JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

24 September 2019 ( *1 )

(State aid — Chemical industry — Decision declaring the aid incompatible with the internal market — Concept of State aid — State resources — Advantage — Recovery — Economic continuity — Principle of sound administration — Obligation to state reasons)

In Case T‑121/15,

Fortischem a.s., established in Nováky (Slovakia), represented by C. Arhold, P. Hodál and M. Staroň, lawyers,

applicant,

v

European Commission, represented by L. Armati and G. Conte, acting as Agents,

defendant,

supported by

AlzChem AG, established in Trostberg (Germany), represented initially by P. Alexiadis, Solicitor, A. Borsos and I. Georgiopoulos, lawyers, and subsequently by P. Alexiadis, A. Borsos and V. Dolka, lawyers,

intervener,

ACTION under Article 263 TFEU seeking annulment of Articles 1 and 3 to 5 of Commission Decision (EU) 2015/1826 of 15 October 2014 on the State aid SA.33797 — (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ (OJ 2015 L 269, p. 71),

THE GENERAL COURT (Sixth Chamber),

composed of G. Berardis, President, S. Papasavvas and O. Spineanu-Matei (Rapporteur), Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 10 April 2019,

gives the following

Judgment

I. Background to the dispute

1 Novácké chemické závody, a.s. v konkurze (‘NCHZ’), was a privately owned chemical producer with three divisions. It operated a chemical plant located in the Trenčín region (Slovakia). The company’s main activities were the production of calcium carbide and technical gases, polyvinyl chloride (PVC) and its by-products, and an increasing share of low tonnage heavy chemicals and fine chemicals.

2 On 8 October 2009, NCHZ, which then belonged to Disor Holdings Ltd, having declared its inability to continue its operations and its insolvency, became the subject of insolvency proceedings.

3 On 5 November 2009, the Slovak Republic adopted the zákon č. 493/2009 Z.z. o niektorých opatreniach týkajúcich sa strategických spoločností a o zmene a doplnení niektorých zákonov (Law No 493/2009 on certain measures regarding strategic companies and on the amendment of certain laws; ‘the Law on Strategic Companies’). That law, which entered into force on 1 December 2009, gave the State a right of pre-emption enabling it to purchase strategic companies which were the subject of insolvency proceedings and required the presence of an insolvency administrator to ensure the continued operation of the strategic company while those proceedings were ongoing. On 2 December 2009, NCHZ was classified by the Slovak authorities as a ‘strategic company’ within the meaning of that legislation and enjoyed that status until the expiry of the legislation on 31 December 2010 (‘the first insolvency period’). NCHZ was the only company subject to the application of that law, which required the insolvency administrator to continue the company’s operation and prevent unjustified collective dismissals.

4 On 28 December 2009, the ‘relevant committee’, within the meaning of Article 82 of the zákon č. 7/2005 Z.z. o konkurze a reštrukturalizácii a o zmene a doplneni niektorých zákonov (Law No 7/2005 on insolvency and restructuring and the amendments to certain laws, ‘the Law on Insolvency’) (‘the relevant committee’) was formed. That committee consisted, under that law, of the creditors’ committee, representing unsecured creditors with unsecured claims against the insolvent company when the insolvency proceedings were opened, having registered their claims as ‘pre-insolvency claims’ (the creditor’s committee’), the secured creditors, that is to say, creditors with claims secured by collateral, and the súd v Trenčíne (Trenčín Court, Slovakia).

5 On 29 December 2009, the first administrator was replaced for personal reasons by a new administrator (‘the administrator’).

6 On 17 June 2010, the súd v Trenčíne (Trenčín Court) ordered the administrator to sell NCHZ as a going concern in accordance with the procedural steps it had prepared. Following the announcement of the tender procedure on 12 August 2010 (‘the 2010 tender procedure’), the relevant committee, on 24 November 2010, rejected the only tender received. On 3 December 2010, the súd v Trenčíne (Trenčín Court) ordered the administrator to prepare a detailed analysis of NCHZ’s economic situation. Based on the outcome of that analysis, the administrator was either to accept or reject the sole tender submitted. The analysis was prepared on 8 December 2010 and the administrator announced that the tender would be rejected.

7 After 31 December 2010, NCHZ became subject to the application of the Law on Insolvency (‘the second insolvency period). At the joint meeting of 26 January 2011 of the creditors belonging to the creditors’ committee and the secured creditors, the administrator informed them that the operating costs generated by NCHZ’s operations were higher than the operating income. He also provided them with a copy of his economic analysis of 23 December 2010, which was supplemented by a management presentation. The abovementioned creditors decided that NCHZ’s operations were to be continued (‘the decision of 26 January 2011’). Following the approval of that decision by decision of the súd v Trenčíne (Trenčín Court) of 17 February 2011, the administrator continued NCHZ’s operations.

8 On 7 June 2011, the súd v Trenčíne (Trenčín Court) issued an order requiring the administrator to sell NCHZ in accordance with the tender procedure organised by that court (‘the 2011 tender procedure’). Following the announcement of the tender procedure on 12 July 2011 (‘the 2011 tender procedure’), two tenders were received on 29 November 2011.

9 On 13 October 2011, the European Commission received a complaint from AlzChem AG alleging that the Slovak Republic had granted unlawful aid to NCHZ. AlzChem is a company whose registered office is in Germany and which operates in several fine chemicals markets in a number of EU Member States, including the Slovak Republic. That complaint was supplemented on 14 June 2012.

10 The Commission forwarded the complaint to the Slovak authorities on 17 October 2011 together with a request for information. On 22 March and 21 June 2012, the Commission sent the Slovak authorities further requests for information. The Slovak authorities responded to all of those requests.

11 On 7 December 2011, the administrator informed the súd v Trenčíne (Trenčín Court) of the outcome of the 2011 tender procedure and the creditors’ vote in the relevant committee. On 14 December 2011, the súd v Trenčíne (Trenčín Court) asked the administrator to evaluate a further tender. On 15 December 2011, the administrator drew up an analysis stating that since the tender covered only some of NCHZ’s assets, it was not in the best interests of the creditors. On 29 December 2011, the súd v Trenčíne (Trenčín Court) issued an order requiring the administrator to declare Via Chem Slovakia a.s. the successful tenderer. After conclusion of the purchase contract between that company and NCHZ on 16 January 2012, the sale was approved by the Protimonopolný úrad SR (Slovak competition authority) on 19 July 2012 and finalised on 31 July 2012.

12 On 1 August 2012, Via Chem Slovakia sold the chemical division of NCHZ, with the exception of the immovable assets (buildings and land), to the applicant, Fortischem a.s., which operates in the chemical production sector. The applicant is owned by Energochemica SE and, as it stated at the hearing in reply to a question raised by the Court, was founded in May 2012. The immovable assets necessary for chemical production were made available to the applicant under a lease contract.

13 On 24 January 2013, a meeting was held between the Commission and AlzChem, at the request of the latter, which submitted additional information by emails of 8 and 22 March 2013.

14 By letter dated 2 July 2013, the Commission notified the Slovak authorities of its decision to initiate the formal investigation procedure under Article 108(2) of the TFEU (OJ 2013 C 297, p. 85), as regards, first, the authorisation of the State, as a result of the Law on Strategic Companies, to continue NCHZ’s operations from December 2009 to December 2010 and, secondly, the decision of 26 January 2011 to continue NCHZ’s operations after the expiry of the Law on Strategic Companies. The Commission also expressed doubts as to whether the 2011 tender procedure pursuant to which NCHZ was sold was unconditional and stated that there were strong indications that there had been no break in economic continuity between NCHZ and the new entity.

15 Following the decision of 2 July 2013, the Commission received comments from the Slovak authorities as well as from AlzChem and another interested party. The comments from those interested third parties, together with further questions, were sent to the Slovak authorities, which submitted their comments on 14 January 2014.

16 On 7 October 2013 and 17 February 2014, meetings were held between the Commission and the Slovak authorities, at the request of the Slovak authorities. On 20 March 2014, the Commission sent an additional request for clarification to one of the interested third parties, which replied on 6 May 2014. On 2 May 2014, the Commission put further questions to the Slovak authorities, to which they replied on 14 and 30 May 2014.

II. The contested decision

17 On 15 October 2014, the Commission adopted Decision (EU) 2015/1826 on the State aid SA.33797 — (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ (OJ 2015 L 269, p. 71) (‘the contested decision’).

18 The Commission took the view that granting NCHZ strategic company status (‘the first measure’) constituted a selective advantage in favour of that company, was attributable to the State, had led to the use of State resources and distorted competition in a market open to trade between Member States. It concluded that that measure constituted State aid within the meaning of Article 107(1) TFEU, and that that aid was unlawful and incompatible with the internal market (recitals 110 and 114 to 124 of the contested decision). After finding that the State aid amounted to EUR 4 783 424.10, it took the view that the aid had to be recovered from NCHZ and that the applicant should also be covered by the recovery order since there was economic continuity with NCHZ (recitals 101 and 174 of the contested decision).

19 By contrast, the Commission found that the continued operation of NCHZ pursuant to the decision of 26 January 2011 did not constitute State aid within the meaning of Article 107(1) TFEU since at least two cumulative conditions for the existence of State aid, namely that the measure at issue is attributable to the State and that there is an economic advantage, were not satisfied (recital 113 of the contested decision).

