ORDER OF THE VICE-PRESIDENT OF THE COURT
16 January 2020 (*)
(Appeal — Interlocutory order — State aid — Application for interim measures — Rejection — No need to adopt the interim measures sought — Lack of jurisdiction — Inadmissibility)
In Case C‑605/19 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 12 August 2019,
Highgate Capital Management LLP, established in London (United Kingdom), represented by M. Struys, avocat, and I. Van Damme, advocaat,
appellant,
the other parties to the proceedings being:
European Commission, represented by K. Blanck, A. Bouchagiar and K.‑P. Wojcik, acting as Agents,
defendant at first instance,
THE VICE-PRESIDENT OF THE COURT,
after hearing the Advocate General, M. Szpunar,
makes the following
Order
1 By its appeal, Highgate Capital Management LLP is asking the Court to set aside the order of the President of the General Court of the European Union of 12 July 2019, Highgate Capital Management v Commission (T- 280/19 R, not published, ‘the order under appeal’, EU:T:2019:545) dismissing its application, first, for the suspension of operation of a decision of the European Commission rejecting a complaint relating to allegedly unlawful State aid granted to Eurobank Ergasias SA through the sale of Piraeus Bank Bulgaria AD (SA.53105) and, second, the grant of other interim measures.
Background to the dispute, procedure before the General Court and the order under appeal
2 As part of the restructuring of the banking sector in Greece, Piraeus Bank and Eurobank Ergasias (‘Eurobank’) received State aid through the Hellenic Financial Stability Fund (HFSF).
3 By decisions of 26 and 29 November 2015, adopted as part of the State aid control procedures SA.43363 and SA.43364, the Commission found that the aid granted by the Hellenic Republic was compatible with the internal market, in particular in view of the commitments provided by the Hellenic Republic which form an integral part of the restructuring plans applicable to Piraeus Bank and to Eurobank, respectively.
4 Under Eurobank’s restructuring plan, it must not, in principle, acquire shareholdings. Under Piraeus Bank’s restructuring plan, it was supposed to dispose of assets abroad, including its Bulgarian subsidiary, Piraeus Bank Bulgaria. Those commitments applied until 31 December 2018.
5 In November 2017, Piraeus Bank initiated a process for the sale of Piraeus Bank Bulgaria.
6 The appellant participated in that process and submitted an offer to purchase Piraeus Bank Bulgaria.
7 On 24 October 2018, Piraeus Bank assessed Eurobank’s offer as being the best.
8 On 7 November 2018, the purchase of Piraeus Bank Bulgaria by Eurobank was publicly announced.
9 The final closing date for the sale was scheduled for the beginning of 2019, with the sale being subject to the approval of the Balgarska narodna banka (Bulgarian National Bank) and the Komisiya za zashtita na konkurentsiyata (authority for the protection of competition, Bulgaria, ‘the competition authority’).
10 On 13 December 2018, the appellant contacted the HFSF, claiming inter alia that its offer was better than Eurobank’s, without referring to any potential problems with State aid.
11 By letter of 20 December 2018, addressed to the Commission, the appellant set out the reasons why it considered that the sale of Piraeus Bank Bulgaria to Eurobank was unlawful. According to the appellant, that sale was incompatible with the obligations arising from the restructuring plans for Piraeus Bank and Eurobank. In addition, it submitted that that sale involved the granting of State aid in favour of Eurobank. In that regard, it argued, inter alia, that its offer was in a number of respects better than Eurobank’s which was accepted.
12 On 17 January 2019, the appellant contacted the Commission again, lodging a formal complaint using the form provided for that purpose, in which it repeated the claims already made in its letter of 20 December 2018.
13 On 23 January 2019, the appellant lodged a complaint with the competition authority requesting it not to allow the acquisition of Piraeus Bank Bulgaria by Eurobank.
14 On 7 February 2019, the Commission informed the appellant that, as part of its examination of the complaint lodged by the latter, it had contacted the Greek authorities the day before in order to gather information and that it would keep the appellant informed of the progress of the procedure.
15 On 13 February 2019, the appellant lodged a complaint with the Bulgarian National Bank requesting that it refuse approval of the sale of Piraeus Bank Bulgaria to Eurobank.
