Judgment of the General Court (First Chamber) of 11 December 2018 –

BTB Holding Investments and Duferco Participations Holding v Commission

(Case T‑100/17)

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

1. State aid — Concept — 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 39-43)

2. State aid — Concept — Assessment according to the private investor test — State shareholder of an undertaking — State acting as a public authority — Distinction as regards application of the private investor test — Information needed for an assessment (Art. 107(1) TFEU) (see paras 44-46, 51-53)

3. State aid — Concept — Assessment according to the private investor test — 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 47, 48)

4. Action for annulment — Jurisdiction of the EU judicature — Interpretation of the reasoning of an administrative measure — Limits (Arts 263 TFEU and 264 TFEU) (see para. 59)

5. Acts of the institutions — Statement of reasons — Obligation — Scope — Essential formality distinct from the merits of the decision (Art. 296 TFEU) (see paras 62, 63, 199, 200)

6. EU law — Principles — Principle of sound administration — Duty of diligence — Scope (Charter of Fundamental Rights of the European Union, Art. 41) (see paras 67, 68)

7. State aid — Concept — Assessment according to the private investor test — Transfer of a shareholding — Determination of a price — Criteria (Art. 107(1) TFEU) (see paras 73-76)

8. State aid — Concept — Assessment according to the private investor test — Assessment of all factors relevant to the transaction at issue and its context — Obligation of the Member State to provide objective and verifiable evidence showing the economic character of its activity — Burden of proof on the Commission — Scope (Art. 107(1) TFEU) (see paras 77-82, 85)

9. State aid — Commission decision — Assessment of the legality by reference to the information available at the time of adoption of the decision (Art. 107(1) TFEU) (see paras 83, 84)

10. State aid — Concept — Assessment according to the private investor test — Complex evaluation of economic matters — Discretion of the Commission — Judicial review — Limits (Art. 107(1) TFEU) (see paras 86-90, 141, 142)

11. State aid — Concept — Criteria for assessment — Reasonableness of the operation for a private investor following a relatively long-term strategy (Art. 107(1) TFEU) (see paras 99, 204)

12. State aid — Concept — 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 260, 262-264)

Re:

Application pursuant to Article 263 TFEU and seeking partial annulment of Commission Decision (EU) 2016/2041 of 20 January 2016 on State aid SA.33926 2013/C (ex 2013/NN, 2011/CP) granted by Belgium to Duferco (OJ 2016 L 314, p. 22).

Operative part

The Court:

1. Dismisses the action;