JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition)

14 September 2022 ( )

(State aid – Coach and bus transport – Equipment loan and capital loans granted by the City of Helsinki – Decision declaring the aid incompatible with the internal market and ordering its recovery – Economic continuity – Procedural rights of interested parties – Article 6(1) of Regulation (EU) 2015/1589 – Obligation to state reasons)

In Case T‑603/19,

Helsingin Bussiliikenne Oy, established in Helsinki (Finland), represented by O. Hyvönen and N. Rosenlund, lawyers,

applicant,

supported by

Republic of Finland, represented by J. Heliskoski and H. Leppo, acting as Agents,

intervener,

v

European Commission, represented by M. Huttunen and F. Tomat, acting as Agents,

defendant,

supported by

Nobina Oy, established in Espoo (Finland),

Nobina AB, established in Solna (Sweden),

represented by J. Åkermarck and T. Kalliokoski, lawyers,

interveners,

THE GENERAL COURT (Sixth Chamber, Extended Composition),

composed of S. Papasavvas, President, A. Marcoulli (Rapporteur), J. Schwarcz, C. Iliopoulos and R. Norkus, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure,

further to the hearing on 24 March 2022,

gives the following

Judgment ( )

1 By its action based on Article 263 TFEU, the applicant, Helsingin Bussiliikenne Oy, seeks the annulment of Commission Decision (EU) 2020/1814 of 28 June 2019 on State aid SA.33846 – (2015/C) (ex 2014/NN) (ex 2011/CP) implemented by Finland for Helsingin Bussiliikenne Oy (OJ 2020 L 404, p. 10; ‘the contested decision’).

I. Background to the dispute

2 Helsingin Bussiliikenne (‘the former HelB’) was formed on 1 January 2005 by Suomen Turistiauto Oy, a private transport company owned by Helsingin kaupunki (City of Helsinki, Finland), after Suomen Turistiauto Oy acquired the assets and liabilities of HKL-Bussiliikenne Oy, an undertaking established in 1995 as a spin-off from the transport services department of the City of Helsinki. The former HelB operated bus routes in the Helsinki area (Finland) and offered charter transport and bus leasing services. It was wholly owned by the City of Helsinki.

3 Between 2002 and 2012, the City of Helsinki took various measures in favour of HKL-Bussiliikenne and the former HelB (‘the measures at issue’). Accordingly, first, in 2002, HKL-Bussiliikenne was granted a EUR 14.5 million equipment loan to fund the procurement of bus transport equipment. The former HelB assumed that loan on 1 January 2005. Second, the City of Helsinki granted the former HelB, upon its establishment, a capital loan in the total amount of EUR 15 893 700.37 to refinance certain liabilities of HKL-Bussiliikenne and Suomen Turistiauto. Third, on 31 January 2011 and 23 May 2012, the City of Helsinki granted the former HelB two new capital loans in the amounts of EUR 5.8 million and EUR 8 million respectively.

4 On 31 October 2011, the public transport services Nobina Sverige AB and Nobina Finland Oy lodged a complaint with the European Commission, which their parent company, Nobina AB, joined on 15 November 2011. By that complaint, they alleged that the Republic of Finland had granted unlawful aid to the former HelB. On 22 November 2011, the Commission forwarded that complaint to the Republic of Finland.

5 By Decision C(2015) 80 final of 16 January 2015 on measure SA.33846 (2015/C) (ex 2014/NN) (ex 2011/CP) – Finland – Helsingin Bussiliikenne Oy (OJ 2015 C 116, p. 22; ‘the opening decision’), the Commission initiated the formal investigation procedure under Article 108(2) TFEU regarding, inter alia, the measures at issue. That decision was published in the Official Journal of the European Union on 10 April 2015 and interested parties were invited to submit their comments within one month of that publication. The Commission received no comments from the applicant.

6 Moreover, on 24 June 2015, during the procedure, the City of Helsinki informed the Commission of the implementation of the sale process of the former HelB. On 5 November 2015, the Republic of Finland forwarded to the Commission the draft sales contract drawn up with the applicant.

