JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
10 November 2011 (*)
(State aid – Shipbuilding – Aid granted by the Greek authorities in the form of an indemnification guarantee – Decision declaring the aid incompatible with the common market – Concept of State aid – Imputability to the State – State resources – Private investor test)
In Case T‑384/08,
Elliniki Nafpigokataskevastiki AE Chartofylakeiou, established in Chaidari (Greece),
Howaldtswerke-Deutsche Werft GmbH, established in Kiel (Germany),
ThyssenKrupp Marine Systems AG, established in Hamburg (Germany),
represented by U. Soltész and C. von Köckritz, lawyers,
applicants,
v
European Commission, represented by L. Flynn, M. Konstantinidis and C. Urraca Caviedes, acting as Agents,
defendant,
supported by
Trapeza Peiraios AE, established in Athens (Greece), represented by S. Pappas, I. Ktenidis and C. Apalagaki, lawyers,
intervener,
APPLICATION for annulment of Article 16 of Commission Decision 2009/610/EC of 2 July 2008 on the measures C 16/04 (ex NN 29/04, CP 71/02 and CP 133/05) implemented by Greece in favour of Hellenic Shipyards SA (OJ 2009 L 225, p. 104),
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka (Rapporteur) and M. Prek, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 16 June 2011,
gives the following
Judgment
Facts
1 In September 1985, Elliniki Trapeza Viomichanikis Anaptixeas AE (‘ETVA’), a Greek bank belonging to the State, acquired the shipbuilder, Hellenic Shipyards SA (‘HSY’). On 18 September 1995, a contract was signed for the sale of 49% of HSY’s shares to its employees.
2 In 2001, the Hellenic Republic decided that HSY would be fully privatised and the Inter-ministerial Privatisation Committee adopted Decision No 14/3.1.2001 providing for the sale of HSY’s shares by means of an international public offer. The sale of HSY was organised on behalf of the State and the sellers (ETVA and HSY’s employees) by the bank, Alpha Finance. On 3 July 2001 the Hellenic Republic published an invitation to submit binding offers for the acquisition of shares in HSY. That invitation stated that ‘in the event that a fine is imposed pursuant to a potential breach of [European Community] regulations regarding state aid, the highest bidder will not be responsible for the payment of such fine’ and that ‘[t]his assurance will take precedence over the transfer of the Shares’.
3 On 12 September 2001, the Hellenic Republic published Law No 2941/2001 on the ‘simplification of the procedures for the formation of undertakings of authorisations for renewable sources of energy and of regulations concerning Ellinika Napfigeia AE’, which includes several measures aimed at facilitating the sale of HSY.
4 On 14 September 2001, a meeting was held between ETVA and a consortium formed by Howaldtswerke-Deutsche Werft GmbH (‘HDW’) and Ferrostaal AG (together ‘HDW/Ferrostaal’) in the context of the negotiations for the sale of HSY’s shares. The minutes of that meeting state:
‘2. … b. … It is agreed that EU-clearance will be a condition precedent to the closing of the contract subsequent to its signature. Alternatively, in the event that such a decision is delayed by the EU (longer than the period required for the decision of the EU Competition Committee), or is not satisfactory, the parties agreed that ETVA will undertake the obligation to provide a guarantee to [HDW/Ferrostaal] in relation to any outstanding issues related to EU, regarding past and present state subsidies, if any, related to HSY.’
5 On 11 October 2001, the HSY share purchase agreement (‘the HSY Agreement’) was signed between ETVA and HSY’s employees, on the one hand, and HDW/Ferrostaal, on the other. HDW/Ferrostaal formed Elliniki Nafpigokataskevastiki AE Chartofylakeiou (Greek Naval Shipyard Holding, ‘GNSH’), which was held in equal shares by HDW and Ferrostaal with the aim of managing their shareholdings in HSY.
6 In January 2005 ThyssenKrupp AG bought HDW. In November 2005 ThyssenKrupp purchased the GNSH shares held by Ferrostaal. Thus, since that date ThyssenKrupp has held full ownership and control of HSY. GNSH and HSY are integrated within ThyssenKrupp Marine Systems AG (‘TKMS’), a division of ThyssenKrupp specialising in systems for naval vessels and specialised merchant ships.
7 GNSH, HDW and TKMS are the applicants in the present action.
8 Clause 1.2 of the HSY Agreement provides:
‘1.2. The contracting parties hereby agree that the sale and the physical transfer of the title of the Offered Shares (hereinafter: “Closing”) will take place upon the fulfilment of the following conditions precedent: …
1.2.3. the receipt of the unrestricted EU-approval and the clear endorsement and agreement to the various issues regarding present and past subsidies – if any, unfair competition and other possible legal issues related to [HSY] and its privatisation …
1.2.7. … Should all other conditions precedent to Closing have been met and the condition listed herein above under item 1.2.3. is the only one outstanding, then alternatively, [HDW/Ferrostaal] undertakes to suggest an acceptable form of guarantee which has to be mutually agreed upon by the parties and which will then be given by [ETVA] within the framework of item 2(b) of the Minutes of the Meeting of [14] September … 2001. Such guarantee has to comply with the applicable laws and has to cover any remaining exposure of [HDW/Ferrostaal] due to the outstanding or restricted or otherwise limited EU-approval as set out under item 1.2.3. herein above.’
9 In the context of the privatisation of ETVA, the private bank Trapeza Peiraios AE (‘Piraeus Bank’ or ‘the intervener’) acquired the majority, that is 57.7%, of the shares in ETVA by a contract signed with the Hellenic Republic on 18 December 2001 and amended on 20 March 2002 (‘the ETVA Agreement’).
10 Article 8.2.1 of the ETVA Agreement provides:
‘The Purchaser [Piraeus Bank] is aware that the Company [ETVA] has entered into the HSY Agreement. Having regard to the HSY Agreement, the Seller [the State] makes the following declarations to the Purchaser: …
(c) Specifically in the case of the assumption by the Company of liability (including the assumption of the guarantee liability provided for in the last (unnumbered) paragraph of [Clause] 1.2 of the HSY Agreement) towards the third purchaser of the Holding in HSY for payment to the third purchaser of any sum whatsoever in consequence of a final decision of the Commission of the European Communities imposing a fine, penalty or other measure by reason of the application of Article 88 [EC] in respect of the operation of HSY up to the date of transfer, the Seller by the present Agreement assumes a corresponding liability towards the Purchaser up to a proportion of the sum actually paid by the Company equal to no more than the Percentage Acquired.
To avoid any uncertainty it is expressly agreed that if the Seller pays the Company and/or the third purchaser of the Holding in HSY any sum whatsoever in consequence of a final decision on the part of the Commission of the European Communities, the Seller will be released from any corresponding liability towards the Purchaser which results from this paragraph 8.2.1(c) of the Agreement. …’
11 Article 8.2.2 of the ETVA Agreement provides:
‘If at the time of the Transfer the HSY Agreement has not been performed in full:
(a) The Purchaser, after the Transfer, shall ensure, as the controlling shareholder of the company, that the HSY Agreement is performed in full with the signature of the Closing Agreement envisaged in [Clause] 3.2 and Annex IV of the HSY Agreement, and that the transfer by the Company of the Holding in HSY is carried out in accordance with the HSY Agreement.
