework for State aid for research and development and innovation (OJ 2006 C 323, p. 1). It concluded that the State aid granted to the ‘IFPEN group’ was compatible with the internal market, subject to certain conditions specified in the decision at issue.
III. The procedure before the General Court and the judgment under appeal
22.
On 9 September 2011, the French Republic brought an action against the decision at issue, which was registered under number T‑479/11, and on 5 April 2012 IFPEN also brought an action against that decision, which was registered under number T‑157/12.
23.
In support of their actions, the French Republic and IFPEN raised, respectively, three and five pleas in law, alleging, in essence, failure to fulfil the evidentiary obligations borne by the Commission in connection with State aid and an incorrect interpretation of the concept of selective advantage, within the meaning of Article 107(1) TFEU.
24.
By order of 2 December 2013, the General Court stayed proceedings in Cases T‑479/11 and T‑157/12 pending delivery of the judgment of the Court of Justice of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217). (
9
) On 8 September 2015, the General Court decided to join Cases T‑479/11 and T‑157/12 for the purposes of the written and oral procedures and the judgment.
25.
In the judgment under appeal (of 26 May 2016), the General Court upheld the two actions in part and annulled the decision at issue, inasmuch as the latter had classified the guarantee arising from IFPEN’s EPIC status as State aid within the meaning of Article 107(1) TFEU, and to the extent that it had determined the conclusions to be drawn from that classification. The General Court dismissed the actions as to the remainder.
26.
So far as the present appeal is concerned, it should be observed, first of all, that the General Court explained, in paragraphs 78 to 89 of the judgment under appeal, that the method chosen by the Commission in order to determine the existence of a selective advantage within the meaning of Article 107(1) TFEU — consisting in examining the benefit which IFPEN had derived from its EPIC status in its dealings with its creditors, in this instance the banks and financial institutions, and also with suppliers and customers — was not incorrect.
27.
However, the General Court observed, in paragraph 90 of the judgment under appeal, that there were serious flaws in the way in which the Commission had applied that method in the present case, in particular with respect to its definition of the advantage from which IFPEN was alleged to have benefited in its dealings with suppliers and customers. In particular, the Commission’s conclusion that the guarantee at issue had conferred on IFPEN a ‘real economic advantage’ was, in the General Court’s view, based on a purely hypothetical line of reasoning (paragraph 94 of the judgment under appeal).
28.
On the one hand, so far as IFPEN’s dealings with its suppliers are concerned, the General Court stated, in paragraph 95 of the judgment under appeal, that, according to the Commission, IFPEN had derived an advantage from the unlimited State guarantee inherent in its EPIC status, consisting in a price reduction granted to it by its suppliers owing to the absence of a risk of default of payment on account of insolvency.
29.
However, according to the General Court, the Commission did not adduce any evidence in the decision at issue to substantiate that hypothesis. In particular, there was no evidence of the existence, on the market concerned or in the course of business in general, of a tendency for suppliers to grant price reductions to establishments benefiting from a State guarantee against the risk of insolvency (paragraph 99 of the judgment under appeal).
30.
On the other hand, as regards IFPEN’s dealings with its customers, the General Court considered, in paragraph 111 of the judgment under appeal, that in the decision at issue the Commission had defined the advantage which IFPEN had derived from the guarantee inherent in its status as being the non-payment of a premium for a performance bond, or at the very least a best efforts guarantee, which it was able to offer its customers.
31.
According to the General Court, the Commission’s reasoning presupposes that, under normal market conditions, customers of research institutes such as IFPEN avail themselves of guarantees of that type in order to protect themselves against the risk of insolvency of the other contracting party and that, in circumstances involving a guarantee such as that enjoyed by IFPEN, the latter’s customers no longer need to obtain such a guarantee themselves (paragraph 114 of the judgment under appeal).
32.
The General Court considered, moreover, that the Commission did not adduce any evidence to demonstrate that that assumption was well founded, or even likely. In particular, the decision at issue contains no evidence capable of confirming that customers of research institutes pre-empt the risk of insolvency on the part of the other contracting party by having recourse to such guarantees (paragraph 115 of the judgment under appeal).
33.
Next, in paragraph 133 et seq. of the judgment under appeal, the General Court rejected the arguments raised by the Commission concerning the scope and application of the presumption of an advantage established by the Court of Justice in the judgment in La Poste (C‑559/12 P).
34.
In the first place, the General Court observed, in paragraph 136 of the judgment under appeal, that the possibility of using a presumption as a means of proof depended on the plausibility of the assumptions on which the presumption was based. In particular, the presumption established in the judgment in La Poste (C‑559/12 P) was based on a dual premiss, namely that the guarantee has a favourable influence on the assessment by creditors of a risk of default of payment on the part of the beneficiary and that the cost of credit is reduced. In this case, however, the Commission adduced no evidence, in the decision at issue, capable of demonstrating the plausibility of its assumptions, in particular the assumption that the alleged reduction in prices by suppliers was the result of IFPEN’s EPIC status (paragraphs 139 and 140 of the judgment under appeal).
35.
In the second place, the General Court observed, in paragraph 142 of the judgment under appeal, that the Commission could not rely on the presumption established by the judgment in La Poste (C‑559/12 P) so far as IFPEN’s dealings with its customers and suppliers were concerned. That presumption serves only to establish the existence of an advantage in the form of more favourable credit terms and therefore applies only to an EPIC’s dealings with financial institutions and banks.
36.
In the third place, in paragraph 162 et seq. of the judgment under appeal, the General Court ruled on the argument put forward by the Commission, and based on the relevant EU case-law, (
10
) that when the Commission assesses an aid scheme, it may confine itself to examining the general characteristics of the scheme at issue in order to determine whether it entails elements of State aid.
37.
In that regard, without ruling on the plea of inadmissibility of that argument raised by IFPEN and the French Republic, the General Court rejected that argument as unfounded, stating, in paragraph 164 of the judgment under appeal, that the Commission had not specified in the decision at issue whether the aid at issue constituted individual aid or an aid scheme.
38.
In particular, the General Court observed, in essence, that in so far as the guarantee attendant upon EPIC status in general may be classified as State aid, it constitutes notifiable aid awarded on the basis of an aid scheme within the meaning of Article 1(d) of Regulation No 659/1999 (paragraph 168 of the judgment under appeal), that is to say, individual aid within the meaning of Article 1(e) of Regulation No 659/1999 (paragraph 172 of the judgment under appeal).
39.
Last, so far as IFPEN’s dealings with banks and financial institutions are concerned, the General Court observed, in paragraph 187 of the judgment under appeal, that the Commission could in principle rely on the presumption established in the judgment in La Poste (C‑559/12 P). (
11
) However, that presumption had been rebutted by the Commission itself in the decision at issue, according to which, during the period concerned, IFPEN did not derive any real economic advantage in the form of more favourable credit terms granted to it by banks and financial institutions because of its EPIC status (paragraphs 188 and 189 of the judgment under appeal). The General Court concluded, in paragraph 190 of the judgment under appeal, that the Commission’s examination had shown that IFPEN had derived no advantage in its dealings with banks and financial institutions from its conversion into an EPIC.
40.
In the light of all of the foregoing, the General Court held, in paragraph 197 of the judgment under appeal, that in the decision at issue the Commission had not demonstrated the existence of an advantage that IFPEN had derived from the State guarantee inherent in its EPIC status in its dealings with banks and financial institutions or in its dealings with suppliers and customers.
41.
Consequently, the General Court annulled Article 1(3) to (5) and Articles 2 to 12 of the decision at issue, in that those articles classified the guarantee arising from IFPEN’s EPIC status as State aid within the meaning of Article 107(1) TFEU and to the extent that they determined the conclusions to be drawn from that classification.