16 On 22 February 2019, the Bulgarian National Bank asked the Commission questions relating to the commitments contained in the restructuring plans, in particular the commitment applicable to Eurobank not to acquire shareholdings during a given period expiring on 31 December 2018.
17 On 8 March 2019, the Commission replied, inter alia, to the Bulgarian National Bank stating that, in accordance with its practice concerning the monitoring of commitments relating to State aid, the final closing date of a sale is the relevant date to be taken into consideration when examining the compatibility of the sales with the commitments provided.
18 In response to a question from a Member of the European Parliament concerning the proposed acquisition of Piraeus Bank Bulgaria by Eurobank, the Commissioner responsible for competition publicly declared on 20 March 2019 the following:
‘To find aid to ailing banks compatible with the internal market, the Commission is, amongst other things, seeking a commitment from the bank and the Member State that the former will not make acquisitions during its restructuring period, thereby preventing the use of the aid received in mergers and acquisitions. However, once this “acquisition ban” commitment has expired, on 31 December 2018 in this case, the Commission has no longer any competence under State aid rules to intervene in acquisitions made by the bank.
Concerning Eurobank’s announced acquisition of Piraeus Bank Bulgaria, the closing date of the sale is expected to take place during the 1st quarter 2019. The Commission takes that closing date into account to conclude that the transaction no longer falls under Eurobank’s acquisition ban. The closing date is seen as the relevant date, since the binding offer or Share Purchase Agreement can contain conditions (such as regulatory approvals) that prevent the sale from closing in case they are not fulfilled.
The Commission is in regular contact with the Greek authorities and receives updates on the bank’s compliance with the Commitments through the appointed Monitoring Trustee. Besides, the Commission has received a complaint from an unsuccessful bidder for Piraeus Bank Bulgaria and deals with this complaint in line with its standard procedures.’
19 On 1 April 2019, the appellant received a letter from the Bulgarian National Bank dismissing its complaint.
20 On 8 April 2019, in an email sent to the Commission, the appellant disagreed with the remarks made by the Commissioner responsible for competition as set out in paragraph 18 above.
21 By letter of 19 April 2019, the appellant, in accordance with Article 265 TFEU, formally invited the Commission to make a decision within two months of that date.
22 On the same day, the appellant sent a second letter to the Commission in which it indicated that it had received ‘confirmation’ that, in its rejection of the complaint which the appellant had lodged, the Bulgarian National Bank had referred to the Commission’s clearance. In that letter, the appellant claimed, inter alia, that that clearance amounts to a partial or full rejection of its complaint and that it had been misled by the Commission in that the Commission had also stated on 16 April 2019 that no decision had been taken.
23 On the same date, the appellant demanded that the Commission provide it with a copy of the letter which it sent on 8 March 2019 to the Bulgarian National Bank.
24 By application lodged at the Registry of the General Court on 30 April 2019 and notified to the Commission on 3 May 2019, the appellant in essence asked the General Court to annul the decision rejecting its complaint (Case SA.53105 — Alleged aid to Eurobank Ergasias through sale of Piraeus Bank Bulgaria) in so far as that complaint concerned the breach of the restructuring commitments (‘the alleged contested decision’).
25 On 2 May 2019, the Commission sent a letter to the appellant in which it stated that the Commission Directorate General (DG) for Competition had carried out a preliminary assessment of that complaint and had formed a preliminary opinion. According to that preliminary assessment, the sale of Piraeus Bank Bulgaria to Eurobank did not infringe the commitments arising from the Piraeus Bank and Eurobank restructuring plans, nor did it entail the grant of State aid to Eurobank. The Commission made clear that that letter did not set out its definitive position, but only a preliminary opinion of the services of DG Competition on the basis of the information available pending additional comments from the appellant.
26 On 9 May 2019, the competition authority authorised the purchase of Piraeus Bank Bulgaria by Eurobank. According to the appellant, it is apparent from that decision that State aid law is deprived of any relevance as regards the control and assessment of concentrations between undertakings.