(b) To this end, it is agreed that the Seller shall assume the control, care and responsibility of the acts and negotiations with the third purchaser of the Holding in HSY that are envisaged below, in order to achieve the fulfilment of the relevant clauses and the full performance of the HSY Agreement by 18 September 2002, and the Purchaser shall ensure that the Company provides every necessary authorisation to the persons designated by the Seller to carry out the aforementioned acts and conduct the aforementioned negotiations, bearing in mind, however, that any assumption of obligation or liability by the Company beyond what is defined in the HSY Agreement, or any alteration of its entitlements under the HSY Agreement, must receive the final approval of the Purchaser, which, none the less, may not be refused without reasonable justification. The responsibility of the Purchaser extends only to requiring the Company to provide its assistance, as provided in the HSY Agreement, in order to implement the transfer of the Holding in HSY. …
(d) To clarify the general agreement of the Parties that the Purchaser will have no involvement, damage or responsibility in relation to the privatisation of HSY and that it will acquire shareholder control of the Company ultimately free of the Holding in HSY, which will be disposed of to third parties outside the Company, it is agreed that the Seller will ensure that the Purchaser does not suffer damage from any economic consequences that the Company may potentially suffer from any claims of third parties against it arising out of the cancellation of the transfer of the Holding in HSY or from any other cause emanating from the HSY Agreement, and by the present Agreement the Seller undertakes an obligation towards the Purchaser to pay the Purchaser any sum that the Company has actually paid to third parties. …
(e) It is expressly agreed that the Seller, as the party controlling the relevant negotiations and the broad progress of the HSY Agreement, shall be entitled at any time to ask the Company, under the Seller’s responsibility, to withdraw by agreement from the HSY Agreement or otherwise to terminate it, in accordance with the terms of the HSY Agreement, provided that it submits to the Company a written request to that effect. …’
12 Article 8.2.4(a) of the ETVA Agreement is worded as follows:
‘It is agreed that if the Company pays any sum to the third purchaser of the Holding in HSY (including any sums it may pay in connection with the assumption of guarantee liability provided for in the last (unnumbered) paragraph of [Clause] 1.2 of the HSY Agreement), or to the Purchaser of HSY, or to any other third party (including the Seller itself), in consequence of a final decision of the Commission of the European Communities imposing a fine, penalty or other measure by reason of the application of Article 88 [EC] in respect of the provisions of Articles 3 to 6 of [Law] No 2941/2001, the Seller by the present Agreement assumes a corresponding liability towards the Purchaser, that is to say to pay the Purchaser any sum emanating from the cause referred to above which the Company has actually paid (hereafter referred to as a “Sum”), in view in particular of the fact that by this Agreement it has been agreed that the Company is to be transferred in its entirety to the Purchaser, and that this is to be done partly by direct Transfer of Shares and partly by the Merger under the conditions that have been agreed. In fulfilment of this obligation, the Seller shall:
(i) pay to the Purchaser, immediately after the respective payment by the Company to the persons envisaged in point 8.2.4(a) above, 100% of every such Sum, if at the time of its payment by the Company the latter has been absorbed by the Purchaser under the terms of valuation and exchange referred to in Article 7.4.2 of the Agreement, or
(ii) pay to the Purchaser, immediately after the respective payment by the Company to the persons envisaged in point 8.2.4(a) above, the part of every such Sum which corresponds to the Percentage Acquired, if at the time of its payment by the Company the latter has not been absorbed by the Purchaser, and pay to the Purchaser the remaining part of the Sum ([that is to say] 42.221% thereof) within 30 calendar days of the completion of the absorption of the Company under the terms of valuation and exchange referred to in Article 7.4.2 of this Agreement.’
13 On 31 May 2002 an addendum to the HSY Agreement was signed (‘the Addendum’). The Addendum provides for the insertion of the following indemnity clause in the HSY Agreement:
‘4.9 [ETVA] hereby irrevocably represents and warrants that [HSY] has not done or agreed to do anything as a result of which:
4.9.1 Any investment grant, other grant, any subsidy or any other aid, considered as state aid received by [HSY], in which form whatsoever, is or may be liable to be refunded in whole or in part for reasons of non-compliance with EU state aid rules.
4.9.2 Any application made by any member of [HSY] for such state aid shall or may be refused in whole or part for reasons of non-compliance with EU state aid rules.
4.9.3 [ETVA] further guarantees that neither the signature nor the performance nor the completion of the Agreement shall have any such results.
In case there is a breach of any of the warranties set forth in Clause 4.9 hereinabove, [ETVA] undertakes the obligation to immediately hold the Purchaser harmless and indemnify the Purchaser in case any refund obligation and/or penalties are imposed on [HSY] and/or the Purchaser in respect to such state aid.’
14 By decision C(2004) 1359 of 20 April 2004 (OJ 2004 C 202, p. 3), the Commission initiated the procedure laid down in Article 88(2) EC with respect to the amendments made to HSY’s investment plan which was partly financed by the investment aid authorised by the Commission Decision of 15 July 1997 in Case N 401/97, notice of which was published in the Official Journal (OJ 1998 C 47, p. 3). The decision initiating the procedure also indicated that ETVA, when it was State-owned, had granted several loans and guarantees to HSY and that the Greek authorities had not provided yearly reports as they should have done.
15 By decision C(2006) 2983 of 4 July 2006 (OJ 2006 C 236, p. 40), the Commission extended the procedure provided for in Article 88(2) EC to include several additional measures in favour of HSY.
16 On 2 July 2008, the Commission adopted Decision 2009/610/EC on the measures C 16/04 (ex NN 29/04, CP 71/02 and CP 133/05) implemented by Greece in favour of [HSY] (OJ 2009 L 225, p. 104; ‘the contested decision’).
The contested decision
17 The Commission analysed sixteen measures, including ‘the indemnifying clause granted by the [Hellenic Republic] in favour of HDW/Ferrostaal in … case [unlawful] aid [were to] be recovered from HSY’ (measure E18c).
18 As regards the classification of the indemnification guarantee as State aid within the meaning of Article 87(1) EC, the Commission considered that that guarantee granted by ETVA to HDW/Ferrostaal was imputable to the State. In that regard, the analysis, set out in the first indent of recital 314 to the contested decision, is as follows:
‘First, during the privatisation process of HSY, this guarantee was appearing in the documents submitted to the potential bidders. In other words, already during the privatisation process, there was a promise that the purchaser of HSY would be indemnified for any State aid recovered from HSY. In addition, on 14 September 2001, ETVA explicitly and unambiguously committed to provide this guarantee to HDW/Ferrostaal if the European Union would not give clearance regarding past and present State aid granted to HSY. Clause 1.2.3 of [the] HSY [Agreement] signed on 11 October 2001 explicitly refers to the document signed on 14 September 2001. The discussion regarding the precise wording of the guarantee continued in the following months. Since the Commission did not give a letter of comfort/negative clearance regarding past and present aids to HSY, ETVA had on 31 May 2002 to issue the guarantee in favour of HDW/Ferrostaal, as had been agreed by the parties on 14 September 2001 and in Clause 1.2.3 of [the] HSY [Agreement]. All the foregoing illustrates that, even though the Addendum containing the guarantee to HDW/Ferrostaal was signed on 31 May 2002, ETVA already committed to grant this guarantee (if the EU did not clear past and present aids) at a time when ETVA was still under the control of the State. In other words, the Addendum of 31 May 2002 is the execution of a contract entered into by ETVA when it was still under State control. As shown in section 3.2 of the present decision, when ETVA was under State control, all the actions it took towards HSY can be considered [to be] imputable to the State. All these elements were confirmed by Greece in its letter of 23 May 2005.’
19 As a subsidiary point, the Commission explained in the second, third and fourth indents of recital 314 to the contested decision that ‘even if it were considered that, on the basis of the aforementioned documents concluded by ETVA when it was under the control of the State ([that is to say] until [the] end [of] March 2002), there existed no contractual obligation of ETVA to grant this guarantee to HDW/Ferrostaal, the measure would still be imputable to the State’.
20 In recital 315 to the contested decision, the Commission stated:
‘ETVA contractually committed to grant this guarantee to HDW/Ferrostaal at a time when the State still owned the large majority of the shares of ETVA. Since the Notice on [aid in the form of] guarantees indicates that the existence of aid has to be analysed at the time of the grant of the guarantee and not later when the guarantee is invoked, it can be concluded that by committing to grant the guarantee, the State put State resources at risk and the guarantee therefore involves State resources. …’
21 As a subsidiary point, the Commission explained at recital 316 to the contested decision that ‘[e]ven if it were concluded that when the State sold ETVA there was no obligation (neither contractually nor de facto) to issue this guarantee, it can still be demonstrated that the guarantee granted by ETVA involves State resources.’