20 The operative part of the contested decision is worded as follows: ‘Article 1 The State aid of EUR 4783424,10 provided to NCHZ by declaring it a strategic company in line with the [Law on Strategic Companies], thereby sheltering it from the normal application of [insolvency] law, was unlawfully put into effect by [the Slovak Republic] in breach of Article 108(3) [TFEU] and is incompatible with the internal market. … Article 3 1. [The Slovak Republic] shall recover the incompatible aid referred to in Article 1 from NCHZ. 2. In view of the economic continuity between NCHZ and [the applicant], the obligation to repay the aid should also be extended to [the applicant]. 3. The sums to be recovered shall bear interest from the date on which they were put at the disposal of NCHZ until their actual recovery. 4. Interest shall be calculated on a compound basis in accordance with Chapter V of Regulation (EC) No 794/2004 […] and Regulation (EC) No 271/2008 amending Regulation (EC) No 794/2004. Article 4 1. Recovery of the aid referred to in Article 1 shall be immediate and effective. 2. [The Slovak Republic] shall ensure that this Decision is implemented within 4 months following the date of notification of this Decision. Article 5 1. Within 2 months following notification of this Decision, [the Slovak Republic] shall submit the following information: a) the total amount (principal and recovery interests) to be recovered from the beneficiaries; b) a detailed description of the measures already taken or planned to be taken to comply with this Decision; c) documents demonstrating that the beneficiary has been ordered to repay the aid. 2. [The Slovak Republic] shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid referred to in Article 1 has been completed. It shall immediately submit, at the request of the Commission, information on the measures already taken and planned to be taken to comply with this Decision. It shall also provide detailed information concerning the amounts of aid and recovery interest already recovered from the beneficiaries. Article 6 This Decision is addressed to the Slovak Republic.’

III. Procedure

21 By application lodged at the Court Registry on 6 March 2015, the applicant brought the present action.

22 By document lodged at the Court Registry on 14 July 2015, AlzChem applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

23 By letter lodged at the Court Registry on 6 August 2015, the applicant applied to have certain information contained in the application and its annexes as well as in the reply and an annex thereto treated as confidential vis-à-vis AlzChem, if it was granted leave to intervene. It included a non-confidential version of those pleadings in annex to its application for confidential treatment.

24 By order of the President of the Ninth Chamber of 22 September 2015, AlzChem was given leave to intervene in support of the form of order sought by the Commission. Non-confidential versions of the application, the reply and the annexes thereto, prepared by the applicant, were sent to the intervener. By letter lodged at the Court Registry on 8 October 2015, the intervener contested the application for confidential treatment.

25 On 8 October 2015, the present case was allocated to a new Judge-Rapporteur sitting in the Ninth Chamber. By decision of the President of the General Court of 3 October 2016, the present case was allocated to a new Judge-Rapporteur. Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure of the General Court, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was accordingly allocated.

26 On 6 February 2017, the Court (Sixth Chamber) put written questions to the applicant concerning its application for confidential treatment. It replied to those questions within the periods prescribed.

27 By order of 13 September 2017, Fortischem v Commission (T‑121/15, not published, EU:T:2017:648), the President of the Sixth Chamber of the Court granted the application for confidential treatment in respect of some information contained in the application and some data contained in a number of annexes to the application and to the reply and dismissed the application for confidential treatment as to the remainder. The costs were reserved. On 26 October 2017, a non-confidential version, prepared by the applicant, of the items referred to in points 1 and 2 of the operative part of the order of 13 September 2017, Fortischem v Commission (T‑121/15, not published, EU:T:2017:648), was sent to the intervener.

28 On 5 January 2018, the intervener lodged its statement in intervention at the Court Registry.

29 On 5 and 7 February 2018, the Commission and the applicant, respectively, submitted their observations on the statement in intervention at the Court Registry.

30 Acting on a proposal from the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure pursuant to Article 89 of the Rules of Procedure, put written questions to the parties and asked them to produce a document. They replied to those questions within the periods prescribed and produced the document requested.

31 The parties presented oral argument and replied to the Court’s oral questions at the hearing on 10 April 2019.

IV. Forms of order sought

32 The applicant claims that the Court should: – annul Articles 1 and 3 to 5 of the contested decision; – order the Commission to pay the costs.

33 The Commission contends that the Court should: – dismiss the action; – order the applicant to pay the costs.

34 The intervener contends, in essence, that the action should be dismissed.

V. Law

35 In support of the action, the applicant relies on six pleas in law. The first plea in law alleges infringement of Article 107(1) TFEU. The second plea in law alleges failure to observe the obligation to carry out a diligent and impartial examination and infringement of the Commission’s obligation of cooperation. The third plea in law alleges infringement of the second paragraph of Article 296 TFEU with regard to the Commission’s finding that State aid was granted to NCHZ. The fourth plea in law alleges infringement of Article 107(1) and Article 108(2) TFEU and Article 14(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1) due to the extension to the applicant of the obligation to recover the alleged State aid. The fifth plea in law, raised in the alternative, alleges infringement of Article 107(1) and Article 108(2) TFEU, and of Article 14(1) of Regulation No 659/1999, due to the failure to limit the extension to the applicant of the obligation to recover the alleged State aid to 60% of the amount of that aid. The sixth plea in law alleges infringement of Article 296 TFEU with regard to the Commission’s finding relating to economic continuity.

36 The Court considers that it is appropriate to examine, in turn, the third plea in law, the first and second parts of the first plea in law, the second plea in law, the third part of the first plea in law, the sixth plea in law, the fourth plea in law and finally the fifth plea in law.

A. The third plea in law, alleging infringement of the second paragraph of Article 296 TFEU with regard to the Commission’s finding that State aid was granted to NCHZ

37 According to the applicant, the Commission must, in accordance with the case-law, demonstrate sufficiently why the matters of fact and law gathered by it prove the existence of State aid. The Commission must, therefore, also explain why the factual and legal arguments put forward by the Member State were insufficient to refute the existence of such aid. The applicant submits that the contested decision is vitiated by a failure to state reasons in several respects. In the first place, it claims that that decision is defective as regards the Commission’s findings that the Law on Strategic Companies conferred an economic advantage on NCHZ which that company would not have obtained in the normal course of insolvency proceedings. According to the applicant, even though the Slovak authorities submitted detailed factual arguments showing that the creditors would have opted for NCHZ’s continued operation, the Commission did not discuss the substance of that evidence and instead confined itself to raising general and unsubstantiated doubts. In the second place, it submits that the contested decision is vitiated by a failure to state reasons in so far as the Law on Strategic Companies failed to satisfy the market economy operator test.

38 The Commission, supported by the intervener, maintains that the applicant’s line of argument is unfounded.

39 As is clear from settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the EU Courts to exercise their power of review (see judgment of 13 December 2018, AlzChem v Commission, T‑284/15, EU:T:2018:950, paragraph 70 (not published) and the case-law cited).

40 The obligation to provide a statement of reasons must be assessed on the basis of the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern, for the purpose of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations (see judgment of 13 December 2018, AlzChem v Commission, T‑284/15, EU:T:2018:950, paragraph 71 (not published)).

41 It is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In particular, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned. It is sufficient if it sets out the facts and the legal considerations of fundamental importance in the context of the decision (see judgment of 13 December 2018, AlzChem v Commission, T‑284/15, EU:T:2018:950, paragraph 72 (not published) and the case-law cited).

42 Finally, the plea in law alleging infringement of the second paragraph of Article 296 TFEU is a separate plea from that alleging infringement of Article 107(1) TFEU. While the former, which alleges failure to state reasons or inadequacy of the reasons stated, concerns an issue of infringement of essential procedural requirements within the meaning of Article 263 TFEU, involving a matter of public policy, must be raised by the EU Courts of their own motion, the latter, which concerns the substantive legality of a decision, is concerned with the infringement of a rule of law relating to the application of the Treaty, again within the meaning of Article 263 TFEU, and can be examined by the EU Courts only if it is raised by the applicant. The obligation to state reasons is therefore a separate question from that of the merits of the grounds for the contested decision (see, to that effect, judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67).

43 It is necessary to examine, in the light of the considerations referred to in paragraphs 39 to 42 above, whether the contested decision is vitiated by a failure to state reasons or to state adequate reasons within the meaning of Article 296 TFEU.

44 In the contested decision, the Commission found that NCHZ’s liabilities in respect of various State entities had been incurred because of the loss-making nature of the activities pursued. It considered that contrary to the practice consistent with the normal insolvency rules, no analysis had been prepared by the incumbent insolvency administrator and no meeting of creditors had been able to decide on the future of NCHZ. It noted that the insolvency administrator had acknowledged that it was required by the Law on Strategic Companies to continue to operate NCHZ with no possible alternative of considering other solutions (recitals 79 and 80 of the contested decision).

45 In that regard, the Commission took the view that the decision to apply the Law on Strategic Companies to NCHZ was not based on considerations taken into account by its creditors but on other public policy considerations, with the text of the decision of the Slovak Government referring only to the loss of jobs and competitiveness in the Slovak chemical industry, and accordingly the Slovak economy as a whole. In its view, the decision of the State to apply that law to NCHZ was, accordingly, clearly unjustified on the basis of the market economy creditor test (recital 82 of the contested decision).

