Electrabel SA and Dunamenti Erőmű Zrt v European Commission.
Date: 2015-10-01
34. At the hearing before the Court, Dunamenti Erőmű submitted that, in paragraphs 78 and 79 of the judgment in OTP Bank  (C‑672/13, EU:C:2015:185), the Court held that it is necessary to determine whether a State measure constitutes State aid, before examining whether that aid is to be classified as new aid or existing aid.
36. It must first be observed that, as the Court has previously held, the General Court has the freedom to structure and to expound its reasoning in whatever way it deems necessary for the purposes of responding to the pleas raised before it. Accordingly, the way in which the General Court chooses to structure and reason its response are not open to challenge, in the context of an appeal, through claims seeking to establish that the General Court should have undertaken its analysis in the manner expected by an applicant (judgment in British Telecommunications  v Commission , C‑620/13 P, EU:C:2014:2309, paragraph 29).
37. Next, as regards paragraphs 78 and 79 of the judgment in OTP Bank  (C‑672/13, EU:C:2015:185), contrary to what is maintained by Dunamenti Erőmű, the Court did not in that case hold that the General Court must always determine that there is State aid before it undertakes the classification of the measure in question as new aid or existing aid. In those paragraphs the Court did no more than state, in essence, that, inter alia, the measure at issue had to be deemed to be new aid in the event that the referring court concluded that that measure constituted State aid. That statement attests precisely to the fact that the classification of a measure as new aid can be made on the basis of an assumption that there is State aid.
50. According to that case-law, in particular the judgments in France  v Commission (C‑482/99, EU:C:2002:294, paragraphs 71 and 76 to 83); Commission  v EDF (C‑124/10 P, EU:C:2012:318, paragraphs 104 and 105); Cityflyer Express v Commission (T‑16/96, EU:T:1998:78, paragraph 76); Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen  v Commission (T‑228/99 and T‑233/99, EU:T:2003:57, paragraph 246), and Netherlands  v Commission (T‑29/10 and T‑33/10, EU:T:2012:98, paragraph 78), the examination of the existence of aid and, in particular, the private investor analysis should be based on the circumstances prevailing at the date of adoption of the measure concerned.
55. The Commission argues that, in paragraphs 50 to 52 of the judgment in Kremikovtzi  (C‑262/11, EU:C:2012:760), relating to Annex V to the 2005 Act of Accession, the Court has previously rejected an argument comparable to that raised by Dunamenti Erőmű in the second ground of this appeal. In the judgment in Rousse Industry  v Commission (T‑489/11, EU:T:2013:144, paragraphs 61 to 64), the General Court also rejected such an argument. Further, none of the judgments on which Dunamenti Erőmű relies concern measures adopted by a Member State before its accession to the European Union which, after that accession, continued to be applicable.
56. Further, the Commission states, referring to the judgment in Commission  v Ireland and Others  (C‑89/08 P, EU:C:2009:742, paragraphs 72 and 73), that State aid is an objective concept. Consequently, Dunamenti Erőmű cannot criticise the General Court for failing to state reasons for its decision with regard to the position adopted by the Commission in its guidelines.
Findings of the Court
63. It must also be borne in mind that the Court has already had occasion to hold, in paragraph 52 of the judgment in Kremikovtzi  (C‑262/11, EU:C:2012:760), relating to the 2005 Act of Accession, which reproduces, in essence, the provisions of the 2003 Act of Accession quoted in paragraphs 2 and 3 of this judgment, that the measures implemented before the accession of the Republic of Bulgaria to the European Union, but which, first, are still applicable post-accession and, second, satisfy the cumulative requirements of Article 87(1) EC on the date of accession, are subject to the specific rules laid down in Annex V to the 2005 Act of Accession.
