Bouygues SA and Bouygues Télécom SA v European Commission and Others and European Commission v French Republic and Others.
Date: 2013-03-19
78. The General Court thus made an assessment of questions on which the Commission had not yet stated its position and confused different administrative and judicial procedural stages, which is incompatible with the system of the division of powers between the Commission and the Court of Justice and of the remedies laid down by the Treaty and with the requirements of the sound administration of justice (see, to that effect, Case C-60/81 IBM  v Commission  [1981] ECR 2639, paragraph 20).
99. On that basis, 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 107(1) TFEU. The very wording of this provision and the procedural rules laid down in Article 108 TFEU show that advantages granted from resources other than those of the State do not fall within the scope of the provisions in question (see, to that effect, Joined Cases C-72/91 and C-73/91 Sloman Neptun  [1993] ECR I-887, paragraph 19; Case C-200/97 Ecotrade [1998] ECR I-7907, paragraph 35; and Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 58).
100. It should be noted that, according to settled case-law, it is not necessary to establish in every case that there has been a transfer of State resources for the advantage granted to one or more undertakings to be capable of being regarded as a State aid within the meaning of Article 107(1) TFEU (see, to that effect, Case C‑387/92 Banco Exterior de España  [1994] ECR I-877, paragraph 14; Case C‑6/97 Italy  v Commission [1999] ECR I-2981, paragraph 16; and Case C-482/99 France  v Commission  [2002] ECR I-4397, paragraph 36).
101. In particular, measures which, in various forms, mitigate the burdens normally included in the budget of an undertaking, and which therefore, without being subsidies in the strict meaning of the word, are similar in character and have the same effect, are considered to be aid (see, to that effect, Banco Exterior de España , paragraph 13; Case C-75/97 Belgium  v Commission  [1999] ECR I-3671, paragraph 23; and Case C-156/98 Germany  v Commission  [2000] ECR I-6857, paragraph 25).
102. It is settled case-law that Article 107(1) TFEU defines measures of State intervention in relation to their effects (Case C-124/10 P Commission  v EDF and Others  [2012] ECR I-0000, paragraph 77 and the case-law cited).
103. As State interventions take various forms and have to be assessed in relation to their effects, it cannot be excluded, as the Bouygues companies and the Commission rightly argued, that several consecutive measures of State intervention must, for the purposes of Article 107(1) TFEU, be regarded as a single intervention.
104. That could be the case in particular where consecutive interventions, especially having regard to their chronology, their purpose and the circumstances of the undertaking at the time of those interventions, are so closely linked to each other that they are inseparable from one another (see, to that effect, Case 72/79 Commission  v Italy [1980] ECR 1411, paragraph 24).
106. Next, according to the case-law of the Court, State intervention capable of both placing the undertakings which it applies to in a more favourable position than others and creating a sufficiently concrete risk of imposing an additional burden on the State in the future, may place a burden on the resources of the State (see, to that effect, Ecotrade , paragraph 41).
107. In particular, the Court of Justice has had occasion to state that advantages given in the form of a State guarantee can entail an additional burden on the State (see, to that effect, Ecotrade , paragraph 43, and Case C-275/10 Residex Capital IV  [2011] ECR I-0000, paragraphs 39 to 42).
108. Furthermore, the Court has already held that, where, in economic terms, the alteration of the market conditions which gives rise to an advantage given indirectly to certain undertakings is the consequence of the public authorities’ loss of revenue, even the fact that investors then take independent decisions does not mean that the connection between the loss of revenue and the advantage given to the undertakings in question has been eliminated (see, to that effect, Germany  v Commission , paragraphs 25 to 28).
109. Consequently, for the purposes of establishing the existence of State aid, the Commission must establish a sufficiently direct link between, on the one hand, the advantage given to the beneficiary and, on the other, a reduction of the State budget or a sufficiently concrete economic risk of burdens on that budget (see, to that effect, Case C-279/08 P Commission  v Netherlands  [2011] ECR I-0000, paragraph 111).
126. In that regard, it must first be pointed out that it follows in particular from paragraphs 188 and 189 of the contested decision that the Commission did not base its finding of the existence of State aid on a commitment which the French State gave when it made the 12 July 2002 declaration.
127. Next, it follows in particular from paragraph 194 of the contested decision that the Commission considered that the offer of a ‘shareholder loan (which constitutes the upfront prepayment by the State towards the Company’s recapitalisation), confers an advantage on [FT] as it enables it to increase its means of financing and to reassure the market as to its capacity to meet its maturities’. It added that even if this offer has not been accepted by FT, ‘the appearance given to the market of the existence of such a loan is likely to confer an advantage on [FT], as the market has considered [FT’s] financial situation to be more secure’.
128. In paragraph 196 of the contested decision, the Commission added, in its analysis relating to the commitment of State resources, ‘that a potential additional burden on the State’s resources was created by the announcement of the provision of the shareholder loan coupled with the fulfilment of the preconditions for such provision …, by the impression given to the market that the loan had actually been provided … and, lastly, by the dispatch to [FT] of the loan contract initialled and signed by ERAP’.
129. It follows that the Commission considered that the announcement of 4 December 2002 and the shareholder loan offer, taken together, conferred an advantage entailing the commitment of State resources within the meaning of Article 107(1) TFEU.