46 In response to the arguments put forward by the Slovak authorities to the effect that it is likely that the creditors would have decided to continue operating NCHZ even if the Law on Strategic Companies had not been applied to it, the Commission stated, inter alia, that (i) there was no reliable examination of any other possible solutions in the analysis of the first administrator of 26 October 2009 (‘the analysis of 26 October 2009’), raised by the Slovak authorities, (ii) a more detailed examination had not been carried out and (iii) the decision to continue to operate NCHZ taken at the start of the second insolvency period had taken place when the economic situation of creditors was different (recitals 82 to 84 of the contested decision). In the view of the Commission, the administrator’s analysis of March 2014 (‘the March 2014 analysis’), based on the methodology used for the analysis of the situation in the second period, was very brief, hypothetical and produced ex post (recital 87 of the contested decision). It concluded that the Slovak authorities had not demonstrated that, if the Law on Strategic Companies had not been applied to NCHZ, the continued operation of that company would have been approved, at the beginning of the insolvency proceedings or in the course of 2010, on the basis of a proper in-depth analysis and discussion by all the stakeholders (recital 88 of the contested decision).

47 In addition, the Commission stressed that, on account of the application of the Law on Strategic Companies, the uncertainty inherent in decision-making under the normal insolvency rules had been removed, since the continuation of all of NCHZ’s operations had been guaranteed at least until the expiry of that law at the end of 2010. According to the Commission, that constituted a ‘strong signal’, in a sector, namely the chemical sector, in which security of supply was particularly important for customers. It noted that NCHZ had lost some customers in 2009 and 2010, as indicated in the administrator’s economic analysis produced after the Law on Strategic Companies expired. It therefore took the view that, if that law had not been applied to NCHZ, there would have been a much greater risk that sales would fall on account of the uncertainty arising from the insolvency proceedings and an increased risk that the creditors might consider the continued operation of NCHZ to be economically irrational and resort to the possibility of discontinuing NCHZ’s operations (recitals 85, 86, 88 and 89 of the contested decision).

48 The Commission concluded that the application of the Law on Strategic Companies had conferred an economic advantage on NCHZ by protecting that company from the normal course of insolvency proceedings under the Law on Insolvency, the incumbent insolvency administrator, the creditors and the insolvency court having been deprived of the possibility of putting an end to NCHZ’s operations or significantly reducing its workforce, either at the beginning of the insolvency proceedings or in the course of 2010, in view of the changes in the economic situation of that company. According to the Commission, the first measure also gave NCHZ, and third parties, inter alia customers and suppliers, certainty that that company would continue to operate, whereas such continuation would never be guaranteed under normal insolvency conditions; that company thus received preferential treatment compared with its competitors in a similar situation (recitals 78, 85, 89 and 90 of the contested decision).

49 It follows from the Commission’s findings in the contested decision that, contrary to the applicant’s claims, it stated the reasons why it had considered that the application of the Law on Strategic Companies to NCHZ had conferred an economic advantage on that company that it would not have received under the normal insolvency rules. It thus described its analysis of the consequences of the application of that law, that is to say the automatic continuation of NCHZ’s operation and a barrier to collective redundancies, irrespective of any change in the economic situation of that company and where it was not able to pay its debts, in particular to various State entities. The Commission also referred to its assessment to the effect that the automatic continuation of NCHZ’s operation had conferred a guarantee on its customers and suppliers that would not have existed in the normal course of insolvency proceedings.

50 Moreover, contrary to the applicant’s claims, the Commission stated the reasons why it considered that the application of the Law on Strategic Companies failed to satisfy the market economy operator test and did not ‘[limit] its reasoning to the observation that the application of [that] law was based on public policy observations that a private creditor would not have taken into account’. After making that assessment, the Commission, contrary to the applicant’s assertions, also responded to the arguments of the Slovak authorities concerning the positions taken by the initial administrator and the administrator. In that regard, it set out the reasons why, first, it rejected both the 26 October 2009 analysis and the March 2014 analysis and, secondly, it considered that it did not have at its disposal evidence that the relevant committee would have decided in favour of the continued operation of NCHZ during the first insolvency period. The Commission thus stated that it considered that the March 2014 analysis, based on the methodology used for the analysis of that period, was very brief, hypothetical and produced ex post and referred in that regard to various paragraphs of three judgments of the EU Courts, in which it was held that, for the purposes of applying the private investor test, the only relevant evidence was the information available and the developments which were foreseeable at the time when the State decision in question was taken. In addition, it stated that it considered that the Slovak authorities had not adduced evidence that, at the start of the insolvency proceedings or during 2010, the continued operation of NCHZ would in fact have been approved on the basis of an in-depth analysis and discussion by all the parties concerned. Finally, it noted the difference in the economic situation of the creditors when the decision was taken at the start of the second period.

51 Moreover, the applicant’s arguments concerning the lack of explanation given by the Commission as to why the relevant committee would have decided not to maintain NCHZ’s operations does not relate to the adequacy of the reasoning of the contested decision but points to the applicant’s disagreement with the merits of the Commission’s reasoning in its analysis and its conclusions, meaning that the applicant disputes the fact that evidence of what the decision of the relevant committee would have been was not adduced. The matter of compliance with the obligation to state reasons and that of the merits of the reasons for the contested decision must be distinguished, in accordance with the case-law cited in paragraph 42 above.

52 Accordingly, it cannot be concluded that the contested decision is vitiated by a failure to state reasons concerning the Commission’s conclusion relating to the existence of State aid granted to NCHZ and the third plea in law must therefore be rejected.

B. The first and second parts of the first plea in law, alleging respectively that there was no transfer of State resources and no economic advantage conferred on NCHZ

53 The first plea in law, alleging infringement of Article 107(1) TFEU, is divided into three parts. By the first part, the applicant disputes the fact that declaring NCHZ to be a ‘strategic company’ gave rise to a transfer of State resources. By the second part, it claims that measure did not confer any economic advantage on NCHZ. By the third part, it submits that, even if the Commission was fully entitled to find that State aid had been granted to NCHZ, it committed a manifest error of assessment when calculating the amount of that aid.

54 The Court considers it appropriate first of all to examine the first two parts of the first plea in law, which concern the classification of the measure in question as State aid, while the third part, which relates to the calculation of the amount of that aid, will be examined after the analysis of the second plea in law.

55 By the first part of the first plea in law, the applicant claims that the Commission’s assessment in recitals 75 to 77 of the contested decision does not prove that there was a transfer of State resources on account of the classification of NCHZ as a ‘strategic company’. In the first place, it maintains that the classification of NCHZ as a strategic company did not give rise to such a transfer, since the Slovak State did not have to bear any additional burden compared with the burden that it would have borne had the normal insolvency rules been followed. According to the applicant, it follows from the case-law that a transfer of State resources requires more than an abstract risk of further public liabilities caused by the continued operation of a company during insolvency proceedings, as long as the increase in public liabilities is an inherent consequence of the application of the Law on Insolvency in question. The applicant refers in that regard to the judgment of 1 December 1998, Ecotrade (C‑200/97, EU:C:1998:579, paragraphs 36, 41 and 43). In the second place, in its observations on the statement in intervention, the applicant submits that by no means can the natural consequences of continued operation during insolvency proceedings be described as a ‘de facto waiver of public debt’. According to the applicant, if that argument was upheld, any continued operation during insolvency proceedings which results in an increase of public debt would amount to a transfer of State resources. In the third place, in the reply, it states that it accepts that the test developed in the judgment of 1 December 1998, Ecotrade (C‑200/97, EU:C:1998:579), to determine whether State resources have been transferred, is quite similar to the test for whether an economic advantage has been granted.

56 By the second part of the first plea in law, the applicant claims that the Commission committed a manifest error of assessment concerning the existence of an economic advantage conferred on NCHZ on account of that company’s classification as a ‘strategic company’. In the first place, it claims that NCHZ did not receive any advantage it would not have received under the normal insolvency rules, in so far as, in any event, its creditors would have opted for its continued operation and the temporary prohibition of collective dismissals favoured only the Slovak State, not NCHZ. In the second place, the application of the Law on Strategic Companies satisfied the market economy operator test, as it was economically advantageous for the public creditors.

57 The Commission, supported by the intervener, disputes the merits of the applicant’s arguments.

1. The relevant case-law

58 First of all, it must be borne in mind that classification as State aid requires all the conditions laid down in Article 107(1) TFEU to be satisfied. Thus, first, there must be an intervention by the State or through State resources. Secondly, the intervention must be liable to affect trade between Member States. Thirdly, it must confer a selective advantage on the recipient. Fourthly, it must distort or threaten to distort competition (see judgment of 13 December 2018, AlzChem v Commission, T‑284/15, EU:T:2018:950, paragraph 59 (not published) and the case-law cited).

59 According to settled case-law, only advantages conferred directly or indirectly through State resources or constituting an additional burden on the State are to be regarded as aid within the meaning of Article 107(1) TFEU. The very wording of this provision and the procedural rules laid down in Article 108 TFEU show that advantages granted from resources other than those of the State do not fall within the scope of the provisions in question (see, to that effect, judgments of 17 March 1993, Sloman Neptun, C‑72/91 and C‑73/91, EU:C:1993:97, paragraph 19; of 1 December 1998, Ecotrade, C‑200/97, EU:C:1998:579, paragraph 35; and of 13 March 2001, PreussenElektra, C‑379/98, EU:C:2001:160, paragraph 58).

