Residex Capital IV CV v Gemeente Rotterdam.
Date: 2011-12-08
25. In order to answer the first part of that question, it should be noted that implementation of the system for supervision of State aid, resulting from Article 88 EC and the case-law of the Court on the subject, is a matter, on the one hand, for the Commission and, on the other, for the national courts (Case C-368/04 Transalpine Ölleitung in Österreich and Others [2006] ECR I‑9957, paragraph 36).
26. In that regard, the national courts and the Commission fulfil distinct but complementary roles (see Case C‑39/94 SFEI and Others  [1996] ECR I‑3547, paragraph 41; Joined Cases C-261/01 and C-262/01 van Calster and Others  [2003] ECR I‑12249, paragraph 74; and Transalpine Ölleitung in Österreich and Others , paragraph 37).
27. Whilst assessment of the compatibility of aid measures with the common market falls within the exclusive competence of the Commission, subject to review by the European Union Courts, it is for the national courts to ensure that the rights of individuals are safeguarded where the obligation to give prior notification of State aid to the Commission pursuant to Article 88(3) EC has been infringed ( van Calster and Others , paragraph 75, and Transalpine Ölleitung in Österreich and Others , paragraph 38).
28. In that context, it should be noted that an aid measure which is put into effect in infringement of the obligations arising from Article 88(3) EC is unlawful (see Case C-354/90 Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon  [1991] ECR I‑5505, paragraph 17, and Joined Cases C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04 Distribution Casino France and Others [2005] ECR I‑9481, paragraph 30). That interpretation is confirmed, moreover, by Article 1(f) of Regulation No 659/1999.
29. In that regard, the Court has repeatedly stated that it is for the national courts to draw all the necessary conclusions of the infringement of Article 88(3) EC in accordance with their national law, with regard to both the validity of the acts giving effect to the aid and the recovery of financial support granted in breach of that provision ( van Calster and Others , paragraph 64; Case C‑71/04 Xunta de Galicia  [2005] ECR I‑7419, paragraph 49; and CELF and Ministre de la Culture et de la Communication , paragraph 41).
33. In order to answer that second part of the question, it should be noted that, according to settled case-law of the Court, the logical consequence of a finding that aid is unlawful is to remove it by means of recovery in order to restore the situation previously obtaining (see, inter alia, Joined Cases C‑328/99 and C‑399/00 Italy and SIM 2 Multimedia  v Commission  [2003] ECR I‑4035, paragraph 66; judgment of 28 July 2011 in Case C‑403/10 P Mediaset  v Commission , paragraph 122).
34. Accordingly, the main objective pursued in recovering unlawfully paid State aid is to eliminate the distortion of competition caused by the competitive advantage which such aid affords (Case C‑277/00 Germany  v Commission  [2004] ECR I‑3925, paragraph 76, and Case C-520/07 P Commission  v MTU Friedrichshafen  [2009] ECR I‑8555, paragraph 57). By repaying the aid, the beneficiary forfeits the advantage which it had over its competitors on the market, and the situation prior to payment of the aid is restored (Case C‑350/93 Commission v Italy [1995] ECR I‑699, paragraph 22).
35. It is only in exceptional circumstances that it would be inappropriate to order repayment of the aid (Case C-5/89 Commission v Germany [1990] ECR I‑3437, paragraph 16; SFEI and Others , paragraph 70; and CELF and Ministre de la Culture et de la Communication , paragraph 42).
37. In order to carry out this repayment, it is essential that the national courts identify the beneficiary or, as the case may be, the beneficiaries of the aid. In the case where aid is granted in the form of a guarantee, the beneficiaries of that aid may be either the borrower or the lender or, in certain cases, both of them together.
39. In the case where the loan granted by a credit institution to a borrower is guaranteed by the public authorities of a Member State, that borrower normally obtains a financial advantage and thus benefits from aid within the meaning of Article 87(1) EC, inasmuch as the financial cost that it bears is less than that which it would have borne if it had had to obtain that same financing and that same guarantee at market prices.
40. However, as is clear from the submissions made during the hearing before the Court, and as the Advocate General has noted in point 71 of her Opinion, it emerges from certain factual findings in the order for reference that, in the main proceedings, Residex would also have been liable to procure an economic advantage from the guarantee in question.
41. According to the Hoge Raad, the financial situation of Aerospace was such that it would not have been able to obtain a loan on the capital markets. As a result, it was only by means of the guarantee provided by the Gemeente Rotterdam that Residex granted Aerospace a loan at a rate that was preferential in comparison with that in force on the market. Furthermore, it is not apparent from the documents before the Court that Residex paid the Gemeente Rotterdam under normal market conditions in consideration for the benefit that it was deemed to draw from the guarantee.
42. In those circumstances, and in the light of the facts set out in paragraph 14 of the present judgment, it cannot be excluded at the outset that the guarantee in question was granted for the needs of an existing claim of Residex, in the context of a restructuring of Aerospace’s debt. If that were so, Residex would have obtained its own economic advantage by means of that guarantee since, as is also stated at subsection 2.3.1 of the Guarantee Notice, the security of its claim increased as a result of being guaranteed by the public authority, with no amendment, moreover, to the conditions of the guaranteed loan.