IV. The appeal
42.
All the parties submitted oral argument at the hearing on 28 September 2017.
43.
The Commission has raised three grounds of appeal, all alleging infringement of Article 107(1) TFEU and, more particularly, errors of law in the judgment under appeal concerning the way in which the existence of an advantage arising for an undertaking from a free and unlimited guarantee resulting from its status must be demonstrated.
44.
By its first ground of appeal, the Commission maintains that the General Court, first of all, erred in its interpretation of the concept of an aid scheme, and, next, failed to take into account the ability of a measure to confer an advantage, which constitutes an error of law as regards the nature of the proof to be adduced by the Commission in order to establish the existence of an advantage for an undertaking resulting from its EPIC status. The second ground of appeal alleges an error of law by the General Court as regards the scope of the simple presumption of the existence of an advantage resulting from a free and unlimited guarantee and also as regards the means of rebutting that presumption. The third ground of appeal alleges an error of law by the General Court as regards the scope of the presumption of an advantage resulting from an unlimited guarantee inasmuch as that presumption should logically also be applied to the dealings with suppliers and customers and not just to dealings with banks and financial institutions.
A. First ground of appeal (error of interpretation of the concept of aid scheme and failure to take into account the ability of a measure to confer an advantage)
45.
By its first ground of appeal, which is divided into three parts, the Commission first of all takes issue with the General Court for having erred in law by refusing to classify the measure concerned as an aid scheme and by prohibiting the Commission from confining its examination to the general features of the aid scheme at issue (first part). Next, according to the Commission, the General Court was wrong to consider that, in order to establish the existence of an advantage, it was not sufficient that the measure be capable of securing an advantage for its beneficiary in the future (second part). The Commission takes issue with the General Court, last, for having exceeded the limits of its judicial review by upholding a complaint which had not been raised by one of the applicants at first instance and which had not been described in sufficient detail by the other applicant at first instance (third part). Because the arguments submitted in the second part of the first ground of appeal and in the second ground of appeal are very similar, I shall examine them together (as the parties did at the hearing).
1.
First part of the first ground of appeal (error of law concerning the concept of State aid and its consequences)
46.
This part is directed against paragraphs 162, 164, 172 and 173 of the judgment under appeal; the Commission maintains that the General Court was wrong to hold that the guarantee enjoyed by IFPEN did not constitute an aid scheme and that, consequently, the Commission could not rely on the general characteristics of that measure in order to show that it constituted State aid.
47.
In that regard, the Commission observes that the concept of an aid scheme, as codified in Article 1(d) of Regulation No 659/1999, covers measures which are characterised by the fact that certain elements are not defined and remain undetermined at the time of their adoption and, in certain cases, even while they are being implemented. Thus, when the Commission studies such measures in order to determine whether they constitute aid within the meaning of Article 107(1) TFEU, it may confine itself to examining their general characteristics.
48.
In this instance, the Commission maintains that the guarantee enjoyed by IFPEN, which is not linked to a specific project and is granted for an indefinite period and for an indefinite amount, must be classified as an aid scheme. In the Commission’s submission, this is, in particular, a ‘scheme of aid scheme(s)’, since the grant of the guarantee to IFPEN itself forms part of a wider aid scheme, namely that of the free and unlimited State guarantee which by law is inherent in EPIC status.
49.
The Commission therefore disputes the General Court’s assertions, in paragraphs 168 to 170 of the judgment under appeal, that EPIC status constitutes an aid scheme, whereas the grant to IFPEN of the guarantee in question, which forms the subject matter of the decision at issue, is individual aid that ought to have been notified to the Commission.
50.
In that regard, the Commission observes that, contrary to the finding in paragraph 171 of the judgment under appeal, the requirement to notify the aid does not prove that the guarantee in favour of IFPEN does not constitute an aid scheme. In fact, both aid schemes and individual aid must be notified to the Commission.
51.
Furthermore, the Commission points to the fact that the General Court’s interpretation would have the effect of depriving the Commission of the possibility of adopting appropriate measures to require the French authorities to put an end to the guarantee for a specific EPIC. In fact, in accordance with Article 108(1) TFEU, the Commission can propose appropriate measures only for aid schemes and not for individual aid.
(a)
Admissibility
52.
IFPEN maintains that the first part of the first ground of appeal is manifestly inadmissible. In that regard, it observes, first, that the Commission’s reasoning is based on a novel interpretation of the concept of aid scheme, according to which the guarantee enjoyed by IFPEN is a ‘scheme of aid scheme(s)’. Thus, the first part is based on a new argument that cannot be admitted in an appeal, having regard to Article 170(1) of the Rules of Procedure of the Court of Justice.
53.
To my mind, it is sufficient to observe that this part is not in any way based on a new concept of a ‘scheme of aid scheme(s)’.
54.
It is clear, on reading the appeal, that the Commission used the expression ‘scheme of aid schemes’ in paragraph 71 of the appeal only in order to demonstrate what it claims to be the flawed nature of the reasoning developed by the General Court in paragraphs 168 to 172 of the judgment under appeal, which, according to the Commission, led the General Court to infringe the second part of Article 1(d) of Regulation No 659/1999.
55.
That reasoning, in the Commission’s submission, is based on a mistaken distinction between individual aid that ought to have been notified and an aid scheme, which is not notifiable.
56.
After having explained that that distinction is unfounded, the Commission added that there is nothing to prevent a national measure being classified as an aid scheme or to prevent each undertaking coming within that scheme being able to benefit from it when, for the purposes of the second part of Article 1(d) of Regulation No 659/1999, the resulting aid is not linked to a specific project and the amount and/or duration of the aid is not determined. (
12
)
57.
Second, IFPEN claims in essence that the Commission did not classify the measure as an aid scheme in the decision at issue. IFPEN had raised a plea of inadmissibility on that point before the General Court. The French Republic further claims that the decision at issue ought to have classified the measure as an aid scheme in order to satisfy the obligation to state the reasons on which the acts of the institutions are based. In essence, according to IFPEN and the French Republic, since the Commission ought to have classified the measure as an aid scheme in the decision at issue, but did not do so, it certainly cannot criticise the General Court for having found that the measure was not an aid scheme.
58.
To my mind, that reasoning is based on the premiss that the Commission ought to have expressly classified the measure as an aid scheme in the decision at issue.
59.
However, what matters is that the judgment under appeal does not use the failure to state in the decision at issue that the measure under examination was an aid scheme as a ground for annulling that decision (paragraph 164 of the judgment under appeal). It must be stated that that question is therefore outside the subject matter of that judgment. In those circumstances, the Commission is entitled to claim, in its first ground of appeal, that the General Court erred in law when it considered that the measure in question was not an aid scheme and to claim that it had amply demonstrated the existence of an advantage inasmuch as, among other factors, the measure at issue was an aid scheme.
60.
Accordingly, even though things would have been clearer if the measure had been expressly classified as an aid scheme, the first part of the first ground of appeal is admissible.
(b)
Substance
(1) Summary of the parties’ arguments
61.
As described in detail in points 46 to 51 of this Opinion, the Commission maintains that the General Court was wrong to find that the guarantee granted to IFPEN did not constitute an aid scheme and that, consequently, the Commission could not confine itself to examining the general characteristics of that measure in order to show that it constituted State aid within the meaning of Article 107 TFEU.
62.
In IFPEN’s submission, those arguments are based on a distortion of the Commission’s assessment in the decision at issue and its previous practice, and also of the General Court’s assessment in the judgment under appeal.
63.
