OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 6 September 2012 (1)
Case C‑73/11 P
Frucona Košice a. s.
v
European Commission
(Appeals – Competition – State aid – Article 87(1) EC – Concept of State aid – Test of a private creditor in a market economy – Partial remission of a tax debt in the context of an arrangement procedure – Assessment of the advantages and disadvantages of an arrangement procedure and a bankruptcy procedure – Unpredictability and duration of a bankruptcy procedure – Conduct of the Slovak Tax Office vis-à-vis Frucona Košice)
I – Introduction
1. The present appeal gives the Court an opportunity to develop further its case-law on the rules governing State aid in one important respect. It is necessary to breathe life into the private creditor test on the basis of which it is assessed whether certain payment facilities or even the write-off of a public authority’s claim against an undertaking are neutral from the point of view of competition or constitute State aid for the purposes of Article 87(1) EC (now Article 107(1) TFEU (2)). Unlike the related private investor test, (3) the private creditor test has not really played a role in case-law so far. It has thus remained undefined, and indeed ‘mysterious’. (4)
2. The question of the private creditor arises in the present case against the background of an arrangement with creditors under bankruptcy law, in which a Slovak Tax Office wrote off 65% of its excise duty claims against Frucona Košice a. s. (also ‘the appellant’) in 2004. With the approval of the General Court of the European Union, the European Commission classified that write-off as State aid because, in its view, the claims of the Slovak revenue authorities could have been paid off in the event of Frucona’s bankruptcy at a higher percentage than under that arrangement. Frucona, on the other hand, firmly takes the view that the level of recovery to be expected by the Slovak revenue authorities in a bankruptcy procedure or in a tax execution procedure would not have been higher – at least not manifestly – than the 35% rate agreed in the arrangement with creditors.
3. In this connection the parties are in dispute in particular over the relatively cryptic wording by which the Court defined the private creditor test in 1999 in DMT. (5) According to that judgment, a payment facility granted by a public authority must be regarded as State aid whenever the recipient undertaking would manifestly have been unable to obtain the resulting economic advantage from a private creditor in a comparable situation. As the present case illustrates, there is an urgent need to clarify that ruling.
II – Background to the dispute
4. Frucona is a commercial company incorporated under Slovak law with its seat in Košice (Slovakia). It was originally active in the alcohol and spirits production sector and also in the manufacturing sector of agricultural products such as canned fruit, vegetables and juices, and of carbonated and non-carbonated beverages. After its licence for the production and processing of alcohol and spirits was revoked on 6 March 2004 for non-payment of excise duty, it continued to distribute the spirits produced by another undertaking.
A – National administrative and judicial procedures
5. Since Frucona was unable to pay the excise duty owed for 2004, it was insolvent within the meaning of the provisions of the Slovak Law on bankruptcy and arrangement with creditors. Thereupon, on 8 March 2004 Frucona filed an application to the Regional Court, Košice for the initiation of an arrangement procedure. The undertaking’s proposed arrangement set the total amount of its debts at SKK 644.6 million and aimed to pay all unsecured creditors and certain preferential creditors an amount equivalent to 35% of the sums owed to each of them. The lion’s share of Frucona’s debts consisted of the excise duty payable to the Slovak Tax Office.
6. Prior to the confirmation of the arrangement by the Regional Court, Košice, Frucona submitted to the Tax Office a number of audit reports in order to enable the Tax Office to assess whether an arrangement with creditors, bankruptcy or tax execution would be most advantageous for it. On 21 June 2004, the Slovak tax authorities also carried out an on-the-spot inspection in Frucona’s premises in order to establish the undertaking’s liquid assets.
7. Although the Slovak Tax Directorate had asked the competent Tax Office not to accept Frucona’s proposed arrangement on the ground that it was unfavourable for the Slovak Republic, the Tax Office accepted the proposed arrangement on 9 July 2004. By order of 14 July 2004, the Regional Court, Košice confirmed the arrangement, under which 35% of the Slovak tax authorities’ claims would be paid off, corresponding to a sum of around SKK 224.3 million.
8. The director of the Tax Office was suspended and replaced on 14 July 2004. He was also subsequently indicted for fraud and embezzlement, but was acquitted on all charges.
9. On 20 October 2004, the Tax Office informed Frucona that the arrangement conditions constituted indirect State aid, which was subject to the approval of the European Commission.
10. By judgment of 25 October 2004, the Supreme Court of the Slovak Republic dismissed an appeal lodged by the Tax Office in August against the order of the Regional Court, Košice of 14 July 2004 confirming the arrangement and declared that order to be valid and enforceable as of 23 July 2004.
11. In accordance with the arrangement, on 17 December 2004 Frucona paid the Tax Office a sum of SKK 224.3 million, corresponding to 35% of its total tax debt.
12. Following an extraordinary appeal, by decision of 27 April 2006 the Supreme Court of the Slovak Republic partially overturned the order of the Regional Court, Košice of 14 July 2004. Thereupon, by order of 18 August 2006, the Regional Court, Košice fixed Frucona’s tax debt to the Tax Office at SKK 640.4 million, with the result that the 35% share now amounted to SKK 224.1 million.