60 It should be noted that, according to settled case-law, it is not necessary to establish in every case that there has been a transfer of State resources for the advantage granted to one or more undertakings to be capable of being regarded as a State aid within the meaning of Article 107(1) TFEU (judgment of 28 March 2019, Germany v Commission, C‑405/16 P, EU:C:2019:268, paragraph 55; see also, to that effect, judgments of 15 March 1994, Banco Exterior de España, C‑387/92, EU:C:1994:100, paragraph 14, and of 19 May 1999, Italy v Commission, C‑6/97, EU:C:1999:251, paragraph 16).

61 Thus, the concept of ‘aid’ does not merely include positive benefits such as subsidies but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect (see judgment of 21 March 2013, Commission v Buczek Automotive, C‑405/11 P, not published, EU:C:2013:186, paragraph 30 and the case-law cited; see also, to that effect, judgment of 19 March 2013, Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 101 and the case-law cited).

62 Furthermore, according to that case-law, ‘State aid’, as defined in the Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the EU Courts must, in principle, having regard both to the specific features of the case before them and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 107(1) TFEU (see judgment of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 111).

63 In that regard, it must be observed that, in the context of a review by the EU Courts of complex economic assessments made by the Commission in the field of State aid, it is not for those Courts to substitute their own economic assessment for that of the Commission (judgments of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 75, and of 21 March 2013, Commission v Buczek Automotive, C‑405/11 P, not published, EU:C:2013:186, paragraph 49).

64 However, the EU Courts must, inter alia, establish not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (judgments of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 76, and of 21 March 2013, Commission v Buczek Automotive, C‑405/11 P, not published, EU:C:2013:186, paragraph 50).

2. Contested decision

65 The Commission’s findings in the contested decision concerning the existence of an economic advantage conferred on NCHZ on account of that company’s classification as a ‘strategic company’ are set out in paragraphs 44 to 48 above.

66 As regards the use of State resources as a result of the first measure, the Commission considered that ‘by virtue of that declaration [that it was a strategic company], the operation of [NCHZ] was maintained even though there was a clear risk (which indeed materialised) that the revenue would not be sufficient to cover the costs of the operation of the business during insolvency, including the social security contributions and other liabilities vis-à-vis the State’ (recital 74 of the contested decision). It added that ‘the continuation of operations and the accumulation of additional liabilities as a consequence of the application of the [Law on Strategic Companies] made it more difficult for the existing public creditors of NCHZ to recover their existing claims’ (recital 76 of the contested decision). It concluded that the award to NCHZ of strategic company status led to the granting of State resources in the form of foregone revenue from public claims not honoured by NCHZ during the first insolvency period (recital 77 of the contested decision).

3. Classification by the Commission of the first measure as State aid

67 First of all, it must be noted, as regards the conditions that must be satisfied so that an intervention may be classified as State aid, in accordance with the case-law cited in paragraph 58 above, that the applicant does not dispute either the selective nature of the first measure or that it is liable to affect trade between Member States.

68 In addition, it must be noted that, although, by its arguments in support of the present part of the first plea in law, the applicant does not call into question the fact that the first measure is imputable to the State, it states that it wishes to dispute the fact that that measure involved State resources in the sense of an additional burden for the State or State entities and it seeks to show that NCHZ would not have been in a different situation if its situation had been governed by the provisions of the Law on Insolvency. However, it must be held that, by that line of argument, the applicant essentially calls into question the existence of an economic advantage. In the application, as regards its analysis of the condition relating to the existence of an advantage, it refers moreover to the evidence set out ‘above’, namely that concerning the concept of the transfer of State resources, and indicates that it is clear from that evidence that NCHZ did not receive any advantage it would not have received under the normal insolvency rules. Accordingly, that line of argument raised by the applicant must be linked to the examination of the second part of the first plea in law and the first two parts of that plea in law must be examined together.

69 In order to assess whether an economic advantage was granted to NCHZ on account of the first measure and the lawfulness of the contested decision on that point, it must be noted that, while the applicant and the Commission, supported by the intervener, agree on the relevance, in the present case, of the judgment of 1 December 1998, Ecotrade (C‑200/97, EU:C:1998:579), they draw different conclusions from it.

70 The applicant maintains that, in order to assess whether the application of the Law on Strategic Companies conferred an economic advantage on NCHZ, it is necessary to conduct a two-stage examination. In the first place, it is necessary to establish whether that law enabled NCHZ to enjoy an economic advantage that that company would not have enjoyed under the Law on Insolvency and to examine the ‘counterfactual scenario’ which requires a hypothetical ex post analysis. If the first question is answered in the negative, the existence of an economic advantage can be ruled out, since, in fact, NCHZ was no more favoured than it would have been under the normal insolvency rules. In the second place, if the first question is answered in the affirmative, the existence of an economic advantage can be ruled out if, under the Law on Strategic Companies, the Slovak State acted as a market economy operator, and accordingly the application of that law was consistent with the economic interests of that State.

71 By contrast, the Commission considered that the applicant’s position renders the case-law relating to the market economy operator test meaningless.

72 It must be noted that, in accordance with the judgments of 1 December 1998, Ecotrade (C‑200/97, EU:C:1998:579, paragraph 45) and of 17 June 1999, Piaggio (C‑295/97, EU:C:1999:313, paragraph 43), the application to an undertaking of rules derogating from the normal insolvency rules must be regarded as giving rise to the grant of State aid in two situations. In the first situation, it is established, in essence, that that undertaking has been permitted to continue trading in circumstances in which it would not have been permitted to do so if the normal insolvency rules had been applied. In the second situation, it is established, in essence, that that undertaking has enjoyed one or more advantages, such as a State guarantee, a reduced rate of tax, exemption from the obligation to pay fines and other pecuniary penalties or waiver in practice of public debts wholly or in part, which could not have been claimed by another insolvent undertaking in connection with the application of the normal insolvency rules.

73 The assessment of the first measure by the Commission in the contested decision must be reviewed in the light of those considerations in order to examine whether the Commission did not err in concluding that that measure involved the grant of State aid to NCHZ.

74 In that regard, it is appropriate to examine, in the first place, the conditions under which the continued operation of NCHZ was authorised as a result of the application of the Law on Strategic Companies and the consequences deriving from that application. It is appropriate to examine, in the second place, the applicant’s claim that the Slovak State’s decision to apply the Law on Strategic Companies to NCHZ satisfied the market economy operator test. In the third place, it is appropriate to examine the applicant’s claims that the situation would have been the same if NCHZ had been subject to the normal insolvency rules.

(a) The conditions for application of the Law on Strategic Companies to NCHZ on account of its classification as a ‘strategic company’ and the consequences deriving from that application

75 It has been established, in the present case, on account of the classification of NCHZ as a ‘strategic company’, that the first administrator had no choice but to continue NCHZ’s operations, which was required under the Law on Strategic Companies (recital 80 of the contested decision). Accordingly, during the first insolvency period, during which NCHZ was subject to that law, that company was required to continue to operate, irrespective of its economic situation and any consideration relating to the interest of its creditors and, thus, even in the event that its liabilities increased and exceeded its revenue (recitals 78, 80 and 81 of the contested decision).

76 In those circumstances, while NCHZ was loss-making at the end of 2009, as indicated in the analysis of 26 October 2009, the pre-insolvency public creditors with post-insolvency claims were put in the position of having to suffer for an irreducible period a highly likely increase in unpaid liabilities owing to them.

77 In that regard, the fact that, in the context of the Law on Strategic Companies, the automatic continuation of NCHZ’s operation was linked to a barrier to collective redundancies entails an even greater risk of an increase in NCHZ’s liabilities, in particular to public creditors, including the Sociálna poisťovňa, a.s. (social insurance company, Slovakia) and the Všeobecná zdravotná poisťovňa, a.s. (health insurance company, Slovakia). On account of that barrier, NCHZ’s operating costs could not be limited by means of a reduction in staff. NCHZ had to be able to pay its suppliers in the context of the automatic continuation of its operation and, in the light of its financial position, it could not, at the same time, bear in full the social costs payable to the two abovementioned public creditors. It must be noted, however, that that barrier allowed it to retain its staff in order to continue operating.

78 Moreover, the first measure gave customers certainty that NCHZ would continue to operate throughout the first insolvency period, as indicated by the Commission in the contested decision (recitals 85 and 86 of the contested decision).

79 Accordingly, the Commission did not err in stating the consequences arising from the application of the Law on Strategic Companies.

(b) The applicant’s claim that the Slovak State’s decision to classify NCHZ as a ‘strategic company’ satisfied the market economy operator test

80 According to the applicant, the application of the Law on Strategic Companies satisfied the market economy operator test, since it was economically advantageous for the public creditors. In the first place, the market economy operator test does not apply only to measures which may theoretically be taken by private operators, but also those which, because of their sovereign nature, can only be adopted by that State, such as legislative acts. In addition, the applicant maintains that public policy considerations do not preclude the market economy operator test from being satisfied, since Article 107(1) TFEU does not distinguish between the various aims of measures or the various reasons for them, but merely defines them in terms of their effects.

81 In the second place, the private creditor test is applicable not only to claims of the State governed by private law, but also to its claims under public law, such as those relating to the payment of social security contributions. In the present case, that test is satisfied, since the continued operation of NCHZ should be regarded as by far the most economically favourable scenario for the public creditors. In order to make that comparison, all the relevant information known at the date of adoption of the first measure should be taken into consideration.