IFPEN further submits that the General Court correctly described the procedural steps taken by the Commission in the decision at issue and correctly concluded that the measure examined did not constitute an aid scheme.
64.
The French Government supports that argument and infers that the measure examined did not constitute an aid scheme and that the Commission could not confine itself to studying the general characteristics of the measure for the purpose of determining whether it constituted State aid within the meaning of Article 107(1) TFEU.
65.
Next, the French Republic claims that, as is clear from the Commission’s practice in taking decisions (
13
) and from the case-law of the General Court, (
14
) aid granted to only one undertaking must be classified as individual aid, even when it is not linked to a specific project and is granted for an indefinite period and/or for an indefinite amount.
66.
In the alternative, the French Republic adds that if the Court should find that the conversion of IFPEN into an EPIC constitutes an aid scheme and that the General Court therefore made an error of law, that error would not entail that the judgment under appeal should be set aside.
67.
Last, the French Republic observes that the first part of the first ground of appeal is in any event ineffective, as the General Court applied other grounds which in themselves are sufficient to substantiate the conclusion which it reached in the operative part of the judgment under appeal.
68.
In its reply, the Commission observes, in particular, that the interpretation of the judgment under appeal proposed by the French Republic is incorrect. The General Court disregarded each of the rules on proof, that is to say both the presumption established in the judgment in La Poste (C‑559/12 P) and the rule that the Commission may confine itself to studying the general characteristics of a scheme in order to establish the existence of State aid. Thus, as each of those errors of law constitutes a ground for setting aside the judgment under appeal, the French Republic’s argument set out in the preceding point is unfounded.
69.
Furthermore, in the Commission’s contention, the reasoning followed by the General Court is broadly unfounded if, as the Commission maintains in its first ground of appeal, the measure concerned must be regarded as an aid scheme.
(2) Assessment
70.
I note that, after having stated in paragraph 164 of the judgment under appeal that the Commission had not specified in the decision at issue whether that decision concerned an aid scheme or individual aid, the General Court seems to have considered that the guarantee at issue might come within the latter category.
71.
The concept of an aid scheme, as codified in Article 1(d) of Regulation No 659/1999, includes ‘any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner and any act on the basis of which aid which is not linked to a specific project may be awarded to one or several undertakings for an indefinite period of time and/or for an indefinite amount’.
72.
It is therefore necessary to ascertain whether, as the General Court considered in essence in paragraphs 169 to 172 of the judgment under appeal, since the measure examined in the decision at issue is not, generally, the guarantee inherent in EPIC status, but rather the conversion of IFPEN into an EPIC (which automatically entails the grant to it of the State guarantee), that actually means that the measure can be excluded from the scope of that concept and be classified as aid granted on the basis of an aid scheme, in this instance individual aid within the meaning of Article 1(e) of that regulation.
73.
I believe that the General Court did not err in law in that regard.
74.
As the French Government has observed, the General Court was correct to consider that the measure examined in the decision at issue is not the guarantee inherent in EPIC status in general, but the conversion of IFPEN into an EPIC, which entails the grant to IFPEN of the State guarantee inherent in that status.
75.
After having correctly described, in paragraphs 169 to 173 of the judgment under appeal, the procedural steps taken by the Commission in the decision at issue, the General Court concluded that the measure examined did not constitute an aid scheme.
76.
In fact, as is apparent from paragraph 171 of the judgment under appeal, the analysis presented in the preceding paragraphs (169 and 170 of the judgment) corresponds to the decision at issue, in particular recitals 256 to 259, in which the Commission stated that IFPEN’s conversion into an EPIC constituted new aid within the meaning of Article 1(c) of Regulation No 659/1999 that was subject to the notification obligation. The Commission also took the view that, since the change of IFPEN’s status had not been formally notified to it, but only signalled incidentally in the course of other proceedings, that obligation had not been fulfilled by the French authorities and IFPEN’s conversion into an EPIC constituted unlawful aid.
77.
As IFPEN observes, since the Commission chose to analyse the measure in question as ad hoc individual aid, it was in the light of that classification alone that it was appropriate to examine, as the General Court correctly did, the validity of the decision at issue.
78.
The General Court was therefore correct to consider that, inasmuch as the conversion of IFPEN into an EPIC could be classified as State aid, it constituted aid granted on the basis of a notifiable aid scheme, that is to say, individual aid within the meaning of Article 1(e) of Regulation No 659/1999.
79.
I am not convinced by the Commission’s argument based on the concept of a ‘scheme of aid scheme(s)’.
80.
That ‘novel’ concept does not exist anywhere in Regulation No 659/1999 (Article 1 of that regulation provides only a definition of ‘aid scheme’ and another definition of ‘individual aid’) and an ‘aid scheme’ does not include the possibility of forming part of a wider scheme. In any event, the present case clearly concerns the implementation of individual aid rather than a ‘scheme of aid scheme(s)’.
81.
Like the French Government, moreover, I do not agree with the Commission’s argument that, if the conversion of IFPEN into an EPIC were to be regarded as individual aid, the Commission would be prevented from adopting appropriate measures within the meaning of Article 108(1) TFEU to request the French authorities to terminate the guarantee for a specific EPIC.
82.
In fact, the General Court’s reasoning concerning the ‘individual aid’ nature of the measure examined is based on the specific circumstances connected with the conversion of IFPEN into an EPIC and cannot as a general rule be transposed to all establishments of that type.
83.
The General Court was therefore correct to consider that the Commission’s argument that the measure examined constitutes an aid scheme was unfounded. The first part of this ground of appeal must therefore be rejected as unfounded.
84.
Before addressing the second part of the first ground of appeal and the second ground of appeal together, it is appropriate to respond to the third part of the first ground of appeal.
2.
Third part of the first ground of appeal (the General Court upheld a complaint which had not been raised by one of the applicants or explained in sufficient detail by the other party)
(a)
Summary of the parties’ arguments
85.
The Commission takes issue with the General Court for having adjudicated outside the complaints put forward by the parties with regard to the existence of an advantage for IFPEN in its relations with banks and financial institutions.
86.
In that regard, the Commission submits that IFPEN, in its application at first instance, had not criticised the Commission’s analysis of the existence of an advantage for IFPEN in its dealings with those operators, and that the French Republic had merely disputed the existence of that advantage on the sole ground that the Commission had not demonstrated its existence, without putting forward any argument in support of that assertion.
87.
Consequently, in upholding a complaint which had not been raised by one of the parties, or stated in sufficient detail by the other, the General Court disregarded the limits of its jurisdiction.
88.
IFPEN takes the opposite view and submits that the third part of the first ground of appeal must be rejected as ineffective or unfounded.
89.
To that effect, IFPEN observes that as this part does not refer to any specific paragraph of the judgment under appeal, it is ineffective, in accordance with Article 169(2) of the Rules of Procedure.
90.
In its reply, the Commission observes that, by this part, it takes issue with the General Court for having examined the substance of the existence of an advantage in IFPEN’s dealings with banks and financial institutions without having taken the trouble to ascertain that such a complaint had indeed been raised. It criticises that omission on the General Court’s part which, by definition, cannot be identified in a specific paragraph of the judgment under appeal.
91.
The French Republic merely observes that the French Government disputed, in its application for annulment, that an advantage might arise in the future in IFPEN’s dealings with banks and financial institutions.
(b)
Assessment
92.
It is sufficient to observe that the Commission itself acknowledged in its appeal that the French Government had indeed raised that ground of annulment in its written observations (which is also stated in paragraphs 58 and 185 of the judgment under appeal). Furthermore, in the application and reply which it lodged with the General Court, IFPEN disputed on a number of occasions the Commission’s analysis relating to the existence of an advantage from which IFPEN benefited in its dealings with banks and financial institutions.
