1 By their appeal, BTB Holding Investments SA (‘BTB’) and Duferco Participations Holding SA (‘DPH’) seek to have set aside the judgment of the General Court of the European Union of 11 December 2018, BTB Holding Investments and Duferco Participations Holding v Commission (T‑100/17, not published, EU:T:2018:900; ‘the judgment under appeal’), by which the General Court dismissed their action seeking partial annulment of Commission Decision (EU) 2016/2041 of 20 January 2016 on State aid SA.33926 2013/C (ex 2013/NN, 2011/CP) granted by Belgium to Duferco (OJ 2016 L 314, p. 22) (‘the decision in dispute’).
2 The background to the dispute was set out by the General Court in paragraphs 1 to 21 of the judgment under appeal and may, for the purposes of the present proceedings, be summarised as follows.
3 The Duferco Group produces and sells steel. It has a presence in some 50 countries around the world. In 2009, the group’s activities in Europe focused mainly on Belgium and Italy. It was also active in Switzerland, Luxembourg and France, among other countries.
4 The Duferco Group established a presence in Belgium in 1997 and purchased various steel sites up to 2002. Following that series of acquisitions, the group had three main subsidiaries in Belgium: Duferco Clabecq, Duferco La Louvière and Carsid.
5 The Duferco Group’s trading activities were consolidated through Duferco Industrial Investment (‘DII’), to which DPH is the successor. The Duferco Group is headed by BTB, the parent company of the group which succeeded Bolmat Holding Limited (‘Bolmat’) and Ultima Holding Limited and Ultima Partners Limited (together ‘Ultima’), the former parent companies of DPH.
6 In 2006, the Duferco Group formed a strategic partnership with the Russian group Novolipetsk (‘the NLMK Group’). That partnership aimed to build on the presence of the NLMK Group in the upstream steel supply chain (supply of raw materials and production of semi-finished products). It took the form of the NLMK Group’s parent company assuming a stake in one of the Duferco Group’s holding companies, Steel Invest & Finance (Luxembourg) SA (‘SIF’). SIF encompassed many Duferco Group assets, including Duferco Clabecq, Duferco La Louvière and Carsid. A United States branch of the Duferco Group, Duferco US Investment Corp. (‘Duferco US’) and its subsidiary Duferco Farrell Corp. (‘Farrell’) was also integrated into SIF in late 2006. The agreement between the Duferco and NLMK Groups was ratified on 18 December 2006, and the NLMK Group’s parent company acquired a 50% holding in SIF.
7 The strategic partnership between the Duferco and NLMK Groups ended in the summer of 2011. The two groups divided SIF’s assets.
8 In November 2011, a Belgian daily newspaper published a series of articles according to which the Walloon Region (Belgium) had been granting financial support to the Duferco Group since 2003 without having informed the European Commission. According to that newspaper, in March 2003, the Walloon Region created a new financial holding company, Foreign Strategic Investments Holding SA (‘FSIH’), a subsidiary of Société Wallonne de Gestion et de Participations (‘SOGEPA’), to invest in companies in the Duferco Group with a registered office outside Belgium or even outside the European Union.
9 Following those articles, by letter of 29 November 2011, the Commission requested the Kingdom of Belgium to send it further information concerning the nature of the financial support that the Walloon Region had granted to the Duferco Group between 2003 and 2011.
10 By letter of 16 October 2013, the Commission informed the Kingdom of Belgium of its decision to initiate the procedure provided for in Article 108(2) TFEU in respect of those financial support measures. The Commission invited interested parties to submit their observations on the measures in question.
11 It appears from all of the information submitted to the Commission by the Kingdom of Belgium that, between 2003 and 2011, FSIH made several interventions in favour of the Duferco Group, to a total value of EUR 517 million.
12 One of those interventions, known as ‘the first measure’ or ‘Measure No 1’, consisted of the sale in 2006 by FSIH to DII of the 49.9% stake which it had held in Duferco US since 2003. The sale of that stake took place as part of negotiations prior to the NLMK Group’s acquisition of a stake in the Duferco Group through SIF, the NLMK Group having expressed a desire for all of the shares in Duferco US to be controlled by SIF. Thus, in order to withdraw from Duferco US, on 14 June 2006 FSIH granted DII an option to purchase its shares in Duferco US. That option was then transferred to Ultima, which exercised it and proceeded to purchase FSIH’s entire holding in Duferco US for 125.85 million United States dollars (USD) (approximately EUR 95 million).
13 By so doing, the Duferco Group became the full owner of Duferco US on 12 December 2006, only a few days before formalising its strategic partnership with the NLMK Group.