B – Administrative procedure before the European Commission
13. The European Commission examined the present case following a complaint which was submitted to it on 15 October 2004. On 5 July 2005, the Commission initiated the formal investigation procedure provided for in Article 88(2) EC. (6) That procedure was concluded by Decision 2007/254/EC of 7 June 2006 (7) (also ‘the contested decision’), in Article 1 of which the Commission found that under the arrangement Frucona was granted State aid amounting to SKK 416 515 990, which is incompatible with the common market. In Article 2 of that decision the Slovak Republic was ordered to take all necessary measures to recover that aid from the recipient without delay and with interest.
C – Procedure at first instance before the General Court of the European Union
14. On 12 January 2007, Frucona challenged the contested decision before the General Court by an action for annulment pursuant to the fourth paragraph of Article 230 EC. By order of 11 October 2007, St. Nicolaus-trade a. s. was granted leave to intervene in support of the Commission in accordance with Article 116(6) of the Rules of Procedure of the General Court.
15. The action for annulment brought by Frucona was unsuccessful at first instance. By judgment of 7 December 2010 (8) (also ‘the judgment under appeal’), the General Court dismissed that action and ordered Frucona to pay the costs.
III – Appeal proceedings before the Court of Justice
16. By the present appeal, which it lodged at the Registry of the Court of Justice on 17 February 2011, Frucona is challenging the judgment of the General Court.
17. The appellant claims that the Court should:
– set aside the General Court’s judgment of 7 December 2010 in Case T‑11/07 in so far as it relates to the fourth and sixth pleas in the appellant’s application before the General Court;
– uphold those pleas as well founded;
– refer the case back to the General Court so that it can decide upon the appellant’s fifth, sixth, seventh, eighth and ninth pleas in so far as they relate to the tax execution procedure, and
– order the Commission to pay the appellant’s costs.
18. The Commission, for its part, contends that the Court should:
– dismiss the appeal, and
– order the appellant to pay the costs.
19. Being one of the other parties to the proceedings, St. Nicolaus-trade also claims that the Court should dismiss the appeal, confirm the judgment under appeal and order the appellant to pay the costs.
20. The parties made written submissions on the appeal to the Court and, at the hearing on 5 July 2012, presented oral argument.
IV – Assessment
21. In its appeal Frucona does not pursue all the issues which formed the subject-matter of the proceedings at first instance. Rather, the appellant objects specifically to paragraphs 88 to 168 and paragraph 212 of the judgment under appeal, relying on two pleas in law. First, in Frucona’s submission, in reviewing the Commission’s application of the private creditor test, the General Court did not apply the correct legal standard (see immediately below under section A). Second, the General Court impermissibly sought to substitute its own reasoning for that of the Commission as regards the application of the private creditor test, and/or assessed the existing evidence relevant to that test in a manner that was manifestly incorrect, thereby distorting the clear sense of the evidence (see below under section B).
A – First plea in law: legal requirements for the application of the private creditor test
22. The first plea in law concerns the legal requirements for the application of the private creditor test. Frucona alleges that the General Court did not apply the correct legal standard in reviewing the Commission’s application of that test. In this regard, the appellant challenges paragraphs 89 to 92 and paragraphs 106 to 121 of the judgment under appeal; it also objects to paragraphs 139 to 142 of the judgment.
1. Admissibility
23. The Commission expresses doubts in two respects as to the admissibility of Frucona’s submission in connection with this first plea in law.
24. First, the Commission complains that in some places the appeal contains references to Frucona’s application at first instance. Such a reference technique does not satisfy the requirements laid down in Article 112 of the Rules of Procedure of the Court of Justice.
25. It should be noted that under Article 256(1) TFEU in conjunction with the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure an appeal must indicate precisely the legal arguments specifically advanced in support of the application to set aside the judgment at first instance. (9) Indeed, a general reference to other documents does not satisfy those requirements even if – as in this case – they are included as annexes to the appeal. (10)
26. In the present case, however, Frucona has not made a general reference to its complaints and arguments at first instance. Rather, the appellant has highlighted specific aspects of its submissions at first instance in the main body of its appeal and defined them in sufficiently clear terms. It then made reference to the relevant passages of its application at first instance merely as evidence of the accuracy of its statements.
27. The Commission’s criticism in this regard is thus entirely unfounded.
28. The Commission also questions the admissibility of the passage in the appeal in which Frucona makes statements regarding the importance of local expertise as to the levels of recovery to be expected under the bankruptcy procedure. (11) The Commission argues that that passage is placed incoherently at the end of Frucona’s statements regarding its first plea in law, specifically after Frucona’s conclusion in respect of the first plea, (12) with the result that its purpose in terms of the review of the judgment at first instance is unclear.
29. This argument put forward by the Commission is also entirely unfounded. It is for each party to decide how it structures its written submissions to the Court. It may not seem particularly sensible to make further substantive statements in a written pleading after the ‘conclusion’ on a plea in law. However, this is by no means a question of admissibility, but only a question of expediency which must be assessed by each party itself. A problem of admissibility may arise at best if there is no discernible connection between a party’s submissions and its claims in appeal, so that the Court and the other parties are not able to comment reasonably on them. In the present case, however, Frucona made it sufficiently clear in several places in its appeal that it claims that the General Court did not pay proper attention to the importance of expertise in connection with the application of the private creditor test. As far as can be seen, the parties did not have any difficulties in commenting on that submission.