22 In recital 318 to the contested decision, the Commission stated:
‘[W]hen ETVA purchased HSY and directly thereafter injected capital to keep it alive, it did not [act] as a market economy investor but as a public authority granting aid to keep alive a firm deemed important for the Greek economy. Therefore, no market economy investor would have found itself in the situation of ETVA. No market economy investor would have found itself in the situation of selling these shares of HSY. Therefore, the Commission considers that the market economy investor test can not be used in the present case to justify the fact that the State is putting additional State resources at risk (by granting the guarantee).’
23 As a subsidiary point, even if the market economy [i.e. private] investor test should have been applied, the Commission developed three arguments, at recitals 319 to 325 to the contested decision, in order to demonstrate that if the State had been a private undertaking acting under normal market conditions it would not have agreed to grant the guarantee. The Commission stated that it is sufficient if only one of those three arguments is accepted.
24 At recital 327 to the contested decision, the Commission considered that ‘[a]s regards the existence of an advantage and the identification of the beneficiary, … no investor would have purchased the entire HSY ([that is to say] including the civil activities) without the guarantee’. It stated that ‘[t]his conclusion that such a guarantee was necessary to find a purchaser for HSY [was] logic[al] since an investor performing a due diligence of HSY would have found that HSY had benefited [from] several measures which could constitute aid of which the recovery could be asked by the Commission’. The Commission concluded that ‘without the guarantee, no investor would have purchased the civil activities of HSY and, if these activities had not been purchased, they would have stopped rapidly [and that] the beneficiary of the guarantee is HSY and that the advantage is to allow the continuation of the civil activities’.
25 At recital 329 to the contested decision, the Commission concluded:
‘[T]he guarantee granted by ETVA to HDW/Ferrostaal constitutes State aid [with]in the meaning of Article 87(1) [EC] and the beneficiary of this aid is HSY. Since, contrary to the requirement laid down in Article 88(3) [EC], the aid was granted without prior notification, it constitutes unlawful aid.’
26 The Commission then established that the guarantee granted by the State to Piraeus Bank also constituted aid. The Commission considered that the guarantee was a selective measure financed by public resources and that the only justification for granting that guarantee was the indemnification guarantee granted by ETVA to HDW/Ferrostaal. As regards the identification of the beneficiary of the guarantee granted by the State to Piraeus Bank, the Commission recalled that in the present procedure only the aid granted to HSY was examined. If the guarantee granted by the State to Piraeus Bank were considered to constitute aid to HSY, it would not constitute additional State aid over and above that included in the indemnification guarantee granted by ETVA to HDW/Ferrostaal, as all the advantages conferred on HSY were included in the guarantee granted by ETVA to HDW/Ferrostaal. The Commission therefore considered that in the present procedure it did not have to take a final view on the identity of the beneficiary of the guarantee granted by the Hellenic Republic to Piraeus Bank or to investigate that guarantee further.
27 As regards the assessment of the compatibility of the indemnification guarantee with the common market, the Commission stated, in recital 331 to the contested decision, that it failed to see how that aid could be found compatible on the basis of Article 87(2) and (3) EC. It considered that HSY was an undertaking in difficulty and that it was clear that that guarantee did not fulfil the conditions for authorisation of the aid laid down in the Community Guidelines on State aid for rescuing and restructuring firms in difficulty (OJ 1999 C 288, p. 2).
28 In recital 332 to the contested decision, the Commission concluded:
‘Since the guarantee granted by ETVA to HDW/Ferrostaal constitutes incompatible aid in favour of HSY, the Commission considers that it has to be stopped immediately.’
29 The Commission added that there was a second reason why the indemnification guarantee granted by ETVA to HDW/Ferrostaal was not compatible with the common market. The Commission considered that, thanks to the guarantee, the economic unit formed by HSY and HDW/Ferrostaal would be fully indemnified for any aid which it would have to reimburse to the State. The Commission therefore considered that the guarantee was per se incompatible, in view of the fact that, by preventing any recovery of aid from HSY from having ‘effet utile’, it prevented the application of the State aid rules.
30 In Article 16 of the contested decision, the Commission concluded:
‘The indemnification guarantee granted by ETVA to HDW/Ferrostaal providing that ETVA would indemnify HDW/Ferrostaal for any State aid recovered from HSY (this measure was part of the measure named “measure E18c” in the preamble [to] the present decision) constitutes aid, which has been put into effect in contravention of Article 88(3) [EC] and which is incompatible with the common market. In addition, the guarantee is per se incompatible with the common market. The guarantee has therefore to be stopped immediately.’
Procedure and forms of order sought by the parties
31 The applicants brought the present action by application lodged at the Registry of the Court of First Instance (now ‘the General Court’) on 11 September 2008.
32 By document lodged at the Court Registry on 19 December 2008, Piraeus Bank sought leave to intervene in the present proceedings in support of the form of order sought by the Commission.
33 By letter lodged at the Court Registry on 19 February 2009, the Commission requested that, in accordance with Article 116(2) of the Court’s Rules of Procedure, certain confidential information be omitted from the communication of its defence to the intervener and, for the purposes of that communication, it produced a non‑confidential version of its defence.
34 By order of 3 September 2009, the President of the First Chamber of the Court granted Piraeus Bank leave to intervene and reserved the decision on the merits of the application for confidentiality.
35 By letter lodged at the Court Registry on 5 October 2009, the intervener informed the Court that it had no objections to the application for confidential treatment.
36 The intervener lodged its statement in intervention on 28 October 2009. The applicants submitted their observations on that statement on 14 December 2009.
37 Following a change in the composition of the Chambers of the Court, the Judge‑Rapporteur was assigned to the Seventh Chamber and the present case was therefore also assigned to that Chamber.
38 The parties presented oral argument and replied to the questions put by the Court at the hearing, which took place on 16 June 2011.
39 The applicants claim that the General Court should:
– annul Article 16 of the contested decision;
– order the Commission to pay the costs.
40 The Commission and the intervener contend that the General Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
41 At the outset, it should be noted that the intervener, at the hearing, claimed that one of the applicants, GNSH, because it no longer held more than 24.9% of the shares in HSY, had lost its legal interest in bringing the proceedings. Suffice it to observe that since that applicant still holds 24.9% of the shares in HSY, that change cannot affect its legal interest in pursuing the action.
42 In support of their application for partial annulment, the applicants raise, in essence, four pleas in law. The first plea, alleging misapplication of Article 87(1) EC on the ground that the Commission was wrong to conclude that there was State aid, is in five parts. The second plea alleges misapplication of Article 88(2) EC and Article 14(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1) on the ground that aid must be recovered from its beneficiary. The third plea alleges misapplication of Articles 87(1) EC, 88(2) EC, 10 EC and 5(1) EC on the ground that the Commission decided, wrongly, that the guarantee was incompatible per se with the common market. The fourth plea in law alleges misapplication of Article 296 EC.
43 The Commission joins issue on all those pleas in law. The intervener disputes the first.
The first plea in law, alleging misapplication of Article 87(1) EC
44 The applicants claim that the Commission did not correctly apply the concept of aid within the meaning of Article 87(1) EC. In that regard, they maintain, in the first part of the plea, that the indemnification guarantee is not imputable to the Hellenic Republic; in the second part, that it did not constitute a ‘two-step mechanism’; in the third part, that Piraeus Bank is the beneficiary of the aid; in the fourth part, that the indemnification guarantee does not involve State resources; and, in the fifth part, that that guarantee does not constitute an economic advantage for HSY.
45 The first, fourth and fifth parts, which concern the classification of the indemnification guarantee as State aid, must be examined first of all, then the second and third parts of the plea.
The first part, alleging that the indemnification guarantee is not imputable to the Hellenic Republic
46 The applicants claim that the Commission misapplied Article 87(1) EC in finding that the indemnification guarantee was imputable to the State. They submit that the indemnification guarantee was only granted in the Addendum signed on 31 May 2002, that is after ETVA’s privatisation, and is therefore a measure agreed between private undertakings and not imputable to the Hellenic Republic. The applicants thus challenge the Commission’s assessment in the first indent of recital 314 to the contested decision.
