Case T-27/13: Action brought on 23 January 2013 — Elan v Commission
Date: 2013-01-23
Institutions: General Court
Subjects: Slovenia, United States, aid for restructuring, aid to undertakings, company in difficulties, distribution business, infringement of EU law, liquidation, market economy, private investment, share capital, sports equipment, transfer of businesses








C_2013086EN.01002002.xml










23.3.2013   


EN


Official Journal of the European Union


C 86/20





Action brought on 23 January 2013 — Elan v Commission
(Case T-27/13)
2013/C 86/34
Language of the case: Slovene

Parties


Applicant: Elan, proizvodnja športnih izdelkov, d.o.o. (Begunje na Gorenskem, Slovenia) (represented by: P. Pensa, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






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annul Articles 2 to 5 of Commission Decision of 19 September 2012 on the measures in favour of the undertaking ELAN d.o.o., SA.26379 (C 13/2010);










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order the Commission to pay the costs





Pleas in law and main arguments

In support of the action, the applicant relies on four pleas in law.






1.


First plea in law: breach of the duty to give reasons (Article 296 TFEU, second paragraph) and breach of essential procedural requirements for want of reasons (Article 263 TFEU, second paragraph)
The Commission has given inadequate reasons to explain why it ascribes to the State the capital contribution made by the companies Zavarovalnica Triglav and Triglav Naložbe. What is more, it has not explained why it did not accept the transfers within the marine division of the company Elan as proper compensatory measures.










2.


Second plea in law: infringement of Article 107(1) TFEU by reason of a manifest error in the assessment of the facts with regard to the existence of State resources and because the Commission ascribed to the State the conduct of the companies Zavarovalnica Triglav, Triglav Naložbe and KAD-PPS
In the first place, the Commission committed a manifest error in assessing the facts with regard to the control and influence of the State over the Zavod za pokojninsko in invalidsko zavarovanje (ZPIZ) [Institute for pension and invalidity insurance] and hence over the companies Zavarovalnica Triglav and Triglav Naložbe. In the second place, the Commission has not mentioned any of the indicators necessary, in accordance with the Stardust Marine case-law (Case C–482/99 France v Commission [2002] ECR I–4397), if it is to be possible to ascribe to the State the conduct of the companies FAD-PPS, Zavarovalnica Triglav and Triglav Naložbe, quite overlooking the fact that the private companies Zavarovalnica Triglav e Triglav Naložbe exercised negative control over Elan.










3.


Third plea in law: infringement of Article 107(1) TFEU with regard to the compatibility of the members’ conduct with the principle of the private investor operating in a market economy by reason of an obviously incorrect assessment of the facts in respect of the decision-making of the members before recapitalising and putting measure No 2 into effect (recapitalisation of Elan in 2008)
It is plain that the Commission wrongly took as established fact six decisive circumstances on the basis of which it concluded that measure No 2 was incompatible with the principle of the private investor operating in a market economy:






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first, the Commission misleadingly took into consideration the worst appraisal of the value of Elan’s own capital, although four assessments had been made in the rapid appraisal of value;










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second, arbitrarily and without an expert’s report, it rejected as out of date and irrelevant the appraisal of value made by the Audit-IN company, and without justification gave preference to the rapid appraisal of value;










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third, it wrongly found that no private investor had played a part in the recapitalisation, although the proportion of private capital was at least 35.05 %;










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fourth, the Commission wrongly found that the long-term plan 2008-2012 and the recovery plan had been drawn up by Elan itself, for it completely disregarded the fact that the basis for the preparation of the recovery plan for Elan was the reorientation strategy devised for the company by an external consultant;










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fifth, the finding that no agreement had been reached with the banks regarding the reprogramming of loans in existence before the recapitalisation is incorrect too, for it is evident that the Commission disregarded the evidence showing that the banks confirmed to Elan that they would consolidate the loans if the members of Elan would recapitalise the company;










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sixth, the Commission’s assertion that the recapitalisation of Elan in 2007 was unsuccessful and that for that reason private shareholders would no longer invest in Elan is untrue.














4.


Fourth plea in law: manifest error in assessing the facts with regard to the compensatory measures referred to in points 38 to 40 of the Community guidelines on State aid for rescuing and restructuring firms in difficulty and infringement of Article 107(3)(c) TFEU.
The Commission found, plainly incorrectly, that Elan had not put proper compensatory measures into effect and therefore misapplied Article 107(3)(c) TFEU in conjunction with the Community guidelines on State aid for rescuing and restructuring firms in difficulty:






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in the first place, the Commission disregarded the fact that the reorientation strategy explicitly states that in an emergency the distribution company in the United States of America would be put into liquidation;










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in the second place, the Commission was wrong to say that it was on the initiative of the firm Dal Bello that collaboration in the common distribution company was brought to an end;










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in the third place, the Commission without justification failed to take into consideration the effect of the compensatory measures relating to the retail ski market on Elan’s ‘chief’ business, that of manufacturing skis.