30. All in all, there are therefore no doubts as to the admissibility of the first plea in law.
2. Substance
31. The appellant objects that the General Court wrongly confirmed the existence of State aid. (13) First, the General Court did not correctly reproduce the relevant case-law on the private creditor test at the beginning of its analysis and, second, it misapplied the private creditor test.
a) The allegation that the General Court did not correctly reproduce the relevant case-law
32. By alleging that the General Court did not commence its analysis by correctly reproducing the relevant case-law on the private creditor test, Frucona ultimately claims a failure to state reasons in the judgment under appeal.
33. This argument does not stand up to closer examination.
34. The obligation to give a proper statement of reasons for a judgment at first instance follows from Article 36 in conjunction with Article 53(1) of the Statute of the Court of Justice. It is settled case-law that the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review. (14)
35. Of course it may be helpful if, at the beginning of its statements on a certain plea in law, the General Court sets out the relevant case-law and, if necessary, examines it. However, this is ultimately a question of expediency, for the assessment of which the General Court must be accorded broad discretion.
36. With regard to the obligation to state reasons, in the final analysis it is relevant only whether the judgment under appeal is drafted comprehensibly, whether it considers all the complaints raised by the applicant, (15) and whether the grounds for the General Court’s decision are sufficiently clear, irrespective of whether and in what manner the General Court has made express reference to earlier case-law.
37. The judgment under appeal satisfies these requirements fully, as is illustrated not least by the fact that Frucona was able to distinguish in specific detail the errors in law by which, in its view, the judgment was vitiated.
38. In reality, Frucona is less concerned with the reasoning of the judgment under appeal than with its substance. I will consider its accuracy in greater depth below.
b) The allegation of the substantive misinterpretation and misapplication of the private creditor test
39. The appellant objects that in the present case the General Court misinterpreted the substance of the private creditor test and also misapplied that test. In its view, the General Court wrongly assumed that the write-off by the Slovak Tax Office constituted State aid to Frucona. (16)
i) The substance of the private creditor test
40. First of all, Frucona argues that a public-authority measure like the contested write-off by the Slovak Tax Office may be classified as State aid only if the resulting advantage for the undertaking concerned is ‘manifestly more generous’ (17) than that which a private creditor would have granted under similar conditions. The appellant complains that the General Court erred in law by simply considering whether ‘the return’ from the arrangement procedure for the tax authorities of the Slovak Republic ‘exceeded’ that which they could have derived from a bankruptcy procedure or a tax execution procedure (18) and whether a bankruptcy procedure would have been ‘more advantageous’ than an arrangement procedure, (19) rather than seeking to ascertain a ‘manifest advantage’.
41. According to the case-law of the Court, for a measure to be categorised as State aid within the meaning of the Treaties each of the four cumulative conditions laid down in Article 87(1) EC (now Article 107(1) TFEU) must be fulfilled. 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. (20)
42. The fact that tax measures can raise awkward problems in relation to the rules governing State aid has been illustrated on several occasions in the past in a variety of circumstances (21) and has also proved true in the present case.
43. In this case it is disputed whether, by virtue of the write-off by the Tax Office of 65% of its excise duty claims under the arrangement procedure, Frucona was granted an advantage for the purposes of Article 87(1) EC. This depends on whether the recipient undertaking in this way received an economic advantage which it would not have obtained under normal market conditions. (22)
44. In assessing this question, the relevant criterion is a comparison with a private creditor seeking to obtain payment of sums owed to it by a debtor. (23) Such a private creditor in a market economy will be concerned with maximising his profits and minimising any losses. Consequently, it will grant the recipient undertaking facilities in respect of the settlement of its debts only if and in so far as this seems economically profitable or, at least, justifiable.
45. The Court commented specifically on the private creditor test in DMT. In the operative part of that judgment, it ruled that payment facilities in respect of social security contributions granted in a discretionary manner to an undertaking by the body responsible for collecting such contributions constitute State aid if, having regard to the size of the economic advantage so conferred, the undertaking would manifestly have been unable to obtain comparable facilities from a private creditor in the same situation vis-à-vis that undertaking as the collecting body. (24)
46. Since then, the use of the adverb ‘manifestly’ has caused confusion. This confusion is further intensified by the fact that the Court uses that wording at one point in the grounds of the judgment in DMT in a slightly modified form: according to that paragraph, for State aid to be taken to exist, the payment facilities must be ‘manifestly more generous’ than those which a private creditor would have granted. (25)
47. I will explain below that the term ‘manifestly’ within the meaning of the judgment in DMT neither introduces a quantitative element into the private creditor test nor may be misconstrued to mean any kind of discretion on the part of the national authorities granting the aid. Rather, the term ‘manifestly’ includes an – admittedly ambiguous – reference to the standard of assessment to be applied by the national courts and by the Commission as the competition authority in implementing a private creditor test.