47 In that indent, the Commission found, first of all, that the indemnification guarantee was mentioned in the invitation of 3 July 2001 to submit offers. It then found that ‘ETVA explicitly and unambiguously committed to provide this guarantee’ in the minutes signed on 14 September 2001 and that the HSY Agreement explicitly refers to that document. Finally, it concluded that, even though the Addendum containing the guarantee was signed on 31 May 2002, ETVA had already committed itself to granting the guarantee at a time when it belonged to the State and that the Addendum was merely the execution of a contract concluded by ETVA when it was still under the control of the State. The Commission, referring to section 3.2 of the contested decision, entitled ‘Imputability of ETVA’s behaviour to the State’, in which it demonstrated that the measures adopted by ETVA in respect of HSY when ETVA was under the State’s control could be imputed to the State, therefore concluded that the indemnification guarantee was imputable to the State.
48 As regards the question of whether the Commission, in this case, misapplied the concept of aid, it is appropriate to note first of all that, as provided in Article 87(1) EC, ‘any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market’.
49 The Court of Justice has repeatedly held that classification as aid requires that all the conditions set out in Article 87(1) EC are fulfilled. Thus, first, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer an advantage on the recipient. Fourth, it must distort or threaten to distort competition (see Case C‑237/04 Enirisorse [2006] ECR I‑2843, paragraphs 38 and 39 and the case-law cited).
50 According to settled case-law, for advantages to be capable of being classified as aid within the meaning of Article 87(1) EC, they must, first, be granted directly or indirectly through State resources, and, second, be imputable to the State (see Case T–442/03 SIC v Commission [2008] ECR II-1161, paragraph 93 and the case-law cited). The imputability of a measure to the State cannot be inferred from the mere fact that the measure at issue was taken by a public undertaking (Case C‑482/99 France v Commission (‘Stardust’) [2002] ECR I‑4397, paragraph 51, and SIC v Commission, paragraph 94).
51 Even if the State is in a position to control a public undertaking and to exercise a dominant influence over its operations, actual exercise of that control in a particular case cannot be automatically presumed. A public undertaking may act with more or less independence, according to the degree of autonomy left to it by the State. Therefore, the mere fact that a public undertaking is under State control is not sufficient for measures taken by that undertaking to be imputed to the State. It is also necessary to examine whether the public authorities must be regarded as having been involved, in one way or another, in the adoption of those measures (Stardust, paragraph 52, and SIC v Commission, paragraph 95).
52 On that point, it cannot be demanded that it be demonstrated, on the basis of a precise inquiry, that in the particular case the public authorities specifically incited the public undertaking to take the aid measures in question. In the first place, having regard to the fact that relations between the State and public undertakings are close, there is a real risk that State aid may be granted through the intermediary of those undertakings in a non-transparent way and in breach of the rules on State aid laid down by the Treaty (Stardust, paragraph 53, and SIC v Commission, paragraph 96).
53 Moreover, it will, as a general rule, be very difficult for a third party, precisely because of the privileged relations existing between the State and a public undertaking, to demonstrate in a particular case that aid measures taken by such an undertaking were in fact adopted on the instructions of the public authorities (Stardust, paragraph 54, and SIC v Commission, paragraph 97).
54 For those reasons, the Court has held that it must be accepted that the imputability to the State of an aid measure taken by a public undertaking may be inferred from a set of indicators arising from the circumstances of the case and the context in which that measure was taken (Stardust, paragraph 55, and SIC v Commission, paragraph 98).
55 In that regard, in section 3.2 of the contested decision, entitled ‘Imputability of ETVA’s behaviour to the State’, the Commission demonstrated that all the measures taken by ETVA in respect of HSY when ETVA belonged to the State could be imputed to the State.
56 First, until 20 March 2002, the date of the transfer of the majority of the shares in ETVA to Piraeus Bank, the Hellenic Republic retained a majority shareholding in ETVA. The Commission therefore found correctly, in recital 58 to the contested decision, that the State was, until 20 March 2002, in a position to control ETVA.
57 Secondly, as regards the State’s involvement in the adoption of the various aid measures adopted by ETVA up to 20 March 2002, the Commission noted, first of all, in recital 59 to the contested decision, that the three most significant decisions regarding ETVA’s shareholding in HSY were not taken independently by ETVA’s management but were taken by the Government and implemented by ETVA. Those decisions were, first, ETVA’s purchase of HSY in 1985, second, the sale of 49% of HSY’s capital by ETVA to HSY’s employees and third, HSY’s privatisation in 2001 to 2002. The Commission states also that the State granted very large amounts of aid to HSY during the period 1995 to 2002 and awarded it strategic defence contracts.
58 In addition, the Commission found that ‘[i]n this general context, … until ETVA’s privatisation in March 2002, the imputability of ETVA[’s] behaviour to the State [could] not be questioned’. It considered:
‘ETVA had no other choice than remaining coherent with the policy of strong and continuous support toward HSY adopted by the State. Consequently, … all the measures implemented by ETVA towards HSY (loans, guarantees, capital injections, etc.) were automatically imputable to the State, and … it [was] not necessary to bring forward additional evidence of the State’s involvement at the moment when each of these measure[s was] adopted by ETVA. In conclusion, … the different measures carried out by ETVA [were] imputable to the State.’
59 It follows that the measures adopted by ETVA before its privatisation were imputable to the Hellenic Republic. It must therefore be established whether the Commission was correct in deciding that the indemnification guarantee had been granted before ETVA’s privatisation.
60 It is stated in paragraph 2.1.2 of the Commission’s Notice on the application of Articles 87 EC and 88 EC to State aid in the form of guarantees (OJ 2000 C 71, p. 14; ‘the Notice on aid in the form of guarantees’) that ‘[t]he aid is granted at the moment when the guarantee is given, not the moment at which the guarantee is invoked or the moment at which payments are made’ and that ‘[w]hether or not a guarantee constitutes State aid … must be assessed at the moment the guarantee is given’. In order to assess whether there is State aid, regard must be had to the moment when the State undertakes a legally binding commitment to provide the guarantee, thereby putting public funds at risk.
61 In that regard, first, within the framework of the privatisation of HSY and, particularly, in the invitation to submit offers published on 3 July 2001, the Hellenic Republic informed potential purchasers of HSY that they would not be responsible for any financial penalties arising from potential breaches of the Community regulations on State aid. Thus, as noted by the Commission in the first indent of recital 314 to the contested decision, the indemnification guarantee had already been mentioned in that invitation.
62 Secondly, the minutes of the meeting held on 14 September 2001, between ETVA and HDW/Ferrostaal, in the course of the negotiations for the sale of the shares in HSY, state that ‘in the event that … a [clearance] decision is delayed by the EU … or is not satisfactory, the parties agreed that ETVA will undertake the obligation to provide a guarantee to [HDW/Ferrostaal] in relation to any outstanding issues related to [the] EU, regarding past and present state subsidies, if any, related to HSY’.
63 Thus, it is clear that, in the course of the negotiations between ETVA and the purchaser of HSY, HDW/Ferrostaal, ETVA undertook, at the meeting on 14 September 2001, to give HDW/Ferrostaal a guarantee regarding any State aid paid to HSY which might not be approved by the Commission. At that meeting, ETVA undertook a clear commitment to guarantee the purchasers of HSY against any risk of recovery of aid previously paid to HSY which HSY had to repay. As noted by the Commission, the purpose and effect of ETVA’s commitment were then clearly identified.
64 Thirdly, that commitment by ETVA during the negotiations for the sale of the shares in HSY was then repeated in the HSY Agreement of 11 October 2001. Clause 1.2.7. of that agreement requires, should aid paid to HSY not be approved by the Commission, the establishment of a guarantee pursuant to what was agreed at the meeting on 14 September 2001. It is stated that such guarantee has to cover any remaining exposure of the purchaser in default of approval by the Commission of State aid previously paid to HSY.
