Case T‑167/13

(publication by extracts)

Comune di Milano

v

European Commission

(State aid — Groundhandling services — Capital injections provided by SEA in favour of Sea Handling — Decision declaring the aid incompatible with the internal market and ordering its recovery — Concept of aid — Whether imputable to the State — Private investor test — Audi alteram partem rule — Rights of the defence — Right to sound administration — Legitimate expectations)

Summary — Judgment of the General Court (Third Chamber, Extended Composition), 13 December 2018

State aid — Concept — Assessment according to the private investor test — Assessment of all factors relevant to the transaction at issue and its context — Account taken of available information and foreseeable developments at the time the decision on the measure in question was taken

Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Individual concern — Criteria — Commission decision declaring the aid incompatible with the internal market and ordering its recovery — Action of a public authority, which has the capacity of aid provider — Admissibility — Conditions

The legal position of a body other a Member State, which has legal personality and has adopted a measure classified as State aid in a final decision by the Commission, may be individually concerned by that decision if the decision prevents it from exercising its own powers, which consist, in particular, in granting the aid at issue. In that regard a public authority which has been involved in the adoption of the measures at issue such a point that they are imputable to it in accordance with the criteria set out by the case-law of the Court of Justice must be regarded as the provider of the aid. (see paras 34, 41)

See the text of the decision. (see paras 45, 46)

See the text of the decision. (see paras 60-62)

Since State interventions take various forms and have to be assessed in relation to their effects, it cannot be excluded that several consecutive measures of State intervention must, for the purposes of Article 107(1) TFEU, be regarded as a single intervention. That could be the case in particular where consecutive interventions, having regard to their chronology, their purpose and the circumstances of the undertaking at the time of those interventions, are so closely related to each other that they are inseparable from one another. (see para. 71)

The imputability of a measure to the State cannot be inferred from the mere fact that the measure at issue was taken by a public undertaking. Even if the State is in a position to control a public undertaking and to exercise a dominant influence over its operations, actual exercise of that control in a particular case cannot be automatically presumed. A public undertaking may act with more or less independence, according to the degree of autonomy left to it by the State. Therefore, the mere fact that a public undertaking is under State control is not sufficient for measures taken by that undertaking to be imputed to the State. It is also necessary to examine whether the public authorities must be regarded as having been involved, in one way or another, in the adoption of these measures. On that point, it cannot be demanded that it be demonstrated, on the basis of a precise instruction, that in the particular case the public authorities specifically incited the public undertaking to take the aid measures in question. First, having regard to the fact that relations between the State and public undertakings are close, there is a real risk that State aid may be granted through the intermediary of those undertakings in a non-transparent way and in breach of the rules on State aid laid down by the Treaty. Second, it will, as a general rule, be very difficult for a third party, precisely because of the privileged relations existing between the State and a public undertaking, to demonstrate in a particular case that aid measures taken by such an undertaking were in fact adopted on the instructions of the public authorities. For those reasons, the imputability to the State of an aid measure taken by a public undertaking may be inferred from a set of indications arising from the circumstances of the case and the context in which that measure was taken. In addition, any other indicator showing, in the particular case, involvement by the public authorities in the adoption of a measure or the unlikelihood of their not being involved, having regard also to the scope of the measure, its content or the conditions which it contains, could, as the case may be, be relevant for the purpose of concluding that a measure taken by a public undertaking is imputable to the State. (see para. 75)

See the text of the decision. (see paras 102-105)