27 By separate document lodged at the Registry of the General Court on 13 May 2019, the appellant, on the basis of Articles 278 and 279 TFEU, asked the President of the General Court to order the suspension of the operation of the alleged contested decision, to require the Commission, in the event that that decision is suspended, to inform the Hellenic Republic, the HFSF and the relevant authorities in Bulgaria immediately that they cannot rely on that decision with regard to the acquisition by Eurobank and the sale by Piraeus Bank of Piraeus Bank Bulgaria and, in the event that the relevant approvals have already been granted by the Hellenic Republic, the HFSF or other relevant authorities in Bulgaria, to order them to withdraw their approvals, and to order the Commission to pay the costs.
28 On 13 May 2019, the Administrativen sad Sofiya grad (Administrative Court of the City of Sofia, Bulgaria) dismissed the application to suspend the operation of the decision of the competition authority of 9 May 2019 authorising the acquisition of Piraeus Bank Bulgaria by Eurobank.
29 By letter of 13 May 2019, the appellant informed the HFSF that it had brought its action in the main proceedings. In that letter the appellant claimed that, in the event that the General Court found in its favour, the contract relating to the purchase of Piraeus Bank Bulgaria would be ‘null and void’ and drew the HFSF’s attention to the risk of approving a transaction which contravenes EU law. However, the appellant did not refer to the prohibition on implementation laid down in Article 108(3) TFEU.
30 On 14 May 2019, the General Court Registry requested that the interlocutory application be put in order and asked the appellant to identify the alleged contested decision.
31 On 16 May 2019, the appellant, in response to that request, indicated that the alleged contested decision was the one in which the Commission had rejected its complaint in so far as the grievances concerning the commitments linked to the restructuring were at issue. The existence of such a decision is demonstrated by two pieces of evidence, namely the letter from the Commission of 8 March 2019 to the Bulgarian National Bank and the reply given on 20 March 2019 by the Commissioner responsible for competition, referred to in paragraph 18 above.
32 On 27 May 2019, the appellant submitted new pieces of evidence from which it was apparent in particular that, on 23 May 2019, the Commission had rejected its request for access to that letter of 8 March 2019.
33 By a measure of inquiry of 5 June 2019, the President of the General Court ordered the Commission to produce that letter.
34 On 11 June 2019, the Commission produced the letter in question.
35 By the order under appeal, the President of the General Court, without ruling on the admissibility of the main action, the urgency or the condition relating to a prima facie case, dismissed the interlocutory application as inadmissible, partly because the appellant had not demonstrated that it had established an interest in obtaining the measures requested and partly because of the lack of jurisdiction of the President of the General Court.
Forms of order sought and procedure before the Court of Justice
36 By its appeal, the appellant claims that the Court should:
– set aside the order under appeal, and
– order the Commission to pay the costs of the appeal proceedings and the interlocutory procedure.
37 The Commission contends that the Court should:
– dismiss the appeal, and
– order the appellant to pay the costs.
38 By separate document lodged at the Registry of the Court of Justice on 3 September 2019, the appellant, pursuant to Articles 278 and 279 TFEU, and Article 160(7) of the Rules of Procedure of the Court of Justice, applied for suspension of operation and other interim measures seeking, in essence, suspension of the order under appeal and of the alleged contested decision, and any other necessary provision.
The appeal
39 In support of its appeal, the appellant relies on three grounds.
The first ground of appeal
Arguments
40 By its first ground of appeal, the appellant argues that the assessment of the President of the General Court that the suspension of the alleged contested decision would not enable the appellant to achieve its aim of preventing the implementation of the transfer of Piraeus Bank Bulgaria to Eurobank is based on a misinterpretation of the effects of a final decision for the purposes of Article 108(3) TFEU.
41 According to the appellant, once a final decision such as the alleged contested decision is adopted, the national authorities and courts are bound by it and may no longer rule on the existence of an infringement of Article 108(3) TFEU or, as the case may be, draw the appropriate conclusions from such an infringement.
42 Thus, the appellant submits that the suspension of the alleged contested decision could have an immediate effect on the harm which it alleged, since, in such a case, those authorities and those courts would have been under an obligation to safeguard its rights in the event of a possible infringement of Article 108(3) TFEU.
