NMI Technologietransfer GmbH v EuroNorm GmbH.
Date: 2020-09-24
With a view to examining those questions, it should be recalled that, as is apparent, in particular, from recital 40 of Regulation No 651/2014, the purpose of which is to declare certain categories of State aid compatible with the internal market pursuant to Articles 107 and 108 TFEU, the Commission takes a favourable approach to State aid to SMEs on account of the market failures which result in those undertakings having to contend with a number of handicaps which limit their socially and economically desirable development.
In accordance with Articles 2 and 3 of Annex I to Regulation No 651/2014, an enterprise may be classified as an SME, within the meaning of that regulation, if it satisfies three tests: number of persons employed, the financial test relating to the annual turnover or the annual balance sheet total, and an independence test (see, by analogy, judgment of 29 April 2004, Italy v Commission, C‑91/01, EU:C:2004:244, paragraph 47).
As regards the latter test, which is the only test at issue in the main proceedings, the Court has held that it seeks to ensure that the measures intended for SMEs genuinely benefit the enterprises for which size represents a handicap and not enterprises belonging to a large group which have access to funds and assistance not available to competitors of equal size (see, by analogy, judgment of 29 April 2004, Italy v Commission, C‑91/01, EU:C:2004:244, paragraph 50).
That test is thus intended to gain a better understanding, as is apparent, inter alia, from recital 9 of the 2003 Recommendation, on which, as stated in recital 30  of Regulation No 651/2014, the concept of ‘SME’ defined in Annex I to that regulation is based, of the economic position of SMEs and to remove from that qualification of SMEs groups of enterprises whose economic power may exceed that of genuine SMEs, with a view to ensuring that only those enterprises which really need the advantages accruing to the category of SMEs from the different rules or measures in their favour actually benefit from them (see, by analogy, judgment of 27 February 2014, HaTeFo, C‑110/13, EU:C:2014:114, paragraph 31).
In that regard, it should, however, be borne in mind that Article 267 TFEU does not empower the Court to apply rules of EU law to a particular case, but only to give a ruling on the interpretation of the Treaties and on acts adopted by the EU institutions. It is therefore not for the Court either to establish the facts which have given rise to the dispute in the main proceedings and to draw any inferences therefrom for the decision which the referring court is required to deliver, or to interpret the relevant national laws or regulations (judgment of 14 May 2020, Bouygues travaux publics and Others, C‑17/19, EU:C:2020:379, paragraphs 51 and 52).
In order to determine whether the concept of ‘public body’, within the meaning of Article 3(4) of Annex I to Regulation No 651/2014, is intended to include entities, such as universities, higher education establishments and a chamber of commerce and industry, it should be borne in mind that, according to the settled case-law of the Court, it follows from the requirements both of the uniform application of EU law and the principle of equality that the wording of a provision of EU law that does not contain any express reference to the law of the Member States in order to determine its meaning and scope must, throughout the European Union, be interpreted independently and uniformly, irrespective of characterisation in the Member States, taking into account the wording of the provision at issue and also its context and the purpose of the rules of which it forms part (judgment of 5 February 2020, Staatssecretaris van Justitie en Veiligheid (Signing-on of seamen in the Port of Rotterdam), C‑341/18, EU:C:2020:76, paragraph 40 and the case-law cited).
As regards, first, the wording of Article 3(4) of Annex I to Regulation No 651/2014, since neither that provision nor any other provision of that regulation, in particular Article 2 thereof, contains a definition of the concept of ‘public body’, its meaning and scope must be determined in accordance with its usual meaning in everyday language (see, by analogy, judgment of 5 February 2020, Staatssecretaris van Justitie en Veiligheid (Signing-on of seamen in the Port of Rotterdam), C‑341/18, EU:C:2020:76, paragraph 42 and the case-law cited).
Conversely, as can be seen from the fourth subparagraph of Article 3(3), that article provides that enterprises may be considered to be linked when, as a result of the role played by a natural person or a group of natural persons acting jointly by coordinating in order to influence the business decisions of the enterprises concerned, they constitute a single economic unit, even though they do not formally have any of the relationships referred to in the first subparagraph of Article 3(3) (see, to that effect, judgment of 27 February 2014, HaTeFo, C‑110/13, EU:C:2014:114, paragraphs 34, 35 and 39, and order of 11 May 2017, Bericap, C‑53/17, not published, EU:C:2017:370, paragraph 17).
The definition of an ‘SME’ within the meaning of Annex I to Regulation No 651/2014, in that it leads to the granting of advantages to enterprises falling under that concept, most often through rules providing exceptions to the general rules, must be interpreted strictly (see, to that effect, judgment of 27 February 2014, HaTeFo, C‑110/13, EU:C:2014:114, paragraph 32).
A situation which is characterised by the existence, between different enterprises, of structural links, in terms of shareholdings and voting rights, precludes those enterprises from being considered economically independent of each other, since it results in one firm being in a position, independently of its actual behaviour, to exert a decisive influence on the decision-making of another enterprise (see, by analogy, judgment of 2 April 2009, Glückauf Brauerei, C‑83/08, EU:C:2009:228, paragraphs 32 to 34).
Furthermore, it should be noted that both Article 3(4) of Annex I to Regulation No 651/2014, as is apparent, in particular, from recital 30 of that regulation and recital 13 of the 2003 Recommendation, and that regulation itself, which provides for an exemption of categories of aid compatible with the internal market, are intended to increase administrative clarity and legal certainty by ensuring effective and simplified monitoring of the competition rules on State aid (see, by analogy, judgment of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission, C‑654/17 P, EU:C:2019:634, paragraph 141 and the case-law cited).