Case T-671/14

Bayerische Motoren Werke AG

v

European Commission

(State aid — Regional investment aid — Aid granted by Germany to BMW for a large investment project in Leipzig concerning the production of two models of electric cars (i3 and i8) — Decision declaring the aid partly compatible and partly incompatible with the internal market — Article 107(3)(c) TFEU — Article 108(2) and (3) TFEU — Incentive effect of the aid — Whether the aid is necessary)

Summary – Judgment of the General Court (Fifth Chamber), 12 September 2017

State aid — Prohibition — Exceptions — Categories of aid, defined by regulation, which may be regarded as compatible with the internal market — Regulation No 800/2008 — Conditions for exemption from the requirement for notification

State aid — Prohibition — Exceptions — Discretion of the Commission — Adoption by the Commission of guidelines governing the compatibility of aid with the internal market — Consequences — Self-limitation of its discretion — Obligation to comply with the principles of equal treatment and protection of legitimate expectations

State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid for regional development — Criteria for assessment — Weighing up of the advantages and disadvantages of the measure at issue — Guidelines on national regional aid — Scope

State aid — Planned aid — Examination by the Commission — Preliminary review and main review — Compatibility of aid with the internal market — Difficulties of assessment — Commission’s duty to initiate the main review procedure — Serious difficulties — Concept — Objective nature — Circumstances enabling the existence of such difficulties to be determined

See the text of the decision. (see paras 33-40)

When the Commission assesses the compatibility of State aid with the internal market in the light of the derogation provided for in Article 107(3) TFEU, it must take into account the Union interest and may not refrain from assessing the impact of those measures on the relevant market or markets in the European Economic Area as a whole. In such cases the Commission is bound not only to verify that the measures are such as to contribute effectively to the economic development of the regions concerned, but also to evaluate the impact of the aid on trade between Member States, and in particular to assess the sectorial repercussions they may have at Community level. In that regard, paragraph 68 of the Guidelines on national regional aid 2007-2013institutes inter alia a market share threshold (25%) which, when exceeded, requires the Commission to open the formal investigation procedure provided for in Article 108(2) TFEU, even if, prima facie, it is of the opinion that the aid in question is compatible with the internal market. It is, however, not apparent from that rule that the initiation of the formal investigation procedure will be precluded where those thresholds have not been exceeded and that the Commission will be bound, in such a case, to make a direct finding that the aid is compatible with the internal market. In the latter scenario, the Commission will always have the option not to open the formal investigation procedure, but it cannot justify that decision by claiming that it is required by paragraph 68 of the Guidelines not to do so. Consequently, where there are serious difficulties, the Commission may open the formal investigation procedure, irrespective of whether the 25% market share threshold set out in paragraph 68(a) of the Guidelines has been exceeded. The mere fact that the thresholds laid down in the Guidelines have not been exceeded does not have the automatic consequence that the aid is compatible with the internal market. On the contrary, even where those thresholds have not been exceeded and the other conditions laid down in the Guidelines are met, the Commission may still ascertain whether the advantages in terms of regional development outweigh the disadvantages occasioned by the project in question in terms of distortion of competition, which implies inter alia a review of whether the aid in question is necessary. (see paras 41, 44, 47, 65)

See the text of the decision. (see paras 42, 43)

See the text of the decision. (see para. 79)

See the text of the decision. (see paras 85-94, 99)

It is not appropriate to use State aid to eliminate all investment risk associated with a particular project. On the contrary, such risks are the responsibility of the undertaking receiving the aid, especially since they were not quantified or in part not even quantifiable in advance. The only relevant criterion in the assessment of the appropriateness of an aid measure is whether the aid was necessary in order for the investment project to be carried out in the assisted region in question. The Commission can declare aid compatible with Article 107(3) TFEU only if it can establish that the aid contributes to the attainment of one of the objectives specified, something which, under normal market conditions, the recipient undertakings would not achieve by their own actions. It is not acceptable for aid to include arrangements, in particular as regards its amount, whose restrictive effects exceed what is necessary to enable the aid to attain the objectives permitted by the Treaty. Similarly, the finding that an aid measure is not necessary can arise in particular from the fact that the aid project has already been started, or even completed, by the undertaking concerned prior to the application for aid being submitted to the competent authorities, which precludes the aid concerned from operating as an incentive. The principle of proportionality implies that aid in excess of the minimum necessary to trigger the decision to locate the investment in the assisted area must be considered superfluous, because it constitutes an unconditional financial subsidy to the aid recipient and serves no purpose that would be compatible with the State aid rules. In order for regional aid to be proportionate, its amount and intensity must be limited to the minimum necessary for the investment to be made in the assisted region. In that context, recital 30 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects refers to the Guidelines on national regional aid 2007-2013and certain ceilings fixed for regional aid, according to the seriousness of the problems affecting those regions. Moreover, recital 33 of that communication states in which situation aid will generally be considered proportionate, and states that that will be when it is equal to the difference between the net costs for the beneficiary company to invest in the assisted region and the net costs to invest in the alternative region(s). Different criteria to be taken into consideration in that regard are listed. Moreover, it must be emphasised that the principle of proportionality, consisting in limiting aid to the minimum necessary so as to reduce distortions in the internal market, is also relevant in other areas involving State aid law. (see paras 105, 109-111, 120, 145)

In the context of the examination of regional aid for large investment projects, the analysis of the proportionality of the aid must in fact also be done on the date of the investment decision, that is to say, in the context in which the recipient undertaking decides on the location of its project. This is also evident from the very logic of paragraph 21 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, which refers to paragraph 68 of the Guidelines on national regional aid 2007-2013 and requires the Commission to ascertain whether the aid is necessary to produce an incentive effect for the investment. Moreover, not only must the incentive effect be assessed even before any investment decision, the reference to the question whether the aid is necessary in that regard refers back to the analysis of the proportionality of the aid. It is impossible to separate those criteria and assess one a priori and the other a posteriori. Moreover, a different approach leads to a situation where even State aid exceeding what is strictly necessary having regard to the objective pursued could be considered to provide the incentive effect and be proportionate on the sole ground that it could result in completion of the project as referred to in paragraph 22 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, without account being taken of the question whether that aid is in reality payment which would improve the financial situation of the recipient undertaking without being necessary for the attainment of the objectives specified in Article 107(3) TFEU. That interpretation, which is aimed at analysing both the necessity of the aid and its incentive effect at the time of the investment, is still consistent with paragraph 29 of the Communication from the Commission concerning the criteria for an in-depth assessment of regional aid to large investment projects, and also paragraph 26, which refers inter alia to documents that are submitted to an investment committee and that elaborate on various investment scenarios. It cannot be considered disproportionate of the Commission to analyse the information in its possession at the time of assessing whether the aid is necessary and provides an incentive, taking account of the situation on the date of the decision enabling a definitive choice of location for the investment project. (see paras 127-129, 135)

See the text of the decision. (see paras 165-169)