7 On 14 December 2015, the former HelB was sold to the applicant, formerly known as Viikin Linja Oy. In accordance with the terms of the deed of sale, Viikin Linja Oy was renamed Helsingin Bussiliikenne Oy (‘the new HelB’). The transaction documents included a provision fully indemnifying the buyer of the former HelB in case of a State aid recovery claim (‘the indemnification provision’) and part of the sale price was deposited into an escrow account until a final decision on State aid has been reached or, at the latest, until 31 December 2022. Those transaction documents also included an earn-out mechanism on the basis of which the buyer undertook to pay the seller, into the same escrow account, a bonus if the previously agreed profit levels were exceeded.

8 The transfer to Viikin Linja covered all the business operations of the former HelB. The former HelB had no assets left except for the sums included in or credited to the escrow account. The liabilities arising from the measures at issue were not transferred to the new HelB. Following the sale of the former HelB, it was exempted by the City of Helsinki from repaying the outstanding amount due in respect of the 2002 equipment loan. Furthermore, on 11 December 2015, the City of Helsinki converted the capital loans of 2005, 2011 and 2012, which had not been repaid, into equity of the former HelB.

9 On 28 June 2019, the Commission adopted the contested decision. The operative part of the contested decision is worded as follows:

‘Article 1

The State aid amounting to EUR 54 231 850 unlawfully granted by [the Republic of] Finland under [the contested] Measures …, in breach of Article 108(3) [TFEU], in favour of Helsingin Bussiliikenne Oy is incompatible with the internal market.

Article 2

1. [The Republic of] Finland shall recover the aid referred to in Article 1 from the beneficiary.

2. In view of the economic continuity between [the former] HelB (now Helsingin kaupungin Linja-autotoiminta Oy) and new HelB (full name – Helsingin Bussiliikenne Oy, previously – Viikin Linja Oy), the obligation to repay the aid shall be extended to the new HelB (full name – Helsingin Bussiliikenne Oy).

3. The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiary until their actual recovery.

…

Article 4

1. Within two months following notification of this Decision, [the Republic of] Finland shall submit the following information to the Commission:

(a) the total amount (principal and recovery interests) to be recovered from the beneficiary;

…’

II. Forms of order sought

10 The applicant, supported by the Republic of Finland, claims that the Court should:

– annul the contested decision in whole or in part;

– order the Commission to pay the costs, together with statutory interest.

11 The Commission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

12 Nobina supports the form of order sought by the Commission and contends that the applicant should be ordered to pay the costs.

III. Law

…

B. The first plea, alleging a substantial procedural error in so far as the contested decision was adopted in violation of the applicant’s procedural rights

…

27 A preliminary point to note is that the procedure for reviewing State aid is, in view of its general scheme, a procedure initiated in respect of the Member State responsible, in the light of its obligations under EU law, for granting the aid. Thus, in order to observe the rights of the defence, where the Member State concerned was not afforded an opportunity to comment on certain information, the Commission may not use it in its decision with regard to that Member State (judgment of 11 March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo, C‑56/18 P, EU:C:2020:192, paragraph 73).

28 Moreover, under Article 108(2) TFEU, where the Commission decides to initiate the formal investigation procedure in respect of an aid measure, it must give interested parties an opportunity to submit their comments. This rule is in the nature of an essential procedural requirement (judgment of 11 December 2008, Commission v Freistaat Sachsen, C‑334/07 P, EU:C:2008:709, paragraph 55; see also judgment of 11 November 2021, Autostrada Wielkopolska v Commission and Poland, C‑933/19 P, EU:C:2021:905, paragraph 63 and the case-law cited).

29 Thus, although those interested parties cannot rely on the rights of defence, they have, by contrast, the right to be involved in the administrative procedure followed by the Commission, to an extent appropriate to the circumstances of the case. In that regard, publication of a notice in the Official Journal of the European Union is an appropriate means of informing all the parties concerned that a procedure has been initiated. That communication is intended to obtain from persons concerned all information required for the guidance of the Commission with regard to its future action. Such a procedure also guarantees to the other Member States and the sectors concerned an opportunity to make their views known (judgment of 11 March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo, C‑56/18 P, EU:C:2020:192, paragraphs 71 and 72).

