Cases T‑233/11 and T‑262/11

Hellenic Republic and Ellinikos Chrysos

v

European Commission

‛State aid — Mining sector — Aid granted by the Greek authorities to the mining company Ellinikos Chrysos — Contract for the transfer of a mining operation at a price below the real market value and exemption from taxes on that transaction — Decision declaring the aid measures unlawful and ordering recovery of the aid — Concept of advantage — Private investor test’

Summary — Judgment of the General Court (Fourth Chamber), 9 December 2015

State aid — Administrative procedure — Obligations of the Commission — Diligent and impartial examination — No possibility of the aid beneficiary relying on rights as extensive as rights of the defence as such and obtaining information concerning the identity of the complainant

Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid — Essential formality distinct from the merits of the decision — Contract for the sale of a mining operation — No need for the Commission to analyse in detail the metals actually produced or exported at the time of sale

State aid — Commission decision finding aid incompatible with the internal market and ordering its recovery — Member State invoking principle of sincere cooperation between the Commission and the Member State — No relief from the obligation to recover

State aid — Recovery of unlawful aid — Aid granted in breach of the procedural rules of Article 108 TFEU — Legitimate expectations entertained by the recipients — Protection — Conditions and limits

State aid — Recovery of unlawful aid — No breach of principle of proportionality — Discretionary power of the Commission

State aid — Effect on trade between Member States — Adverse effect on competition — Criteria for assessment — Pro-competitive character of the aid measure — No possibility of counterbalancing the risk that competition might be adversely affected

State aid — Non-compliance with the obligation to recover unlawful aid — Absolute impossibility of implementation — Criteria for assessment — Need to adopt specific legislation in order to recover unlawful aid — No justification

State aid — Concept — Grant attributable to the State of an advantage by means of State resources — Mutual contracts for acquisition of a mining operation between a private party and the State and of transfer between the said State and another private party — Included

State aid — Concept — Grant attributable to the State of an advantage by means of State resources — Advantages involving a diminution of the State budget or risking such a diminution — Contract for the transfer of a mining operation at a price below the real market value and exemption from taxes on that transaction — Included

State aid — Commission decision — Assessment of legality by reference to information available at the time the decision adopted — Applicant having participated in the formal investigation procedure not able to rely, in support of his action, on factual elements not submitted during that procedure

State aid — Sale of a plot by a public authority on preferential terms — Assessment according to the criterion of the private investor — Market price — Method of determination — Price received by the seller — Irrelevant — Account taken of the value of the plots at the time of sale — Lawfulness — Conditions

State aid — Concept — Implementation of the private investor test — Operation reasonable for the public authorities or public undertaking granting the aid — Need to verify the grant to the recipient undertaking of an economic advantage impossible to obtain under normal market conditions

State aid — Examination by the Commission — Possibility of the Commission using outside experts — No obligation on the Commission to abide by the results of an expert report

State aid — Examination by the Commission — Discretion of the Commission — Possibility of adopting guidelines — Self-limitation of the Commission’s discretion — Infringement of the rules contained in the guidelines — Effects

State aid — Examination by the Commission — Complex evaluation of economic matters — Diligent and impartial examination of the complaints — Judicial review — Limits

State aid — Concept — Sale of an asset by a public authority to a private person on preferential terms — Criterion for appraisal — Market price — Method of determination

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c))

Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Documents annexed to the application — Admissibility — Conditions

See the text of the decision. (see paras 52-57)

See the text of the decision. (see para. 77)

See the text of the decision. (see paras 78, 79)

See the text of the decision. (see paras 79-84)

See the text of the decision. (see para. 88)

Where the Commission examines expert reports drawn up after a sale transaction in order to determine whether the sale price of an asset could not have been obtained by the purchaser under normal market conditions, it is bound to compare the sale price actually paid with the price suggested in those reports and to determine whether it deviates sufficiently to justify a finding that there is an advantage. That method makes it possible to take into account the uncertainty of a determination, which is by nature retrospective, of such market prices. Moreover, whilst the Commission may — without being bound to do so — retain the help of external experts, it is not thereby exempted from reviewing their work. Subject to review by the EU Courts, ensuring observance of Article 107 TFEU and the implementation of Article 108 TFEU is the central and exclusive responsibility of the Commission and not the experts. The Commission is therefore not obliged to rely blindly on the results tabled in an expert report. It must, however, verify them and appraise the work of the experts. (see paras 90, 91, 105)

In State aid matters, the fact that the operation is reasonable for the public authorities or the public undertaking granting the aid does not dispense with the need to ascertain whether the measures in question confer an economic advantage on the recipient undertaking that it would not have obtained under normal market conditions and accordingly does not by itself cause the measure in question to meet the private investor test. (see para. 118)

See the text of the decision. (see paras 130, 131)

See the text of the decision. (see para. 137)

See the text of the decision. (see paras 146-156)

See the text of the decision. (see paras 154, 155, 158)

See the text of the decision. (see para. 160)

See the text of the decision. (see paras 166-170)

See the text of the decision. (see para. 176)

See the text of the decision. (see paras 190-193)

In the matter of reviewing State aid, where the Commission does not give an express opinion on a measure which has been notified to it, its silence cannot, on the basis of the principle of the protection of the legitimate expectations of the recipient undertaking, preclude recovery of that aid. It is true that a recipient of aid which is granted unlawfully is not precluded from relying on exceptional circumstances on the basis of which it legitimately assumed the aid to be lawful and therefore opposed its repayment. However, a Member State whose authorities have granted aid contrary to the procedural rules laid down in Article 108 TFEU may not plead the legitimate expectations of recipients in order to justify a failure to comply with the obligation to take the steps necessary to implement a Commission decision instructing it to recover the aid. (see paras 196-198)

The principle of sincere cooperation may not be relied on in order to relieve a Member State of its obligation to take the steps necessary to implement a Commission decision instructing it to recover aid. The withdrawal of unlawful aid through its recovery is the logical consequence of the finding that it is unlawful, as the purpose of the recovery of the aid is re-establishing the previously existing situation. Moreover, as part of the duty of sincere cooperation which mutually binds the Commission and the Member States in the implementation of the Treaty rules on State aid, the Member State concerned even has the obligation to calculate the exact amount of aid to be recovered. (see paras 190, 201-203)

See the text of the decision. (see paras 213, 214, 223-225)

None of the provisions on the procedure for reviewing State aid reserves a special role, among the interested parties, to the recipient of aid. Furthermore, the State aid procedure is not an action brought ‘against’ the recipient of the aid, allowing the recipient to rely on rights as extensive as the rights of the defence per se. Nevertheless, although the aid recipient does not have the status of party to the proceedings, it is recognised as having certain procedural rights allowing it to provide information to the Commission and to put forward its arguments. Moreover, that there is no provision requiring the Commission to reveal the identity of the complainant or of any source of information to interested parties. (see paras 231, 234)