– No quantitative element
48. At first sight, the use of the term ‘manifestly’ in DMT (26) might suggest that it is a quantitative element and State aid exists only where the advantage obtained by the recipient undertaking is ‘manifestly more generous’ in value or in extent than that which a private creditor would grant in comparable circumstances. (27)
49. During the hearing before the Court, however, all the parties agreed that the use of the adverb ‘manifestly’ in DMT does not introduce a quantitative element into the private creditor test and, in particular, may not be misconstrued as a reference to a minimum difference between the advantage granted by a public authority and the advantage to be expected from a private creditor.
50. Indeed, it is not for the European Union Courts, by way of judicial development of the law, to supplement the concept of State aid in Article 87(1) EC (now Article 107(1) TFEU) with a perceptibility threshold not envisaged by the authors of the Treaties. The Court would thereby open itself to the accusation that it is interfering in the tasks of the Union legislature, which has exclusive competence under Article 89 EC (Article 109 TFEU) for granting, by way of implementing regulations, block exemptions like those for de minimis aid. (28) The relationship between this written de minimis rule and a possible judge-made unwritten perceptibility threshold would also be unclear. In addition, an unwritten perceptibility threshold would create considerable legal uncertainty. The nature and the extent of the preferential treatment can therefore be included in the global assessment of all the circumstances of the individual case in connection with the application of the private creditor test at best as indications. (29)
51. In the present case the General Court was therefore perfectly correct in its view that an advantage for the purposes of the rules governing State aid can exist even where the figures calculated in connection with the private creditor test are close together. (30) The simple fact that the minimum expected proceeds for the Tax Office from a bankruptcy procedure were properly estimated only slightly higher, at SKK 225.5 million, (31) than the amount of SKK 224.3 million actually paid under the arrangement (32) does not mean, a priori, that Frucona nevertheless did not obtain an economic advantage from the public authority, which it manifestly would not have obtained from a private creditor under similar conditions.
– No discretion on the part of national authorities
52. Frucona appears to understand the use of the term ‘manifestly’ in DMT (33) as an expression of some kind of discretion which the national authorities are apparently intended to enjoy. Thus, it strongly emphasises the ‘range’ of options normally available to creditors in a market economy vis-à-vis their debtors. Provided a public creditor does not decide on an option outside that range, in Frucona’s view there can be no question of an advantage for the purposes of the rules governing State aid. In the view of Frucona, only if a public creditor takes a measure for which a circumspect private creditor manifestly would not have opted can there be an advantage for the purposes of the rules governing State aid.
53. However, this view is also wrong. As far as can be seen, the Court has never recognised any kind of discretion in the field of State aid within which the measures taken by national authorities would be subject to only limited review by the Commission or by the national courts having regard to the competition rules in the Treaties.
54. In contrast, Articles 87 EC and 88 EC (now Articles 107 TFEU and 108 TFEU) provide for a comprehensive review of State aid by the Commission as the EU competition authority. If national bodies are in doubt as to whether the measures they take vis-à-vis undertakings fall within the prohibition on State aid, it is open to them to seek the notification of those measures to the Commission as a precaution.
55. Recognition of discretion for the many public authorities which grant State aid at national, regional and local level in the European Union would result in a clear softening of the prohibition of State aid laid down in Article 87(1) EC (Article 107(1) TFEU), which represents a fundamental principle of EU law with considerable importance for the functioning of the internal market. There would be a serious risk that the effectiveness of the State aid control exercised by the Commission would be undermined and that the uniform interpretation and application of the European competition rules would be adversely affected. The fundamental aim of uniform conditions of competition for all undertakings operating in the internal market (‘level playing field’) (34) would thus be significantly jeopardised.
56. Aside from this, it should be borne in mind that the private creditor test and the private investor test are closely related. Both tests indicate whether an undertaking could also have obtained an economic advantage granted to it by a public authority under normal market conditions. Ultimately, the tests are two sides of the same coin. Accordingly, in their interpretation and application, the Court should ensure consistency and bear in mind that – as far as can be seen – it has never previously mitigated the private investor test by recognising discretion on the part of the Member States.
– Margin of appreciation for the Commission and national courts
57. In fact, in DMT, by using the adverb ‘manifestly’ the Court merely – admittedly very cryptically – called to mind the margin of appreciation enjoyed by the Commission and the national courts (35) where they review public-authority measures, using the private creditor test, to ascertain whether there is State aid for the purposes of Article 87(1) EC (now Article 107(1) TFEU).
58. The private creditor test – like the closely related private investor test – seeks to establish whether the recipient undertaking would have obtained the same advantage from a private person under normal market conditions as that which was made available to it through State resources. (36) It must therefore be assessed how a circumspect private creditor in a market economy would have acted in a similar situation to that of the public creditor.
59. In the administrative procedure under Article 88(2) or (3) EC (now Article 108(2) or (3) TFEU) it is the duty of the Commission to make this assessment, in which it must take into consideration all relevant circumstances of the individual case and, if necessary, ask the Member State concerned to provide it with all relevant information. (37)
60. Appraising the conduct of a circumspect private creditor in a market economy requires an assessment of complex economic circumstances (38) which is naturally subject to considerable uncertainty, since it can only ever be an assessment of the likely conduct of a hypothetical private creditor. Consequently, the adverb ‘manifestly’ used by the Court in DMT makes sense in a case like the present one only if it is regarded as an expression of the margin of appreciation enjoyed by the Commission in assessing the likely conduct of a hypothetical private creditor.
