Order of the President of the of the General Court of 15 May 2018 –

Elche Club de Fútbol v Commission

(Case T‑901/16 R)

(Application for interim measures — State aid — Aid granted by Spain to certain professional football clubs — Public guarantee provided by a public entity — Decision declaring the aid incompatible with the internal market — Application for suspension of operation of a measure — Prima facie case — Urgency — Balancing of interests)

1. Application for interim measures—Suspension of operation of a measure—Interim measures—Conditions for granting—Prima facie case—Urgency—Serious and irreparable damage—Cumulative nature—Order of examination and method of verification—Discretion of the court hearing the application for interim relief—Balancing of all the interests involved (Arts 256(1) TFEU, 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 156(4)) (see paras 51-54)

2. Application for interim measures—Suspension of operation of a measure—Conditions for granting –Fumus boni juris—Prima facie examination of the pleas in law put forward in support of the main action—Action against a Commission decision declaring the aid incompatible with the internal market and ordering its recuperation—Pleas revealing the existence of complex legal questions—Pleas not prima face unfounded (Arts 107 TFEU and 278 TFEU) (see paras 56, 66-68)

3. Application for interim measures—Suspension of operation of a measure—Interim measures—Conditions for granting—Urgency—Serious and irreparable damage—Burden of proof—Financial loss—Obligation to provide concrete and precise indications, supported by detailed documentary evidence—Situation capable of jeopardising the financial viability of the applicant company—Applicant company subject to insolvency proceedings—Assessment having regard to the situation of the group to which the applicant company belongs—Declared urgency (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 156(4)) (see paras 69-73, 75, 77, 85, 94, 99, 107, 108, 115, 118, 119)

4. Application for interim measures—Admissibility criteria—Application—Formal requirements—Pleas establishing a prima facie case for the measures applied for (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 156(4) and (5)) (see paras 74, 76)

5. Application for interim measures—Admissibility criteria—Suspension of the operation of a decision ordering the recovery of State aid—Whether there exists any means of obtaining legal redress before the national court against national implementing measures—Irrelevant to the admissibility of the application for interim relief—Power of the EU judicature to take such means of redress into consideration when assessing whether the application for interim measures is well founded—Access to the Courts of the European Union (Art. 278 TFEU) (see paras 100-102, 104)

6. Application for interim measures—Suspension of operation of a measure—Conditions for granting—Balancing of all the interests involved—Commission decision ordering recovery of State aid—Public interest defended by the Commission and the interest of the beneficiary of the aid—Exceptional circumstances—Suspension of operation of a measure (Arts 108(2) TFEU and 278 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 2015/1589, Art. 9) (see paras 120-131, 136, 137, 139)

7. Application for interim measures—Suspension of operation of a measure—Interim measures—Modification or setting aside—Condition—Change in circumstances—Meaning (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 159) (see para. 138)

Re:

Application based on Articles 278 and 279 TFEU seeking the suspension of operation of Commission Decision (EU) 2017/365 of 4 July 2016 on State aid SA.36387 (2013/C) (ex 2013/NN) (ex 2013/CP) granted by Spain to Valencia Club de Fútbol, SAD, Hércules Club de Fútbol, SAD and Elche Club de Fútbol (OJ 2017 L 55, p.12).

Operative part

1. The operation of Commission Decision (EU) 2017/365 of 4 July 2016 on State aid SA.36387 (2013/C) (ex 2013/NN) (ex 2013/CP) granted by Spain to Valencia Club de Fútbol, SAD, Hércules Club de Fútbol, SAD and Elche Club de Fútbol (OJ 2017 L 55, p.12) is suspended in respect of the recovery of aid from Elche Club de Fútbol, identified as Measure 3 in Article 1 of that decision.

2. The application for interim measures is dismissed as to the remainder.

3. The order of 6 March 2017, Elche Club de Fútbol v Commission (T‑901/16 R) is revoked.