65 Fourthly, the ETVA Agreement was amended on 20 March 2002 to take account of the HSY Agreement. The amendments to the ETVA Agreement confirm that the State considered that it had undertaken in the HSY Agreement, through ETVA, to grant an indemnification guarantee. Indeed, in Articles 8.2.1(c) and 8.2.4 of the ETVA Agreement, the State expressly refers to the guarantee contained in Clause 1.2 of the HSY Agreement. Those provisions in the ETVA Agreement provide a mechanism of counter-guarantee by which the State, in its capacity as vendor of ETVA, undertook to the purchaser, Piraeus Bank, to reimburse it for any amount ETVA might, in the event of a negative decision from the Commission, have to pay under the guarantee contained in the HSY Agreement.
66 Fifthly, as the Commission stated in recital 327 to the contested decision, ‘a[n indemnification] guarantee was necessary to find a purchaser for HSY … since an investor performing a due diligence of HSY would have found that HSY had benefited [from] several measures which could constitute aid [recovery] of which … could be [demanded] by the Commission’. It added that the Hellenic Republic, anticipating that such a guarantee would be necessary to attract private investors, promised in the invitation to submit offers that the highest bidder would receive such a guarantee. It also pointed out, in the third indent of recital 314 to the contested decision, that TKMS/GNSH acknowledged that HDW/Ferrostaal would not have purchased HSY had it not obtained the indemnification guarantee.
67 Finally, account must be taken of the Greek authorities’ letter of 23 May 2005, referred to in footnote No 148 in the contested decision. In that letter, they stated that the guarantee was included from the outset of the negotiations for the shipyard’s privatisation and that it would not have been possible, without it, to complete the sale of the shares in HSY. The Greek authorities stated that the guarantee, with different stipulations but always with the same objective, namely facilitating the sale of HSY, appeared from the beginning of the privatisation procedure, particularly in the invitation to submit offers, in the purchaser’s offer, in the various texts produced during the negotiations and in the HSY Agreement (of 11 October 2001). The Greek authorities added that the declaration of guarantee included in the Addendum was addressed, at the time of the invitation to submit offers, to the successful bidder.
68 Thus, the Greek authorities, with the aim of demonstrating that the indemnification guarantee did not confer an advantage on HDW/Ferrostaal, but was offered to all the candidate bidders participating in the privatisation procedure of HSY, stated that the guarantee was ‘included with absolute transparency and clarity in all the contractual texts of the denationalisation and mainly in the [HSY Agreement]’. They considered that ‘the true nature of this guarantee is proven (as a condition necessary to the transaction and common under market rules), as well as its binding character, on the basis of all the procedures preceding privatisation but also of the [HSY Agreement] itself, which was subsequently followed by the [ETVA Agreement]’ and that ‘[t]he fundamental point … is … that … the guarantee is included in the entire procedure of denationalisation and is not stipulated for the first time after the conclusion of the contract’. For the Greek authorities, as is apparent from that letter, the objective of the obligation to grant the indemnification guarantee was to facilitate the sale of the shares in HSY and appeared at the beginning of the privatisation process. As noted by the Commission in the contested decision, the guarantee thus appeared in the invitation to submit offers and must be regarded as having become binding at the date of the HSY Agreement and not, as the applicants submit, at the date of the Addendum.
69 In the light of those factors, it must be held that the Commission decided correctly, in the first indent of recital 314 to the contested decision, that, at the date of the HSY Agreement, which was legally binding on ETVA and refers to the latter’s clear commitment, at the meeting on 14 September 2001, to guarantee the purchaser of HSY against any risk of recovery of State aid not approved by the Commission, the indemnification guarantee had in fact actually been given, within the meaning of the Notice on aid in the form of guarantees. Since the measures adopted by ETVA up to its privatisation were imputable to the Hellenic Republic, the Commission considered correctly that the indemnification guarantee was imputable to the State.
70 That conclusion is not affected by the applicants’ arguments.
71 First, as regards the argument that since neither the form, content nor extent of that guarantee were specified in the HSY Agreement, the parties were completely free to define them in the Addendum, it is appropriate to point out that, as from the meeting on 14 September 2001, the extent of the guarantee, that is to say reimbursement of any aid paid to HSY which was not approved by the Commission, was clear and identical to that under the HSY Agreement. Also, the Addendum, which is brief and couched in general terms, does not define any particular detailed procedure for amending the extent of ETVA’s earlier commitment.
72 In addition, contrary to the applicants’ argument, the Commission noted correctly in the contested decision that the guarantee appeared in the invitation of 3 July 2001 to submit offers, as the Hellenic Republic also noted in its letter of 23 May 2005. The wording of the invitation to submit offers states clearly that the successful bidder will not be responsible for any aid that might be recovered and that that ‘assurance’ will take precedence over the completion of the sale of HSY. Thus, within the framework of the shipyard’s privatisation, the commitment to provide the guarantee was a condition for finding a purchaser of HSY. In that regard, the fact that the invitation to submit offers uses the word ‘assurance’ instead of guarantee is irrelevant.
73 Finally, contrary to the applicants’ argument, the fact that GNSH might have prefered to obtain the Commission’s approval is irrelevant to the determination of the extent of the invitation to submit offers.
74 Likewise, the drafting of Clause 1.2.7 of the HSY Agreement, particularly the use of the expression ‘the purchaser undertakes to suggest’, does not affect the conclusion, in paragraph 69 above, that the indemnification guarantee was granted on the date of that agreement, which refers expressly to ETVA’s commitment, in the minutes of the meeting on 14 September 2001, to grant the indemnification guarantee.
75 As regards the applicants’ arguments relating to the extent of Clause 4.9.3 of the HSY Agreement as inserted by the Addendum or to the fact that ETVA or GNSH could have refused to sign the Addendum, they are irrelevant since, as the Commission points out, the Addendum must be regarded as the execution of a previously agreed commitment.
76 As regards HDW’s fax of 24 April 2002 to ETVA, upon which the applicants rely, it shows that HDW was informed of the existence of the counter-guarantee granted by the State to Piraeus Bank and considered that the counter-guarantee meant that the indemnification guarantee contained in the HSY Agreement would be met from public monies and and would therefore have to be the subject of a notification. Thus, contrary to the applicants’ argument, HDW was aware that the HSY Agreement contained the indemnification guarantee. That fax reveals merely that HDW thought that the guarantee could be be treated as State aid only because of the existence of the counter-guarantee.
77 Secondly, contrary to the applicants’ argument, the Commission did not infer that the indemnification guarantee could be imputed to the Hellenic Republic from the mere fact that ETVA was under the State’s control at the date of the HSY Agreement’s signature or that a two-step indemnity clause was agreed to by the Hellenic Republic. In accordance with the judgment in Stardust, to which the Commission expressly refers in recital 55 to the contested decision, the Commission demonstrated, in section 3.2 of the contested decision, entitled ‘Imputability of ETVA’s behaviour to the State’, that the State was involved in the conclusion of the HSY Agreement and therefore in the grant of the indemnification guarantee.
78 The applicants have deployed no argument which can cast any doubt on the conclusion that, at the date of the HSY Agreement, the indemnification guarantee was imputable to the Hellenic Republic. They confine themselves to asserting that, to their knowledge, ETVA, in concluding the HSY Agreement, acted independently and that the agreement was negotiated without the Greek authorities’ intervention. In that regard, it is sufficient to note that, as the Commission observed and as the Hellenic Republic stated in its letter of 23 May 2005, the privatisation of HSY was initiated and managed by the Hellenic Republic, which was represented throughout it by Alpha Finance.
79 In addition, Article 8.2.2(d) and (e) of the ETVA Agreement provide that the State would remain responsible for the completion of the HSY Agreement and that Piraeus Bank would have no involvement in HSY’s privatisation after the sale of ETVA. For that reason, Piraeus Bank, by letter of 28 May 2002, sought the Hellenic Republic’s authority to sign the Addendum, since it contained the guarantee that ETVA had, in the HSY Agreement, undertaken to grant, and the Hellenic Republic gave its authority by letter of 31 May 2002.