61. If, in view of the specific circumstances of the individual case, various courses of conduct by a private creditor in a market economy are conceivable – for example, it may, as in the present case, have the options of reaching an arrangement or recovering its claims from its debtor in a bankruptcy procedure (39) – it is necessary to consider carefully which of those courses of conduct would have been most likely for the private creditor, without there being any kind of discretion on the part of the national authority granting the advantage. (40)
62. Unlike in criminal or quasi-criminal proceedings for example, there is no need in this connection to apply a higher likelihood standard. In particular, it is not necessary that the presumed conduct of the private creditor is ‘manifest’ in the sense that it is to be regarded as ‘very likely’ or ‘particularly likely’ or can even be predicted ‘without reasonable doubt’. The private creditor test is conducted in administrative or civil-law procedures – either in the State aid control procedure by the Commission or before national courts (41) – which seek to ensure the effective enforcement of the prohibition of State aid laid down in EU law in Article 87(1) EC (Article 107(1) TFEU) and to avert any threats to competition within the internal market. Consequently, in such procedures the threshold for taking action against the facilities which the public authority grants to certain undertakings must be relatively low. It should therefore be sufficient, in a case like the present one, to establish that, in view of the specific circumstances of the individual case, a certain course of conduct on the part of the private creditor (for example insistence on a bankruptcy procedure) would have been more likely than other alternatives (such as the write-off of some of the outstanding claims under an arrangement). (42)
63. In the judgment under appeal, the General Court was therefore right simply to ask whether in the present case the bankruptcy or the tax execution procedure ‘was more advantageous’ for the tax authorities of the Slovak Republic than the arrangement with Frucona (43) and whether the Commission committed manifest errors of assessment in this regard in the contested decision.
64. Against this background, it cannot be alleged that the General Court misunderstood the substance of the private creditor test or applied the wrong standards in examining the contested decision by the Commission.
ii) The judicial review of the application of the private creditor test
65. As regards the specific application of the private creditor test, Frucona alleges that in the present case the General Court was satisfied with a mere ex-post comparison of the respective advantages and disadvantages of the bankruptcy procedure and the arrangement procedure from the Commission’s perspective, rather than conducting an assessment from the ex-ante perspective of a private creditor. In particular, according to Frucona, the General Court did not take sufficient account of the reports submitted to the Commission regarding the duration of a possible bankruptcy procedure, which, in Frucona’s view, would have carried significant weight for a decision by any reasonable private creditor.
– The requirement of an assessment from an ex-ante perspective
66. It is common ground that the question whether the recipient undertaking could also have obtained the same advantage under normal market conditions which it was granted by the public authority must be assessed from the perspective of a circumspect private creditor. (44) Regard should be had to the information which would have been available to such a private creditor at the time the advantage in question was granted. As Frucona rightly states, an assessment from an ex-ante perspective is crucial.
67. The General Court reviewed the lawfulness of the contested decision by the Commission from precisely that perspective. In the judgment under appeal, reference is made to the circumstances which a private creditor would have taken into consideration in order to assess the advantages of the bankruptcy procedure in comparison with the proceeds from the arrangement between Frucona and the Tax Office. In particular, the General Court considers in detail the question ‘whether the most optimistic private creditor would have opted to receive SKK 225 million [under a judicial arrangement] in December 2004 rather than potentially receiving up to SKK 239 million at some time in a period between “shorter than the average” and seven years [in the course of a bankruptcy procedure]’. (45)
68. There cannot therefore be any serious doubt that in reviewing the lawfulness of the contested decision the General Court proceeded from an ex-ante perspective.
– The duration of a possible bankruptcy procedure
69. The appellant then alleges that the General Court did not adequately examine whether the Commission evaluated the reports on the duration of a possible bankruptcy procedure which were submitted to it in the administrative procedure and give the information from those reports proper weight, also taking account of the experiences of bankruptcy procedures involving other distilleries in Slovakia. Frucona states repeatedly that this is a matter of law.
70. It is true that State aid, as defined in the primary law, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the European Union Courts must, in principle, having regard both to the specific features of the case before them and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 87(1) EC (now Article 107(1) TFEU). (46)
71. That judicial review is also relevant to the application of the private creditor test, the legal test on the basis of which the Commission determines whether and to what extent the payment facilities granted to an undertaking by a public authority are to be classified as an advantage for the purposes of the rules governing State aid. (47)
72. As has already been mentioned, the application of the private creditor test – like the application of the related private investor test – requires, by law, a global assessment of all the circumstances of the individual case, taking into consideration the information submitted by the Member State concerned and any other indications relevant to the case in question. (48)
73. If, as here, it is necessary to determine whether a private creditor would have opted for a judicial arrangement or recovered its claims from its debtor in a bankruptcy procedure, the circumstances of the individual case which are relevant to the assessment will, as a general rule, include the duration of a potential bankruptcy procedure.