93.
The third part of the Commission’s first ground of appeal must therefore be rejected as unfounded.
B. IFPEN’s dealings with banks and financial institutions: the second part of the first ground of appeal (error of law in considering that, in order to establish the existence of an advantage, it is not sufficient that the measure be capable of securing an advantage in the future for its beneficiary) and the second ground of appeal (error of law concerning the scope of the simple presumption of the existence of an advantage resulting from a free and unlimited guarantee)
1.
Summary of the parties’ arguments
94.
In the second part of its first ground of appeal, the Commission takes issue with the General Court for having wrongly concluded that the guarantee from which IFPEN benefited did not constitute State aid in its dealings with banks and financial institutions, relying simply on the absence of a real advantage for IFPEN during the period concerned, or in the past (see, in particular, paragraph 197 of the judgment under appeal).
95.
Furthermore, according to the Commission, the General Court’s approach amounts to giving more favourable treatment to Member States which do not notify the grant of unlimited aid by comparison with Member States which do so in accordance with Article 108 TFEU, when, according to a consistent principle in State aid matters, the former Member States cannot be favoured to the detriment of the latter. (
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)
96.
In fact, if a Member State notifies its intention to grant a guarantee of that type, the Commission, inasmuch as it is unable to know the real effects of the measure, examines only its potential effects. If, on the other hand, a Member State grants such a guarantee without notifying it in advance, it can then show that that measure has not produced any concrete effect and, consequently, preclude its classification as State aid. Member States would thus be encouraged not to notify the grant of unlimited guarantees.
97.
IFPEN contends that the second part of the first ground of appeal should be rejected as unfounded.
98.
In that regard, IFPEN observes at the outset that, even on the assumption that it did constitute State aid, the grant of the guarantee in its favour should be classified as new individual aid, within the meaning of Article 1(c) and (d) of Regulation No 659/1999. The Commission could therefore not rely on the probative standard that the Court recognised in the judgment in La Poste (C‑559/12 P) — in very specific circumstances, moreover — in relation to existing aid schemes.
99.
Nor could the Commission rely on the presumption established in that judgment, since it was not plausible that EPIC status and the attendant guarantee conferred a selective advantage on IFPEN in the past or might confer such an advantage in the future. As regards the past, the Commission’s analysis demonstrated that, during the period concerned, the sums borrowed by IFPEN were borrowed at the market rate. As regards the future, French law prevents IFPEN from borrowing for a period of more than 12 months and subjects it to State supervision in that regard. Thus, the existence of an advantage must be precluded in the circumstances of the present case.
100.
The French Republic observes, in the first place, that the conversion of IFPEN into an EPIC does not constitute an aid scheme.
101.
In the second place, as regards the presumption established in the judgment in La Poste (C‑559/12 P), the French authorities observes that that presumption is based on the assumption that, owing to the guarantee inherent in its status, an EPIC benefits from more advantageous financial terms than those normally agreed on the financial markets.
102.
In the third place, the French Republic maintains that the General Court was correct to find, in paragraph 188 of the judgment under appeal, that in IFPEN’s case the simple presumption within the meaning of the judgment in La Poste (C‑559/12 P) had been rebutted.
103.
Next, by its second ground of appeal, directed, in essence, against paragraphs 134 to 161 and 188 to 193 of the judgment under appeal, the Commission takes issue with the General Court for having erred in law as regards the scope of the presumption of the existence of an advantage deriving from a free and unlimited guarantee, as established in the judgment in La Poste (C‑559/12 P). In essence, the Commission maintains that, by reducing the scope of the simple presumption of an advantage deriving from a free and unlimited guarantee, as recognised by the Court of Justice in that judgment, the General Court infringed Article 107(1) TFEU and the rules on proof of the existence of an advantage within the meaning of that provision.
104.
IFPEN contends that the General Court was correct to hold that, in this instance, the Commission could not rely on the presumption deriving from the judgment in La Poste (C‑559/12 P).
105.
First of all, it submits that that presumption constitutes an exception to the principle that it is for the Commission to demonstrate that a measure fulfils the conditions laid down in Article 107(1) TFEU in order to be classified as State aid. That presumption should thus be interpreted strictly and applied only where the existence of a real advantage is plausible.
106.
Next, in the decision at issue, the Commission did not state the reasons why it would be plausible to presume the existence of an advantage in favour of IFPEN. Thus, that decision does not satisfy the requirements governing the statement of reasons that result from Article 296 TFEU.
107.
Last, as regards the rebuttal of the presumption, IFPEN submits that the General Court correctly observed, in paragraphs 189 to 192 of the judgment under appeal, that during the period concerned IFPEN had not derived any benefit in its dealings with banks and financial institutions from the guarantee inherent in its status. Nor has the Commission adduced any evidence to establish a possible change in its situation after 2010 that would have led IFPEN to borrow sums on terms different from market terms. (
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)
108.
The French Republic maintains that the Commission’s second ground of appeal must be rejected as unfounded. In that regard, it refers, in essence, to the arguments developed in its response to the second part of the first ground of appeal.
2.
Assessment
109.
First of all, as I have already stated in the context of the first part of this ground of appeal, the General Court did not err in law when it held that the conversion of IFPEN into an EPIC did not constitute an aid scheme.
110.
Thus, it is sufficient to observe that the General Court was correct to conclude that the case-law relating to the evidential obligations borne by the Commission in relation to aid schemes was not applicable to the present case.
111.
Next, it seems to me a reminder of the judgments of 8 December 2011, Residex Capital IV (C‑275/10, EU:C:2011:814), and La Poste (C‑559/12 P) would be appropriate.
112.
In the first judgment cited, the Court of Justice considered, in essence, that the national courts had jurisdiction on the basis of Article 108(3) TFEU to cancel a public guarantee in a situation in which unlawful aid had been implemented by means of that guarantee, which had been provided by a public authority in order to cover a loan granted by a finance company to an undertaking which would not have been able to secure such financing under normal market conditions.
113.
In that case, the classification of the guarantee provided by the public authority as State aid in favour of the borrower was not in doubt, since it was common ground that, at the time when the guarantee was created, the borrower was already in difficulty and would therefore have been unable to obtain financing on the capital markets without that guarantee (paragraphs 39 to 42).
114.
As the General Court observed in paragraph 151 of the judgment under appeal, that is the very context in which it is necessary to view the finding of the Court of Justice in paragraph 39 of the judgment of 8 December 2011, Residex Capital IV (C‑275/10, EU:C:2011:814), to the effect that, ‘in the case where the loan granted by a credit institution to a borrower is guaranteed by the public authorities of a Member State, that borrower normally obtains a financial advantage and thus benefits from aid within the meaning of Article [107](1) [TFEU], inasmuch as the financial cost that it bears is less than that which it would have borne if it had had to obtain that same financing and that same guarantee at market prices’, to which the Court of Justice refers in paragraph 96 of its judgment in La Poste (C‑559/12 P).
115.
Referring to the abovementioned paragraph 39, the Court of Justice held in paragraph 96 of the second judgment cited, namely La Poste (C‑559/12 P), that ‘a borrower who has subscribed to a loan guaranteed by the public authorities of a Member State normally obtains an advantage inasmuch as the financial cost that it bears is less than that which it would have borne if it had had to obtain that same financing and that same guarantee at market prices’.
116.