43 In that regard, the appellant claims that the national authorities should, if necessary, have blocked the transfer of Piraeus Bank Bulgaria to Eurobank, reversed the transaction and taken any other appropriate measures to provide relief to the appellant. Where the alleged contested decision is not suspended, those authorities are faced with a final decision which binds them and they are not authorised to take any such measures.
44 As a preliminary point, the Commission states that the appellant’s claims are all based on a purely artificial and unrealistic construction consisting of imagining that a Commission decision on its complaint of 17 January 2019 exists, in order then to be able to challenge that fictitious and non-existent decision and to apply for its suspension, whereas in fact the examination of that complaint is still ongoing and no final decision on that complaint has been taken yet. By attempting to ‘frontload’ judicial review to a situation in which administrative procedures in reality have not yet been finalised, the appellant is circumventing the judicial remedy structures laid down by the TFEU and is using up the limited judicial resources available to the Court of Justice.
45 The Commission submits that, even if the alleged contested decision exists, it does not concern the sale of Piraeus Bank Bulgaria to Eurobank, but a possible infringement of Eurobank’s restructuring commitments, in particular the one which prohibits any acquisition until 31 December 2018, whereas, by its interlocutory application, the appellant sought to avert implementation of the transfer of Piraeus Bank Bulgaria to Eurobank in order to reserve the possibility of acquiring that bank itself.
46 Although such a decision could affect the lawfulness of the restructuring aid given to Eurobank, it has no legal effect on the validity of the sale of Piraeus Bank Bulgaria to Eurobank, which the appellant seeks to block.
47 Thus, according to the Commission, although a decision which concludes that there is no breach of Eurobank’s restructuring commitments prevents the appellant from seeking to obtain from the national authorities and courts appropriate measures under Article 108(3) TFEU as a result of the grant of that restructuring aid, such as the provisional recovery of that aid, that decision does not, however, prevent the appellant from seeking to obtain from those authorities and courts, on the basis of that provision, measures to prevent that sale, since it does not deal with the issue whether that sale amounts to State aid.
48 Consequently, the Commission agrees both with the assessment of the President of the General Court that the suspension of the alleged contested decision would not mean that the sale of Piraeus Bank Bulgaria to Eurobank must be suspended and with the other reasons why it considered that a suspension of that decision would not enable the appellant to block that sale.
Assessment
49 It should be borne in mind at the outset that, for a person to have an interest in bringing appeal proceedings, the appeal must be capable, if successful, of procuring an advantage for that party (order of the President of the Court of 27 February 2002, Reisebank v Commission, C‑477/01 P(R), EU:C:2002:126, paragraph 21 and the case-law cited).
50 The assessment of an applicant’s interest in obtaining the measures sought takes on particular importance in proceedings on an application for interim relief (orders of the President of the Court of 30 April 1997, Moccia Irme v Commission, C‑89/97 P(R), EU:C:1997:226, paragraph 43, and of 27 February 2002, Reisebank v Commission, C‑477/01 P(R), EU:C:2002:126, paragraph 22).
51 The judge hearing an interlocutory application may order suspension of operation of an act or other interim measures only if it is established inter alia that, in order to prevent serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Interim measures which would not serve to prevent the serious and irreparable harm feared by the applicant cannot a fortiori be necessary for that purpose (see, to that effect, orders of the President of the Court of 30 April 1997, Moccia Irme v Commission, C‑89/97 P(R), EU:C:1997:226, paragraph 44, and of 27 February 2002, Reisebank v Commission, C‑477/01 P(R), EU:C:2002:126, paragraph 23).
52 In the present case, the President of the General Court, in paragraph 65 of the order under appeal, considered that the mere suspension, as an interim measure, of the alleged contested decision would not enable the appellant to prevent the implementation of the transfer of Piraeus Bank Bulgaria to Eurobank for a number of reasons which are set out in paragraphs 66 to 70 of that order.
53 In particular, the President of the General Court, in paragraphs 67 and 68 of the order under appeal, took the view that such a suspension would not entail the finding that the sale of Piraeus Bank Bulgaria to Eurobank infringes the provisions of the restructuring plans for Piraeus Bank and Eurobank and constitutes unlawful aid, or that that sale, which the appellant seeks to block, would have to be suspended.