30 To that end, the first sentence of Article 6(1) of Regulation 2015/1589 requires the Commission to ‘summarise’, in the opening decision, the relevant issues of fact and law, to include in it a preliminary assessment as to the aid character of the measure in question and to set out the doubts as to the compatibility of that measure with the internal market.

31 In the present case, assuming that the applicant intends to claim that there has been a violation of its rights of defence, such a complaint must be rejected as ineffective since, as has been recalled in paragraph 29 above, it does not have such rights.

32 As regards the alleged violation of its right to be involved in the procedure provided for in Article 108(2) TFEU, it should be noted that the applicant, as it confirmed at the hearing, does not dispute the legality of the opening decision, on the day of its publication in the Official Journal.

33 The applicant submits, by contrast, that, following the transfer of the former HelB, the Commission was required to correct or supplement the opening decision or, at least, allow it to submit its comments.

34 In the first place, in so far as the applicant submits that the Commission was required to adopt an amending opening decision, it should be noted that, although the legislation governing procedure in State aid cases does not provide expressly for the possibility of adopting a corrective decision and extending a pending procedure (judgment of 13 June 2013, HGA and Others v Commission, C‑630/11 P to C‑633/11 P, EU:C:2013:387, paragraph 50), if the Commission realises, once a decision initiating the formal investigation procedure has been adopted, that that decision is based either on incomplete facts or on an incorrect legal classification of those facts, it must be able or be required to alter its position by adopting a correction decision or a fresh decision initiating the procedure, to enable the interested parties to submit their comments properly (see, to that effect, judgment of 30 April 2019, UPF v Commission, T‑747/17, EU:T:2019:271, paragraph 76 and the case-law cited).

35 In particular, when the Commission changes its reasoning, after the decision initiating the formal investigation procedure, in relation to facts or the legal classification of those facts which prove to be decisive in its assessment as to the existence of aid or its compatibility with the internal market, it is required to correct or broaden the decision initiating the procedure, to enable the interested parties to effectively submit their comments properly (see, to that effect, judgment of 30 April 2019, UPF v Commission, T‑747/17, EU:T:2019:271, paragraph 77).

36 In the present case, the applicant bases the Commission’s obligation to correct the opening decision on the fact that, in the contested decision, the Commission allegedly changed its perception of the beneficiary of the measures at issue and the subject matter of the procedure.

37 It is apparent from the contested decision that the Commission did not alter the analysis that it had carried out in the opening decision concerning the beneficiary of the measures at issue or, more generally, the existence of aid or its compatibility with the internal market. Therefore, the contested decision clearly identifies the former HelB as the undertaking to which the measures at issue were granted and the analysis of the existence of aid and its compatibility with the internal market is carried out exclusively with regard to it.

38 In that regard, it should be recalled that the operative part of a State aid decision is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (see, to that effect, judgments of 15 May 1997, TWD v Commission, C‑355/95 P, EU:C:1997:241, paragraph 21, and of 29 April 2021, Commission v Spain (TNT en Castille-La Manche), C‑704/19, not published, EU:C:2021:342, paragraph 74 and the case-law cited). Accordingly, while it is true that Article 1 of the contested decision identifies the beneficiary of the measures at issue as ‘Helsingin Bussiliikenne’, without specifying whether it is the former HelB or the new HelB, it follows from an overall reading of that decision that that name necessarily relates to the former HelB.

39 Therefore, contrary to what the applicant claims, the fact that, in the operative part of the contested decision, the Commission held that the obligation to recover the aid resulting from the measures at issue had to be extended to the new HelB, owing to the economic continuity between the former and the new HelB, cannot be equated with an alteration of the beneficiary of the measures in respect of which the Commission must assess the existence of aid and its compatibility with the internal market.