80 Thirdly, the applicants’ arguments directed against the second, third and fourth indents of recital 314 to the contested decision must be rejected as immaterial. The explanations in those indents were set forth by the Commission in the contested decision, in the alternative, to demonstrate that the indemnification guarantee was imputable to the State, even were it decided that, in respect of the measures concluded by ETVA while it belonged to the State (that is to say until the end of March 2002), there was no contractual obligation to grant that guarantee to HDW/Ferrostaal.
81 Since it has already been held that the Commission established correctly, in the first indent of recital 314 to the contested decision, that ETVA had undertaken to grant the indemnification guarantee while it was still under the State’s control, the arguments concerning the second, third and fourth indents of that recital cannot occasion the annulment of Article 16 of the contested decision.
82 It follows from all the foregoing that the Commission decided, correctly, that the indemnification guarantee had been granted by ETVA in the HSY Agreement on a date when it was under the State’s control and that the guarantee was imputable to the State.
83 Therefore, the first part of the first plea in law must be rejected as in part inadmissible and in part unfounded.
The fourth part of the plea, alleging that State resources were not involved
84 The applicants claim that the Commission misapplied Article 87(1) EC in taking the view that the indemnification guarantee was financed by State resources.
85 According to settled case-law, the definition of aid is more general than that of subsidy, because it includes not only positive benefits, such as subsidies themselves, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the word, are similar in character and have the same effect (see Joined Cases C-328/99 and C-399/00 Italy and SIM 2 Multimedia v Commission [2003] ECR I-4035, paragraph 35, and Joined Cases C‑393/04 and C-41/05 Air Liquide Industries Belgium [2006] ECR I‑5293, paragraph 29 and the case-law cited).
86 It is not necessary to establish in every case that there has been a transfer of State resources for the advantage granted to one or more undertakings to be capable of being regarded as a State aid within the meaning of Article 87(1) EC (Stardust, paragraph 36 and the case-law cited).
87 It has also been established in the case-law that Article 87(1) EC covers all the financial means by which the public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector. Therefore, even if the sums corresponding to the measure in question are not held permanently by the public authorities, the fact that they remain constantly under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as State resources (Case C‑83/98 P France v Ladbroke Racing and Commission [2000] ECR I‑3271, paragraph 50, and Stardust, paragraph 37).
88 In this case, in recital 315 to the contested decision, the Commission considered that ETVA was contractually committed to grant the indemnification guarantee to HDW/Ferrostaal at a time when the State still owned the majority of the shares in ETVA. Since the Notice on aid in the form of guarantees states that the existence of aid has to be assessed at the moment when the guarantee is given, the Commission inferred that by committing itself to grant the guarantee, the State had put State resources at risk and that, therefore, the guarantee involved State resources.
89 It is appropriate to point out that the grant of a guarantee by the State cannot avoid the prohibition in Article 87 EC merely because that advantage was not conferred on the beneficiary undertaking by way of a direct and clear mobilisation of State resources (Joined Cases T-204/97 and T-270/97 EPAC v Commission [2000] ECR II‑2267, paragraph 81).
90 It follows that, by holding in the contested decision that the resources of ETVA, a state-owned bank, were under the State’s control and therefore at its disposal, the Commission did not misinterpret the meaning of ‘State resources’ in Article 87(1) EC. Indeed, the State was perfectly capable, by exercising its dominant influence over that undertaking, of directing the use of its resources in order to finance, as occasion arose, specific advantages in favour of other undertakings.
91 That conclusion is not affected by the applicants’ arguments.
92 First, the Court rejects the applicants’ argument that State resources were not involved because the indemnity would be paid by ETVA which is now privately‑owned. It is clear from the discussion of the first part of the first plea in law, and particularly from paragraph 60 above that the assessment of whether there is aid and whether it involves State resources must be made as at the moment that the guarantee was given, that is to say on the date of the HSY Agreement, and not on the date when it entails payments. On the date when ETVA undertook to grant the indemnification guarantee, ETVA was under the State’s control. Thus the guarantee entailed an additional burden for the State budget, in the event of implementation of the guarantee (see, to that effect, Case C‑200/97 Ecotrade [1998] ECR I‑7907, paragraph 43, and EPAC v Commission, paragraph 80).
93 Secondly, the applicants’ argument that the Commission could not rely on the existence of the counter-guarantee granted by the State to Piraeus Bank for its conclusion that State resources were committed is based on an erroneous reading of the contested decision. In recital 315 to the contested decision, the Commission did not base the involvement of State resources on the existence of the counter-guarantee but on the fact that, at the moment when the commitment to grant the indemnification guarantee was made, ETVA was under the Hellenic Republic’s control and that the latter was involved in the grant of that guarantee. The applicants’ arguments relating to the counter-guarantee are directed against recital 316 to the contested decision, which contains an alternative assessment in relation to the conclusion in recital 315, and those arguments are therefore immaterial.
94 Therefore, the applicants’ argument relating to the fact that they were unaware of the existence of the counter-guarantee when the Addendum was signed is also immaterial. In addition, the Court must reject the argument that, since the counter-guarantee was illegal, it could not be implemented. Such an argument would exclude unlawful State aid from any control by the Commission.
95 Thirdly, the applicants’ argument that the lowering of ETVA’s sale price is not sufficient to conclude that State resources were committed is also immaterial since it is directed against the Commission’s alternative assessment in recital 315 to the contested decision on the hypothesis that ETVA did not commit itself to grant the indemnification guarantee when it still belonged to the State.
96 It follows from all the foregoing that the Commission decided, correctly, that the indemnification guarantee involved State resources.
97 Consequently, the fourth part of the first plea in law must be rejected as unfounded.
The fifth part of the plea, alleging that there was no economic advantage in favour of HSY
98 The applicants claim that the Commission misapplied Article 87(1) EC in deciding that, because of the indemnification guarantee, HSY was the beneficiary of an advantage. They dispute the Commission’s finding that in granting the guarantee ETVA did not act like a market economy (i.e. private) investor.
99 In recital 318 in the preamble to the contested decision, the Commission recalled:
‘[A]s has been indicated in section 3.2 of the present decision, when ETVA purchased HSY and directly thereafter injected capital to keep it alive, it did not [act] as a market economy investor but as a public authority granting aid to keep alive a firm deemed important for the Greek economy. Therefore, no market economy investor would have found itself in the situation of ETVA. No market economy investor would have found itself in the situation of selling these shares of HSY. Therefore, … the market economy investor test can not be used in the present case to justify the fact that the State is putting additional State resources at risk (by granting the guarantee).’
100 In recital 319 to the contested decision, the Commission stated:
‘Even if nevertheless one considers that the market economy investor test should be applied, … if the State had been a private firm acting under normal market conditions, it would not have accepted to grant the guarantee. Each of the three following points is alone sufficient to prove this.’
101 Those three points, expounded in recitals 320 to 325 to the contested decision, seeking to demonstrate that the indemnification guarantee did not satisfy the private investor test in this case, are alternative in relation to the conclusion in recital 318 that the test was not applicable.
102 Thus, it is clear from the contested decision that, contrary to the applicants’ argument, the Commission did not decide that by granting the guarantee ETVA did not act like a prudent private investor. The Commission concluded, primarily, that there was an advantage in favour of HSY on the ground that the private investor test was not applicable in this case for the reasons explained in section 3.2 of the contested decision entitled ‘Imputability of ETVA’s behaviour to the State’.
103 The explanations in recitals 320 to 325 to the contested decision are based on the hypothesis, disputed by the Commission, that the private investor test was applicable and seek to demonstrate that, even if that were the case, the conditions for applying that test were not met.
104 Thus, where by their arguments the applicants seek to demonstrate that ETVA acted like a private investor, they should first have challenged the conclusion that that test was not even applicable in this case. However, they have made no submissions which could cast doubt on the explanations in section 3.2 of the contested decision entitled ‘Imputability of ETVA’s behaviour to the State’.