54 Those considerations are not vitiated by the appellant’s arguments that the alleged contested decision amounts to a final decision for the purposes of Article 108(3) TFEU and that, for that reason, it binds the national authorities and courts which can no longer rule on the existence of an infringement of that provision or, if necessary, draw the appropriate conclusions from such an infringement.
55 In that regard, it should be recalled that the implementation of the system of prior control of plans to grant new aid, established by Article 108(3) TFEU, is a matter for both the Commission and the national courts, their respective roles being complementary but separate (judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 27).
56 Whilst an assessment of the compatibility of aid measures with the internal market falls within the exclusive competence of the Commission, subject to review by the Courts of the European Union, it is for the national courts to ensure the safeguarding, until the final decision of the Commission, of the rights of individuals faced with a possible breach by State authorities of the prohibition laid down by Article 108(3) TFEU (judgment 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 28).
57 In the present case, by the alleged contested decision, even if it exists, the Commission partially rejected the appellant’s complaint in that the appellant had alleged a breach of the commitments made in the restructuring plans for Piraeus Bank Bulgaria and Eurobank.
58 However, by that decision, the Commission did not adopt a position on the issue whether the sale of Piraeus Bank Bulgaria to Eurobank involved the grant of State aid to Eurobank.
59 Thus, the President of the General Court, in paragraph 104 of the order under appeal, recalled that the appellant itself had not claimed that the Commission had taken a decision with regard to its claim, set out in its complaint of 17 January 2019, concerning the existence of State aid in favour of Eurobank as a result of the fact that its offer for the acquisition of Piraeus Bank Bulgaria was better than Eurobank’s offer, which was accepted.
60 Furthermore, in paragraph 48 of its appeal, the appellant acknowledges that it is not apparent from any part of its interlocutory application that it sought to obtain interim measures because of the new unlawful State aid given to Eurobank arising from its acquisition of Piraeus Bank Bulgaria.
61 Consequently, even if it exists, the alleged contested decision cannot be regarded as amounting to a final decision for the purposes of Article 108(3) TFEU with regard to the issue whether or not the sale of Piraeus Bank Bulgaria to Eurobank amounts to State aid in favour of Eurobank.
62 It therefore follows that, in the absence of a definitive Commission decision in that regard, the appellant may make an application to the relevant national authorities or courts for a ruling on that issue and that they must draw the appropriate conclusions from any infringement of that provision.
63 A suspension of the alleged contested decision would have no effect on that possibility or that obligation, nor would it mean that the sale of Piraeus Bank Bulgaria to Eurobank, which the appellant seeks to block, should be suspended or that it should necessarily be regarded as amounting to unlawful State aid.
64 Therefore, in finding in paragraphs 66, 75 and 76 of the order under appeal that suspension of the alleged contested decision would not enable the appellant to achieve its aim of preventing the implementation of the transfer of Piraeus Bank Bulgaria to Eurobank, that that suspension would therefore not prevent the harm alleged by the appellant and that, accordingly, the appellant had not demonstrated that it had established an interest in obtaining that suspension, the President of the General Court did not misinterpret Article 108(3) TFEU.
65 In those circumstances, the first ground of appeal must be rejected.
The second ground of appeal
Arguments
66 By its second ground of appeal, the appellant claims that the President of the General Court’s finding that requiring the Commission to inform the relevant national authorities immediately that they could not rely on the alleged contested decision as regards the acquisition of Piraeus Bank Bulgaria by Eurobank would not prevent the harm alleged by the appellant is based on a misinterpretation of the effects of an alleged final decision for the purposes of Article 108(3) TFEU.
67 According to the appellant, an order imposing such an obligation on the Commission would have ensured that all relevant national authorities immediately took all measures necessary to prevent or remedy any use of that decision and that they thus fulfil their obligations under that provision.
68 The appellant submits that, if the alleged contested decision had been suspended, those authorities would have had to draw all the appropriate conclusions of a potential infringement of that provision and that such an order would have strengthened the effectiveness of a suspension of that decision.
69 Furthermore, the appellant claims that the President of the General Court was wrong in finding that State aid law was irrelevant for the purposes of the approval by the relevant national authorities of the acquisition of Piraeus Bank Bulgaria by Eurobank.
