Estado português v Banco Privado Português SA and Massa Insolvente do Banco Privado Português SA.
Date: 2015-03-05
27. The Portuguese Government submits that the questions concerning the validity of Decision 2011/346 are inadmissible. Referring to the judgment in TWD Textilwerke Deggendorf (C‑188/92, EU:C:1994:90), the Portuguese Government argues that, since it did not bring any action for the annulment of Decision 2011/346 before the General Court, that decision has become definitive as against it, with the result that its validity can no longer be called into question before a national court. Moreover, no application for suspension of operation of Decision 2011/346 has been made. That decision must therefore be applied in such a way as to allow the immediate and effective recovery of the aid.
28. In this respect, it must be recalled that, in its judgment in TWD Textilwerke Deggendorf  (EU:C:1994:90, paragraph 17), the Court held that it is not possible for a recipient of State aid forming the subject-matter of a Commission decision which is directly addressed solely to the Member State of that recipient, who could undoubtedly have challenged that decision and who allowed the mandatory time-limit laid down in this regard in the sixth paragraph of Article 263 TFEU to pass, effectively to call into question the lawfulness of that decision before the national courts (see, also, judgments in Nachi Europe , C‑239/99, EU:C:2001:101, paragraph 30, and in Lucchini , C‑119/05, EU:C:2007:434, paragraph 55). The Court has taken the view that to find otherwise would enable the recipient of the aid to overcome the definitive nature which a decision necessarily assumes, by virtue of the principle of legal certainty, once the time-limit laid down for bringing proceedings has passed (judgment in Nachi Europe , EU:C:2001:101, paragraph 30 and the case-law cited).
29. The situation on which that case-law is based does not correspond to that here at issue in the main proceedings. The recipient of the aid at issue in the main proceedings — which brought, within the period laid down in the sixth paragraph of Article 263 TFEU, an action for annulment of Decision 2011/346 before the General Court, which resulted in the judgment in Banco Privado Português and Massa Insolvente do Banco Privado Português v Commission  (EU:T:2014:1077) — cannot be regarded as seeking to circumvent the definitive nature of that decision on the ground that it is contesting the validity of that decision before the referring court.
30. In addition, since the approach adopted by the Court in paragraph 18 of the judgment in TWD Textilwerke Deggendorf (EU:C:1994:90) is based on the risk that the definitive nature of an EU measure might be circumvented, it applies only as regards a party which invokes the unlawfulness of an EU measure before a national court, whereas it could undoubtedly have brought an action under Article 263 TFEU for the annulment of that measure, but failed to do so within the prescribed period. Consequently, the fact that Estado português, which does not contest the lawfulness of Decision 2011/346 before the national court, did not bring an action for annulment of that decision before the General Court is irrelevant for the purpose of assessing whether the questions concerning the validity of that decision are admissible.
31. Lastly, it does not follow from the judgment in TWD Textilwerke Deggendorf  (EU:C:1994:90) that the admissibility of a question referred for a preliminary ruling concerning the validity of an EU measure is conditional upon an application having been made for suspension of operation of that measure pursuant to Article 278 TFEU. That judgment does not refer to the enforceability of the EU measure the validity of which is called into question, but is based rather on the risk that the definitive nature of that measure might be circumvented.
32. Consequently, the first four questions referred, concerning the validity of Decision 2011/346, are admissible.
Admissibility of the question relating to the interpretation of Article 14(1) and (2) of Regulation No 659/1999
34. It must be borne in mind in this regard that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see, inter alia, judgment in Kamberaj , C‑571/10, EU:C:2012:233, paragraph 40 and the case-law cited, and order in Dél-Zempléni Nektár Leader Nonprofit , C‑24/13, EU:C:2014:40, paragraph 39).
35. However, the Court must examine the circumstances in which cases are referred to it by the national court in order to assess whether it has jurisdiction. The spirit of cooperation which must prevail in the preliminary-ruling procedure requires the national court, for its part, to have regard to the function entrusted to the Court, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions (see judgment in Kamberaj , EU:C:2012:233, paragraph 41 and the case-law cited, and order in Dél-Zempléni Nektár Leader Nonprofit , EU:C:2014:40, paragraph 40).
36. In that regard, the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see judgment in Kamberaj , EU:C:2012:233, paragraph 42 and the case-law cited, and order in Dél-Zempléni Nektár Leader Nonprofit , EU:C:2014:40, paragraph 41).
44. It is clear from settled case-law of the Court that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review (judgment in Nuova Agricast , C‑390/06, EU:C:2008:224, paragraph 79 and the case-law cited).
