Case T-154/10

French Republic

v

European Commission

‛State aid — Aid allegedly implemented by France in the form of an implied, unlimited guarantee in favour of La Poste as a result of its status as a publicly-owned establishment — Decision declaring the aid incompatible with the internal market — Action for annulment — Interest in bringing proceedings — Admissibility — Burden of proving the existence of State aid — Advantage’

Summary — Judgment of the General Court (Sixth Chamber), 20 September 2012

Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Commission decision finding aid to be incompatible with the common market — Challengeable act — Withdrawal by the Member State of the measure categorised as existing aid by the Commission decision a number of months before it was adopted — No effect

Actions for annulment — Actions of the Member States — Action brought against the Commission decision finding aid to be incompatible with the common market — Admissibility not subject to proof of interest in bringing proceedings

See the text of the decision. (see paras 36-37)

A Commission decision in which it is found that there was State aid in the form of an unlimited guarantee in favour of an undertaking and that that aid is incompatible with the common market, is necessarily intended to produce binding legal effects and is, therefore, a challengeable act under Article 263 TFEU. It should be observed in that regard that even where a Member State, for its own reasons and without any constraints placed on it by the Commission, decides to withdraw the measure categorised as existing aid by the contested decision a number of months before it is adopted, the fact remains that the Member State was legally bound to implement the contested decision. The fact that in the implementation of the contested decision there may have been a convergence between the interests defended by the Commission and those of the Member State does not preclude the latter from bringing an action for annulment of that same decision. Such an approach leads to the Member States being penalised depending on whether or not they had an interest in complying with a Commission decision and is eminently subjective in nature. However, the examination of the question whether a given act is liable to be challenged through an action for annulment because it produces or is intended to produce binding legal effects which affect the applicant’s interests must be based on an objective assessment of that measure. (see paras 38, 40)

See the text of the decision. (see paras 54-56)

See the text of the decision. (see para. 58)

See the text of the decision. (see para. 59)

See the text of the decision. (see para. 65)

See the text of the decision. (see paras 66, 76, 78, 83-84, 87, 90-91, 94, 96, 98)

The grant of a guarantee on terms which are not equivalent to market conditions, such as an unlimited guarantee granted without consideration, is, as a rule, liable to confer an advantage on the recipient of those terms, in that that party thereby enjoys an improvement in its financial position through a reduction of charges which would normally encumber its budget. The definition of aid is more general than that of a subsidy because it includes not only positive benefits, such as subsidies themselves, but also State measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the word, are similar in character and have the same effect. In order to determine whether a State measure constitutes State aid, it is therefore necessary to establish whether the recipient undertaking receives an economic advantage which it would not have obtained under normal market conditions. An unlimited State guarantee enables its recipient inter alia to obtain more favourable credit terms than what it would have obtained on its own merits alone and, therefore, eases the pressure on its budget. In order to establish that a publicly-owned establishment enjoys more favourable terms of credit and, therefore, a financial advantage, the Commission may refer to the findings of the ratings agencies and, more specifically, to the principal ones. If it is established that the market takes account of the ratings of major ratings agencies in assessing the credit to be granted to a given undertaking, a rating by those agencies which is better than would have been given without a guarantee is liable to procure an advantage for the publicly-owned establishment that it would not have obtained under normal market conditions. (see paras 106-109)