14 The second intervention by FSIH in favour of the Duferco Group, known as the ‘second measure’ or ‘Measure No 2’, consisted of the sale by FSIH in 2006 of the approximately 25% stake which it had held in DPH since 2003 to Bolmat, the former parent company of the Duferco Group, to which BTB is the successor. That sale of a stake stemmed from FSIH’s desire to withdraw from DPH. Thus, FSIH sold its entire stake in DPH to Bolmat for USD 105.42 million (approximately EUR 84 million) on 14 June 2006.
15 The third of those measures, known as ‘the fourth measure’ or ‘Measure No 4’, consisted, in essence, of the grant, under two agreements signed in September and December 2009, of a bullet loan of EUR 100 million to Ultima, the Duferco Group’s former parent company, to which BTB is the successor. That loan was released in two tranches, the first (of EUR 30 million) in September 2009 and the second (of EUR 70 million) in December 2009. The rate applicable to the loan was set at the 12-month Euribor rate plus 75 basis points, that is to say, 2.052% at the time when those agreements were concluded. According to the information submitted by the Kingdom of Belgium, the rate actually applied was 2.04% when the first tranche was released and 1.99% when the second tranche was released.
16 In view of the end of the strategic partnership between the Duferco Group and the NLMK Group in 2011, and as the two groups had agreed, the entire loan was repaid early, on 30 June 2011.
17 The Commission adopted the decision in dispute on 20 January 2016.
18 As regards, first of all, Measure No 1, the Commission took the view that the terms on which FSIH’s stake in Duferco US had been sold had the effect of placing DII in a more favourable position than that of its competitors, since no private investor would have agreed to sell its stake in Duferco US on the same terms and that advantage constituted State aid incompatible with the internal market.
19 The Commission took the view that FSIH’s stake in Duferco US should have been valued at USD 141.09 million, with the result that a sale for USD 125.85 million had resulted in USD 15.24 million (approximately EUR 11.58 million) being granted to DII in aid.
20 As regards, next, Measure No 2, the Commission also took the view that the terms on which FSIH’s stake in DPH had been sold had the effect of placing Bolmat in a more favourable position than that of its competitors, since no private investor would have agreed to sell its stake in DPH on the same terms, and that that advantage constituted State aid incompatible with the internal market.
21 The Commission took the view that FSIH’s stake in DPH should have been valued at at least USD 131 million, with the result that a sale for USD 105.42 million resulted in USD 25.58 million (approximately EUR 20.36 million) being granted to Bolmat in aid.
22 As regards, lastly, Measure No 4, the Commission found that the terms on which FSIH had granted a loan of EUR 100 million to Ultima had had the effect of placing Ultima in a more favourable position than that of its competitors, since no private lender would have agreed to a loan on those terms, and that that advantage constituted State aid incompatible with the internal market. According to the Commission, the rate applicable to the loan should have been set at the 12-month Euribor rate plus 220 basis points, that is to say, 3.502%.
23 As it was agreed that the loan was to be repaid early, in June 2011, the Commission, using a simplified discounting calculation, estimated that the aid to Ultima, in terms of that loan, amounted to approximately EUR 2.08 million.
24 The operative part of the decision in dispute reads as follows: ‘Article 1 The following measures, unlawfully implemented by [the Kingdom of] Belgium in breach of Article 108(3) [TFEU] constitute State aid incompatible with the internal market: (a) sale of a stake in [Duferco US] to [DII] for EUR 11581700; (b) sale of a stake in [DPH] to [Bolmat] for EUR 20362464; … (d) loan to [Ultima] for EUR 2082723 in principle, in so far as the interest rate applied to the loan is below 3.502%; … Article 2 1. [The Kingdom of] Belgium shall recover the incompatible aid granted referred to in Article 1 from the direct beneficiaries or their legal successors. …’
25 By application lodged at the Registry of the General Court on 14 February 2017, BTB and DPH brought an action seeking partial annulment of the decision in dispute.
26 By application lodged at the Registry of the General Court on 12 June 2017, FSIH applied for leave to intervene in support of the form of order sought by BTB and DPH.
27 In support of that action, BTB and DPH put forward eight pleas in law. Three of those pleas referred to Measure No 1, three related to Measure No 2 and the last two concerned Measure No 4.
28 As regards Measure No 1, the first two pleas alleged, in essence, that no advantage had been conferred by the terms on which FSIH sold its stake in Duferco US to DII. The third plea alleged, in essence, various errors in the determination of the amount of the aid at issue.