82 First, according to the applicant, all the pre-insolvency unsecured and secured public creditors had a manifest interest in the continued operation of NCHZ, since it represented the only way of achieving at least partial satisfaction of their pre-insolvency claims and they did not face any risk of further financial exposure. It is clear from the Slovak State’s decision to classify NCHZ as a ‘strategic company’ that it was aware that the situation of those creditors would be worse in the event of the company’s liquidation.

83 Secondly, during the formal investigation procedure, the Slovak authorities submitted detailed information proving that, on the date of the adoption of the first measure, the continued operation of NCHZ was also the best economic option when taking into account the possible increase of unpaid liabilities during continued operation. For example, it was demonstrated that the situation of the social insurance company, which was the largest post-insolvency public creditor, would have been manifestly worse in the event of the immediate liquidation of NCHZ. However, in the contested decision, the Commission did not even refer to those arguments. In the reply, the applicant adds that it seems to be disproportionally strict to distinguish between the costs to be borne by the social insurance company in the case, first, of continued operation of NCHZ and, secondly, the immediate liquidation of NCHZ.

84 Thirdly, the applicant claims that the Commission has not challenged the accuracy of the figures presented either in the contested decision or before the Court.

85 According to the case-law, the private creditor test requires that the conduct of a public creditor be compared to that of a private creditor in a situation as close as possible to that of the public creditor. Evidence may be required showing that the State’s decision is based on economic assessments comparable to those which a private creditor would have made (see, to that effect, judgment of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraphs 25 and 26 and the case-law cited).

86 However, the private creditor test cannot be deemed applicable in the present case. No evidence was adduced by the Slovak State during the administrative procedure to show that it adopted the decision to classify NCHZ as a ‘strategic company’ in the context of an action of an economic nature and in its capacity as creditor, and not as a public authority (see, to that effect and by analogy, judgment of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraphs 81 and 82).

87 In any event, according to the case-law, assuming that the Commission should have entertained doubts as to the applicability of that test, it is for the latter to carry out a global assessment taking into account, in addition to the evidence provided by that Member State, any other relevant evidence in the present case enabling it to determine whether the Member State took the measure in question in its capacity as an economic operator or as a public authority. In particular, the nature and subject matter of that measure are relevant in this regard, as is its context, the objective pursued and the rules to which the measure is subject. By contrast, for the purposes of showing that, before or at the same time as that adoption, the Member State took that decision as an economic operator, it is not enough to rely on economic evaluations made after the measure was adopted, on a retrospective finding that the measure adopted by the Member State concerned was actually profitable, or on subsequent justifications of the course of action actually chosen (see, to that effect and by analogy, judgment of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraphs 85 and 86).

88 It follows from the Law on Strategic Companies and the decision of the Slovak State to confer the status of strategic company on NCHZ that the Slovak State’s sole objective was to avoid the negative effects of NCHZ’s ceasing to operate on the operation and competitiveness of the chemical industry as a whole in Slovakia, as well as the negative impact on employment in the region concerned which would endanger the Slovak economy. By contrast, contrary to the applicant’s claims, it is not apparent from the Slovak State’s decision to classify NCHZ as a ‘strategic company’ that it was aware that the situation of the pre-insolvency public creditors would be worse in the event of the liquidation of that company.

89 As the Commission maintains, the barrier to collective redundancies formed part of the main objective of the Law on Strategic Companies, which was to continue operating such companies, which would undoubtedly have been be rendered at the very least difficult if not impossible if, as regards NCHZ, actions by the incumbent administrator or third parties could have led to a significant reduction in personnel.

90 Furthermore, in the first place, the applicant’s argument presupposes that the State may be regarded as a single public creditor. However, such an approach was rejected in the judgment of 13 December 2018, AlzChem v Commission (T‑284/15, EU:T:2018:950, paragraphs 184 to 196 (not published)).

91 In addition, as the Commission, in essence, stated in the contested decision (recitals 81, 83, 87 and 88 of the contested decision), there is no sufficient and contemporaneous evaluation of the application of the Law on Strategic Companies to NCHZ, which examines the continued operation of that company in the light of the interests of the public creditors, while, for the purpose of the applicability and application of the private creditor test, the only relevant evidence is the information which was available, and the developments which were foreseeable at the time when the decision at issue was taken (see, to that effect and by analogy, judgment of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 105). The applicant submits, however, that it ‘has no possibility of verifying whether any such detailed evaluations [of whether the situation of the pre-insolvency public creditors would have been worse in the event of the liquidation of NCHZ] were made before the decision [to classify NCHZ as a ‘strategic company’] was taken’. It also maintains that, on account of that classification, the incumbent administrator could not have prepared a comprehensive analysis at that time, in the sense, as it stated at the hearing in reply to a question put by the Court, that it was not necessary to carry out that analysis because of the application of the Law on Strategic Companies.

92 In the second place, even taking into account only the situation of the social insurance company, as relied on by the Slovak authorities in their second response to the Commission of 29 November 2013, the applicant’s argument cannot succeed. While it claims that, in the event of immediate liquidation, that company, which was the largest post-insolvency public creditor, would have had a claim of over EUR 3 million, it does not indicate the amount of that company’s claim in the event of NCHZ’s continuing to operate, which should have been estimated at the time when that company was classified as a ‘strategic company’, as required by the case-law referred to in paragraph 91 above.

93 Moreover, the argument put forward by the applicant in its reply, to the effect that the Slovak State took into account the fact that it would have had to pay, via the social insurance company, unemployment benefits in the event of NCHZ’s liquidation must be rejected. In that regard, the applicant claims that unemployment benefits would have had to have been paid to the former employees of NCHZ and to the employees of other companies directly affected by the liquidation and that the total amount of those payments would have been considerably greater than the amount of the alleged aid. If it had been necessary to pay those benefits, they would not have been paid to NCHZ but to the employees, including those working for companies other than NCHZ. Accordingly, the fact that the Slovak State might become a debtor in respect of former employees of NCHZ or of other companies cannot be taken into consideration in so far as concerns the examination of its conduct as a creditor of NCHZ. As the Commission maintains, the applicant acknowledges that the Slovak State could therefore have been placed at an advantage in its capacity as a public authority responsible for unemployment benefits payable to former employees, but not in its capacity as a creditor of NCHZ, which renders the figures it puts forward irrelevant, even assuming they are correct. In that regard, it must be noted that the applicant’s reasoning is based on assumptions, as regards both the number of employees who could have been concerned and the assessment carried out.

94 Consequently, assuming that the market economy operator test is applicable in the present case, the applicant’s argument that the application of the Law on Strategic Companies satisfied that test must be rejected.

(c) The applicant’s claims that the situation would have been the same if NCHZ had been subject to the normal insolvency rules

95 The applicant claims, on the basis of a certain number of factors, that the application of the Law on Insolvency to NCHZ would have led to the same situation as that arising from the application of the Law on Strategic Companies to that company, which therefore did not benefit from any additional advantage in respect of the continuation of its operations imposed by the Law on Strategic Companies.

(1) The claim that the first administrator had decided in favour of continuing NCHZ’s operations before the adoption of the Law on Strategic Companies

96 In the first place, according to the applicant, the first administrator decided, on 14 October 2009, that is to say before the adoption of the Law on Strategic Companies, in favour of NCHZ’s continued operation. In support of that claim, the applicant refers to a statement issued by a press agency. However, it must be noted that it was more of a statement of intention than a decision that could bind the first administrator, who indicated that he ‘want[ed] to do everything to maintain the operation of the plant’. Moreover, it was mentioned that that administrator was still required to provide the Slovak minister concerned with an economic analysis of maintaining the operation of NCHZ, which was submitted on 26 October 2009.

97 In the second place, the applicant claims that the first administrator had considered that the legal requirements for continuing NCHZ’s operations were met, as he explained in his speech to NCHZ’s employees at a meeting held on 20 October 2009. However, the applicant refers only to part of that speech. In that speech, the first administrator did indeed refer to the fact that the initial assessment had led him to conclude that NCHZ’s value as a going concern was considerably higher than if the assets were sold in another way. He nevertheless also stated that another, no less important, reason for his decision to continue operations was the economic and social significance of the insolvent entity for the whole region concerned, not only for a ‘small number; of NCHZ’ employees, but also for their families. Those two reasons, that is to say the economic value of NCHZ and the social impact, are furthermore repeated subsequently in his speech. The second reason referred to, moreover, corresponds to that invoked in the context of the adoption of the Law on Strategic Companies. Accordingly, the decision of the first administrator cannot be considered to have been linked solely to the analysis of NCHZ’s economic situation.

98 In the third place, the applicant refers to the analysis of 26 October 2009. First of all, it must be noted that what the applicant describes as an analysis is a presentation containing graphics, lists of summary considerations relating to the financial results for the period from January to November 2009, the economic measures of the first administrator for the fourth quarter of 2009, the economic plan for 2010, and a three-point conclusion.

99 First, while the applicant maintains that most of the measures referred to in the analysis of 26 October 2009 were based on market developments or on negotiations with private parties, that is in no way apparent from the document communicated. Moreover, as the Commission argues, it must be noted that certain measures, such as tax relief, implied intervention on the part of public authorities.

