European Commission v Kingdom of the Netherlands and ING Groep NV.
Date: 2014-04-03
29. As a preliminary point, it must be pointed out that the debate before the General Court did not concern the specific application of the private investor test to the amendment to the repayment terms of the capital injection, but whether that test is applicable.
31. It follows that the applicability of the private investor test to a public intervention depends, not on the way in which the advantage was conferred, but on the classification of the intervention as a decision adopted by a shareholder of the undertaking in question.
32. Furthermore, that test is one of the factors which the Commission is required to take into account for the purposes of establishing the existence of aid and is therefore not an exception that applies only if a Member State so requests, where the constituent elements of State aid incompatible with the common market referred to in Article 87(1) EC have been found to be present (see Commission  v EDF , paragraph 103).
33. Consequently, where it appears that the private investor test may be applicable, the Commission is under a duty to ask the Member State concerned to provide it with all relevant information enabling it to determine whether the conditions governing the applicability and the application of that test are met (see Commission v EDF , paragraph 104).
34. The application of that case-law cannot be compromised merely because, in this case, what is at issue is the applicability of the private investor test to an amendment to the conditions for the redemption of securities acquired in return for State aid.
35. Indeed, as the Advocate General has stated in point 41 of her Opinion, any holder of securities, in whatever amount and of whatever nature, may wish or agree to renegotiate the conditions of their redemption. It is, consequently, meaningful to compare the behaviour of the State in that regard with that of a hypothetical private investor in a comparable position.
36. What is decisive in the context of that comparison is whether the amendment to the repayment terms of the capital injection has satisfied an economic rationality test, so that a private investor might also be in a position to accept such an amendment, in particular by increasing the prospects of obtaining the repayment of that injection.
37. In those circumstances, the General Court did not err in law in holding, in paragraph 99 of the judgment under appeal, that the Commission could not evade its obligation to assess the economic rationality of the amendment to the repayment terms in the light of the private investor test solely on the ground that the capital injection subject to repayment itself already constitutes State aid. The General Court therefore correctly held that it is only after such an assessment that the Commission is in a position to conclude whether an additional advantage within the meaning of Article 87(1) EC has been granted.
57. In this connection, it should be recalled that, according to settled case-law, partial annulment of an act of the European Union is possible only if the elements which it is sought to have annulled can be severed from the remainder of the measure. That requirement of severability is not satisfied where the partial annulment of a measure would have the effect of altering its substance (Case C‑224/03 France v Parliament and Council  [2005] ECR I‑4021, paragraphs 12 and 13, and Case C‑441/11 P Commission  v Verhuizingen Coppens  [2012] ECR, paragraph 38).
69. Whilst it is true, according to the case-law of the Court, that a purely confirmatory measure may not be the subject of an action for annulment (see, inter alia, Case C‑123/03 P Commission  v Greencore  [2004] ECR I‑11647, paragraph 39), the fact remains that the Court has also held that a measure is to be regarded as purely confirmatory of an existing measure if it contains no new factors as compared with the existing measure (see Case 23/80 Grasselli  v Commission  [1980] ECR 3709, paragraph 18, and Case C‑417/05 P Commission  v Fernández Gómez  [2006] ECR I‑8481, paragraph 46).
97. In this connection, it must be stated that, to the extent that the question raised by the Commission cannot be considered to be one involving a matter of public policy, the General Court could not determine it of its own motion, lest it rule ultra petita  (see, to that effect, Joined Cases C‑442/03 P and C‑471/03 P P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya  v Commission  [2006] ECR I‑4845, paragraph 45, and Case C‑272/12 P Commission  v Ireland and Others  [2013] ECR, paragraph 28).