70 The Commission disputes that line of argument, which it contends is based on a deliberate misinterpretation of the scope of a final decision which it allegedly adopted.
71 As the Commission argued in connection with the first ground of appeal, even if it exists, that decision concerns only the issue of a possible breach of Eurobank’s restructuring commitments and affects only the possibility for the appellant to apply to the national courts for measures relating to the legality of the restructuring aid given to Eurobank.
72 However, the Commission maintains that such reasoning is not relevant when it comes to measures intended to prevent the acquisition of Piraeus Bank Bulgaria by Eurobank, which the appellant is asking the relevant national authorities to adopt, since there is not even a notional Commission decision on the issue whether that acquisition constitutes aid.
73 Therefore, even if a breach of the commitments connected to the grant of restructuring aid to Eurobank had been established, that would have had no legal consequences for the validity of that acquisition and would not have given the appellant the right to bring an action before the national courts against measures other than the grant of restructuring aid to Eurobank.
74 In those circumstances, the Commission agrees with the conclusion of the President of the General Court that, since the interim measures sought do not on any view prevent the serious and irreparable harm alleged by the appellant, it has not demonstrated that it has established an interest in obtaining those measures.
Assessment
75 The second ground of appeal rests on the assumption that the relevant national authorities could draw the appropriate conclusions from a possible infringement of Article 108(3) TFEU only as long as the alleged contested decision is suspended and that, in such a situation, an obligation on the part of the Commission to inform those authorities immediately that, as regards the acquisition of Piraeus Bank Bulgaria by Eurobank, they cannot rely on that decision, would strengthen the effectiveness of a suspension of that decision.
76 As was found in the examination of the first ground of appeal, even if it exists, the alleged contested decision, as regards the issue whether or not the sale of Piraeus Bank Bulgaria to Eurobank constitutes State aid in favour of Eurobank, must not be regarded as a final decision for the purposes of Article 108(3) TFEU, so that suspension of the alleged contested decision would have no effect on the possibility for the appellant to apply to the relevant national authorities or courts for a ruling on that issue and on the requirement for those authorities and courts to draw the appropriate conclusions from any infringement of that provision.
77 Accordingly, suspension of the alleged contested decision does not mean that that sale must be suspended or that it must necessarily be regarded as constituting unlawful State aid.
78 Therefore, even if the alleged contested decision had been suspended, an obligation on the part of the Commission to inform the relevant national authorities immediately that, as regards that sale, they could not rely on that decision would not have enabled the appellant to achieve its aim of preventing the implementation of that sale and, accordingly, preventing the alleged harm arising therefrom.
79 Moreover, contrary to what the appellant claims, the President of the General Court did not hold in paragraph 73 of the order under appeal that State aid law was irrelevant for the purposes of the approvals at national level of the acquisition of Piraeus Bank Bulgaria by Eurobank, but that the appellant had not established to what extent the existence of the alleged contested decision would be relevant for those approvals. In that context, the President of the General Court stated that, according to the appellant itself, it was apparent from the competition authority’s decision of 9 May 2019 that that law was irrelevant for the examination by that authority.
80 In any event, the President of the General Court was correct in finding that, even if the alleged contested decision exists and the national authorities referred to by the appellant in its interlocutory application rely on that decision, it did not follow that those authorities, regardless of whether that decision exists, could not reach the same conclusions in the assessment of the acquisition of Piraeus Bank Bulgaria by Eurobank.
81 In those circumstances, by holding that an obligation on the part of the Commission to inform the relevant national authorities immediately that, as regards the acquisition of Piraeus Bank Bulgaria by Eurobank, they could not rely on the alleged contested decision would therefore not prevent the harm alleged by the appellant and that, accordingly, the appellant had not demonstrated that it had established an interest in obtaining that interim measure, the President of the General Court did not misinterpret Article 108(3) TFEU.
82 Accordingly, the second ground of appeal must be rejected.
The third ground of appeal
Arguments
83 By its third ground of appeal, the appellant claims that the President of the General Court committed a number of manifest errors of assessment and errors in law concerning the effective judicial protection guaranteed by national procedures in order to prevent the serious and irreparable harm alleged by the appellant.