100 Secondly, in the analysis of 26 October 2009, it is true that the first administrator concluded, as the applicant claims, that it was necessary to continue NCHZ’s operations in order to sell it as a going concern and to provide the best possible satisfaction for NCHZ’s creditors. However, it added that it would ‘strictly proceed in a manner that would ensure that no outstanding liabilities closely related to the operation of the company [arose] during the operation of [NCHZ]. Accordingly, even though the first administrator considered in October 2009 that the decision to continue NCHZ’s operation was at that time the best solution, that does not mean that that decision would have remained unchanged in the light of the changes in NCHZ’s economic situation in 2010.

101 Thirdly, while the applicant maintains that the analysis of 26 October 2009 had been reinforced by the production figures and new orders placed between September and November 2009, which proved that NCHZ remained operational, in so far as those results were similar to those obtained during the eight preceding months of 2009, and that there was every reason to believe that the company’s operation would make it possible to attract investors, it must be noted that, first, the significance to be accorded to the fact of maintaining the level of orders placed is limited on account of the announcement in October 2009 concerning the adoption of a law on strategic companies. Moreover, it is apparent from the Slovak authorities’ second response to the Commission of 29 November 2013 that at that time there was a downward trend in revenue from sales and new orders. Second, the applicant’s line of argument is based on pure assumptions regarding the existence of future investors.

102 It follows that, even if it were to be considered that, beyond a mere statement of intention, the first administrator had decided to continue NCHZ’s operations before the adoption of the Law on Strategic Companies, which the Commission appears to accept, that fact cannot, in any event, imply that it would necessarily have maintained that position throughout the first insolvency period or that the administrator would have followed it.

(2) The claim that the initial decision of the first administrator would have been upheld by the relevant committee

103 According to the applicant, there is no reason to believe that the relevant committee would not have upheld the initial decision of the first administrator. It claims that it was already clear that, in the event of NCHZ’s liquidation, the pre-insolvency creditors would not have obtained any repayment and therefore had nothing to lose by voting to continue that company’s operations and that both the secured creditors and the creditors’ committee and the insolvency court would have found in favour of NCHZ’s continued operation. In support of its argument, it relies on the March 2014 analysis, which was carried out ex post at the express request of the Commission. According to the applicant, it was clear that the costs of decontaminating the site would amount to millions of euros and would take priority over pre-insolvency claims. Furthermore, it claims that the economic forecasts in 2009 were certainly better than those in 2010 and that, although the actual development of NCHZ was subject to the harmful effect of certain developments on the market which took place in 2010, they could not have been anticipated at the end of 2009. Moreover, it claims that, even if the continued operation of NCHZ had not been in the interest of the post-insolvency public creditors, they could not have challenged it.

104 In that regard, in the first place, it must be noted that the applicant’s argument is based on assumptions and assertions, in so far as it relies on the analysis of 26 October 2009, which cannot be regarded as sufficient (see paragraphs 98 to 101 above), and does not refer to any analysis carried out during the first insolvency period, the absence of such an analysis not being surprising since, as the applicant itself stated (see paragraph 91 above), irrespective of the content and findings of an analysis at that time, NCHZ’s operation had to continue (recital 80 of the contested decision). In addition, in their third response to the Commission, of 13 January 2014, the Slovak authorities had indicated that, even though they considered that the decisions taken subsequently could be seen as a clear indicator that the relevant committee would have decided in favour of continuing NCHZ’s operations, they did not know what that committee might have ultimately decided in December 2009.

105 In the second place, the fact that the price level of the main raw materials and of certain products could change in an unfavourable manner, as was the case, which the applicant submits in the reply, is a factor which ought to have been taken into consideration by the incumbent administrator and the relevant committee. While the applicant claims that those changes were not foreseeable when the first administrator decided to continue NCHZ’s operations and could not even have been known at the end of 2009, it must nevertheless be noted that, in the analysis of 26 October 2009, the increase in the price of energy and the fall in the price of products were mentioned as reasons for the negative results between June and July 2009 and that, at the very least, the question of the price of strategic raw materials was indicated as a risk factor concerning financial management for the fourth quarter of 2009.

106 In the third place, even considering that it was well known that the costs of decontamination in the event of NCHZ’s ceasing to operate would have been considerable, the fact remains that the question was whether the incumbent administrator and the relevant committee, including the súd v Trenčíne (Trenčín Court), in fact would have considered that the solution to be adopted was to continue to operate NCHZ. The applicant’s argument on that point is based merely on assumptions.

107 First, the decisions of the members of the relevant committee which would have had to be put forward for decision in accordance with the Law on Insolvency to the súd v Trenčíne (Trenčín Court) are not known, namely the decisions of the secured creditors and the creditors’ committee.

108 It is not significant that, according to the applicant, the Fond národného majetku Slovenskej republiky (National Property Fund of the Slovak Republic), which was a pre-insolvency public creditor that was both unsecured and secured, noted, in a statement annexed to the first response of the Slovak authorities to the Commission of 2 September 2013, that it would have voted in favour of NCHZ’s continued operation. The statement of that entity dates from July 2013, that is to say after the first insolvency period.

109 In addition, while the applicant claims that the pre-insolvency creditors faced no risk, it neglects the fact that it is clear from the case file that secured creditors saw their claims increase during the first insolvency period. However, it indicates the figures showing an increase in claims for the town of Nováky (Slovakia) and the Environmentálny fond (Environmental Fund, Slovakia) already at the end of 2009, figures which also come from the case file. Accordingly, it would be incorrect to consider, without a more substantiated analysis, that the situation of those creditors was so clear that they could only have voted at that time to continue NCHZ’s operations.

110 Moreover, the applicant submits that the creditors’ committee was made up of five private creditors, all unsecured, which were at that time all privately owned companies and had voted to continue NCHZ’s operations on 11 January 2010. It must be noted that such a decision, on 11 January 2010, cannot be significant, since NCHZ was by then already subject to the provisions of the Law on Strategic Companies. Accordingly, not only could that vote have had no more than symbolic value, it cannot have been influenced by the fact that that law applied. Moreover, there is no certainty, or even indication, that that vote would have been repeated in the same way when the economic situation of NCHZ deteriorated during the first insolvency period in 2010.

111 Secondly, in so far as the súd v Trenčíne (Trenčín Court) was to give its decision after the creditors’ committee and the secured creditors, there is no certainty concerning its decision; the applicant merely claims, in reply to the Commission’s argument, that it would have ordered the continuation of NCHZ’s operations, as it did in 2011.

112 Thirdly, the applicant maintains that even if the continued operation of NCHZ had not been in the interest of the post-insolvency public creditors including the social insurance company and the health insurance company, which held approximately 83% of the unpaid liabilities of the public creditors, those creditors could not have challenged it. It adds that even if all those creditors had been entitled to give their views on continuing NCHZ’s operations — which was not the case — their opposition could not have influenced the final decision, since the total level of liabilities following the insolvency amounted to EUR 8.5 million at the end of 2009 and the claims of the public creditors represented less than 9% of that total.

113 It is true that it does not follow from the provisions of the Law on Insolvency, and in particular from Article 83(4) thereof, that, in the circumstances of the present case, the social insurance company could have intervened in the decision to continue NCHZ’s operations before the súd v Trenčíne (Trenčín Court) (see, to that effect, judgment of 13 December 2018, AlzChem v Commission, T‑284/15, EU:T:2018:950, paragraph 151 (not published)).

114 However, even supposing all the figures put forward by the applicant are established, it must be noted that the incumbent administrator was responsible for payment of the post-insolvency claims. The fact of allowing NCHZ’s liabilities to increase during the first insolvency period was contrary to that obligation. It must be stressed, as the Commission maintains, that, while it is true that an insolvent entity may in practice be operated even when it generates losses, the first administrator had expressly stated that he would ensure that that did not happen (see paragraph 100 above).

115 Moreover, the applicant’s assertion is based on the presumption that the relevant committee would not have examined, or deemed irrelevant, the foreseeable prospects, at the end of 2009, of an increase in public claims in 2010 in the event of a decision to continue NCHZ’s operations. At the hearing, in reply to a question put by the Court, the applicant acknowledged that, in the case of a very substantial amount of post-insolvency liabilities during continued operation, the pre-insolvency creditors would have been the first to approach the administrator to ask for operations to cease, in order to preserve any possible chance of recovering their claims.

116 In the fourth place, it is not possible to uphold the applicant’s argument disputing that, although the Commission did not question the accuracy of the March 2014 analysis, which it had asked the Slovak authorities to provide, it did not accept it as evidence, stating that it was very brief and hypothetical and produced only after the event (recital 87 of the contested decision).

117 First, contrary to the applicant’s claims, the March 2014 analysis is, at the very least, incomplete. It was important to know the potential costs of continuing NCHZ’s operations for the pre-insolvency creditors which could also have post-bankruptcy claims (see paragraph 109 above). However, the analysis gives no indication in that regard.

118 Secondly, the applicant’s argument calls into question the Commission’s assessment relating to the hypothetical nature of the March 2014 analysis and the irrelevance of an ex post analysis cannot be upheld.