45. Since, in order for a measure to be categorised as ‘State aid’ for the purposes of Article 107(1) TFEU, all the conditions set out in that provision must be fulfilled (judgments in Commission  v Deutsche Post , C‑399/08 P, EU:C:2010:481, paragraph 38 and the case-law cited, and in Ministerio de Defensa and Navantia , C‑522/13, EU:C:2014:2262, paragraph 19), a Commission decision categorising a national measure as State aid must set out the reasons why that institution takes the view that the State measure in question fulfils all of those conditions.
46. As to whether Decision 2011/346 contains a sufficient statement of reasons in relation to the condition that trade between Member States must be affected, referred to in Article 107(1) TFEU, it must be recalled that the Commission is not required to establish that a State measure has a real effect on trade between Member States and that competition is actually being distorted. The Commission is required only to establish that that measure is liable to have such effects (see, to that effect, judgments in Unicredito Italiano , C‑148/04, EU:C:2005:774, paragraph 54; Cassa di Risparmio di Firenze and Others , C‑222/04, EU:C:2006:8, paragraph 140; Libert and Others , C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 76; and Eventech , C‑518/13, EU:C:2015:9, paragraph 65).
51. With regard to the criterion of trade between Member States being affected, it has been held that, when aid granted by a Member State strengthens the position of an undertaking in comparison with other competing undertakings in trade between Member States, that trade must be regarded as being affected by that aid. In this regard, the fact that an economic sector, such as that of financial services, has been involved in a significant liberalisation process at EU level, enhancing the competition that may already have resulted from the free movement of capital provided for in the Treaty, may serve to determine that the aid has a real or potential effect on competition and affects trade between Member States (see, to that effect, Cassa di Risparmio di Firenze and Others , EU:C:2006:8, paragraphs 141, 142 and 145, first indent).
57. In that regard, it must be noted that the first sentence of Article 108(3) TFEU imposes on the Member States an obligation to inform the Commission of any plans to grant or alter aid. According to the last sentence of Article 108(3) TFEU, a Member State planning to grant aid may not put its proposed measures into effect until that procedure has resulted in a final decision by the Commission. The prohibition laid down by that provision is designed to ensure that aid cannot become operational before the Commission has had a reasonable period in which to study the proposed measures in detail and, if necessary, to initiate the procedure provided for in Article 108(2) TFEU (see, to that effect, judgments in France  v Commission , C‑301/87, EU:C:1990:67, paragraph 17, and in CELF and Ministre de la Culture et de la Communication , C‑199/06, EU:C:2008:79, paragraphs 33 to 36).
59. It follows from settled case-law of the Court that an aid measure which is put into effect in infringement of the obligations arising from Article 108(3) TFEU is unlawful. Such an interpretation is, moreover, confirmed by Article 1(f) of Regulation No 659/1999 (see judgment in Residex Capital IV , C‑275/10, EU:C:2011:814, paragraph 28 and the case-law cited).
60. The Commission is required to examine the compatibility of the planned aid with the internal market, even in the case where the Member State infringes the obligation not to put aid measures into effect and the aid is, accordingly, unlawful. The Court has held that the Commission’s decision on the compatibility of an aid measure does not affect the unlawfulness of that measure resulting from the infringement of the obligation laid down in the first sentence of Article 108(3) TFEU. Any other interpretation would have the effect of according a favourable outcome to the non-observance, by the Member State concerned, of the last sentence of Article 108(3) TFEU and would deprive it of its effectiveness (see, to that effect, judgments in Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon , C‑354/90, EU:C:1991:440, paragraph 16, and in CELF and ministre de la Culture et de la Communication , EU:C:2008:79, paragraph 40).
66. In this respect, it must be recalled that the aid which is covered by Article 107(3)(b) TFEU is not ex lege compatible with the internal market, but rather may be considered by the Commission to be compatible with that internal market. That assessment falls within the exclusive competence of the Commission, subject to review by the Courts of the European Union (see, to that effect, Deutsche Lufthansa , EU:C:2013:755, paragraph 28).
67. In the application of Article 107(3) TFEU, the Commission enjoys a discretion, the exercise of which involves complex assessments of an economic and social nature (see, to that effect, judgments in Deufil  v Commission , 310/85, EU:C:1987:96, paragraph 18, and in Italy  v Commission , C‑372/97, EU:C:2004:234, paragraph 83). Thus, the Court, in reviewing whether that discretion was lawfully exercised, cannot substitute its own assessment in the matter for that of the Commission (see, to that effect, judgments in Spain  v Commission , C‑169/95, EU:C:1997:10, paragraph 34, and in Unicredito Italiano , EU:C:2005:774, paragraph 71).
69. In that respect, it must be recalled that, as regards the assessment, in the light of Article 107(3)(b) TFEU, of State guarantees granted to financial institutions in the context of the global financial crisis, the Commission imposed a limit on the exercise of its discretion by adopting the Banking Communication. The Commission therefore cannot depart from the rules set out in that Communication under pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (see Dansk Rørindustri and Others  v Commission , C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 211).