Paul Vervloet and Others v Ministerraad.
Date: 2016-12-21
56


In that regard, it must be borne in mind 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 the 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 in order 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 required to give a ruling (judgments of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 53, and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 34 and the case-law cited).
57


It follows that questions relating to EU law enjoy a presumption of relevance. 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 (judgments of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 54, and of 30 May 2013, Halaf, C‑528/11, EU:C:2013:342, paragraph 29 and the case-law cited).
66


It is apparent from the file available to the Court that the shares of companies such as recognised cooperatives operating in the financial sector at issue in the main proceedings do not fall within that definition. As the Advocate General stated in point 40 of her Opinion, it appears that such shares are essentially participations in the own capital of the undertaking concerned, whereas the deposits referred to in Directive 94/19 are distinguished by the fact that they form part of the borrowed capital of a credit institution.
67


Moreover, although the deposits must, in accordance with the definition in the first subparagraph of Article 1 of Directive 94/19, be repaid to their depositors under the legal and contractual conditions applicable, the amount received, in the case of withdrawal, by the holder of shares in recognised cooperatives operating in the financial sector at issue in the main proceedings, reflects those undertakings’ performance. The acquisition of such shares is thus more comparable to the acquisition of shares in companies, with respect to which no guarantees are provided by Directive 94/19, than to a payment made into a bank account.
74


In that regard, the Court has already held that the principle of equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter, which requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, the judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others, C‑550/07 P, EU:C:2010:512, paragraphs 54 and 55 and the case-law cited).
83


Although the provisions of Directive 94/19 do not, therefore, prevent Member States from extending to shares in recognised cooperatives operating in the financial sector the deposit-guarantee scheme provided for by their national legislation in accordance with those provisions, such an extension must not undermine the practical effectiveness of the deposit-guarantee scheme that that directive requires them to establish (see, to that effect, judgment of 23 November 2006, Lidl Italia, C‑315/05, EU:C:2006:736, paragraph 48) or infringe the provisions of the FEU Treaty, in particular Articles 107 and 108 TFEU.
84


As was, in essence, stated by the Advocate General in point 58 of her Opinion, it cannot be ruled out that the practical effectiveness of the deposit-guarantee imposed by EU law is undermined where a Member State considerably encumbered its national deposit-guarantee scheme predominantly with risks not directly related to the purpose of that scheme. The higher the risks to be secured are, the more the deposit guarantee is watered down and the less the deposit-guarantee scheme is able, from the same resources, to contribute towards the attainment of the objective pursued by Directive 94/19, which, as is apparent from recital 1 thereof, is to protect savers in the event of the unavailability of deposits made in credit institutions and of increasing the stability of the banking system (see, to that effect, judgment of 2 September 2015, Surmačs, C‑127/14, EU:C:2015:522, paragraph 21).
89


As regards, first, Article 107 TFEU, it is settled case-law that classification as State aid, for the purposes of that provision, requires all the following conditions to be fulfilled. First, there must be intervention by the State or through State resources. Secondly, the intervention must be liable to affect trade between Member States. Thirdly, it must confer an advantage on the recipient. Fourthly, it must distort or threaten to distort competition (see, inter alia, judgments of 10 June 2010, Fallimento Traghetti del Mediterraneo, C‑140/09, EU:C:2010:335, paragraph 31, and of 29 March 2012, 3M Italia, C‑417/10, EU:C:2012:184, paragraph 37).
93


In that regard, it must be observed that measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as aid (see, inter alia, judgments of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 83, and of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 94 and the case-law cited).
96


Secondly, it should be noted that Article 107(1) TFEU prohibits State aid ‘favouring certain undertakings or the production of certain goods’, that is to say, selective aid (judgments of 28 July 2011, Mediaset v Commission, C‑403/10 P, not published, EU:C:2011:533, paragraph 36, and of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraph 54).
98


In that regard, it follows from the Court’s settled case-law that Article 107(1) TFEU requires an assessment of whether, under a particular legal regime, a national measure is such as to favour ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation (judgments of 28 July 2011, Mediaset v Commission, C‑403/10 P, not published, EU:C:2011:533, paragraph 36, and of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraph 55; of this date, Commission v Hansestadt Lübeck, C‑524/14 P, paragraph 41, and of this date, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, paragraph 54).
102


As regards the conditions relating to the effect of the scheme to guarantee the shares of recognised cooperatives operating in the financial sector at issue in the main proceedings on trade between Member States and the distortion of competition capable of being caused by that scheme, it should be noted that, for the purpose of categorising a national measure as State aid, it is not necessary to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, it being necessary only to examine whether that aid is liable to affect such trade and distort competition (judgments of 29 April 2004, Italy v Commission, C‑372/97, EU:C:2004:234, paragraph 44; of 15 December 2005, Unicredito Italiano, C‑148/04, EU:C:2005:774, paragraph 54; and of 19 March 2015, OTP Bank, C‑672/13, EU:C:2015:185, paragraph 54).
104


Secondly, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in trade between Member States, that undertaking must be regarded as affected by that aid (see, inter alia, judgments of 10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraph 141, and of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 77). In that regard, it is not necessary that the beneficiary undertaking itself be involved in trade between Member States. Where a Member State grants aid to an undertaking, internal activity may be maintained or increased as a result, so that the opportunities for undertakings established in other Member States to penetrate the market in that Member State are thereby reduced (judgment of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 78 and the case-law cited).
105


The Court has also held that 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, judgments of 10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraphs 142 and 145, and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 51).
107


The effects of the guarantee scheme at issue in the main proceedings on trade between Member States must be assessed by reference to all of the shares of recognised cooperatives operating in the financial sector which it covers and not by reference to the protected capital of an individual private member of a cooperative. In any event, according to the Court’s case-law, the relatively small amount of aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected (judgments of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 81, and of 14 January 2015, Eventech, C‑518/13, EU:C:2015:9, paragraph 68).
110


It is clear from the 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 (judgments of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 79, and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 44).
111


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, 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 (judgment of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 45 and the case-law cited).
114


In that context, it should be noted that it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, judgments of 24 November 2005, Italy v Commission, C‑138/03, C‑324/03 and C‑431/03, EU:C:2005:714, paragraph 55, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 94).
116


The Court has held that the obligation laid down in the second paragraph of Article 296 TFEU to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (see judgment of 17 September 2015, Total v Commission, C‑597/13 P, EU:C:2015:613, paragraph 18 and the case-law cited).
120


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 (judgment of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 57 and the case-law cited).
121


Article 108(3) TFEU thus establishes a prior control of plans to grant new aid (see judgments of 11 December 1973, Lorenz, 120/73, EU:C:1973:152, paragraph 2; of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 25; and of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 58).
122


It follows from the 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 (judgment of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 59 and the case-law cited).