Land Burgenland (C-214/12 P), Grazer Wechselseitige Versicherung AG (C-215/12 P) and Republic of Austria (C-223/12 P) v European Commission.
Date: 2013-10-24
51. Further, as regards the impact of Commission  v EDF , it must be pointed out that that judgment was principally concerned with whether the private investor test was applicable in the circumstances of that case, which was rejected by the Commission in the decision at issue in that case, and not how that test was applied in the particular case (see Commission  v EDF  judgment, paragraph 75). However, in the present cases, it is undisputed that the Commission applied the private vendor test and the Province of Burgenland, the Republic of Austria and GRAWE are in actual fact challenging the General Court’s approval of the manner in which the Commission applied that test.
52. As regards the application of that test, Commission  v EDF  confirmed the case-law which emerges, in particular, from Spain  v Commission  and Germany  v Commission , according to which, in order to assess whether the same measure would have been adopted in normal market conditions by a private vendor in a situation as close as possible to that of the State, only the benefits and obligations linked to the situation of the State as shareholder – to the exclusion of those linked to its situation as a public authority – are to be taken into account (see, to that effect, Commission  v EDF , paragraph 79).
53. In Commission v EDF  judgment, the Court further made it clear that, when carrying out that assessment, the manner in which the advantage is provided and the nature of the manner by which the State intervenes are irrelevant where the Member State concerned conferred that advantage in its capacity as shareholder of the undertaking concerned (see Commission  v EDF , paragraphs 91 and 92).
55. The Province of Burgenland, the Republic of Austria and GRAWE do not put forward any argument liable to put that finding into doubt, but claim themselves that Ausfallhaftung is a State aid, as the Commission had moreover found in Decision C(2003) 1329 final.
56. In those circumstances, and since, by granting aid, a Member State pursues, by definition, objectives other than that of making a profit from the resources granted to an undertaking belonging to it, it must be held that those resources are, in principle, granted by the State exercising its prerogatives as a public authority.
57. In so far as the Province of Burgenland, the Republic of Austria claim that, through Ausfallhaftung, the Province of Burgenland was none the less seeking to make profit or, at the very least, attempting to do so in addition to its other objectives, it must be recalled that, if a Member State relies on a test such as the private vendor test, it must, where there is doubt, establish unequivocally and on the basis of objective and verifiable evidence that the measure implemented is to be ascribed to the State acting as shareholder (see, to that effect, Commission  v EDF , paragraph 82).
58. That evidence must show clearly that, before or at the same time as conferring the economic advantage, the Member State concerned took the decision to make an investment, by means of the measure actually implemented, in the public undertaking ( Commission  v EDF , paragraph 84).
59. In that regard, it may be necessary to produce evidence showing that the decision is based on economic evaluations comparable to those which, in the circumstances, a rational private vendor in a situation as close as possible to that of the Member State would have had carried out, before making the investment, in order to determine its future profitability (see, to that effect, Commission  v EDF , paragraph 84).
60. It is only in cases where the Member State concerned provides the Commission with the necessary evidence that the onus is on 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 (see, to that effect, Commission  v EDF , paragraph 86).
61. However, neither during the administrative procedure nor before the General Court did the Province of Burgenland, the Republic of Austria or GRAWE put forward any evidence showing that the introduction or retention of Ausfallhaftung was based on economic evaluations carried out by the Province of Burgenland for the purposes of establishing its profitability. It follows that the Commission was not required to undertake such a global assessment as regards Ausfallhaftung and that the Burgenland and GRAWE judgments were not vitiated by any errors in that regard.
73. Therefore, since it has not been alleged that there was any distortion of the relevant evidence in that respect, those arguments of the Province of Burgenland and the Republic of Austria are inadmissible (see, to that effect, Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2006] ECR I‑4429, paragraph 85, and C‑352/09 P ThyssenKrupp Nirosta  v Commission  [2011] ECR I‑2359, paragraph 180).
76. In those circumstances, it is clear that the alleged distortion, in paragraphs 120 and 121 of the Burgenland judgment, of the evidence has not been established, since it is not obviously apparent from the documents in the case-file (see, to that effect, Case C‑47/10 P Austria  v Scheucher-Fleisch and Others  [2011] ECR I‑10707, paragraph 59 and the case-law cited).
77. In the third place, the Commission’s examination of whether particular measures can be classified as State aid because the public authorities did not act in the same way as a private vendor requires a complex economic assessment (see, to that effect, Case C‑525/04 P Spain  v Lenzing  [2007] ECR I‑9947, paragraph 59, and Case C‑73/11 P Frucona Košice  v Commission  [2013] ECR I‑0000, paragraph 74).
78. In this connection, it must be observed that, in the context of the review conducted by the European Union judicature of complex economic assessments made by the Commission in the field of State aid, it is not for that judicature to substitute its own economic assessment for that of the Commission (see, to that effect, Case C‑290/07 P Commission  v Scott  [2010] ECR I‑7763, paragraphs 64 and 66, and Frucona Košice  v Commission , paragraph 75).
79. However, the European Union judicature must, inter alia, establish not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (Case C‑12/03 P Commission  v Tetra Laval  [2005] ECR I‑987, paragraph 39; Commission  v Scott , paragraph 65; and Frucona Košice v Commission , paragraph 76).
81. In the fourth place, as regards the claim by the Province of Burgenland and the Republic of Austria that the General Court breached the obligation to state reasons, it is apparent from the foregoing and from simply reading paragraph 132 of the Burgenland judgment that the General Court’s reasoning in paragraphs 120, 121 and 132 of that judgment is such as to allow the applicants to know the reasons for which the General Court rejected their arguments and to provide the Court of Justice with sufficient material for it to exercise its power of judicial review in an appeal, so that it is in conformity with the established case-law of the Court on that matter (see, to that effect, inter alia, Case C‑320/09 P A2A  v Commission  [2011] ECR I‑0000, paragraph 97).
92. It is the Court’s settled case-law that the market price is the highest price which a private investor acting under normal competitive conditions is ready to pay for a company in the situation it is in (see Case C‑390/98 Banks  [2001] ECR I‑6117, paragraph 77, and Case C‑277/00 Germany  v Commission  [2004] ECR I‑3925, paragraph 80).
93. For the purposes of checking the market price, the national authorities may take into consideration, in particular, the form of the transfer of company, for example public tendering, deemed to ensure that a sale takes place under market conditions or any expert’s report prepared at the time of the transfer (see, to that effect, Case C‑214/07 Commission  v France  [2008] ECR I‑8357, paragraphs 59 and 60).
94. It follows that the General Court was correct to find, in paragraphs 70 and 87 of the Burgenland judgment and paragraph 77 of the GRAWE judgment, that, where a public authority proceeds to sell an undertaking belonging to it by way of an open, transparent and unconditional tender procedure, it can be presumed that the market price corresponds to the highest offer, provided that it is established, first, that that offer is binding and credible and, secondly, that the consideration of economic factors other than the price is not justified.
95. In such circumstances, the Commission is not obliged to resort to other methods in order to check the market price, such as independent studies.
117. According to the Court’s settled case-law, where an undertaking is bought 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, that company is valued in every respect at the market price and the acquirer cannot be regarded as having benefited from an advantage in relation to other market operators (see, to that effect, Banks , paragraph 77, and Germany  v Commission , paragraph 80).