105 The applicants’ submissions in connection with the fifth part of the plea seek only to challenge the Commission’s alternative arguments and are directed specifically against recitals 320, 322 and 323 to the contested decision. Since they cannot invalidate the conclusion in recital 318 to the contested decision that the private investor test is not applicable in this case, they cannot cast any doubt on the classification of the indemnification guarantee as State aid or, therefore, on Article 16 of the contested decision. Accordingly, those arguments are immaterial.
106 In addition, in the reply, the applicants deploy an argument purporting to refer to recital 318 to the contested decision by which they claim that the Commission misapplied the private investor test, which should have been applied to the single measure considered (the indemnification guarantee) and not to an earlier measure (ETVA’s capital injection into HSY). In that regard, it is sufficient to recall that the Commission, in that recital, did not apply the private investor test but stated that it was inapplicable. Therefore, that argument is based on an erroneous reading of the contested decision and must be rejected.
107 Furthermore, the applicants’ argument, by which they claim that the indemnification guarantee is a standard term under private law, is irrelevant. They do not explain in what respect the fact that such a provision may be standard in private-law contracts and, particularly, in merger-acquisitions could cast any doubt on the Commission’s assessment that, in this case, by granting that guarantee, the Hellenic Republic did not act like a private investor and that the guarantee constituted an advantage.
108 It follows from the foregoing that the Commission decided, correctly, that the indemnification guarantee constituted an economic advantage for HSY.
109 Accordingly, the fifth part of the first plea in law must be rejected as being in part immaterial and in part unfounded.
The second part of the plea, alleging the non-existence of a ‘two-step mechanism’ (or counter-guarantee)
110 The applicants claim that the Commission misapplied Article 87(1) EC in deciding that the two separate indemnifying clauses in the HSY Agreement and the ETVA Agreement constituted one overall mechanism (a ‘two-step mechanism’) through which HSY would benefit.
111 First, it is clear, admittedly, from recital 297 to the contested decision, that the indemnification guarantee, a measure by which the Hellenic Republic undertook to indemnify the purchaser of HSY (HDW/Ferrostaal) against incompatible aid granted before or at the time of the privatisation being recovered from HSY, constitutes an arrangement in two steps. The Commission then describes those two steps. In the first, ETVA granted an indemnification guarantee to the purchaser of HSY, HDW/Ferrostaal, to indemnify it in respect of any aid which might be recovered from HSY. In the second, the State granted a guarantee to Piraeus Bank, by which it agreed to pay it 100% of any sum that ETVA might have to pay to the purchaser of HSY because of the indemnification guarantee granted by ETVA to that purchaser.
112 However, first, that recital appears in the part headed ‘Description of the measure’ in the contested decision and not in the part relating to its assessment by the Commission. The Commission simply stated that from the factual point of view the guarantee could be described as a two‑step mechanism. From the strictly factual point of view, the applicants are wrong in claiming that the indemnification guarantee and the counter-guarantee are independent of one and other. In fact, the counter-guarantee was granted by the State to Piraeus Bank solely because of the existence of the indemnification guarantee previously granted by ETVA in the HSY Agreement.
113 Secondly, the statement, in recital 297 to the contested decision, that the guarantee ‘was granted through a two steps mechanism’ does not mean that the Commission identified a single State aid composed of two elements or a single aid consisting of ‘a two steps mechanism’ as the applicants submit.
114 In fact, the Commission, having concluded in recital 329 to the contested decision that the indemnification guarantee constituted State aid in favour of HSY, examined, in recital 330, whether the guarantee granted by the State to Piraeus Bank (the counter-guarantee) also constituted State aid. Thus, it was only after the Commission had concluded that the indemnification guarantee constituted State aid that it decided that the guarantee granted by the State to Piraeus Bank also constituted State aid.
115 The Commission therefore classified as State aid the indemnification guarantee referred to in Article 16 of the contested decision independently of the classification of the counter-guarantee granted to Piraeus Bank. The classification of the indemnification guarantee as State aid, that is to say the application by the Commission of Article 87(1) EC does not depend therefore on the recognition of a ‘two steps mechanism’.
116 Consequently, the applicants’ arguments that the Commission misapplied Article 87(1) EC by finding that the indemnification guarantee and the counter‑guarantee constituted ‘a two steps mechanism’ are based on an erroneous reading of the contested decision.
117 Secondly, the Commission stated, in recital 330 to the contested decision, that there was no need to investigate who was the beneficiary of the guarantee granted by the State to Piraeus Bank and that it was ‘sufficient to investigate the former guarantee’. Contrary to the applicants’ submission, the Commission therefore did not decide that HSY was the beneficiary of the counter-guarantee. Therefore, the applicants’ arguments seeking to demonstrate that the guarantee contained in the ETVA Agreement, that is to say the counter-guarantee, did not constitute aid in favour of HSY are based on an erroneous reading of the contested decision. In addition, those arguments are immaterial, since they cannot cast any doubt on the conclusion in recital 329 to the contested decision that the indemnification guarantee was State aid or, therefore, on the validity of Article 16 of the contested decision.
118 Thirdly, the applicants’ arguments that the two guarantees are not connected are intended to challenge the Commission’s assessment in recital 316 to the contested decision that even if when ETVA was sold there was no obligation to grant the indemnification guarantee, the counter-guarantee would enable Piraeus Bank to recover 100 % of any amount which ETVA might have to pay under the guarantee which it would grant to HDW/Ferrostaal.
119 However, the explanations in recital 316 to the contested decision were set out in the alternative.
120 It is clear from the discussion of the first and fourth parts of the plea that the Commission established, correctly, that the indemnification guarantee had been granted by ETVA when it was still under the State’s control, that it was imputable to the State and involved State resources independently of the counter-guarantee’s existence. Consequently, the applicants’ arguments seeking to cast doubt on recital 316 to the contested decision cannot put in question the classification of the indemnification guarantee as aid.
121 It follows from the foregoing that the applicants’ arguments seeking to challenge the existence of a ‘two steps mechanism’ cannot cast any doubt on the classification of the indemnification guarantee as State aid or, therefore, on Article 16 of the contested decision.
122 Accordingly, the second part of the first plea in law must be rejected as unfounded.
The third part of the plea, alleging that Piraeus Bank could alone be the beneficiary of the aid
123 The applicants claim that the Commission misapplied Article 87(1) EC, since Piraeus Bank should be considered to be the only recipient of aid. They accuse the Commission, in essence, of having failed to extend the procedure in order to adopt a decision relating to the guarantee granted by the State to Piraeus Bank and of thus failing to identify Piraeus Bank as a beneficiary of aid.
124 Such an argument cannot affect the validity of Article 16 of the contested decision which classifies the indemnification guarantee granted by ETVA to HSY as State aid.
125 As has been held in connection with the second part of the plea, while those two measures are classified as State aid in the contested decision, the classifications are independent of one and other.
126 Accordingly, the Court must reject the argument that the prohibition of the counter-guarantee would avoid the risk of HSY benefitting from State financing and would ensure the effet utile of the rules on State aid. Indeed, it has previously been demonstrated that the classification as State aid of the indemnification guarantee granted to HSY and, particularly, the involvement of State resources were not dependent on the existence of the counter-guarantee.
127 Therefore, the prohibition of the counter-guarantee would not alter the conclusion that the indemnification guarantee involved State resources and constituted aid and would not be sufficient to guarantee the effet utile of the rules on State aid.
128 Likewise, the applicants’ arguments that HSY is not the beneficiary either of the counter-guarantee or of the ‘two steps mechanism’ are based on an erroneous reading of the contested decision. It is sufficient to recall that the Commission stated in recital 330 to the contested decision that there was no need in the present procedure relating to the aid granted to HSY to identify the beneficiary of the counter-guarantee. The Commission therefore did not decide that HSY was the beneficiary of the counter-guarantee or of a ‘two steps mechanism’.
129 As regards the argument that the Notice on aid in the form of guarantees does not apply, suffice it to observe that, in the contested decision, the Commission applied point 2.1.2 of that notice only in order to determine the moment at which the existence of State aid should be assessed. The applicants themselves relied on that provision in the first part of the first plea in law to demonstrate that the aid must be assessed at the moment when the guarantee is given. As regards the applicants’ submissions challenging the Commission’s interpretation of that provision, reference is made to the first part of the first plea in law.