40 Nor can such a circumstance be treated as an extension of the subject matter of the procedure, as that remained limited to the four measures at issue mentioned in paragraph 3 above. Therefore, the transfer of the former HelB’s business was examined by the Commission solely in the context of its analysis of the existence of economic continuity between the former HelB and the applicant. In particular, the Commission did not extend the formal investigation procedure to the question of whether the transfer of the former HelB’s business to the applicant could constitute State aid. Similarly, as is clear from recitals 269 and 270 of the contested decision, the Commission did not assess whether the indemnification provision and the agreement on the escrow account constituted State aid.

41 It follows that the applicant is not justified in claiming that the Commission was required to adopt a decision correcting or extending the formal investigation procedure.

42 In the second place, in so far as the applicant complains that the Commission did not give it an opportunity to submit its comments, it must be recalled that the right of interested parties to be involved in the procedure must be assessed in the light of the circumstances of each case (see paragraph 29 above). There may be circumstances in which the establishment of facts that are new in relation to those referred to in the opening decision may require greater involvement of the interested parties (see, to that effect, judgment of 11 November 2021, Autostrada Wielkopolska v Commission and Poland, C‑933/19 P, EU:C:2021:905, paragraph 71).

43 In the present case, it is apparent from the documents from the file that, after the publication of the opening decision on 10 April 2015, the Commission was informed, by a letter from the City of Helsinki dated 24 June 2015, of the implementation of a procedure for the sale of the former HelB’s business. That letter was accompanied by a memorandum dated April 2015 concerning the sales project, called ‘project Viima’. On 5 November 2015, the Republic of Finland inter alia sent the Commission the deed of sale to be concluded with the applicant. The Commission submitted questions to the Republic of Finland concerning that transfer, in particular in 2016. The Commission then took the view that it was appropriate to rule, in the contested decision, on the question of whether the aid resulting from the measures at issue had been transferred to the applicant following that transfer and found in favour of the existence of economic continuity between the former and the new HelB. In so doing, and as it confirmed at the hearing, the Commission took the view that the applicant had become the actual beneficiary of the aid at issue and, therefore, the potential debtor of the obligation to repay it.

44 It is also apparent from the explanatory memorandum on the sale price dated 21 September 2015, drawn up at the request of the City of Helsinki by an independent company (‘the report on the sale price’) and annexed to the application, that the group to which the applicant belongs submitted its binding offer on 3 June 2015 and that the transfer deed was signed on 14 December 2015, those two dates being subsequent to the expiry of the period granted to interested parties to submit their comments following publication of the opening decision in the Official Journal of the European Union.

45 It should also be noted that the Commission did not send any request for information to the applicant on the basis of Article 7, read in conjunction with the second subparagraph of Article 12(2) of Regulation 2015/1589.

46 It follows that, although the Commission had been informed of the process of the transfer of the former HelB’s business since June 2015 and a period of three and a half years elapsed between the date of that transfer and the date of adoption of the contested decision, the Commission at no point involved the applicant, in its capacity as the actual beneficiary of the measures at issue, in the procedure even though it decided, at the end of that procedure, to extend the obligation to recover the aid in question to the applicant.

47 In that regard, it is true that the applicant was necessarily informed of the ongoing formal investigation procedure and of the consequences of a possible obligation to recover the aid at issue since the deed of sale included the indemnification provision, which, it is recalled, covered it against any claim for recovery of State aid. Although the applicant could have, as a diligent operator, voluntarily provided the Commission with all the relevant information concerning the takeover of the former HelB’s business, such a circumstance is not such as to relieve the Commission of its procedural obligations.

48 Consequently, as the Commission intended to examine the question of economic continuity between the former HelB’s business and that of the new HelB, the particular circumstances of the present case justified its involving the applicant further, in its capacity as the actual beneficiary of the measures at issue, in the procedure. By failing to put the applicant in a position to submit its comments on the question of economic continuity, the Commission violated the right guaranteed by Article 108(2) TFEU.

49 In the third place, as regards the question of whether, as the applicant claims, the Commission breached an essential procedural requirement, it must be recalled that the obligation on the Commission to place interested parties in a position, at the stage of the opening decision, to put forward their comments is in the nature of an essential procedural requirement (see paragraph 28 above), the breach of which entails the annulment of the defective act by force of law (see judgment 10 March 2022, Commission v Freistaat Bayern and Others, C‑167/19 P and C‑171/19 P, EU:C:2022:176, paragraph 94 and the case-law cited).