29 As regards Measure No 2, the first two pleas also alleged, in essence, that no advantage had been conferred by the terms on which FSIH sold its stake in DPH to Bolmat. The third plea alleged, in essence, various errors in the determination of the amount of the aid at issue.
30 As regards Measure No 4, the two pleas alleged, in essence, that no advantage had been conferred by the terms on which FSIH granted a loan to Ultima.
31 By the judgment under appeal, the General Court dismissed the action brought by BTB and DPH.
32 BTB and DPH claim that the Court should: - set aside the judgment under appeal and refer the case back to the General Court; and - order the Commission to pay the costs.
33 The Commission contends that the Court should: - primarily, dismiss the appeal as unfounded; - in the alternative, dismiss the action for annulment brought against the decision in dispute; and - order BTB and DPH to pay the costs incurred before the Court of Justice.
34 The Commission contends that the appeal is inadmissible in its entirety, on the ground that it is too abstract.
35 In that regard, it must be remembered that it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal (judgment of 11 April 2013, Mindo v Commission, C‑652/11 P, EU:C:2013:229, paragraph 21).
36 In the present case, BTB and DPH have set out clearly the reasons why they consider that the General Court erred in law. Those two undertakings have identified, in a sufficiently precise manner, the paragraphs of the judgment under appeal which, in their view, are vitiated by errors of law and which led the General Court to take the view, in the present case, that the Commission had correctly concluded that State aid had been granted.
37 In those circumstances, the objection of inadmissibility raised by the Commission must be rejected.
38 Accordingly, the appeal brought by BTB and DPH is admissible.
39 In support of their appeal, the appellants put forward a single ground of appeal which comprises two parts, the first alleging infringement of the rules on the burden of proof and the second alleging infringement of the principle of equality of arms and the right to a fair hearing.
40 By the first part of the single ground of appeal, BTB and DPH submit, in the first place, that, by the wording ‘in order to establish that the Commission committed a manifest error in the assessment of the facts justifying the annulment of the decision in dispute, the evidence adduced by the applicant must be sufficient to make the assessment of the facts in the decision in dispute implausible’ in paragraphs 90 and 142 of the judgment under appeal, the General Court infringed the rules on the burden of proof in State-aid cases. In holding that it was for the appellants to adduce sufficiently probative evidence to render implausible the complex economic assessment of the facts in the decision in dispute, the General Court, they argue, reversed the burden of proof.
41 According to those undertakings, the General Court, first, established the Commission’s right not to have to demonstrate why the measures at issue constituted State aid and to be able to base its assessment of the facts merely on ‘plausible’ allegations or information, the accuracy of which it would not be required to prove. Second, the General Court required the appellants to demonstrate that the measures at issue did not constitute State aid.
42 In the second place, BTB and DPH submit that paragraphs 90 and 142 of the judgment under appeal show that the General Court implicitly held that, should any doubt remain following the Commission’s examination of the measures concerned, that doubt would be to the Commission’s advantage, since the Commission can base its assessment merely on ‘plausible’ information, the accuracy of which it will not be required to prove.
43 The Commission disputes the line of argument put forward by BTB and DPH.
44 According to the Court’s settled case-law, in order for a measure to be classified as State aid within the meaning of Article 107(1) TFEU, all of the following conditions must be fulfilled. First, there must be intervention by the State or through State resources. Second, that intervention must be liable to affect trade between Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition (judgment of 19 December 2019, Arriva Italia and Others, C‑385/18, EU:C:2019:1121, paragraph 31).
45 It should likewise be borne in mind that, according to the Court’s settled case-law, measures that, whatever their form, are likely directly or indirectly to favour certain undertakings, or fall to be regarded as an economic advantage that the recipient undertaking would not have obtained under normal market conditions, are regarded as State aid (judgment of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank, C‑579/16 P, EU:C:2018:159, paragraph 44).
46 Thus, having regard to the objective of Article 107(1) TFEU of ensuring undistorted competition, including between public and private undertakings, the definition of ‘aid’, within the meaning of that provision, cannot cover a measure granted to an undertaking through State resources where it could have obtained the same advantage in circumstances which correspond to normal market conditions. The assessment of the conditions under which such an advantage was granted is therefore made, in principle, by applying the private-operator principle (judgment of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank, C‑579/16 P, EU:C:2018:159, paragraph 45).
47 The private-operator principle is one of the factors that the Commission is required to take into account for the purposes of establishing whether aid exists and is not, therefore, an exception that applies only if a Member State so requests, when it has been found that the constituent elements of ‘State aid’, as laid down in Article 107(1) TFEU, exist (judgment of 6 March 2018, Commission v FIH Holding and FIH Erhvervsbank, C‑579/16 P, EU:C:2018:159, paragraph 46).