In the following paragraph (paragraph 97) of the judgment in La Poste (C‑559/12 P), the Court of Justice also observed that the Guarantees Notice ‘specifically provid[ed], at points 1.2, 2.1 and 2.2, that an unlimited State guarantee in favour of an undertaking whose legal form rule[d] out bankruptcy or other insolvency procedures grant[ed] an immediate advantage to that undertaking and constitute[d] State aid, in that it [was] granted without the recipient thereof paying the appropriate fee for taking the risk supported by the State and also allow[ed] “better financial terms for a loan to be obtained than those normally available on the financial markets”’.
117.
It was in the light of those findings that the Court of Justice held in the following paragraph that ‘a simple presumption exist[ed] that the grant of an implied and unlimited State guarantee in favour of an undertaking which [was] not subject to the ordinary compulsory administration and winding-up procedures result[ed] in an improvement in its financial position through a reduction of the charges which … normally … encumber[ed] its budget’ (judgment in La Poste, C‑559/12 P, paragraph 98).
118.
Consequently, the Court of Justice held (paragraph 99) that ‘in the context of the procedure relating to existing schemes of aid, [in order] to prove the advantage obtained by such a guarantee to the recipient undertaking, it [was] sufficient for the Commission to establish the mere existence of that guarantee, without having to show the actual effects produced by it from the time that it [was] granted’.
119.
Also at issue in the present case, the crucial point is the question of the rules governing the burden and standard of proof for the purposes of demonstrating the existence of an advantage resulting from a free and unlimited State guarantee.
120.
In that regard, the Court of Justice held in paragraph 102 of the judgment in La Poste (C‑559/12 P) that ‘it must be noted that the General Court found that the Commission had not incorrectly established the existence of such an advantage, correctly ruling, [in] paragraphs 106 and 108 of the judgment under appeal, that such a guarantee “is, as a rule, liable to confer an advantage”, as it is granted without something in return and enables its recipient to obtain more favourable credit terms than … it would have obtained on its own merits alone, thereby easing the pressure on its budget’.
121.
Next, in paragraph 103 of that judgment, the Court of Justice held that ‘it is true that, in the light of those considerations, as the applicant claims, the General Court adopted contradictory and insufficient reasoning when it found, first, [in] paragraph 123 of the judgment under appeal, that the actual effects of existing aid do not have to be demonstrated, on the basis of case-law of the Court of Justice which was irrelevant, and stated, second, [in] paragraph 124 of that judgment, that “[m]oreover, the actual effect of an advantage conferred by a State guarantee may be presumed”’.
122.
Therefore, although in paragraph 104 of that judgment the Court of Justice corrected the judgment of the General Court on that point, it held that ‘such an error cannot invalidate the judgment under appeal. Indeed, [in] paragraphs 123 and 124, the General Court correctly found that the Commission had observed the burden and the level of proof on it in order to establish whether [a free] and unlimited State guarantee constitutes an advantage, specifying that such a guarantee enables the borrower “to enjoy a lower interest rate or provide a lower level of security”’.
123.
Accordingly, I note that the presumption established in the judgment in La Poste (C‑559/12 P) is based on the assumption that, by virtue of the guarantee inherent in its status, an EPIC benefits or could benefit from more advantageous financial conditions than those normally agreed on the financial markets and that in order for that presumption to apply it is sufficient for the Commission to establish the mere existence of the guarantee (paragraph 99 of the judgment in La Poste (C‑559/12 P)).
124.
Thus, the General Court erred in going beyond the simple establishment by the Commission of the mere existence of the guarantee in order for it to be able to invoke the presumption at issue when it considered, in paragraph 137 of the judgment under appeal, that the Commission was required to demonstrate the plausibility of a dual premiss, namely (i) that the guarantee had a favourable influence on the assessment by creditors of the risk of default of payment on the part of the beneficiary and (ii) that the guarantee implied a reduction in the cost of credit.
125.
That is, of course, a simple presumption that can be rebutted if it is shown that the guarantee in question did not have, will not have or is not potentially capable of having beneficial effects on the situation of the EPIC. (
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)
126.
In the present case, independently of the error of law identified in point 124 of this Opinion, the General Court held, in paragraph 188 of the judgment under appeal, that, in IFPEN’s case, the simple presumption within the meaning of the judgment in La Poste (C‑559/12 P) had been rebutted.
127.
In that regard, it is appropriate to examine whether the evidence that enabled the General Court to conclude that that presumption had been rebutted or could not be invoked in this case are consistent with the principles governing the taking of evidence in the State aid sector.
128.
In order to conclude that the presumption had been rebutted, however, the General Court could not rely solely on the fact that, in the past, IFPEN had not derived any real economic advantage from its status in the form of more favourable credit terms granted by banks and financial institutions — a point which is not disputed in the present case — in other words on the fact that the guarantee had had no ‘real effect’ on IFPEN’s dealings with banks and financial institutions during the period concerned.
129.
That circumstance would not be sufficient to rebut a presumption of an advantage such as that established in the judgment in La Poste (C‑559/12 P). It is also necessary to show that the guarantee in question was not liable, owing to the particular features of IFPEN, to obtain an advantage for that establishment in the future in its dealings with those operators.
130.
That is not what the General Court did.
131.
Admittedly, it observed in paragraph 186 of the judgment under appeal that the applicants at first instance had submitted at the hearing that, in accordance with the applicable legislation, namely Article 12 of Law No 2010/1645, IFPEN could not take out with a credit institution a loan with a term greater than 12 months and in that respect was subject to State supervision.
132.
However, the General Court held in paragraph 191 of the judgment under appeal that, ‘from the point of view of IFPEN’s dealings with banks and financial institutions during the period between 2006 and 2010, the [free] and unlimited State guarantee inherent in IFPEN’s EPIC status, inasmuch as it did not confer an advantage accruing exclusively to that undertaking, cannot be classified as State aid within the meaning of Article 107(1) TFEU’.
133.
The General Court added in paragraph 193 that, since the presumption was rebutted, the French Republic could no longer be required to prove that the guarantee was not ‘capable of conferring an advantage on [IFPEN] in the future’.
134.
The General Court concluded that it followed from the foregoing that there was no need to rule even on the admissibility (and a fortiori on the substance) of the argument of the applicants at first instance.
135.
In that respect, I consider that the General Court erred in law in confining itself, for the purposes of rebutting the presumption established in the judgment in La Poste (C‑559/12 P), to demonstrating that the guarantee had had no (real) effect in the past on IFPEN’s dealings with banks and financial institutions.
136.
The second part of the first ground of appeal and the second ground of appeal must therefore be upheld and the judgment under appeal must therefore be set aside in that regard.
137.
I am of the view that, on this point, the state of the proceedings is such that judgment can be given on the basis of the analysis of the argument of the applicants at first instance, concerning Article 12 of Law No 2010/1645, which the applicants reiterated in their written observations and at the hearing before this Court and which the Commission again claims is inadmissible, because ‘the General Court does not use it in its judgment and could not use it, because Article 12 was never brought to the Commission’s knowledge by either the French authorities or IFPEN’ (as the Commission stated at the hearing before the Court of Justice).
138.
First, I am of the view that the Commission’s plea of inadmissibility must be rejected inasmuch as it relates much less to an argument or to a plea in law that has been raised than to an objective and public element, since it relates to a law of the Member State in question.
139.
As the Court has had occasion to state on many occasions, ‘the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings applying Articles 101 TFEU and 102 TFEU which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the appellants … and taking into account all the elements submitted by the latter, whether those elements pre-date or post-date the contested decision, whether they were submitted previously in the context of the administrative procedure or, for the first time, in the context of the proceedings before the General Court, in so far as those elements are relevant to the review of the legality of the Commission decision’. (
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)
140.