50 In the present case, it is common ground that the opening decision contained all the required information and that it was properly published in the Official Journal of the European Union (see paragraph 32 above). The violation established in paragraph 48 above therefore concerns not the obligations on the Commission at the date on which the formal investigation procedure was initiated, pursuant to the provisions of Article 108(2) TFEU and of Article 6(1) of Regulation 2015/1589, but the obligations on it due to a particular circumstance arising from an event occurring after the interested parties were invited to submit their comments and before the contested decision was adopted. In that sense, the present case is distinguishable from those which gave rise to the judgments of 22 February 2006, Le Levant 001 and Others v Commission (T‑34/02, EU:T:2006:59), and of 12 December 2018, Freistaat Bayern v Commission (T‑683/15, EU:T:2018:916), on which the applicant relies, which concern the Commission’s failure to comply with its obligations relating to the content of the opening decision at the date of initiation of the formal investigation procedure. Moreover, it has been found that, in the present case, the Commission was not required to adopt a decision correcting or extending the formal investigation procedure (see paragraph 41 above).

51 It follows that, by failing to respect the right guaranteed by Article 108(2) TFEU as has been found in paragraph 48 above, the Commission did not breach an essential procedural requirement, but incurred a procedural irregularity, which can entail the annulment of the contested decision in whole or in part only if it is shown that in the absence of such irregularity the decision being challenged might have been substantively different (see judgment of 11 March 2020, Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo, C‑56/18 P, EU:C:2020:192, paragraph 80 and the case-law cited).

52 In that regard, the applicant maintains that if it had been given the opportunity to submit its comments, it would have forwarded to the Commission decisive additional information concerning the question of whether the aid at issue had been transferred to it and that, therefore, it cannot be ruled out that, had the Commission had such information, the contested decision would have been different. In particular, the applicant claims that, during the procedure, the Commission had asked the Republic of Finland about the acquisition of the former HelB’s business by the new HelB and that the questions concerning the business plan and possible continuity with the former HelB’s commercial strategy remained unanswered. It states, in the context of the third plea, that it made numerous investments and took measures to integrate the former HelB’s business into the group to which it belongs (transfer of management tasks and management to the group’s parent company, pooling of buses with those of the other companies in the group, pooling of staff, integration of deposit services, workshop activities and IT services). Consequently, the Commission ruled on economic continuity without having all the information required.

53 From the outset, it must be emphasised that, in the context of the examination of the impact of the procedural irregularity found on the contested decision, it is not a question of determining whether the applicant’s arguments are well founded, but of assessing whether, had it had the abovementioned information, the Commission could have adopted a decision different in content.

54 In that regard, it must be noted that, according to the case-law, economic continuity between companies who are parties to a transfer of assets is assessed in the light of the subject matter of the transfer (assets and liabilities, maintenance of the workforce and the bundled assets), the transfer price, the identity of the shareholders or owners of the acquiring undertaking and the original undertaking, the moment when the transfer takes place (after the commencement of the investigation, opening of the procedure or the final decision) and also the economic logic of the transaction (see judgment of 7 March 2018, SNCF Mobilités v Commission, C‑127/16 P, EU:C:2018:165, paragraph 108 and the case-law cited).

55 In the present case, on the one hand, the Commission concluded in the contested decision that the recovery of the State aid at issue had to be extended to the applicant after having examined, first, the extent of the transaction transferring the business, second, the transfer price, third, the identity of the former and the current owner, fourth, the timing of the transaction and, fifth, the economic logic of the transaction.

56 The applicant’s line of argument seeks to establish that it could have influenced, by its comments, the Commission’s assessment of the criterion linked to the economic logic of the transaction. Therefore, the comments which, according to the applicant, could have been made had no procedural irregularity been found concern only one of the criteria used to determine the existence of economic continuity.