119 In that regard, the applicant disputes the fact that in the contested decision the Commission rejects the evidence by claiming that it was prepared after the event, without providing a meaningful explanation, except for a reference to case-law in a single footnote, although that case-law does not support the Commission’s argument that the ex-post analysis is irrelevant. According to the applicant, the March 2014 analysis was particularly reliable, since the main cost factors arising from NCHZ’s liquidation were connected with the nature of that company’s business and the commitments of the chemical industry and could not have been affected by any changes in the economic situation of NCHZ during insolvency. The Commission has not disputed the facts and figures in question. Moreover, in that type of situation, an analysis made after the event is permissible (see, to that effect, judgment of 29 March 2007, Scott v Commission, T‑366/00, EU:T:2007:99, paragraphs 136 to 138). In addition, as a result of the application of the Law on Strategic Companies, the incumbent administrator could not have carried out a comprehensive analysis at that time, which distinguishes NCHZ’s situation from those which gave rise to the case-law referred to by the Commission in the footnote on page 13 of the contested decision. According to the applicant, it is necessary to make a precise distinction between the test established in the judgment of 1 December 1998, Ecotrade (C‑200/97, EU:C:1998:579) and the market economy operator test. Although, in the context of the market economy operator test, it is permissible to doubt the relevance of an ex post analysis in certain circumstances, the analysis required by that judgment, which consists of determining whether NCHZ would have continued to operate, including in the event that the normal insolvency rules were applied to it, requires, by definition, a hypothetical ex post analysis. By virtue of the test established in that judgment, it is necessary to assess what, in all likelihood, would have happened if the Law on Strategic Companies had not existed.

120 It must be noted that, contrary to the applicant’s claims, paragraph 36 of the judgment of 1 December 1998, Ecotrade (C‑200/97, EU:C:1998:579) does not set out a requirement for a ‘hypothetical counterfactual analysis’ but seeks to address the Commission’s argument, put forward in the case giving rise to that judgment, that the reduction in profits on account of the measure at issue could have led to a loss of tax revenue for the State, which involved a transfer of State resources due to that measure. Furthermore, no other paragraph of that judgment sets out the requirement for a ‘hypothetical counterfactual analysis’.

121 As regards the Commission’s assessment concerning the ex post nature of the March 2014 analysis and its irrelevance, it is indisputable that, without the application of the Law on Strategic Companies to NCHZ, first, the barrier to collective redundancies would not have been imposed and, secondly, the continuation of that company’s operations would have had to have been decided on by the relevant committee and would not have been automatic. In that regard, contrary to the applicant’s claims, a comparison of the situation that arose as a result of the application of the Law on Strategic Companies to NCHZ with the situation that would have taken place if NCHZ had been subject to the normal insolvency rules can only rely on an analysis based on knowledge of the situation and the information existing at the time when the decision concerning whether or not to continue NCHZ’s operations was to be taken and when it was classified as a ‘strategic company’ (see, to that effect, Opinion of Advocate General Fennelly in Ecotrade, C‑200/97, EU:C:1998:378, point 31).

122 However, the applicant does not claim that the March 2014 analysis was prepared on the basis of data contemporaneous with NCHZ’s classification as a ‘strategic company’. It follows from that analysis, produced by the applicant, that the administrator did not draft it on the basis of the information available in 2009 but used information from December 2010 in order to establish whether that information could have been valid in December 2009, without reviewing it other than to consider that some of that information was not time sensitive. He moreover stressed the difficulties involved in gathering contemporaneous information from December 2009.

123 Accordingly, it cannot be deemed certain that the March 2014 analysis corresponds to the situation that NCHZ would have been in if that company had not been classified as a ‘strategic company’. Thus, the Commission’s assessment in the contested decision that the March 2014 analysis was irrelevant, in so far as it was hypothetical and ex post, must be regarded as not incorrect.

124 In the fifth place, according to the applicant, there is no evidence to show that the immediate liquidation of NCHZ would have been relevant. In support of that argument, it submits that, in the contested decision, the Commission failed to examine the content of the evidence submitted in the course of the formal investigation procedure, and merely displayed, generally and arbitrarily, scepticism to it (recitals 83, 84 and 87 of the contested decision), without adducing the least evidence in support of its opinion that the relevant committee would not have agreed that NCHZ’s operations should continue. The applicant maintains that the Commission did not call into question the figures and information submitted by the Slovak authorities, thereby clearly acknowledging that they were correct.

125 In that regard, contrary to the applicant’s claims, it must be held that it was for the Member State concerned, in the present case the Slovak Republic, and not for the Commission, to demonstrate that the situation would have been the same if the normal insolvency rules, and not the Law on Strategic Companies, had been applied to NCHZ. However, in the contested decision, the Commission set out the reasons why it had not used the information submitted for that purpose (see paragraphs 98 to 101 and 116 to 123 above) and it must be held that, contrary to the applicant’s claim, it did not agree that the figures and information submitted by the Slovak Government were correct. Consequently, the applicant’s claim that there is no evidence to show that immediate liquidation would have been relevant must be rejected.

126 In addition, in the light of the case-law cited in paragraph 91 above, the lack of an adequate and contemporaneous study of the application of the Law on Strategic Companies to NCHZ, having examined the continuation of that company’s operations in view of the interests of the public creditors justifies the fact that, contrary to the applicant’s claims, there was no need for the Commission to address, in the contested decision, the arguments put forward by the Slovak State concerning the costs incurred in the liquidation of NCHZ by the social insurance company, which were based on the March 2014 analysis.

127 Accordingly, contrary to the applicant’s claims, it cannot be concluded that there is no reason to believe that the relevant committee would not have upheld the initial decision of the first administrator.

128 Moreover, it is necessary to reject the applicant’s argument, put forward in response to an argument of the Commission, that the decision to continue NCHZ’s operations would have been taken in any event and does not contradict the decision of the Slovak State to apply the Law on Strategic Companies to NCHZ. According to the applicant, that decision must be understood as mindful of the fact that the economic and financial crisis was at that time at its height and considering that, owing to fear and perhaps in view of the upcoming elections in 2010, that government took proactive action, without recourse to specific information about NCHZ’s actual situation and without the first administrator having requested any intervention on the part of the Slovak State.

129 That argument raised by the applicant is not convincing, since it relies on the premiss that the Slovak State adopted a law and decided to apply it to a single company, without having specific information about that company’s situation. However, it must be recalled that the first administrator was required to provide information to the Slovak authorities, which he did with the analysis of 26 October 2009 (see paragraph 96 above). If the outcome of the decision to be taken by the relevant committee was at that time as certain as the applicant claims, there was no reason for the Slovak authorities to doubt that NCHZ would continue to operate. By contrast, the existence of a fear in respect of the elections, as claimed by the applicant, serves to show that another decision, namely the liquidation of NCHZ, could have been taken by the relevant committee, in the light of NCHZ’s economic situation and the prospects for its development.

130 In the light of all the above considerations, the applicant’s claim that, if NCHZ had been subject to the normal insolvency rules, the decision of the incumbent administrator would have been confirmed by the relevant committee, which would then have decided to continue NCHZ’s operations, must be rejected.

(3) The claim that a decision by the relevant committee would have provided customers and suppliers with the same security as the Law on Strategic Companies

131 In the first place, according to the applicant, a decision by the relevant committee would have provided clients and suppliers with the same certainty as the Law on Strategic Companies, contrary to the Commission’s assertions (recital 88 of the contested decision). It claims that, even if those assertions were true – which is not the case –, that certainty could only have had an effect on the likelihood and amount of the (partial) satisfaction of NCHZ’s debts in the event that the company continued to operate and not in the event of its immediate liquidation. The applicant disputes, moreover, the Commission’s assessment that the existence of a better guarantee, provided to customers and suppliers by the application of the Law on Strategic Companies, that NCHZ would continue to operate until the expiry of that law is demonstrated by the fact that, despite the application of that law, NCHZ lost customers in 2009 and 2010 (recitals 85 and 86 of the contested decision).

132 In the contested decision, the Commission considered that the first measure had granted NCHZ and third parties, in particular its customers and suppliers, certainty that that company would continue its operations, whereas the continuation of the operations of a company in insolvency would never be guaranteed under normal insolvency conditions; NCHZ thus received preferential treatment compared with its competitors in a similar situation (recitals 78, 85, 89 and 90 of the contested decision). It noted that, despite the shield provided by the application of the Law on Strategic Companies, NCHZ had lost some customers in 2009 and 2010, as shown by the economic analysis of the administrator which was prepared after that law had expired (recital 86 of the contested decision). It considered that ‘if [that law] had not been applied to NCHZ, the company would have faced additional negative consequences (such as customers switching to safer suppliers), which would have significantly increased the risk of the creditors opting to discontinue operation [of the company] at that stage’ (recital 88 of the contested decision).

133 It is therefore clear from the contested decision that the Commission not only took into consideration the situation at the time when NCHZ was subject to the application of the Law on Strategic Companies, but intended to indicate that a decision to terminate NCHZ’s operations could have been taken in 2010, whereas that law produced its effects throughout the first insolvency period, that it to say for a little more than a year, thereby freezing the situation throughout that period. The applicant itself submits that, when the failure of the insolvency administrator is established, the relevant committee must be convened, in accordance with Article 88(2) of the Law on Insolvency.

134 The applicant’s line of argument does not take into account the fact that the pre-insolvency creditors, in particular the public creditors, could have seen their post- insolvency claims increase with NCHZ’s continued operation during the first insolvency period and that, if NCHZ continued to operate, they had an interest in NCHZ’s being profitable so that their post-insolvency claims would paid, otherwise there would be an additional loss in addition to the pre-insolvency claim. As the Commission stated (recital 86 of the contested decision), in a situation where customers or suppliers were leaving, those creditors might have reviewed their position in 2010 if NCHZ had been subject to the normal insolvency rules. In addition, even the creditors with pre-insolvency claims only might have recommended the termination of NCHZ’s operations (see paragraph 115 above).