Second, as regards the substance, the Commission has acknowledged in paragraph 106 of the appeal that the simple presumption established in the judgment in La Poste (C‑559/12 P) could not be relied on in a case in which the guarantee is not capable of obtaining an advantage for the EPIC in its relations with banks and financial institutions ‘because of the particular features of [the EPIC]’. According to the Commission, those particular features might be, for example, that the EPIC is prohibited from becoming indebted to banks or that the possibility of incurring loans is subject to such conditions that the potential advantage would in any event be de minimis.
141.
Furthermore, the Commission acknowledged before the Court, at the hearing on 28 September 2017, that ‘[what] could in all likelihood be inferred [from Law No 2010/1645]’ would be ‘a maximum amount which might, where appropriate, be de minimis and therefore that could in fact lead to a rebuttal of the presumption. It is the type of act that is actually liable to lead to the rebuttal of the presumption’.
142.
In the present case, the French Government and IFPEN succeeded in showing before the General Court that if IFPEN were one day to take out a loan for the future, it would be able to borrow for only a very limited period, which follows from the status of various central government bodies (ODACs) from which IFPEN benefits.
143.
Thus, in the present case, it has been possible to show that IFPEN, which benefits from a free and unlimited State guarantee, did not obtain, and that it was not plausible that it would obtain in the future, loans from banks and financial institutions on more advantageous financial terms than those normally granted on the financial markets (such as a lower interest rate or less strict requirements in terms of securities).
144.
It must be concluded that, as the presumption has been rebutted, the Commission has not proved that in the future the undertaking could nonetheless benefit from ‘interventions which, in various forms, mitigate the charges which are normally included in the budget of an undertaking’. (
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)
C. IFPEN’s dealings with its suppliers and its customers: the third ground of appeal (simple presumption of the existence of an advantage in those dealings)
145.
This ground of appeal is directed against paragraphs 134 to 161 of the judgment under appeal, and the Commission takes issue with the General Court for having wrongly concluded that, in the context of IFPEN’s dealings with its suppliers and its customers, the Commission could not rely on a simple presumption that an advantage existed for IFPEN as a result of the free and unlimited State guarantee from which it benefits.
1.
Summary of the parties’ arguments
146.
According to the Commission, the General Court’s conclusion is based, in essence, on (i) an incorrect interpretation of the judgment in La Poste (C‑559/12 P) and of the Guarantees Notice and (ii) an alleged absence of a plausible effect of the guarantee on IFPEN’s dealings with its suppliers and its customers.
147.
In the first place, as regards the interpretation of the judgment in La Poste (C‑559/12 P), the Commission claims that there is nothing in that judgment to indicate that the presumption of an advantage would not apply to the EPIC’s dealings with its suppliers and its customers.
148.
Furthermore, the fact that both the judgment in La Poste (C‑559/12 P) and the Guarantees Notice refer, in the context of the examination of the presumption of an advantage, only to credit granted by banks and financial institutions does not preclude the possibility that that presumption can be applied in the context of the EPIC’s dealings with its commercial creditors, inasmuch as that reference appears in that judgment only by way of example (paragraph 102).
149.
In the second place, with regard to the alleged absence of a plausible influence of the guarantee on IFPEN’s dealings with its suppliers and its customers, the Commission observes, first of all, that it cannot be reasonably maintained that commercial creditors are as a general rule indifferent to the payment of the amounts owed to them. On the contrary, in any credit operation, whether it be financial credit or commercial credit, the risk of non-payment is a factor that weighs on the relationship between the contracting parties. Consequently, the assurance that the amount owed to it will be paid by the State in the event that IFPEN should default is in principle of appreciable importance to the commercial creditor.
150.
Next, the Commission observes that, according to paragraph 139 of the judgment under appeal, it is not plausible that the existence of the State guarantee — and therefore of the advantage for the creditor — will result in a price reduction in favour of IFPEN. While the Commission acknowledges that a price reduction is linked with a number of factors and not just with the existence of a guarantee inherent in EPIC status, it denies that that circumstance is capable of precluding the application of the presumption of an advantage that derives from the judgment in La Poste (C‑559/12 P). In that regard, the Commission observes that, in the case that gave rise to that judgment, the parties had maintained that La Poste’s dealings with its creditors were the result of a set of complex factors and not of the guarantee alone. However, neither the General Court nor the Court of Justice considered that that circumstance was such as to preclude the presumption of an advantage.
151.
In the third place, the Commission disputes the General Court’s criticisms, in particular in paragraph 130 of the judgment under appeal, alleging failure by the Commission to fulfil the obligation to state reasons laid down in Article 296 TFEU as regards proof of the advantage that IFPEN would derive from the guarantee in its dealings with its suppliers and its customers. In fact, the grounds of the decision at issue explain that the Commission’s reasoning is based on a presumption, even if the word ‘presumption’ is not expressly stated, and also the reason why that presumption was not rebutted in the present case.
152.
IFPEN observes that, inasmuch as the grant of the guarantee inherent in EPIC status constitutes individual aid and inasmuch as the presumption established in the judgment in La Poste (C‑559/12 P) is not applicable in the present case, the General Court correctly concluded, in paragraph 129 of the judgment under appeal, that the Commission was required to examine the real effects of the guarantee in order to demonstrate the existence of an advantage for IFPEN.
153.
Furthermore, IFPEN maintains that, contrary to its assertion in the appeal, the Commission did not identify in the decision at issue an advantage for IFPEN’s creditors, in particular for suppliers and customers.
154.
In that regard, it contends that, as regards dealings between IFPEN and its suppliers, the Commission was wrong to conclude, in the decision at issue and in its appeal, that suppliers are relieved of the requirement to pay a factoring commission in order to assign their claims against IFPEN, since they benefit from the free and unlimited State guarantee which IFPEN enjoys.
155.
As regards dealings between IFPEN and its customers, IFPEN claims that the Commission was wrong to maintain, in the decision at issue and in its appeal, that because of the guarantee inherent in its EPIC status IFPEN was able offer its customers a performance bond or a best efforts guarantee. In fact, since IFPEN mainly supplies research services, it does not assume ‘result’ or ‘performance’ contractual obligations. In addition, IFPEN provides its customers with a standard guarantee limited to the value of the contract.
156.
It follows, according to IFPEN, that the General Court was correct to consider, in paragraphs 99 to 108 and 111 to 120 of the judgment under appeal, that the assumption on which the Commission relies, with respect to the alleged advantage for IFPEN in its dealings with its customers and suppliers, was theoretical and implausible.
157.
The French Republic maintains that the General Court did not err in law in defining the scope of the presumption of the existence of an advantage deriving from the free and unlimited State guarantee. According to that government, the General Court was correct not to extend that guarantee to the EPIC’s dealings with its suppliers and its customers.
158.
In that regard, the French Government observes, in the first place, that the presumption established in the judgment in La Poste (C‑559/12 P) is not based on an assumption of the EPIC’s dealings with its suppliers or its customers and the Commission cannot therefore rely on that assumption in such circumstances.
159.
In the second place, and in any event, as the General Court observed in paragraph 136 of the judgment under appeal, the possibility of using such a presumption as a means of proof depends on the plausibility of the assumptions on which the presumption is based.
160.
In that regard, the decision at issue is based on the assumption that an EPIC which enjoys a State guarantee benefits from a price reduction granted by its suppliers. However, according to the French Republic, as the General Court correctly observed, a price reduction in the dealings between a supplier and the EPIC concerned is based on a number of factors, including the volume of orders placed, the payment terms granted by the supplier or the length of the contractual relationship. A price reduction therefore does not result from the existence of a guarantee by the public authorities in favour of the EPIC.
161.