57 On the other hand, as regards the economic logic of the transaction, it should be noted that that factor seeks to determine whether the assets are acquired in order to carry out the economic activity which has benefited from the aid at issue or whether they are used to carry out different activities or according to a different strategy or business model. The fact that the undertaking which took over the assets of the initial beneficiary undertaking of an aid measure uses them in the same way as the latter, without changing its commercial strategy, militates in favour of economic continuity between the two undertakings (see, to that effect, judgment of 29 April 2021, Fortischem v Commission, C‑890/19 P, not published, EU:C:2021:345, paragraph 88).

58 In the present case, the Commission found, in recitals 250 and 251 of the contested decision, that the applicant’s acquisition involved all the assets necessary for the continuation of the former HelB’s business as a going concern, all of the former HelB’s employees and related rights and obligations (except for the 2002 equipment loan and the operating loans for 2005, 2011 and 2012) and that the sale had been carried out without interruption of activity. The Commission also considered that the takeover of business by a company which operated on the same market as the former HelB indicated that the former HelB’s business was set to continue with no major differences, with the same buses, the same routes and the same colours.

59 The applicant does not dispute the extent of the takeover, the absence of interruption of business and its continuation with the same buses, the same routes and the same colour. Nor does it dispute that, as is stated in recital 221 of the contested decision, the deed of sale concluded on 14 December 2015 stipulated that the former HelB’s business was transferred as a going concern and that the sale covered all assets and contracts of liabilities needed for the continuation of the business. In that regard, it is common ground that the applicant succeeded the former HelB in the contracts concluded with the licensing authority responsible for public transport in the Helsinki area, such that it operates strictly within the framework of the terms laid down by those contracts, which cannot be amended significantly. The applicant also states that all the business that it took over is based on those contracts.

60 Similarly, the applicant does not call into question the fact that the business was taken over by a company belonging to a group operating in the bus transport market in Finland, that is to say, the same market as that in which the former HelB operated. In particular, in its written pleadings, the applicant never disputed the fact, noted in recital 23 of the contested decision, that that group held 21.9% of that market in 2016. The fact that the applicant, or the group to which it belongs, had not worked in that market in the Helsinki area since 2001 has no bearing on the assessment of economic continuity.

61 By contrast, the applicant disputes the fact that it uses the assets of the former HelB in the same way. It maintains that it could have provided evidence to that effect stemming from the circumstances that, first, the group to which it belongs made significant investments consisting inter alia in the acquisition of 83 new buses and, second, that group took numerous measures to integrate the business of the former HelB, enabling it to achieve significant synergistic effects.

62 In that regard, it must be noted that, in response to the questions concerning the applicant’s commercial strategy that the Commission had submitted to the Republic of Finland, the applicant, while indicating that it was not aware of the strategy and the business plans of the group to which the applicant belongs, reproduced the information on that group’s intranet site referring in particular to the applicant’s merger procedure within that group. Nevertheless, as the Commission submits, rationalising the management of the operation of a commercial activity by measures aimed at integrating it into the group, in particular by the pooling of certain costs, is not such as to establish the existence of a change of the business model or commercial strategy when the activity was pursued by the applicant in accordance with existing contracts, which did not receive any significant amendments.

63 It follows that, contrary to what the applicant claims, in the light of the circumstances of the present case, the measures to integrate the former HelB’s business into the group to which the applicant belongs are not such as to establish the existence of a change of the commercial strategy. The same is true of the fact that that group made the investments referred to in favour of the applicant.

64 Therefore, it must be held that the applicant has not established that, had it been given the opportunity to submit its comments on the question of economic continuity, those comments would have been capable of altering the Commission’s assessment in that regard.

65 It follows from all the foregoing that the first plea in law must be rejected.

…

On those grounds,

THE GENERAL COURT (Sixth Chamber, Extended Composition)

hereby:

1. Dismisses the action;

2. Orders Helsingin Bussiliikenne Oy to bear its own costs and to pay those incurred by the European Commission, including those relating to the proceedings for interim measures, as well as those incurred by Nobina Oy and Nobina AB;





3. Orders the Republic of Finland to bear its own costs.

Papasavvas Marcoulli Schwarcz

Iliopoulos Norkus

Delivered in open court in Luxembourg on 14 September 2022.

[Signatures]