48 In those circumstances, it should be noted that the Court has already held that the Commission cannot assume that an undertaking has benefited from an advantage constituting State aid solely on the basis of a negative presumption, based on a lack of information enabling the contrary to be found, if there is no other evidence capable of positively establishing the actual existence of such an advantage (judgment of 17 September 2009, Commission v MTU Friedrichshafen, C‑520/07 P, EU:C:2009:557, paragraph 58).
49 Thus, when the Commission applies the private-operator principle, it is, at the very least, required to ensure that the information at its disposal, even if incomplete and fragmented, constitutes a sufficient basis on which to conclude that an undertaking has benefited from an advantage amounting to State aid (see, to that effect, judgment of 17 September 2009, Commission v MTU Friedrichshafen, C‑520/07 P, EU:C:2009:557, paragraph 56).
50 The Commission must base its decisions on reliable and coherent evidence, such as to support the conclusions at which it arrives (judgment of 17 September 2009, Commission v MTU Friedrichshafen, C‑520/07 P, EU:C:2009:557, paragraph 55).
51 Moreover, as was pointed out by the General Court, in essence, in paragraph 82 of the judgment under appeal, the Commission is required to conduct a diligent and impartial examination of the measures concerned, so that it can have at its disposal, when adopting a final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible for that purpose (see, to that effect, judgments of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 90, and of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 63).
52 In the present case, the General Court pointed out, in paragraph 81 of the judgment under appeal, that the burden of proving that the requirements for applying the private-operator test are met is borne by the Commission, a fortiori where the decision being contested is based not on a failure by the Member State concerned to provide information which the Commission has requested but on the finding that a private operator would not have behaved in the same way as the authorities of that Member State, a finding which presupposes that the Commission had available to it all the relevant information necessary to make its decision.
53 Thus, contrary to what BTB and DPH claim, the judgment under appeal does not show that the General Court took the view that it sufficed for the Commission to base its economic assessment merely on ‘plausible’ allegations, the accuracy of which it was not required to prove.
54 As regards the argument advanced by BTB and DPH that, in paragraphs 90 and 142 of the judgment under appeal, the General Court considered that it was for them to adduce evidence to show that the measures at issue did not constitute State aid, it must be held that that argument is based on a misreading of the judgment under appeal.
55 It is apparent from paragraphs 90 and 142 of the judgment under appeal that the General Court considered, in essence, that, if the Commission applied the private-operator test, made its assessment, and came to the conclusion in its decision that the measures at issue constituted State aid, it was for the applicant to demonstrate a manifest error in the Commission’s assessment of the facts.
56 That finding is simply a corollary of the principle established in the Court’s settled case-law that review by the EU Courts of the complex economic assessments made by the Commission is necessarily confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment of the facts or misuse of powers (judgment of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 66 and the case-law cited).
57 Given the Commission’s broad discretion in applying the private-operator principle, the General Court was right to confine its review to verifying that there were no manifest errors of assessment in the Commission’s reasoning when it applied the private-operator test with a view to establishing whether the measures concerned amounted to State aid.
58 As the General Court correctly stated in paragraph 87 of the judgment under appeal, judicial review is limited with regard to whether a measure comes within the scope of Article 107(1) TFEU, in a case where the appraisals made by the Commission are technical or complex in nature (judgment of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 88 and the case-law cited).
59 In that regard, the General Court likewise noted in paragraph 88 of the judgment under appeal that where, in order to determine whether a measure comes within the scope of Article 107(1) TFEU, the Commission must apply the private-operator criterion, the application of that test, as a rule, requires the Commission to make a complex economic assessment (judgment of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 89 and the case-law cited).
60 According to settled case-law, the examination by the Commission as to whether particular measures can be classified as State aid because the public authorities did not act in the same way as a private operator requires a complex economic assessment (judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 62).
61 In paragraphs 89 and 141 of the judgment under appeal, the General Court correctly added that it was not for it to substitute its own economic assessment for that of the author of the decision the legality of which it was requested to review (see, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 63).
62 Thus, the General Court carried out its review of the decision in dispute in full compliance with the principles and tests laid down in the case-law cited in paragraphs 56 and 58 to 61 of the present judgment.
63 In those circumstances, it must be held that the General Court did not err in law in finding, in paragraphs 90 and 142 of the judgment under appeal, that it was for BTB and DPH to prove that the Commission had committed a manifest error in assessing the facts such as to justify annulment of the decision in dispute.
