Judgment of the Court (Sixth Chamber) of 21 March 2013 — Commission v Buczek Automotive

(Case C-405/11 P)

‛Appeal — State aid — Restructuring of the Polish steel industry — Concept of State aid — Recovery of public debts — Classification as State aid of the failure to request the liquidation of the debtor undertaking — Private creditor test — Allocation of the burden of proof — Limits of judicial review’

1. Appeals — Interest in bringing proceedings — Examination by the Court of its own motion — Event subsequent to the judgment of the General Court — Event which failed to remove the harmful nature of that judgment for the appellant — Interest in bringing proceedings retained (Art. 256(1), second para., TFEU) (see paras 15-19)

2. State aid — Concept — Intervention having the effect of mitigating the charges of an undertaking — Included (Art. 107(1) TFEU) (see paras 30, 45)

3. State aid — Concept — Advantage resulting from the abstention of the authorities from requesting, in order to recover public debts, the liquidation of an undertaking experiencing financial difficulties — Application of the private creditor test — Account taken of the duration and cost of insolvency proceedings (Art. 107(1) TFEU) (see paras 31-33, 45-47, 54-56, 59)

4. State aid — Examination by the Commission — Private creditor test — Complex evaluation of economic matters — Judicial review — Limits (Art. 107(1) TFEU) (see paras 48-50)

5. Appeals — Grounds — Plea directed against a superfluous ground — Invalid plea in law — Rejection (see para. 65)

Re:

Appeal brought against the judgment of the General Court (Second Chamber) of 17 May 2011 in Case T-1/08 Buczek Automotive v Commission by which the General Court partially annulled Commission Decision 2008/344/EC of 23 October 2007 on State Aid C 23/06 (ex NN 35/06) which Poland has implemented for steel producer Technologie Buczek Group (OJ 2008 L 116, p. 26) — Classification as State aid of the failure to request the liquidation of the debtor undertaking — Error of law in the assessment of the Commission’s application of the hypothetical private creditor test and in the allocation of the burden of proof.

Operative part

The Court:

1. Dismisses the appeal;

2. Orders the European Commission to pay the costs;

3. Orders the Republic of Poland to bear its own costs.

Judgment of the Court (Sixth Chamber) of 21 March 2013 — Commission v Buczek Automotive

(Case C-405/11 P)

‛Appeal — State aid — Restructuring of the Polish steel industry — Concept of State aid — Recovery of public debts — Classification as State aid of the failure to request the liquidation of the debtor undertaking — Private creditor test — Allocation of the burden of proof — Limits of judicial review’

1. Appeals — Interest in bringing proceedings — Examination by the Court of its own motion — Event subsequent to the judgment of the General Court — Event which failed to remove the harmful nature of that judgment for the appellant — Interest in bringing proceedings retained (Art. 256(1), second para., TFEU) (see paras 15-19)

2. State aid — Concept — Intervention having the effect of mitigating the charges of an undertaking — Included (Art. 107(1) TFEU) (see paras 30, 45)

3. State aid — Concept — Advantage resulting from the abstention of the authorities from requesting, in order to recover public debts, the liquidation of an undertaking experiencing financial difficulties — Application of the private creditor test — Account taken of the duration and cost of insolvency proceedings (Art. 107(1) TFEU) (see paras 31-33, 45-47, 54-56, 59)

4. State aid — Examination by the Commission — Private creditor test — Complex evaluation of economic matters — Judicial review — Limits (Art. 107(1) TFEU) (see paras 48-50)

5. Appeals — Grounds — Plea directed against a superfluous ground — Invalid plea in law — Rejection (see para. 65)

Re:

Appeal brought against the judgment of the General Court (Second Chamber) of 17 May 2011 in Case T-1/08 Buczek Automotive v Commission by which the General Court partially annulled Commission Decision 2008/344/EC of 23 October 2007 on State Aid C 23/06 (ex NN 35/06) which Poland has implemented for steel producer Technologie Buczek Group (OJ 2008 L 116, p. 26) — Classification as State aid of the failure to request the liquidation of the debtor undertaking — Error of law in the assessment of the Commission’s application of the hypothetical private creditor test and in the allocation of the burden of proof.

Operative part

The Court:

1. Dismisses the appeal;

2. Orders the European Commission to pay the costs;