Case C‑438/16 P

European Commission

v

French Republic and IFP Énergies nouvelles

(Appeal — State aid — State aid scheme implemented by France — Unlimited State guarantee conferred on the Institut français du pétrole (IFP) by the grant of the status of publicly owned industrial and commercial establishment (EPIC) — Decision declaring that measure as partially not constituting State aid and as partially constituting State aid compatible with the Internal market, subject to certain conditions — Concept of ‘aid scheme’ — Presumption of the existence of an advantage — Burden and standard of proof)

Summary — Judgment of the Court (Fifth Chamber), 19 September 2018

State aid — Concept — Grant of an advantage to the beneficiaries — State guarantee in favour of an undertaking not subject to ordinary recovery and liquidation procedures — Burden of proving an advantage on the Commission — Assessment having regard to all the relevant factors — Advantage materialising in relations between the undertaking enjoying that guarantee and its suppliers and customers — Conditions

State aid — Concept — Grant of an advantage to the beneficiaries — State guarantee in favour of an undertaking not subject to ordinary recovery and liquidation procedures — Proof of the existence of an advantage by means of a presumption that the financial position of that undertaking improved — Rebuttal of the presumption

See the text of the decision. (see para. 63)

A measure which merely grants to a given legal person the benefit of an unlimited and implied State guarantee associated by national law with the status of publicly owned industrial and commercial establishment (EPIC), which results in the grant to that operator of such a guarantee, does not constitute an aid scheme for the purposes of Article 1(d) of Regulation No 659/1999 laying down detailed rules for the application of Article 108 TFEU. It must be pointed out that such a measure does not contain any provision on the basis of which it would be possible to grant aid, for the purposes of Article 1(d) of Regulation No 659/1999. In that regard, insofar as the conversion of that operator into an EPIC may be classified as State aid, it constitutes aid granted on the basis of an aid scheme which has to be notified, that is to say individual aid for the purposes of Article 1(e) of that regulation. (see paras 66, 70)

See the text of the decision. (see paras 108, 109)

It is for the Commission to provide proof of the existence of State aid within the meaning of Article 107(1) TFEU. In particular, the Commission is required to conduct a diligent and impartial examination of the contested measures, so that it has at its disposal, when adopting the final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible for that purpose. However, in the context of that examination, the Commission can rely on a simple presumption that the grant of an implied and unlimited State guarantee in favour of an undertaking with the status of publicly owned industrial and commercial establishment (EPIC) which is not subject to the ordinary compulsory administration and winding-up procedures results in an improvement in its financial position through a reduction of the charges that would normally encumber its budget. Consequently, in the context of the procedure relating to existing aid, to prove the advantage obtained by such a guarantee to the recipient undertaking, it is sufficient for the Commission to establish the mere existence of that guarantee, without having to show the actual effects produced by it from the time that it is granted. In that regard, although it is true that such a presumption is only a simple presumption, and thus rebuttable, it can nevertheless be rebutted only in so far as it is shown that, in light of the economic and legal context in which the guarantee associated with the EPIC status concerned takes place, the latter did not obtain in the past and, according to any plausibility, will not obtain in the future any real economic advantage from that guarantee. The mere fact that the beneficiary of such a guarantee in the past derived no real economic advantage from its EPIC status does not suffice, in itself, to rebut the presumption of the existence of an advantage. (see paras 110, 111, 117, 118)