130 Therefore, the third part of the first plea in law must be rejected as unfounded.
131 It follows from all the foregoing that the Commission did not misapply Article 87(1) EC and that the first plea in law must be rejected as being in part immaterial and in part unfounded.
The second plea in law, alleging misapplication of Article 88(2) EC and Article 14(1) of Regulation (EC) No 659/1999
132 The applicants claim that the Commission correctly took the view, at recital 328 to the contested decision, that the indemnification guarantee conferred no advantage on GNSH. However, they submit that the Commission concluded, at recital 332 to the contested decision, that the indemnification guarantee had to be stopped. The Commission, as they argue, thus infringed Article 88(2) EC and Article 14(1) of Regulation (EC) No 659/1999, which lay down the rule that recovery decisions must target only beneficiaries of aid.
133 First, as regards the applicants’ argument that the Commission did not state appropriate reasons for the decision that the guarantee had to be stopped, it must be noted that, in application of Article 88(2) EC a finding that aid granted by the State is incompatible with the common market is sufficient to justify ordering the State to abolish or recover that aid. Consequently, contrary to the applicants’ argument, the Commission, having decided that the indemnification guarantee constituted incompatible aid, stated sufficient reasons for its decision to stop that guarantee. It also follows that the applicants cannot argue that the stoppage of a guarantee classified as incompatible aid is contrary to the principle of proportionnality.
134 Secondly, as regards the applicants’ argument that the Commission could not impose the stoppage of the indemnification guarantee on GNSH although it was not the beneficiary of the advantage, it must be pointed out that, in this case, the Commission held that the indemnification guarantee granted by ETVA was incompatible with the common market and ordered it to be abolished under the provisions of Article 88(2) EC. It will therefore be for the Hellenic Republic, in application of the contested decision, to order the abolition of the guarantee granted by ETVA. Contrary to the applicants’ argument the obligation to abolish the guarantee was not imposed on GNSH and, therefore, their argument is unfounded.
135 Thirdly, as regards the applicants’ argument that since the Commission decided that the advantage was the continuation of HSY’s civil activities and not the guarantee itself, it should have quantified the advantage which HSY received and ordered a sum corresponding to that advantage to be recovered, it is sufficient to hold that the Commission’s decision to order the stoppage of the indemnification guarantee, which constitutes the incompatible aid leads logically to the abolition of the advantage accruing from that aid. In this case, the Commission, in the contested decision, ordered the recovery of aid from HSY. The stoppage of the indemnification guarantee allows HSY not to recover those sums from ETVA and thus ensures the effet utile of recovery decisions.
136 Fourthly, as regards the applicants’ argument that, since they could legitimately rely on the Addendum’s validity, the Commission infringed the principle of the protection of legitimate expectations by ordering the stoppage of the guarantee, it must be rejected as immaterial. In fact, it is clear from the discussion of the first plea in law that the Commission decided correctly that the indemnification guarantee had been granted by ETVA before its privatisation and did not arise from the Addendum. Therefore, the fact that the applicants submit that they have a legitimate expectation in the Addendumn’s validity cannot affect the validity of the Commission’s conclusion that the indemnification guarantee contained in the HSY Agreement was incompatible and had to be stopped.
137 It follows from the foregoing that the second plea in law must be rejected as unfounded.
The third plea in law, alleging misapplication of Articles 87(1) EC, 88(2) EC, 10 EC and 5(1) EC
138 The applicants challenge the Commission’s assessment, at recitals 333 to 337 to the contested decision, that the indemnification guarantee deprives any recovery of aid from HSY of its ‘effet utile’ and is incompatible per se with the common market.
139 It must be held that this plea in law is based on an incomplete reading of the contested decision.
140 In fact, the Commission, in recital 331 to the contested decision, stated that the indemnification guarantee was incompatible with the common market because it was not covered by any of the provisions of Article 87(2) and (3) EC. For that reason, it concluded in recital 332 to the contested decision that the indemnification guarantee had to be stopped. As the Commission stated expressly in recital 333 to the contested decision, the fact that the indemnification guarantee was incompatible as such, in view of the fact that it prevented the ‘effet utile’ of any recovery, constituted a second reason why it was incompatible with the common market.
141 The applicants have made no submissions challenging the Commission’s assessment in recitals 331 and 332 to the contested decision. Therefore, the applicants’ arguments relating to recitals 333 to 337 to the contested decision, even assuming them to be sound, could cast no doubt on the incompatibility of the indemnification guarantee or, therefore, on the validity of Article 16 of that decision.
142 Consequently, the third plea in law must be rejected as immaterial.
The fourth plea in law, alleging misapplication of Article 296 EC
143 The applicants point out that, at recitals 311 and 312 to the contested decision, the Commission stated that the indemnification guarantee did not fall within the scope of Article 296 EC and rejected their argument that a certain level of civil activities is necessary in order to continue the military activities. They claim that, in order to enable HSY to continue operating as a modern, efficient naval shipyard, it is essential that its civil activities are not liquidated, as HSY needs those activities to compensate for periods during which there are fewer military contracts. In the applicants’ submission, the Commission, by not allowing HSY to conduct civil activities of an ancillary nature in order to sustain the operation of the whole shipyard, misapplied Article 296 EC.
144 In recital 311 to the contested decision, the Commission found that ‘[s]ince all State support provided to the military activities of HSY [was] exempted from State aid rules, any recovery of State aid [could] only be the recovery of State support provided to the civil activities of HSY’ and that, consequently, ‘the present guarantee [was] directly and exclusively related to the civil activities of HSY’. The Commission concluded that the indemnification guarantee did not fall within the scope of Article 296 EC.
145 The applicants, without putting in issue the conclusion that the guarantee covers exclusively HSY’s civil activities, challenge the Commission’s rejection, in recital 312 to the contested decision, of the arguments they raised during the procedure that a certain degree of civil activities is necessary to continue the military activities.
146 In response to that argument, the Commission, in recital 312 to the contested decision, explained that, under Article 296 EC, the Hellenic Republic could have granted to the military activities the financial support they needed to ensure their continuation or to render them attractive for a potential investor, so that they would have been purchased. An investor purchasing the military activities would not have needed a guarantee since no aid could be recovered from HSY’s military activities. The Commission concluded that the indemnification guarantee’s effect was thus to permit a purchaser to be found for HSY’s civil activities and to ensure their continuation but was not necessary to ensure the continuation of the military activities and, therefore, did not fall within the scope of Article 296 EC.
147 In their application, the applicants confine themselves to stating, generally, that maintaining civil shipbuilding activities is necessary so as not to depend solely on military orders and to improve their cash flow when their situation as regards military orders is not satisfactory. They aver that the Commission should have authorised HSY to continue ancillary civil activities but do not state what is the connection between those arguments and the Commission’s assessment relating to the indemnification guarantee. In addition, the applicants make reference to the fact that the Commission was able, in an earlier decision, to authorise a shipyard to continue certain civil activities under certain conditions.
148 Such considerations are insufficient to demonstrate how the Commission’s assessment in recital 312 to the contested decision is erroneous. In particular, the applicants do not explain how those considerations could cast any doubt on the Commission’s conclusion that the indemnification guarantee did not fall within the scope of Article 296 EC.
149 It follows that the fourth plea in law must be rejected as unfounded.
150 It follows from all the foregoing considerations that the action must be dismissed in its entirety.
Costs
151 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the forms of order sought by the Commission and Piraeus Bank.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders Elliniki Nafpigokataskevastiki AE Chartofylakeiou, Howaldtswerke-Deutsche Werft GmbH and ThyssenKrupp Marine Systems AG to bear their own costs and to pay those incurred by the European Commission and by Trapeza Peiraios AE.
Dittrich | Wiszniewska-Białecka | Prek |
Delivered in open court in Luxembourg on 10 November 2011.
[Signatures]