84 According to the appellant, the President of the General Court was wrong to dismiss its interlocutory application for an order that the Greek and Bulgarian authorities withdraw the approvals which they had already given concerning the acquisition of Piraeus Bank Bulgaria by Eurobank, on the ground that the appellant had not demonstrated that only those directions would have ensured its effective judicial protection in order to prevent that harm and that that protection could be ensured by national courts.
85 First, the appellant claims that, by finding in paragraph 97 of the order under appeal that ‘a priori, the Greek courts are, in principle, best placed’ to provide it with that protection, the President of the General Court did not take into consideration the arguments and evidence which had been submitted to him and which demonstrated that the appellant had successfully applied to the Bulgarian authorities and courts for the interim measures.
86 In that regard, the appellant claims that the President of the General Court lacks the jurisdiction to define the scope of the powers of the national authorities and courts, so that he did not have any jurisdiction to decide whether the Greek courts alone had jurisdiction to review the acquisition of Piraeus Bank Bulgaria by Eurobank.
87 Second, the appellant states that, although the national courts in principle have jurisdiction to draw all the appropriate conclusions from an infringement of Article 108(3) TFEU in their national legal order until the Commission adopts a final decision, the President of the General Court did not examine whether prima facie the Commission had adopted such a decision concerning breaches of the restructuring commitments, so that the issue whether the alleged contested decision exists remains unanswered.
88 In order to enable the national courts with jurisdiction to determine whether or not Article 108(3) TFEU was infringed, that issue must be addressed.
89 In that context, the appellant also claims that, contrary to what the President of the General Court assumed, there is nothing in its interlocutory application to suggest that it sought to obtain interim measures as a result of the new unlawful State aid given to Eurobank following its acquisition of Piraeus Bank Bulgaria.
90 Third, the appellant argues that, since a national court may order the suspension of a national measure based on an act of the European Union whose validity is disputed only after a request for a preliminary ruling has been made to the Court of Justice on the validity of that act, the Greek courts do not have jurisdiction to order interim measures relating to an infringement of Eurobank’s restructuring commitments without first making a request for a preliminary ruling to the Court of Justice.
91 However, the appellant submits that it is very unlikely that it would be able to rely on the invalidity of the alleged contested decision before those courts and request that they order the interim measures, since any request for a preliminary ruling on the validity of that decision would, on the basis of the case-law arising from the judgment of 9 March 1994, TWD Textilwerke Deggendorf (C‑188/92, EU:C:1994:90), be declared inadmissible by the Court.
92 Consequently, according to the appellant, only the Court of Justice may rule on the existence and the validity of that decision, and order interim measures.
93 Fourth, the appellant states that it is ready to bring an action before the Greek courts against the decision of the HFSF concerning the approval of the transaction for the acquisition of Piraeus Bank Bulgaria by Eurobank, but that it will only be able to obtain a copy of that decision after a long complex process before the Greek civil courts, with an uncertain outcome.
94 The Commission contests those arguments.
Assessment
95 In paragraph 97 of the order under appeal, the President of the General Court found, a priori, that the Greek courts are, in principle, best placed to enable the appellant to rely on the prohibition on implementation laid down in Article 108(3) TFEU with regard to Eurobank’s acquisition of Piraeus Bank Bulgaria and thereby prevent the alleged harm.
96 That consideration came into play after the President of the General Court found, in paragraph 86 of the order under appeal, that the appellant had not demonstrated that only by requiring the Commission to order the Hellenic Republic, the HFSF and/or other relevant authorities in Bulgaria to withdraw their approvals was it possible to ensure its effective judicial protection.
97 The appellant’s claim that the President of the General Court did not take into consideration matters which it had submitted to him and which demonstrated that it had asked the Bulgarian authorities and courts to adopt interim measures is, as is apparent from paragraph 98 of the order under appeal, manifestly unfounded.
98 Furthermore, contrary to what the appellant claims, the finding of the President of the General Court that, a priori, the Greek courts are in principle best placed to ensure its effective judicial protection is not invalidated by the fact that it asked the Bulgarian authorities and courts to adopt interim measures.