74. The General Court certainly did not fail to recognise this but, on the contrary, made a detailed appraisal of the aspect of the duration of a possible bankruptcy procedure in reviewing the lawfulness of the contested decision, considering specific recitals to the contested decision. (49)
75. The judgment under appeal deals expressly with the complaint made at first instance by Frucona that ‘the Commission did not take the duration of a bankruptcy procedure in Slovakia and third-party reports in this regard into consideration’; the General Court found that it could not be alleged that ‘the Commission ignored that question and [Frucona’s] position in this respect’. (50)
76. The General Court can hardly therefore be accused of ignoring the aspect of the duration of the bankruptcy procedure in exercising its judicial review of the application of the private creditor test by the Commission.
77. Frucona nevertheless takes the view that the General Court did not adequately examine whether the Commission gave proper weight to the duration of a possible bankruptcy procedure in applying the private creditor test in the contested decision.
78. It should be noted in this regard that the proper weighting of the different aspects of the individual case on the basis of which a private creditor would have to form its opinion is not a matter of law, but a matter of fact, whose result may turn out very differently from one case to the next and which requires an assessment of complex economic circumstances, for which the Commission is known to enjoy a wide margin of appreciation. (51)
79. According to settled case-law, in reviewing an act of the Commission which has necessitated such an appraisal, the Court must confine itself to verifying whether the Commission complied with the relevant rules governing procedure and the statement of reasons, whether the facts on which the contested finding was based have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers. (52)
80. Unlike in cartel cases, in relation to Commission decisions in the field of State aid, which are purely administrative and do not include any penalty, the European Union Courts do not enjoy unlimited jurisdiction (Article 261 TFEU). The General Court may not therefore substitute its own economic assessment for that of the Commission. (53)
81. The General Court correctly acted precisely within these limits of its judicial powers when it reviewed the contested decision at first instance in order to ascertain whether the duration of a possible bankruptcy procedure was taken into consideration and when it concluded, after considering Frucona’s arguments in detail, that the Commission had not committed a manifest error of assessment. (54)
82. Of course, when it comes to the details, there may be completely diverging views on whether the assessment of different elements of fact by the Commission and by the General Court is convincing in the present case. This was illustrated not least by the lively debate between the parties at the hearing and by their answers to the oral questions asked by the Court. In particular, there is still dispute as to the likely duration of a potential bankruptcy procedure in the present case, (55) the importance a private creditor would have attached to the unpredictability in this regard in making its decision, (56) the reliability of the relevant reports available to the Commission, (57) and the additional proceeds which a private creditor could have obtained in a bankruptcy procedure compared with the arrangement with the Tax Office, also taking into account interest on the sum under the arrangement. (58)
83. However, it is not sufficient, in order to assume a manifest error of assessment by the Commission, merely to take a different opinion to the Commission. If the factual and evidential position reasonably allows different assessments, there can be no legal objection if the Commission adopts one of them, even if it is not the one which one of the parties, the General Court or the Court of Justice considers to be preferable. A manifest error of assessment by the Commission exists only where the conclusions drawn by that authority are no longer justifiable in the light of the factual and evidential position, that is to say if no reasonable basis for them can be discerned. (59)
84. Consequently, in the present case the General Court could not be required to substitute its own assessment of the facts for that of the Commission with regard to the weighting of the unpredictability and the duration of a possible bankruptcy procedure. It would be even more wrong if the Court, as the appellate body, now substituted its own assessment of the unpredictability and the duration of a possible bankruptcy procedure for that of the General Court or that of the Commission.
85. However, this is precisely what the appellant is actually attempting to achieve with its arguments on the duration of a potential bankruptcy procedure and on the ex-ante perspective. Under the guise of supposed matters of law, it is ultimately inviting the Court to substitute its own assessment of the facts for that of the General Court and that of the Commission. The Court should resist such an attempt if it does not wish to exceed quite substantially its jurisdiction in appeal proceedings.
86. Accordingly, the complaints raised by Frucona regarding the judicial review of the application of the private creditor test cannot be accepted.
3. Interim conclusion
87. All in all, the first plea in law raised by Frucona is therefore admissible, but unfounded.
B – Second plea in law: Allegation of retroactive improvement of the Commission’s reasoning and distortion of evidence by the General Court
88. The second plea is in four parts. They concern the statements made by the General Court on the costs of a bankruptcy procedure, (60) the duration of a bankruptcy procedure, (61) the alleged caution in the Commission’s assessment of the facts (62) and the alleged relevance of an outstanding claim following a bankruptcy procedure. (63)
89. In all four parts of this plea in law, Frucona complains that the General Court impermissibly substituted its own reasoning and its own economic assessment of the facts for those of the Commission. ‘Further or alternatively,’ (64) Frucona claims that the General Court proceeded on the basis of a manifestly incorrect assessment of the existing evidence. Since the points of law raised in all four parts of this second plea in law are very similar, they should be considered together.
90. In so far as the Commission, first of all, again objects to the references to the application at first instance by which Frucona augmented its submissions in the appeal, that objection must be rejected on the same grounds as I have already set out in connection with the first plea in law. (65)
1. The allegation that the General Court substituted its own reasoning for that of the Commission
91. First, Frucona claims that in several instances the General Court substituted its own reasoning and its own economic assessment of the facts for those of the Commission and thus erred in law.