Furthermore, as regards IFPEN’s dealings with its customers, the French Government maintains that the General Court was correct to consider, in paragraph 141 of the judgment under appeal, that the Commission had not defined in the decision at issue the advantage accruing to IFPEN from the existence of the State guarantee and that, consequently, the presumption on which the Commission intended to rely was redundant in that regard. In fact, according to the French Republic, the Commission has not demonstrated how the free and unlimited State guarantee inherent in EPIC status would result in an improvement in IFPEN’s position in its dealings with its customers.
162.
In the light of the foregoing, the French Republic submits that the third ground of appeal should be rejected as unfounded.
2.
Assessment of admissibility
163.
IFPEN maintains that in reality the Commission is seeking to challenge the General Court’s assessments of facts and of evidence in paragraphs 90 to 131 of the judgment under appeal. This ground of appeal should therefore be rejected as inadmissible.
164.
That criticism is very succinct and IFPEN itself does not claim that the third ground of appeal is entirely inadmissible (having regard to the fact that, in its defence, IFPEN ‘leaves to one side’ the discussion of whether there is a presumption of an advantage).
165.
In fact, this ground of appeal is specifically concerned with the scope of the presumption of an advantage resulting from a free and unlimited guarantee and in particular the question whether that presumption also applies to IFPEN’s dealings with its suppliers and its customers. In other words, the very subject matter of the third ground of appeal escapes the criticism formulated by IFPEN.
166.
Therefore, as this question is eminently a question of law, IFPEN’s plea of inadmissibility should be rejected.
3.
Substantive assessment
167.
According to the Commission, the conclusion reached by the General Court is based, in essence, on an incorrect interpretation of the judgment in La Poste (C‑559/12 P) and of the Guarantees Notice, on the one hand, and on an alleged absence of a plausible influence of the guarantee on IFPEN’s dealings with its suppliers and its customers, on the other hand.
168.
As regards the scope of the presumption arising from the judgment in La Poste (C‑559/12 P) and, therefore, of the General Court’s interpretation of that judgment of the Court of Justice, I am of the view that there is nothing in that judgment that might indicate that the presumption of an advantage could not apply to an EPIC’s dealings with its suppliers and its customers.
169.
Admittedly, that judgment recognised the simple presumption only in a case of an EPIC’s dealings with banks and financial institutions, but that was because that was the only market called into question by the Commission in that case.
170.
I therefore think that it cannot be inferred that the simple presumption cannot be extended to other markets or dealings and that therefore, in deciding the opposite (see, in particular, paragraph 160 of the judgment under appeal), the General Court erred in law.
171.
In fact, while accepting that the Commission was correct to carry out an analysis in three stages — connection with banks, connection with suppliers and connection with customers (paragraph 89 of the judgment under appeal and point 26 of this Opinion) — and accepting that an advantage might materialise in each of those categories, the General Court, in particular in paragraph 142 of the judgment under appeal, rejects even the possibility that the presumption of an advantage might be extended to dealings with suppliers or customers (see also point 35 of this Opinion).
172.
Contrary to the General Court’s findings, an advantage of the same type as the advantage identified by the Court of Justice in the judgment in La Poste (C‑599/12 P) may be found in dealings with suppliers and customers, namely an improvement in credit conditions for the beneficiary of the guarantee and the absence of payment by the latter of the appropriate premium corresponding to the risk premium borne by the State.
173.
In fact, the dealings of a beneficiary of the free and unlimited State guarantee with its suppliers and its customers generally also entail the grant of credits and payment terms (with the attendant risks), if only because of the gap between the supply of the goods or services and payment for those goods or services.
174.
It is clear that the fact of entering into a contract with a beneficiary of a free and unlimited State guarantee like IFPEN is accompanied by the not insignificant certainty for a supplier of being paid or for a customer of receiving the goods or services concerned or being able to obtain damages. That advantage would not exist if the supplier or customer entered into contracts with other operators not benefiting from that guarantee and it is only common sense to think that the beneficiary of the guarantee will in return be able to benefit from a range of advantages that might be reflected, inter alia, in a price reduction or the fact that contracting partners will be more willing to enter into contracts with the beneficiary of that guarantee than with others.
175.
I would also observe (as does the Commission) that the express reference to credit granted by banks or financial institutions is not a unique reference, either in the judgment in La Poste (C‑559/12 P) or in the Guarantees Notice (points 1.2, 2.1 and 2.2) to which that judgment refers. Most frequently it is a question of the credit terms enjoyed by the beneficiary of the guarantee and the absence of a premium paid to the State to cover its risk, without those considerations relating expressly to loans taken out with banks and financial institutions.
176.
The General Court emphasises that, in the case that gave rise to the judgment of 8 December 2011, Residex Capital IV (C‑275/10, EU:C:2011:814), the beneficiary undertaking was already in difficulty when the guarantee was granted to it. However, I am also unable to see how that fact would argue in favour of the presumption being limited. On the contrary, a supplier will not readily grant credit to an undertaking in difficulty if the latter does not have a free and unlimited State guarantee. In such a situation, the advantage which the undertaking derives from the guarantee in its dealings with that commercial creditor is obvious.
177.
It is true, as the General Court observes, that commercial relations between a supplier and its customer are generally determined by a number of factors and therefore not solely by the existence or non-existence of a free and unlimited State guarantee. I think, however, that that fact cannot preclude a presumption of an advantage resulting from such a guarantee.
178.
Furthermore, in the case that gave rise to the judgment in La Poste (C‑559/12 P), the applicant had emphasised that La Poste’s dealings with its creditors resulted from a number of complex factors and not from the guarantee alone. However, neither the General Court nor the Court of Justice considered that that fact was capable of precluding a presumption of an advantage.
179.
Last, the General Court suggested that the creditor of the beneficiary of the guarantee was in reality the true beneficiary of the guarantee and therefore of the advantage, and not, in this instance, IFPEN. That argument would also apply to the banks and financial institutions, since, where a free and unlimited guarantee has been granted to the borrower, the bank no longer assumes any risk, which necessarily constitutes an advantage for it.
180.
In reality, in my view, the existence of a free and unlimited State guarantee entails a presumption of an advantage both for the beneficiary of the guarantee and for the economic operators with which that beneficiary enters into contracts.
181.
Although some of the elements referred to by the General Court in the judgment under appeal (in particular those relating to factoring or the price reductions which, according to the General Court, would arise from bulk purchases rather than from the existence of the guarantee) might have served to rebut the presumption, the fact nonetheless remains that the General Court ought to have accepted the simple presumption of an advantage resulting, in IFPEN’s dealings with its suppliers and its customers, from the existence of the free and unlimited State guarantee and have confined itself to ascertaining whether that presumption had been rebutted.
182.
Consequently, the third ground of appeal must be upheld.
183.
Accordingly, I am of the view that — since the judgment under appeal is based on the premiss that the General Court rejects the presumption for dealings with suppliers and customers — the state of the proceedings does not permit a decision by the Court of Justice on that point and that the Court of Justice must necessarily refer the case back to the General Court so that the third ground of appeal may be discussed on the basis of the existence of a presumption and the possibility for IFPEN and the French Government to rebut that presumption.
V. Costs
184.
Since the case should be referred back to the General Court, the costs relating to the present appeal proceedings should be reserved.
VI. Conclusion
185.
