Judgment of the General Court (First Chamber) of 18 September 2018 –

Duferco Long Products v Commission

(Case T‑93/17)

(State aid — Steel sector — Aid granted by Belgium in favour of a number of undertakings in the steel sector — Decision declaring the aid incompatible with the internal market and ordering its recovery — Duty to state reasons — Notion of State aid — Advantage — Private investor test)

1. State aid — Meaning — Grant of an advantage to the beneficiaries — State intervention mitigating the burdens normally included in the budget of an undertaking — Included (Art. 107(1) TFEU) (see paras 28-31)

2. State aid — Meaning — Assessment according to the criterion of the private investor — Capital contribution — State shareholder of an undertaking — State acting as a public authority — Distinction as regards application of the private investor criterion — Assessment factors for that criterion (Art. 107(1) TFEU) (see paras 32-37, 52)

3. State aid — Meaning — Assessment according to the criterion of the private investor — Assessment of all factors relevant to the transaction at issue and its context — Burden of proof on the Commission — Scope (Art. 107(1) TFEU) (see paras 37, 38, 40, 48, 51-56)

4. Actions for annulment — Jurisdiction of the EU judicature — Substitution of an institution’s grounds for a decision — Not permissible (Arts 263 and 264 TFEU) (see para. 50)

5. State aid — Meaning — Assessment according to the criterion of the private investor — Assessment of all factors relevant to the transaction at issue and its context — Burden of proof on the Member State — Scope (Art. 107(1) TFEU) (see para. 59)

6. Acts of the institutions — Statement of reasons — Obligation — Scope — Essential formality distinct from the merits of the decision (Art. 296 TFEU) (see paras 67, 68)

7. EU law — Principles — Principle of sound administration — Duty of diligence — Scope (Charter of Fundamental Rights of the European Union, Art. 41) (see paras 69, 70)

8. State aid — Administrative procedure — Obligations of the Commission — Diligent and impartial examination — Undertaking not carrying on its market activities in normal conditions of competition with private operators — Scope of the obligation (Art. 108(2) TFEU) (see paras 72, 74)

9. State aid — Commission decision — Assessment of the legality by reference to the information available at the time of adoption of the decision (Art. 108(2) TFEU) (see para. 73)

10. State aid — Meaning — Assessment according to the criterion of the private investor — Complex evaluation of economic matters — Discretion of the Commission — Judicial review — Limits (Art. 107(1) TFEU) (see paras 86-89)

11. Actions for annulment — Pleas in law — Action against a Commission decision finding State aid to be incompatible with the common market — Plea alleging a manifest error of assessment — Burden of proof incumbent on the applicant (Art. 263 TFEU) (see para. 90)

12. State aid — Meaning — Private investor test — Capital contribution — Capital contributions of private and public investors made at the same time — Criteria for assessment (Art. 107(1) TFEU) (see paras 100-102)

Re:

Application on the basis of Article 263 TFEU seeking annulment in part of Commission Decision (EU) 2016/2041 of 20 January 2016 on State aid SA.33926 2013/C (ex 2013/NN, 2011/CP) implemented by Belgium in favour of Duferco (OJ 2016, L 314, p. 22).

Operative part

The Court:

1. Dismisses the action;