64 It follows that the first part of the single ground of appeal must be rejected as unfounded.
65 By the second part of the single ground of appeal, BTB and DPH claim that, by the wording used in paragraphs 90 and 142 of the judgment under appeal, quoted in paragraph 40 above, the General Court infringed the principle of equality of arms and the right to a fair hearing.
66 Those undertakings argue that this principle requires each party to be afforded a reasonable opportunity to present its case, including its evidence, under conditions that do not place it at a substantial disadvantage in relation to its opponent.
67 In the present case, however, in the appellants’ view, by finding that BTB and DPH were required to adduce sufficient evidence in order to render implausible the Commission’s assessment of the measures at issue, the General Court infringed that principle by placing the Commission in a position of advantage in comparison with those undertakings. In the case where the Commission and the applicants provide contradictory assessments of the facts which are nonetheless each as plausible as the other, the Commission’s explanations will automatically take precedence over the explanations provided by the applicants.
68 According to BTB and DPH, the General Court required them to provide evidence with a higher probative value than that of the evidence on which the Commission had based its assessment of the facts.
69 Such an apportionment of the burden of proof is, they submit, contrary to the case-law arising from the judgments of 28 March 1984, Compagnie royale asturienne des mines and Rheinzink v Commission (29/83 and 30/83, EU:C:1984:130, paragraph 16), and of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission (C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120, paragraphs 126 and 127), according to which, where the Commission finds that there has been an infringement of the competition rules on the assumption that the facts cannot be explained other than by anticompetitive conduct, the EU Courts will find it necessary to set aside the decision in question where the undertakings concerned have put forward arguments which cast the facts established by the Commission in a different light and thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission to support a finding that an infringement had occurred.
70 The Commission disputes the line of argument put forward by BTB and DPH.
71 With regard to the standard of proof required to demonstrate a manifest error in the application of the private-operator principle, it should be noted at the outset that it is clear from the wording used by the General Court in paragraphs 90 and 142 of the judgment under appeal that it required the appellants to demonstrate that there was an error sufficiently serious as to undermine the Commission’s complex economic assessment. By contrast, it is not apparent that the appellants were required to show that there was no State aid, nor that the Commission was able to rely merely on plausible allegations to demonstrate the existence of State aid, or that the appellants were required to refute the Commission’s economic assessment in its entirety.
72 As the General Court rightly found, a manifest error may be established by evidence which renders implausible the Commission’s assessment of the facts in its decision. By contrast, a plea alleging a manifest error must be rejected if, despite the evidence adduced by the applicants, the contested assessment does not appear to be vitiated by any such error.
73 Thus, the appellants were found to have the right to bring an action challenging the plausibility of the Commission’s assessment of the facts in its decision and, contrary to what BTB and DPH claim, the wording used by the General Court in the judgment under appeal in no way implies that, in the present case, the appellants were required to provide evidence with a higher probative value than that of the evidence on which the Commission had based its assessment of the facts.
74 It was in the light of those considerations that, in paragraphs 121, 124, 127, 180, 221, 248, 253, 276 and 285 of the judgment under appeal, the General Court assessed whether the allegations of BTB and DPH were sufficient to render the Commission’s assessment of the facts in the decision in dispute implausible and found that that was not the case.
75 With regard to the submissions of BTB and DPH based on the judgments of 28 March 1984, Compagnie royale asturienne des mines and Rheinzink v Commission (29/83 and 30/83, EU:C:1984:130, paragraph 16), and of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission (C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120, paragraphs 126 and 127), suffice it to observe that the Commission, when applying the private-operator principle, does not rely on the assumption that the facts established can be explained only by anticompetitive conduct but, as a rule, carries out a complex economic assessment with a view to ascertaining whether the undertaking concerned has benefited from an advantage constituting State aid.
76 In those circumstances, it must be held that, in the present case, by finding in paragraphs 90 and 142 of the judgment under appeal that, ‘in order to establish that the Commission committed a manifest error in the assessment of the facts justifying the annulment of the decision in dispute, the evidence adduced by the applicant must be sufficient to make the assessment of the facts in the decision at issue implausible’, the General Court did not infringe the principle of equality of arms or the right to a fair hearing.
77 It follows from all of the foregoing considerations that the second part of the single ground of appeal must be rejected as unfounded.
78 The appeal must therefore be dismissed in its entirety as unfounded.
79 Under Article 137 of the Rules of Procedure, applicable to the proceedings on appeal pursuant to Article 184(1) thereof, a decision as to costs is to be given in the judgment which closes the proceedings.
80 Under Article 138(1) of the Rules of Procedure, also applicable to proceedings on appeal pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since BTB and DPH have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.