135 However, while, as the applicant argues, the application of the Law on Strategic Companies did not guarantee that deliveries would actually be made, it guaranteed that the staff would be retained, due to the barrier to collective redundancies, and inter alia ensured customers and suppliers that NCHZ would continue to operate until at least the expiry of that law, irrespective of the amount of unpaid claims, including public claims.

136 The applicant has not adduced any evidence to show how a decision of the relevant committee would have given the same certainty to third parties, while requiring NCHZ to continue to operate for a period equivalent to the period of application of the Law on Strategic Companies. In particular, it is not claimed that, in accordance with the provisions of the Law on Insolvency, the relevant committee could have determined or even envisaged determining such a definite period in which the operations of NCHZ would continue. The applicant merely claims that, in the light of the duration of the continuation of NCHZ’s operations during the second insolvency period, it may be assumed that the duration of a decision by the relevant committee to continue NCHZ’s operations during the last quarter of 2009 could have been equivalent.

137 In addition, as regards the loss of customers in 2009 and 2010, referred to by the Commission in recital 86 of the contested decision, the applicant merely claims that the company was stable at the end of 2009. It is clear from the case file that at that time there was a downward trend in respect of revenue both from sales and new orders (see paragraph 101 above). Accordingly, it was not certain that the alleged stability relied on by the applicant could have continued throughout the first insolvency period if the normal insolvency rules had been applied.

138 In the second place, in response to the Commission’s argument that NCHZ’s situation during the period between the declaration of insolvency and the adoption of the Law on Strategic Companies, followed by its application to NCHZ, was to some extent distorted by information from the public domain indicating clearly that a legislative solution was being drawn up, the applicant maintains that, although the Commission refers to several statements, they were all made on the same day, 26 October 2009, the date of a visit by the Slovak Minister for the Economy to the NCHZ site. According to the applicant, since the public statements were made a mere 10 days before the Law on Strategic Companies was adopted, their effect was limited to the period preceding that adoption, whereas the first 2 months after NCHZ had filed for insolvency had been decisive in ensuring the success of continuing its operations during the insolvency period, since NCHZ’s management and the first administrator had been obliged to engage in numerous negotiations with the main customers and suppliers. The applicant submits that the abovementioned statements are instead solid evidence of NCHZ’s financial strength during the insolvency proceedings.

139 In that regard, first of all, it must be held that, as the Commission maintains, even assuming that NCHZ had implemented a good communication strategy, that could not, however, have ensured that the company’s commercial relationships would be maintained. Next, it has already been found that the first administrator had indicated his intention to do his utmost to keep NCHZ operating. Finally, as the Commission points out, it is apparent from the first article cited by the Commission, published on 26 October 2009, that the spokesperson of the Slovak Minister for Economic Affairs had reported to the press that a Law on Strategic Companies was being drawn up and that NCHZ’s creditors were reassured by that fact alone. The same article indicates that the Slovak Minister for Economic Affairs had stressed, in his public statements, that that law should constitute a certain guarantee for suppliers that they would not lose their claims. Moreover, it is apparent from the second article cited by the Commission, published on 26 October 2009, that, on the same day, the Slovak Minister for Economic Affairs, during his visit to NCHZ, had presented a law on strategic companies, which was in the process of being drawn up and which was to help that company and create guarantees for its creditors.

140 Accordingly, the applicant’s claim that a decision by the relevant committee would have provided customers and suppliers with the same certainty as the Law on Strategic Companies must be rejected.

(4) The claim that NCHZ did not enjoy any additional advantage in the context of maintaining its business imposed by the Law on Strategic Companies

141 In the reply, in response to the Commission’s argument that the continuation of NCHZ’s operations at a loss was likely to have affected the priority of the creditors’ debts, possibly leading to an effective renunciation of its debts by the State, the applicant claims that, during the first insolvency period, the incumbent administrator was also required to apply the usual insolvency rules, and, when an insolvent company is operated with a view to its sale as a going concern, creditors with pre-insolvency claims are given precedence, irrespective of their public or private status. NCHZ did not therefore enjoy any additional advantage in the context of the maintenance of its business provided for by the Law on Strategic Companies.

142 That argument cannot succeed.

143 In the first place, the applicant cannot validly claim that the unpaid debts were not the result of the implementation of the Law on Strategic Companies, but rather, in essence, that of normal operation during insolvency. Such an argument implies that an insolvent undertaking must be operated at a loss. According to Article 88(2) of the Law on Insolvency, in such a case, either at the start of the first insolvency period or during that period, the incumbent administrator would have been required to approach the relevant committee in order to receive instructions concerning the continued operation of NCHZ, since the Law on Insolvency takes into account the interest of the creditors first of all. The pre-insolvency creditors could also have alerted that administrator in that regard (see paragraph 115 above). Accordingly, in the context of the application of the normal insolvency rules, there were options to restrict operation at a loss, which was precluded by the Law on Strategic Companies.

144 In the second place, as a result of the continued operation of NCHZ required by the Law on Strategic Companies, that company was required to honour its debts associated with production which, in the light of its financial position, could only have a negative effect, in particular, on the settlement of its debts in respect of the two public entities, the social insurance and health insurance companies.

145 Furthermore, in that context, the barrier to collective redundancies, also required by the Law on Strategic Companies aggravated the situation. As the applicant submits, if NCHZ had been subject to the normal insolvency rules, collective redundancies would have been decided upon at the start of the insolvency and not, as was the case, in 2011. It is true that the applicant maintains that NCHZ’s costs would have been significantly reduced by that and that the reality was otherwise, since, NCHZ being unable to take advantage of that option, it had to bear additional costs that were practically unnecessary, a significant part of which constituted payments to the social insurance and health insurance companies. However, the applicant fails to point out that NCHZ could not pay all those debts and that the debts owing to those two public entities increased, while, in parallel, NCHZ retained the benefit of its employees for the purposes of continuing its operations. Accordingly, the applicant’s argument that the prohibition of economic redundancies did not constitute an economic advantage for NCHZ cannot succeed and, contrary to the applicant’s claims, that barrier led to an additional burden for the public creditors, compared to what would have resulted from the application of the normal insolvency rules.

146 Moreover, the applicant’s argument that the Law on Strategic Companies only conferred an economic advantage on the Slovak State, since, if NCHZ had made those employees redundant earlier, that State would have had to bear most of those costs in the form of unemployment support and other social transfers (see paragraph 93 above).

147 Consequently, the claim that NCHZ did not enjoy any additional advantage in the context of the continuation of NCHZ’s business provided for by the Law on Strategic Companies cannot succeed.

148 In the light of all the foregoing considerations, the applicant’s argument that the application of the normal insolvency rules to NCHZ would have led to the same situation as that resulting from the application of the Law on Strategic Companies to that company must be rejected.

(d) Conclusion

149 It must be held that, on account of the classification of NCHZ as a ‘strategic company’ by the Slovak authorities, it was required, first, to continue to operate, irrespective of any consideration of its economic situation and its capacity to honour its debts, in particular public debts, and secondly, to retain its staff, owing to the barrier to collective redundancies, thereby allowing it to continue to operate with an assurance provided to its customers and suppliers that it would do so until the end of 2010. At the same time, the application of the Law on Strategic Companies to NCHZ imposed the risk on some of its creditors, in particular the public creditors, that their claims would increase during the first insolvency period, that risk being unavoidable in the light of its financial position at the time of its classification as a ‘strategic company’. That risk moreover materialised during the first insolvency period, both for public creditors with pre-insolvency and post-insolvency claims and for those solely with post-insolvency claims.

150 However, it cannot be considered that, in circumstances corresponding to normal market conditions, NCHZ could have obtained the same advantage as was made available to it, through State resources, within the meaning of the case-law cited in paragraphs 59 and 61 above. First, the market economy operator test was not applicable in the present case and in any event, it was not established that the first measure satisfied that test. Second, it cannot be concluded that the situation would have been the same if NCHZ had been subject to the normal insolvency rules and no additional burden had been placed on the public creditors (see paragraphs 94 and 148 above). As regards the latter point, the applicant’s argument relating to the judgment of 1 December 1998, Ecotrade (C‑200/97, EU:C:1998:579, paragraph 36), cannot call that assessment into question. In paragraph 36 of that judgment, the Court of Justice held that the fact that the measure at issue in that case could have led to a reduction in the profits of private creditors and, accordingly, potential loss of tax revenue, did not permit the conclusion that that measure amounts to State aid. The connection between that measure and any loss of tax revenue was too indirect (see, to that effect, Opinion of Advocate General Fennelly in Ecotrade, C‑200/97, EU:C:1998:378, point 24). Having regard to the first measure, the Commission’s considerations in the contested decision are in no way based on similar considerations or such an indirect link.

151 Thus, the first measure, combining the obligation to continue NCHZ’s operations and the barrier to collective redundancies, is covered by both the first and second situations considered in the judgments of 1 December 1998, Ecotrade (C‑200/97, EU:C:1998:579, paragraph 45) and of 17 June 1999, Piaggio (C‑295/97, EU:C:1999:313, paragraph 43) (see paragraph 72 abo