Case T‑511/09

Niki Luftfahrt GmbH

v

European Commission

‛State aid — Restructuring aid granted by Austria in favour of the Austrian Airlines group — Decision declaring the aid compatible with the common market, subject to certain conditions — Privatisation of the Austrian Airlines group — Determination of the beneficiary of the aid — Guidelines on State aid for rescuing and restructuring firms in difficulty’

Summary — Judgment of the General Court (Eighth Chamber), 13 May 2015

State aid — Examination by the Commission — Compatibility of aid with the internal market — Discretion — Compliance with the coherence between the provisions governing State aid and other provisions of the Treaty

State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid for restructuring firms in difficulty — Firm in difficulty — Concept — Undertaking in difficulty forming part of a group of undertakings — Undertaking in difficulty purchases by a group of undertakings — Assessment

State aid — Concept — Sale of a public undertaking having benefited from State aid — Application of the private investor test — Aid element included in the purchase price — No advantage in favour of the buyer

State aid — Commission decision — Assessment of legality by reference to the information available at the time of adoption of the decision

Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid — Decision on aid for restructuring firms in difficulty — Need to set out the facts and legal considerations of essential importance in the scheme of the decision — No requirement for a specific statement of reasons for each element raised by the persons concerned

Judicial proceedings — Application initiating proceedings — Pleas based on information improperly obtained — Information already known to an applicant not bound to professional secrecy — No undermining of the system for controlling State aid — Admissibility

Actions for annulment — Grounds — Applicants able to rely on all the grounds for annulment — Limitation only on the basis of an express provision and in compliance with the principle of proportionality — Pleas based on information blacked out in the published version of a decision on State aid — Lawfulness — No infringement of the Commission’s defence rights

(Arts 263 TFEU and 339 TFEU; Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Art. 44(1)(c))

Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Defendant unable to respond to pleas by reason of a legal obligation — No effect — Admissibility

Under Article 44(1)(c) of the Rules of Procedure, every application before the Court is to state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court exercise its power of review. Thus, in order to ensure legal certainty and the sound administration of justice, it is necessary that the basic legal and factual particulars relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. The alleged impossibility of the defendant responding to the applicant’s arguments because of a legal obligation is not sufficient to demonstrate the existence of a breach of the formal requirements laid down in Article 44(1)(c) of the Rules of Procedure, thereby rendering the application inadmissible. (see paras 65, 66)

A natural or legal person who, in application of the fourth paragraph of Article 263 TFEU, is entitled to challenge an act referred to in the first paragraph of that provision may rely without limit on all the grounds mentioned in the second paragraph of that article. Consequently, any limitation of the right of such an applicant to rely on the grounds of annulment which it deems appropriate must, in view of the fact that it would also constitute a limitation of the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, be provided for by EU law, within the meaning of Article 52(1) of that Charter and comply with the requirements of the latter provision. Furthermore, subject to the principle of proportionality, such a limitation must be necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. As regards the Commission’s obligation under Article 339 TFEU not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components, which obligation is confirmed by Article 24 of Regulation No 659/1999 laying down detailed rules for the application of Article 88 of the EC Treaty, none of those provisions expressly requires the Court to dismiss as inadmissible pleas based on elements of the contested decision which were blacked out in the published version of that decision and to which an applicant could have had access only by obtaining the complete, confidential version of the same decision without the Commission’s authorisation. Moreover, the Commission’s obligation to comply with the obligation of professional secrecy becomes devoid of purpose where both the applicant and the other interested parties already have the information in question and the hearing before the General Court is held in private. (see paras 67-71, 82, 83, 87, 89, 90)

The fact, even if established, that an applicant, who has already had access to information contained in the full version of a Commission decision on State aid and who is not bound by the obligation of professional secrecy under Article 339 TFEU and Article 24 of Regulation No 659/1999, has, in proceedings before the EU judicature, used information that was obtained improperly is not among the circumstances that would warrant the dismissal as inadmissible of an application brought on the basis of Article 263 TFEU under Article 44 of the Rules of Procedure on the ground that such a practice would be likely to undermine the system of control of State aid, since it would discourage economic operators from entrusting confidential information to the Commission in the procedure for the examination of State aid. (see paras 91-96)

See the text of the decision. (see paras 104, 111, 118)

See the text of the decision. (see paras 105-107, 114)

See the text of the decision. (see paras 122, 123)

See the text of the decision. (see paras 124-126)

See the text of the decision. (see paras 127, 188)

Where an undertaking that has benefited from State aid is bought at the market price, that is to say at the highest price which a private investor acting under normal competitive conditions was ready to pay for that company as it stood, in particular after having enjoyed State aid, the aid element is regarded as having been assessed at the market price and included in the purchase price. In such circumstances, the buyer cannot be regarded as having benefited from an advantage by comparison with other market operators. (see paras 133)

See the text of the decision. (see paras 142-149)

In State aid matters, one of the principles laid down in point 13 of the Guidelines on State aid for rescuing and restructuring firms in difficulty (‘the 2004 Guidelines’) is that an undertaking in difficulty which belongs to a group is prohibited from benefiting from rescue or restructuring aid where its difficulties are not intrinsic and are the result of an arbitrary allocation of costs within the group or where the group has the means to resolve those difficulties on its own. The objective of that prohibition is therefore to prevent a group of undertakings from having the State bear the cost of a plan for the restructuring of one of the undertakings belonging to the group, when that undertaking is in difficulty and the group itself has created those difficulties or has the means to deal with them on its own. In that context, the purpose of extending the prohibition of the benefit of rescue or restructuring aid to undertakings in difficulties which are being taken over by a group is to prevent a group of undertakings from circumventing that prohibition by taking advantage of the fact that an undertaking which it is in the process of buying does not yet formally belong to it at the time of payment of the restructuring aid in favour of the undertaking being purchased. (see paras 159, 160, 171)

Restructuring normally includes, according to the 2004 Guidelines, an industrial aspect, which envisages measures designed to reorganise and rationalise the undertaking’s activities, and a financial aspect, which may take the form, in particular, of a capital injection or debt reduction. In that sense, restructuring cannot be confined to financial aid. That does not, however, mean that the restructuring aid must necessarily finance the measures adopted in the context of the industrial aspect of the restructuring. Thus, it is necessary to take into account point 43 of the 2004 Guidelines, which provides that the amount of the aid must be limited to the strict minimum of the costs necessary to enable restructuring to be undertaken in the light of the financial resources of the undertaking. In the case of an undertaking facing significant debts, the essential amount of the aid will logically be assigned to debt reduction, while the industrial restructuring measures will be assumed by the recipient of the aid from its own funds and also from any external financing obtained under market conditions. (see paras 181, 182)

It follows from point 38(4) of the 1994 aviation sector Guidelines that restructuring must not lead to an increase beyond market growth in the number of aircraft or seats offered in the relevant markets. However, that limitation must be reconciled with the objective laid down in point 38(1) of the 1994 aviation sector Guidelines and reproduced in point 38 the 2004 Guidelines, namely that the restructuring plan must enable the airline to be restored to long-term viability within a reasonable time. Such an objective would be difficult to achieve if the capacities of the airline in receipt of the restructuring aid could not increase at the same rate as its competitors, in particular if there should be rapid growth in the market. (see paras 190, 191, 193)

See the text of the decision. (see paras 215, 216)