Frucona Košice a.s. v European Commission.
Date: 2013-01-24
69. The concept of aid embraces not only positive benefits, such as subsidies, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, therefore, without being subsidies in the strict sense of the word, are similar in character and have the same effect (Case C-200/97 Ecotrade  [1998] ECR I-7907, paragraph 34, and Case C-6/97 Italy  v Commission  [1999] ECR I-2981, paragraph 15).
70. However, the conditions which a measure must meet in order to be treated as ‘aid’ for the purposes of Article 107 TFEU are not met if the recipient undertaking could, in circumstances which correspond to normal market conditions, have obtained the same advantage as that which has been made available to it through State resources (see, to that effect, judgment of 5 June 2012 in Case C-124/10 P Commission  v EDF , paragraph 78 and the case-law cited).
71. That assessment is made when a public creditor grants payment facilities in respect of a debt payable to it by an undertaking, by applying, in principle, the private creditor test. That test, where applicable, is among the factors which the Commission is required to take into account for the purposes of establishing whether such aid exists (see, to that effect, Case C-342/96 Spain  v Commission  [1999] ECR I-2459, paragraph 46; Case C-256/97 DM Transport  [1999] ECR I-3913, paragraph 24; and Commission  v EDF , paragraphs 78 and 103).
72. Such payment facilities constitute State aid for the purposes of Article 107(1) TFEU where, taking account of the significance of the economic advantage thereby granted, the recipient undertaking would manifestly not have obtained comparable facilities from a private creditor in a situation as close as possible to that of the public creditor and seeking to recover sums due to it by a debtor in financial difficulty (see, to that effect, Spain  v Commission , paragraph 46; DM Transport , paragraph 30, and Commission  v EDF , paragraph 79).
73. It is therefore for the Commission to carry out an overall assessment, taking into account all relevant ev idence in the case enabling it to determine whether the recipient company would manifestly not have obtained comparable facilities from such a private creditor (see, to that effect, Commission  v EDF , paragraph 86).
74. It is common ground that the Commission is required to make a complex economic assessment when it examines whether particular measures can be described as State aid because the public authorities did not act in the same way as a private creditor (see Case C-525/04 P Spain  v Lenzing  [2007] ECR I-9947, paragraph 59).
75. In this connection, it must be observed that, in the context of the review conducted by the European Union Courts on complex economic assessments made by the Commission in the field of State aid, it is not for those Courts to substitute their 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 the case-law cited).
76. However, the European Union Courts 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, and Commission  v Scott , paragraph 65).
77. It follows from the foregoing that, having regard to the arguments put forward by Frucona Košice at first instance, the General Court had to establish, inter alia, whether the available information relating to the duration of a bankruptcy was relevant in the present case for the purposes of an assessment from the point of view of the private creditor test and, if so, whether the Commission took account of it.
78. In that regard, all information liable to have a significant influence on the decision-making process of a normally prudent and diligent private creditor, in a situation as close as possible to that of the public creditor and seeking to recover sums due to it by a debtor experiencing difficulty in making the payments, must be regarded as being relevant.
81. As Frucona Košice correctly argues, however, since the duration of the abovementioned procedures postponed the recovery of the sums due and might thus have affected, in the case of lengthy procedures, inter alia, their value, this is clearly a factor which is liable to have a significant influence on the decision-making process of a normally prudent and diligent private creditor in a situation as close as possible to that of the local Tax Office.
87. Lastly, in so far as the General Court examined, in paragraphs 125 to 127 of the judgment under appeal, also cited in paragraph 35 above, various factors relating to the reliability and the consistency of the information produced by Frucona Košice during the administrative procedure and in so far as it held that, in the particular circumstances of the case, the Commission was able to find that the duration of a bankruptcy procedure was not liable to influence the decision-making process of a private creditor, it must be observed that the General Court’s examination is not connected with any assessment featuring in the contested decision.
88. It follows that, in order to reject the pleas which it was examining, the General Court relied on an assessment of the duration of a bankruptcy procedure that serves to fill a gap in the reasoning for the contested decision by means of grounds which did not form part of that decision. By acting in this way, however, the General Court exceeded the limits of its power of review.
89. In reviewing the legality of acts under Article 263 TFEU, the Court of Justice and the General Court have jurisdiction in actions brought on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty on the Functioning of the European Union or of any rule of law relating to its application, or of misuse of powers. Article 264 TFEU provides that, if the action is well founded, the act concerned must be declared void. The Court of Justice and the General Court cannot, therefore, under any circumstances substitute their own reasoning for that of the author of the contested act (see Case C-164/98 P DIR International Film and Others  v Commission [2000] ECR I-447, paragraph 38, and Case C-487/06 P British Aggregates  v Commission  [2008] ECR I-10515, paragraph 141).
90. It follows from the foregoing that, in having failed to establish whether the Commission had taken into account, in its assessment of the private creditor test, the duration of a bankruptcy procedure, and in having filled, in that regard, by means of its own reasoning, a gap in the reasoning in the contested decision, the General Court erred in law.