For those reasons, I propose that the Court:
–
set aside the judgment of the General Court of the European Union of 26 May 2016, France and IFP Énergies nouvelles v Commission (T‑479/11 and T‑157/12, EU:T:2016:320) in so far as the General Court held, first, that for the purpose of rebutting the simple presumption established in the judgment of the Court of Justice of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217), proof of absence in the past of any (real) effect of the guarantee on the publicly owned establishment IFP Énergies nouvelles’ dealings with banks and financial institutions was sufficient and, second, that that simple presumption could not be extended to other markets or dealings than the publicly owned establishment IFP Énergies nouvelles’ dealings with banks and financial institutions, namely to its dealings with suppliers and/or customers;
–
dismiss the appeal as to the remainder; and
–
refer the case back to the General Court for reconsideration of the argument underlying the third ground of appeal, and reserve the costs.
(
1
)	Original language: French.
(
2
)	Decision on State aid C 35/08 (ex NN 11/08) granted by France to the Institut français du pétrole (OJ 2012 L 14, p. 1, ‘the decision at issue).
(
3
)	It seems that there are a large number of EPICs (no fewer than 51 ‘main’ EPICs) in that Member State, according to Wikipedia: https://fr.wikipedia.org/wiki/%C3%89tablissement_public_%C3%A0_caract%C3%A8re_industriel_et_commercial_en_France#Principaux). See also Bourdon, P., La garantie de l’État en faveur des établissements publics industriels et commerciaux: une aide d’État illicite, mais pas rédhibitoire, Revue de l’Union européenne, 2015, p. 523.
(
4
)	Council Regulation of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), replaced with effect from 14 October 2015 by 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).
(
5
)	OJ 2008 C 155, p. 10, ‘the Guarantees Notice’.
(
6
)	Loi du 13 juillet 2005 de programme fixant les orientations de la politique énergétique (Law of 13 July 2005 establishing the energy policy guidelines) (JORF, 14 July 2005, p. 11570).
(
7
)	Decision of 26 January 2010 on State aid C 56/07 (ex E 15/05) granted by France to La Poste (JO 2010 L 274, p. 1, ‘the “La Poste” decision’).
(
8
)	Decision on the aid measure implemented by France for the IFP Group (C 51/05 (ex NN 84/05)) (OJ 2009 L 53, p. 13).
(
9
)	In view of the very large number of references to that judgment in this Opinion, it will be referred to below as ‘the judgment in La Poste (C‑559/12 P)’, without the full citation being repeated each time.
(
10
)	Judgments of 15 December 2005, Italy v Commission (C‑66/02, EU:C:2005:768, paragraphs 91 and 92); of 6 September 2006, Portugal v Commission (C‑88/03, EU:C:2006:511, paragraph 91); of 9 June 2011, Comitato Venezia vuole vivere and Others v Commission (C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 114); and of 12 September 2007, Italy and Brandt Italia v Commission (T‑239/04 and T‑323/04, EU:T:2007:260, paragraphs 142 to 144).
(
11
)	According to that case-law, the implicit and unlimited State guarantee inherent in EPIC status results in an improvement in the financial position of the recipient undertaking through a reduction of charges which would normally encumber its budget (paragraph 98 of that judgment).
(
12
)	The Commission observes that there is nothing exceptional about such a situation. It is sufficient to think of the aid schemes in favour of services of general interest whereby the State lays down the conditions for the grant of compensation to the providers of those services, for example to all hospitals which comply with certain conditions or to all undertakings which provide certain services offering assistance to persons in difficulty. However, each hospital or undertaking in that scheme may also benefit from an aid scheme, in the sense that the hospital or undertaking will receive aid which is not determined or is not linked to a specific project (because that aid depends on the net costs of the public service which each subject will have incurred, and that cost is not known in advance). It is precisely that classification as a scheme, within the meaning of the second part of Article 1(d) of Regulation No 659/1999, that allows the Commission, when the measure is classified as existing aid, to adopt appropriate measures for the hospital or undertaking concerned. For an example of that situation, see Commission Decision of 5 July 2016 on State aid SA.19864 — 2014/C (ex 2009/NN54) implemented by Belgium — Public financing of Brussels public IRIS hospitals (OJ 2016 L 351, p. 68).
(
13
)	Commission Decision C(2005) 2706 final of 14 September 2005 on State aid for Olympiaki Aeroporia Ypiresies AE (C 11/2004 (ex NN 4/2003) — Olympic Airways — Restructuring and Privatisation); Commission Decision of 17 September 2008 — State aid N 321/2008, N 322/2008 and N 323/2008 — Greece — Sale of certain assets of Olympic Airlines/Olympic Airways Services; Commission Decision C(2012) 9403 of 20 December 2011 concerning State aid C 25/08 (ex NN 23/08) — Reform of the arrangements for financing the retirement pensions of civil servants working for France Télécom implemented by the French Republic in favour of France Télécom (OJ 2012 L 279, p. 1), and Commission Decision C(2010) 4499 of 29 September 2010 concerning State aid N 178/2010 notified by the Kingdom of Spain in the form of a public service compensation linked to a preferential dispatch mechanism for indigenous coal power plants.
(
14
)	Judgments of 13 September 2010, Greece and Others v Commission (T‑415/05, T‑416/05 and T‑423/05, EU:T:2010:386); of 3 December 2014, Castelnou Energía v Commission (T‑57/11, EU:T:2014:1021); and order of 3 April 2014, CFE-CGC France Télécom-Orange v Commission (T‑2/13, not published, EU:T:2014:226).
(
15
)	Judgment of 14 February 1990, France v Commission (C‑301/87, EU:C:1990:67, paragraph 33). See also judgments of 8 December 2011, France Télécom v Commission (C‑81/10 P, EU:C:2011:811, paragraphs 19 to 24), and of 20 September 2011, Regione autonoma della Sardegna and Others v Commission (T‑394/08, T‑408/08, T‑453/08 and T‑454/08, EU:T:2011:493, paragraph 91).
(
16
)	Under French law, IFPEN is prevented from borrowing for a period in excess of 12 months and in that respect is subject to State supervision. IFPEN refers to Article 12 of loi no 2010-1645, du 28 décembre 2010, de programmation des finances publiques pour les années 2011 à 2014 (Law No 2010-1645 of 28 December 2010 on the programming of public finances for the years 2011 to 2014) (JORF, 29 December 2010, p. 22868).
(
17
)	See also Bourdon, P., op. cit. in footnote 3 of this Opinion, according to which ‘the presumption … may be rebutted [for example by contemplating] preserving the State guarantee in favour of the [EPICs]. However, that State guarantee should be included in the [EPIC’s] accounts in order to be taken into account by the establishment in the calculation of its costs. That solution, which is not novel …, was very recently highlighted by the Conseil d’État [(Council of State, France)] … [which] stated that, when they propose to offer services on the market, “the price offered by the territorial community or the public cooperation establishment must be determined taking into account all the direct and indirect costs that contribute to that price, without the public community benefiting, in order to determine that price, from an advantage resulting from the resources or means attributed to it in connection with its public service tasks and on condition that it may, if necessary, show that that is so by its accounts or any other appropriate means of information’ (CE 30 December 2014, No 355563, Société Armor SNC, Lebon 433 with submissions). That decision did not concern the [EPICs], but it can be applied to them by analogy when they offer services on the market. Similarly, the State guarantee might be the subject of payment by [the EPIC] of a premium in proportion to the economic value of the guarantee, which is roughly equivalent to assuming the risk borne by the State … In the absence of a premium, it might be shown that the State guarantee is consideration for [the EPIC’s] public service obligations. Provision for this is made in Article 106 [TFEU]. A contract between [the EPIC] and the State in order to determine that point would be useful for the purpose of rebutting the presumption of the existence of unlawful State aid’.
(
18
)	Judgment of 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38, paragraph 72 and the case-law cited). Emphasis added.
(
19
)	Judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others (C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 123).