64. In paragraph 54 of the judgment in Kremikovtzi  (C‑262/11, EU:C:2012:760), the Court stated that, as may be inferred from, inter alia, Article 1(b)(i) and (c) of Regulation No 659/1999, read in conjunction with Article 2 of the 2005 Act of Accession, it is only as from the time of accession that, in Bulgaria, the criteria laid down in Article 87(1) EC may be directly applied as such, and then only in respect of situations that arise on or after that date.
68. Last, the practice followed by the Commission in its decisions or its guidelines, even if that practice were to support the approach advocated by Dunamenti Erőmű in its second ground of appeal, cannot, in any event, bind the Court in its interpretation of the EU rules relating to State aid. Any argument based on that practice must, therefore, be rejected.
75. Dunamenti Erőmű states that, in the context of a privatisation, the Commission must ascertain whether the Member State concerned sought to maximise the profit or to minimise the loss from the sale. Referring to, inter alia, the judgment in Spain  v Commission  (C‑278/92 to C‑280/92, EU:C:1994:325, paragraph 28), Dunamenti Erőmű adds that a Member State acts as a private investor if it sells public assets through an open, unconditional, competitive call for tenders and sells to the highest bidder.
77. By the second part of its third ground of appeal, Dunamenti Erőmű claims that, in any event, even if the PPA at issue contained some advantage, that advantage was repaid by means of the sale of Dunamenti Erőmű. That company adds, referring to the judgments in Banks  (C‑390/98, EU:C:2001:456, paragraph 78), and Falck and Acciaierie di Bolzano  v Commission  (C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraph 180), that where a company which has benefited from aid has been sold at the market price, the sale price reflects the consequences of the previous aid, and it is the seller of that company that keeps the benefit of that aid.
86. As regards the first part of the third ground of appeal, the Commission submits, referring to the judgment in Elliniki Nafpigokataskevastiki and Others  v Commission  (T‑384/08, EU:T:2011:650, paragraphs 66 to 68), that the absence of an advantage to the purchaser does not exclude the presence of an advantage to the purchased business. Moreover, in the judgment in Commission  v Scott  (C‑290/07 P, EU:C:2010:480, paragraphs 5 to 11, 25 and 26), the finding that aid was granted to an undertaking was unaffected by the purchase of the shares of that undertaking by another undertaking or by the purchase of the assets constructed by means of that aid by a third undertaking. It follows that the fact that a purchaser pays a market price and thus does not itself benefit from aid is not relevant to the assessment of whether the purchased entity received aid.
88. Paragraph 78 of the judgment in Banks  (C‑390/98, EU:C:2001:456) was obiter and concerned the issue of recovery of aid and not the issue of its existence. In paragraphs 80 and 81 of the judgment in Germany  v Commission  (C‑277/00, EU:C:2004:238), the Court clearly distinguished the case which gave rise to the judgment in Banks . The Commission states that, in this case, Dunamenti Erőmű continued to operate on the market concerned, while retaining the advantage which it had received.
102. In particular, as regards the application of the private market economy investor test, the Court has held that, where the Commission examines whether a State acted as a shareholder and whether, therefore, the private investor test is applicable in the circumstances of the case, it is for the Commission to carry out a global assessment, taking into account, in addition to the evidence provided by that Member State, all other relevant evidence enabling it to determine whether the Member State took the measure in question in its capacity as shareholder or as a public authority. The nature and subject-matter of that measure may be relevant in that regard, as may its context, the objective pursued and the rules to which the measure is subject (see, to that effect, judgment in Commission  v EDF , C‑124/10 P, EU:C:2012:318, paragraph 86).
103. Further, where the Commission is determining whether the conditions governing applicability and application of the private investor test are met, it cannot refuse to examine relevant information provided by the Member State concerned unless the evidence produced has been established after the adoption of the decision to make the investment in question. For the purposes of applying the private investor test, the only relevant evidence is the information which was available, and the developments which were foreseeable, at the time when the decision to make the investment was taken. That is especially so where the Commission is examining whether there is State aid in relation to an investment which was not notified to it and which, at the time when the Commission carries out its examination, has already been made by the Member State concerned (see, to that effect, judgment in Commission  v EDF , C‑124/10 P, EU:C:2012:318, paragraphs 104 and 105).