92. It is correct that in deciding on an action for annulment, the Court of Justice and the General Court cannot under any circumstances substitute their own reasoning for that of the author of the contested act. (66) This reflects the cassatory nature of the action for annulment. It is based ultimately on the principle of institutional balance which characterises the structure and functioning of the European Union. Observance of the institutional balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions. (67)
93. It follows that the European Union Courts may not provide an EU legal act based on incorrect or even unlawful grounds with completely different grounds and then uphold it. Outside the scope of their unlimited jurisdiction (Article 261 TFEU), the European Union Courts may not amend the act concerned, but must declare it to be void if and in so far as the action for annulment is well founded (first paragraph of Article 264 TFEU). (68) The European Union institutions, bodies, offices and agencies are then required to take the necessary measures to comply with the judgment annulling their decision (first paragraph of Article 266 TFEU).
94. However, there is nothing to prevent the European Union Courts from comprehensively reviewing the validity of the pleas in law and arguments and considering them in detail. (69) On the contrary, the first paragraph of Article 264 TFEU even requires such an examination since only an action for annulment which is (admissible and) well founded can lead to the contested EU act being declared void.
95. The General Court conducted precisely such an examination in the present case. In the passages of the judgment to which Frucona objects, it dealt comprehensively with the complaints and arguments put forward by Frucona in its action for annulment and with the defence submissions of the Commission. The General Court concluded that none of the complaints raised by Frucona and none of the arguments put forward by Frucona justify the annulment of the contested decision. (70)
96. In the present case, the General Court certainly did not consider the grounds cited by the Commission in the contested decision to be incorrect or unlawful and replace them with its own, different reasoning. The General Court did not conclude that the contested decision should be upheld on different grounds from those mentioned by the Commission. Rather, the basis for the judgment under appeal is that, despite undeniable deficiencies, the contested decision, together with its grounds, (still) stands up to legal scrutiny.
97. The General Court revised the grounds cited by the Commission in the contested decision for the existence of State aid for the purposes of Article 87(1) EC in only one respect. It identified a calculation error on the part of the Commission as regards the costs of a possible bankruptcy procedure to be taken into consideration. It then rectified the estimate given in the contested decision of the expected minimum proceeds from a possible bankruptcy procedure for the public creditor from SKK 239 million to SKK 225.5 million and used that rectified figure in its further analysis of the arguments put forward by Frucona. (71)
98. It should be noted that in proceedings for annulment the General Court may be led to interpret the reasoning of the contested measure in a manner which differs from that of its author, and even, in certain circumstances, to reject the latter’s formal statement of reasons where there is a material factor to justify such a course of action. (72)
99. In the present case, there was, in the form of the calculation error by the Commission, an objective reason for the General Court to depart, on certain points, from the grounds with which the Commission had substantiated the existence of State aid for the purposes of Article 87(1) EC in the contested decision.
100. Such a departure from the grounds of the contested decision was justified – in the light of the role played by the European Union Courts in proceedings for an action for annulment (73) – because it did not have any significant effects on the legal correctness of the Commission’s findings (existence of State aid for the purposes of Article 87(1) EC). On the other hand, an annulment of the contested decision would have been wholly disproportionate to the importance and the effects of the calculation error identified.
101. Admittedly, the calculated figures were now very close together, since, following the rectification of the calculation error, the minimum proceeds from a possible bankruptcy procedure to be expected by the Slovak revenue authorities were only SKK 225.5 million. As the General Court states, that rectified amount is ‘virtually equal’ to the sum of SKK 224.3 million actually paid by Frucona to the Tax Office under the arrangement. Nevertheless, the sum of SKK 225.5 million, which was, moreover, only an extremely cautious estimate, was still SKK 1.2 million higher than the sum of SKK 224.3 million actually received by the Tax Office. (74)
102. In these circumstances, the General Court rightly concluded that the Commission did not manifestly err in finding that the proceeds from the sale of the applicant’s assets in a bankruptcy procedure, after deduction of the costs relating thereto, would have been more advantageous than the amount obtained by the Slovak authorities pursuant to the arrangement. (75)
103. In view of the broad margin of appreciation enjoyed by the Commission in the assessment of complex economic circumstances, (76) the General Court could not impute a manifest error of assessment in this respect to the Commission. The assumption that a circumspect private creditor under market conditions would have opted for a bankruptcy procedure with expected minimum proceeds of SKK 225.5 million, rather than being satisfied with the immediate payment of SKK 224.3 million was at least readily justifiable. Contrary to the view taken by Frucona, under the particular circumstances of the individual case, which the General Court discussed in detail, (77) it was certainly not inevitable that, on account of the possible delay resulting from a bankruptcy procedure, a private creditor would have opted for the immediate payment of SKK 224.3 million and for a write-off of the outstanding claim, rather than the satisfaction of his claims from the bankruptcy assets.
104. It should also be borne in mind in this connection that the test applied in case-law of the facilities which the recipient undertaking would ‘manifestly’ have not obtained from a private creditor under similar conditions should not be construed as a quantitative test. (78) Rather, it is sufficient that the conduct of a private creditor in a comparable situation which is assumed in the contested decision (i.e. insistence on a bankruptcy procedure) could be considered more likely, having regard to the discretion enjoyed by the Commission, than the conduct ultimately displayed by the public creditor (i.e. the write-off of 65% of its claims under an arrangement). Higher requirements in terms of likelihood do not apply here. (79)
105. All in all, the first complaint raised by Frucona in connection with this second plea in law is therefore unfounded.