99 On the contrary, the existence of effective legal remedies in Bulgaria supports the assessments of the President of the General Court that the appellant had not demonstrated that only the directions requested were capable of ensuring its judicial protection, or consequently that the grant of those directions was justified by the overriding need to ensure its right to an effective remedy.
100 In addition, contrary to what the appellant claims, the President of the General Court did not declare that he had jurisdiction to define the scope of the powers of the national authorities and courts, nor did he find that only the Greek courts had jurisdiction to review the acquisition of Piraeus Bank Bulgaria by Eurobank.
101 The President of the General Court merely found that, a priori, the Greek courts are in principle best placed to carry out such a review.
102 With regard to the appellant’s argument that the relevant national courts could not determine whether or not Article 108(3) TFEU was infringed, since the President of the General Court did not rule on whether or not the alleged contested decision exists, suffice it to recall that, as was found in the examination of the first and second grounds of appeal, even if it exists, such a decision, as regards the issue whether or not the sale of Piraeus Bank Bulgaria to Eurobank constitutes State aid in favour of Eurobank, could not be considered to be a final decision for the purposes of that provision.
103 Consequently, the President of the General Court was not required to give a ruling on that point, since, even if it were established, the existence of the alleged contested decision would not have affected the possibility for the appellant to apply to the relevant national courts for a ruling on the issue of whether or not the sale of Piraeus Bank Bulgaria to Eurobank constitutes State aid in favour of Eurobank, or the obligation for those authorities and those courts to draw the appropriate conclusions from any infringement of that provision.
104 For those same reasons, the appellant’s argument that only the Court of Justice could rule on the existence and the validity of the alleged contested decision and order the interim measures in that respect cannot be accepted.
105 In that regard, as the President of the General Court stated in paragraph 104 of the order under appeal, the appellant itself did not claim that the Commission took a decision on the existence of State aid in favour of Eurobank because its offer for the acquisition of Piraeus Bank Bulgaria was better than Eurobank’s offer, which was accepted. Similarly, in its appeal, the appellant stated that it was not apparent from any part of its interlocutory application that it sought to obtain interim measures as a result, according to the appellant, of the new unlawful State aid given to Eurobank arising from its acquisition of Piraeus Bank Bulgaria.
106 Thus, the President of the General Court was correct in finding that, in the absence of a Commission decision according to which Eurobank’s acquisition of Piraeus Bank Bulgaria does not constitute State aid in favour of Eurobank, the Greek courts were not required to make a request to the Court of Justice for a preliminary ruling on the validity of the alleged contested decision in order to be able to grant interim measures.
107 Finally, with regard to the appellant’s assertion that it is prepared to bring an action before the Greek courts against the decision of the HFSF approving the acquisition of Piraeus Bank Bulgaria by Eurobank, it must be recalled that, in accordance with settled case-law, it follows from Article 256 TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, and also from Article 168(1)(d) of the Rules of Procedure, that an appeal must indicate precisely the contested elements of the judgment or order which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned will be declared inadmissible (judgment of 9 November 2017, TV2/Danmark v Commission, C‑649/15 P, EU:C:2017:835, paragraph 34 and the case-law cited).
108 By that assertion, the appellant is merely making a statement of intent, without making a specific and precise criticism of any aspect of the order under appeal.
109 It is clear from the foregoing considerations that the President of the General Court was correct in finding in paragraph 106 of the order under appeal that the appellant had not been able to demonstrate the existence of circumstances in which the grant of the directions referred to in paragraph 96 above was justified by the overriding need to ensure its right to an effective remedy.
110 In those circumstances, the third ground of appeal must be rejected.
111 In the light of all of the foregoing, the appeal must be dismissed in its entirety.
Costs
112 In accordance with Article 184(2) of the Rules of Procedure, where an appeal is unfounded, the Court is to make a decision as to the costs.
113 Under Article 138(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
114 Since the Commission has applied for costs and the appellant has been unsuccessful, the latter must be ordered to pay the costs.
On those grounds, the Vice-President of the Court of Justice hereby orders:
1. The appeal is dismissed.
2. Highgate Capital Management LLP shall pay the costs.
Luxembourg, 16 January 2020.
A. Calot Escobar | | R. Silva de Lapuerta |