108. It should be borne in mind, however, that if the grounds of a decision of the General Court reveal an infringement of EU law but its operative part is well founded on other legal grounds, such an infringement is not one that should cause that decision to be set aside, and the grounds should be substituted (see, to that effect, judgments in Lestelle  v Commission , C‑30/91 P, EU:C:1992:252, paragraph 28, and FIAMM and Others  v Council and Commission , C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 187 and the case-law cited).
110. In accordance with settled case-law, the recovery of unlawful aid seeks to re-establish the previous situation, and that purpose is achieved once the aid in question, together where appropriate with default interest, has been repaid by the recipient or, in other words, by the undertakings which actually benefited from it. By repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored (see, to that effect, judgment in Germany  v Commission , C‑277/00, EU:C:2004:238, paragraphs 74 and 75).
111. Consequently, the main purpose of the repayment of unlawfully paid State aid is to eliminate the distortion of competition caused by the competitive advantage afforded by the unlawful aid (judgment in Germany  v Commission , C‑277/00, EU:C:2004:238, paragraph 76).
112. The Court has consistently held that, where an undertaking that has benefited from unlawful State aid is bought at the market price, that is to say at the highest price which a private investor acting under normal competitive conditions was ready to pay for that company in the situation it was in, in particular after having enjoyed State aid, the aid element was assessed at the market price and included in the purchase price. In such circumstances, the buyer cannot be regarded as having benefited from an advantage in relation to other market operators (see judgment in Germany  v Commission , C‑277/00, EU:C:2004:238, paragraph 80 and the case-law cited).
113. In a situation where the undertaking to which unlawful State aid was granted retains its legal personality and continues to carry out, for its own account, the activities subsidised by the State aid, it is normally that undertaking that retains the competitive advantage connected with that aid and it is therefore that undertaking that must be required to repay an amount equal to that aid. The buyer cannot therefore be asked to repay such aid (see judgment in Germany  v Commission , C‑277/00, EU:C:2004:238, paragraph 81).
127. The Commission considers that the fourth ground of appeal is inadmissible, since Dunamenti Erőmű has not indicated the part of the judgment under appeal which it claims is vitiated by an error of law. Dunamenti Erőmű makes a passing reference to paragraph 112 of that judgment, but does not explain why that paragraph should be overturned (see, to that effect, the judgments in Bergaderm and Goupil  v Commission , C‑352/98 P, EU:C:2000:361, paragraph 34, and France  v Monsanto and Commission , C‑248/99 P, EU:C:2002:1, paragraphs 68 and 69).
131. Further, to the extent that Dunamenti Erőmű’s arguments concern the claim that the General Court erred in law because it failed to demonstrate the presence of a structural risk when examining whether there was an advantage, for the purposes of Article 87(1) EC, the criticism cannot be made of that company that it failed to identify specific parts of that judgment (see, to that effect, the judgment in Limburgse Vinyl Maatschappij and Others  v Commission , C‑238/99 P, C‑244/99 P, C‑245/99 P to C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 423).
144. The Court must first reject the argument that the General Court erred in law, in paragraph 188 of the judgment under appeal, in considering that the existence of an economic advantage must, in accordance with the principle of the private market economy operator, be assessed in the light of the conduct of the public undertaking conferring the advantage at issue, and not in the light of the conduct of the beneficiary. According to settled case-law, for the application of the private investor test, it is necessary to determine whether the same advantage as that made available to the beneficiary undertaking through State resources would have been granted by a private investor in normal market conditions (see, to that effect, the judgment in Commission  v EDF , C‑124/10 P, EU:C:2012:318, paragraphs 78 and 79).