2. The allegation of distortion of evidence
106. Lastly, it is necessary to examine the second complaint raised by Frucona under the second plea in law, which alleges a distortion of evidence.
a) Admissibility
107. In principle, the distortion of evidence is a matter of law of which it is admissible for the Court to be seised in appeal proceedings. Under Article 256(1) TFEU, Article 51(1) of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice, however, where an appellant alleges distortion of the evidence by the General Court, he must indicate precisely the evidence alleged to have been distorted by that Court and show the errors of appraisal which, in his view, led to such distortion. (80)
108. Frucona has not satisfied these high requirements in its appeal. It has explained at length why it considers the statements made by the General Court on the costs of a bankruptcy procedure, the duration of a bankruptcy procedure, the alleged caution in the Commission’s assessment of the facts and the alleged relevance of an outstanding claim following a bankruptcy procedure to be incorrect. However, there is no precise indication of the specific evidence alleged to have been distorted by the General Court or of the precise nature of the respective errors of assessment. In the main, Frucona simply makes the general claim, at the end of each sub-section of its statements regarding the second plea in law, with a single sentence or even just half a sentence, that the General Court had proceeded on the basis of ‘a clear distortion’ or a ‘manifestly incorrect assessment’ of the ‘existing evidence’.
109. Under these circumstances, I take the view that the complaint of distortion of evidence has not even been raised in an admissible manner.
b) Substance
110. Even if this complaint were deemed admissible, however, it would in any case be unfounded.
111. The appellant has argued over several pages why it does not consider the statements made by the General Court on the costs of a bankruptcy procedure, the duration of a bankruptcy procedure, the alleged caution in the Commission’s assessment of the facts and the alleged relevance of an outstanding claim following a bankruptcy procedure to be convincing.
112. This is not relevant, however, where a distortion of evidence is at issue. Such distortion exists where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect. (81) In other words, the assessment of the evidence in the judgment under appeal must be absolutely untenable, and the error of assessment committed by the General Court must be readily apparent. If the existing evidence lends itself to more than one interpretation, as will often be the case with complex economic circumstances, the General Court cannot be reproached for opting for one of them, even if the appellant or the Court of Justice itself considers a different interpretation to be preferable.
113. There may be different views as to whether the statements made by the General Court in the present case on the costs of a bankruptcy procedure, the caution in the Commission’s assessment of the facts and the relevance of an outstanding claim following a bankruptcy procedure are convincing. However, the conclusions drawn by the General Court from the existing evidence are not manifestly incorrect.
114. The same is true of the question, which was discussed in detail in the written and the oral procedure before the Court, whether the Commission addressed the duration of a bankruptcy procedure in the contested decision. In the view of the General Court, ‘it cannot therefore be alleged that the Commission ignored that question and [Frucona’s] position in this respect’. (82) Frucona, on the other hand, insists that the contested decision is silent on the question of the duration of a bankruptcy procedure and alleges that the General Court distorted the decision in this regard.
115. That allegation is unfounded. It is true that the contested decision does not expressly state whether the Commission addressed the duration of a bankruptcy procedure or the way in which it took that question into consideration in applying the private creditor test. It cannot, however, automatically be inferred from this silence in the contested decision – contrary to the view taken by Frucona – that the Commission ignored the problem of the duration of a bankruptcy procedure. The contested decision is open to interpretation on this point. It cannot therefore be regarded as manifestly incorrect if the General Court – unlike the appellant – considers that the Commission addressed the abovementioned question and Frucona’s position in this respect, especially since, in recitals 40 and 54 to the contested decision, to which the General Court expressly refers, (83) there are clear indications that the Commission was at least aware of the question. Nevertheless, the Commission possibly did not consider this question to be crucial, in view of the specific circumstances of the present case, (84) and for that reason did not make any more specific statements on the duration of a possible bankruptcy procedure in the grounds of the decision. (85)
116. All in all, I have the impression that Frucona actually wishes to persuade the Court, on the pretext of a complaint of distortion, to reappraise the facts and evidence assessed by the General Court in the proceedings at first instance. However, such action is not compatible with the nature of the appeal proceedings, in which the Court must restrict itself, under Article 256(1) TFEU, to examining points of law only. (86)
117. Accordingly, the complaint of a distortion of evidence is not only inadmissible, but also unfounded.
3. Interim conclusion
118. All in all, the second plea in law raised by Frucona must also therefore be rejected.
V – Costs
119. If, as I propose in this case, the appeal is dismissed, the Court will make a decision as to costs (first paragraph of Article 122 of the Rules of Procedure), the details of which are set out in Article 69 in conjunction with Article 118 of the Rules of Procedure.
120. Under Article 69(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 Frucona has been unsuccessful and the Commission and St. Nicolaus-trade, as other parties to the proceedings, have each applied for costs, Frucona must be ordered to pay their costs.
VI – Conclusion
121. In the light of the foregoing considerations, I propose that the Court should:
(1) dismiss the appeal;
(2) order Frucona Košice a. s. to pay the costs.