Trapeza Eurobank Ergasias AE v Agrotiki Trapeza tis Ellados AE (ATE) and Pavlos Sidiropoulos.
Date: 2015-04-16
17. It is settled case-law that, for a measure, as State aid, to come within Article 87(1) EC, first, there must be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer an advantage on the recipient; fourth, it must distort or threaten to distort competition, on the assumption that all those conditions must be cumulatively fulfilled (see, inter alia, judgment in Commission  v Deutsche Post , C‑399/08 P, EU:C:2010:481, paragraphs 38 and 39 and the case-law cited).
18. Concerning, first of all, the condition relating to an intervention by the State or through State resources, it should be noted that only advantages granted directly or indirectly through State resources or constituting an additional burden on the State are to be regarded as aid within the meaning of Article 87(1) EC. The very wording of this provision and the procedural rules laid down in Article 88 EC show that advantages granted from resources other than those of the State do not fall within the scope of the provisions in question (judgment in Bouygues and Bouygues Télécom  v Commission and Others  and Commission v France and Others , C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 99 and the case-law cited).
19. In accordance with settled case-law, it is necessary to determine, for the purposes of establishing whether the advantage given to the beneficiary is a burden on the State budget, whether there exists a sufficiently direct link between, on the one hand, that advantage and, on the other hand, a reduction of the State budget, or a sufficiently concrete economic risk of burdens on that budget (judgment in Bouygues and Bouygues Télécom  v Commission and Others  and Commission  v France and Others , C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraph 109).
20. Concerning, next, the condition to the effect that the measure at issue must be regarded as conferring an advantage on its recipient, it should be noted that measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or which fall to be regarded as an economic advantage that the recipient undertaking would not have obtained under normal market conditions are regarded as State aid (judgment in Ministerio de Defensa and Navantia , C‑522/13, EU:C:2014:2262, paragraph 21 and the case-law cited).
21. Thus, measures which, in various forms, mitigate the burdens normally included in the budget of an undertaking and which, accordingly, without being subsidies in the strict meaning of the word, are similar in character and have the same effect are considered to constitute aid (judgment in Ministerio de Defensa and Navantia , C‑522/13, EU:C:2014:2262, paragraph 22).
22. It should, also, be noted that Article 87 EC prohibits aid ‘favouring certain undertakings or the production of cer tain goods’, that is to say selective aid (judgment in P, C‑6/12, EU:C:2013:525, paragraph 17). Thus, advantages resulting from a general measure applicable without distinction to all economic operators do not constitute State aid within the meaning of that article (see, to that effect, judgment in Italy  v Commission , C‑66/02, EU:C:2005:768, paragraph 99).
23. Concerning, finally, the conditions relating to the effect on trade between Member States and the risk of distortion of competition, it should be borne in mind that for the purpose of categorising a national measure as State aid, it is necessary, not to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether that aid is liable to affect such trade and distort competition (judgment in Libert and Others , C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 76 and the case-law cited).
24. In particular, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-European trade, the latter must be regarded as affected by that aid (judgment in Libert and Others , C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 77 and the case-law cited).
25. In addition, it not necessary that the beneficiary undertaking itself be involved in intra-European trade. Aid granted by a Member State to an undertaking may help to maintain or increase domestic activity, with the result that undertakings established in other Member States have less chance of penetrating the market of the Member State concerned. Furthermore, the strengthening of an undertaking which, until then, was not involved in intra-European trade may place that undertaking in a position which enables it to penetrate the market of another Member State (judgment in Cassa di Risparmio di Firenze and Others , C‑222/04, EU:C:2006:8, paragraph 143 and the case-law cited).
28. First of all, those privileges, due in particular to the exemption from fees provided for by that law, are capable of depriving the treasury of the Member State of certain sources of liquidity and, therefore, to reduce the latter’s budget. Next, such an exemption could reduce the burden normally imposed on the budget of a bank, thereby conferring on it an economic advantage over its competitors. The file submitted to the Court does not disclose whether other banks benefit from such an exemption, which would indicate that that measure is selective. Finally, it cannot be ruled out that that exemption, in connection with the other privileges granted by Law 4332/1929, has the effect of strengthening ATE’s position in relation to competing banks active in intra-European trade and that it makes it more difficult to penetrate the market of the Member State for banks established in other Member States.
31. In that regard, it should be noted that, according to settled case-law, measures regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them do not constitute State aid for the purposes of Article 87(1) EC (judgment in Fallimento Traghetti del Mediterraneo , C‑140/09, EU:C:2010:335, paragraph 35 and the case-law cited).
32. The Court has also stated that, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied (judgment in Fallimento Traghetti del Mediterraneo , C‑140/09, EU:C:2010:335, paragraph 36).
33. First, the undertaking receiving such compensation must actually have public service obligations to discharge, and the obligations must be clearly defined. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner, to avoid it conferring an economic advantage which may favour the recipient undertaking over competing undertakings. Third, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations. Fourth, the compensation must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with the requisite means so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations (judgment in Fallimento Traghetti del Mediterraneo , C‑140/09, EU:C:2010:335, paragraphs 37 to 40 and the case-law cited).
37. In that regard, it should be noted, at the outset, that Article 88 EC provides for different procedures according to whether aid is existing or new. Whilst under Article 88(3) EC new aid must be notified to the Commission and may not be implemented until that procedure has led to a final decision, under Article 88(1) EC existing aid may be lawfully implemented so long as the Commission has made no finding of incompatibility (judgment in Kremikovtzi , C‑262/11, EU:C:2012:760, paragraph 49 and the case-law cited). Thus, Article 88(3) EC does not give national courts the power to prohibit existing aid from being put into effect (judgment in P, C‑6/12, EU:C:2013:525, paragraph 41).
51. It follows that new aid which is put into effect in breach of the obligations arising from Article 88(3) EC is unlawful. That interpretation is confirmed, moreover, by Article 1(f) of Regulation No 659/1999 (judgment in Residex Capital IV , C‑275/10, EU:C:2011:814, paragraph 28).
52. Moreover, according to settled case-law, it is for the national courts to draw the necessary consequences, in accordance with their domestic law, with regard both to the validity of the acts giving effect to the aid and the recovery of financial support granted in disregard of that provision (judgment in Xunta de Galicia , C‑71/04, EU:C:2005:493, paragraph 49).