Case T-291/06

Operator ARP sp. z o.o.

v

Commission of the European Communities

(State aid – Scheme for restructuring aid granted by the Republic of Poland to a steel producer – Decision declaring the aid to be in part incompatible with the common market and ordering its recovery – Protocol No 8 on the restructuring of the Polish steel industry – Action for annulment – Interest in bringing proceedings – Admissibility – Concept of beneficiary – Article 14(1) of Regulation (EC) No 659/1999)

Summary of the Judgment

1.      Actions for annulment – Interest in bringing proceedings – Need for an actual and current interest – Commission decision finding State aid to be incompatible with the common market and ordering its repayment

(Art. 230 EC)

2.      State aid – Decision to open an formal procedure to investigate a State measure – Provisional nature of the Commission’s assessments – Obligation on the Commission to define sufficiently the framework of its investigation

(Art. 88(2) EC; Council Regulation No 659/1999, Art. 6(1))

3.      Actions for annulment – Grounds – Lack of or inadequate statement of reasons – Distinguished from manifest error of assessment

(Arts 230 EC and 253 EC)

4.      State aid – Recovery of unlawful aid – Recovery from an undertaking which did not receive the aid but which acquired the recipient’s assets and carries on its business – Condition

(Art. 88(2) EC; Council Regulation No 659/1999, Art. 14(1))

1.      In order for an action for annulment brought by a natural or legal person to be admissible, that person must have a vested and present interest in the annulment of the contested act.

Concerning a Commission decision finding State aid to be incompatible with the common market and ordering its recovery, an undertaking’s interest in bringing proceedings cannot be denied merely by virtue of the fact that the aid in question was repaid by one of the other entities designated in the Decision as being jointly and severally liable for the repayment, while, according to national law, entities which have actually repaid unlawful aid may assert a right of action in that regard during a set period.

(see paras 25, 27)

2.      The review stage under Article 88(2) EC is designed to enable the Commission to be fully informed of all the facts of the case. According to Article 6(1) of Regulation No 659/1999 concerning the application of Article 88 EC, the decision to initiate the formal investigation procedure must summarise the relevant issues of fact and law, must include a ‘preliminary assessment’ by the Commission of the proposed measure, and must set out the doubts as to its compatibility with the common market. In addition, that decision must call upon the Member State concerned and upon other interested parties to submit their comments. The Commission’s analysis is necessarily preliminary in nature. It follows that the Commission cannot be required to present a complete analysis of the aid in question in its notice of intention to initiate that procedure. The Commission must, however, define sufficiently the framework of its investigation so as not to render meaningless the right of interested parties to put forward their comments.

(see paras 36-38)

3.      It is necessary to make a distinction between the ground for complaint alleging the absence or inadequacy of a statement of reasons for the decision. The latter aspect falls under the examination of the substantive legality of the decision and not the infringement of procedural requirements and thus cannot give rise to an infringement of Article 253 EC. Consequently, the Court cannot, when considering whether the obligation to state reasons has been fulfilled, examine the substantive legality of the reasons relied on by the Commission to justify its decision. In a plea based on a failure to state reasons or a lack of adequate reasons, objections and arguments which seek to challenge the merits of the contested decision are therefore misplaced and irrelevant.

(see para. 48)

4.      The widening of the group of entities required to repay the State aid can be justified only if the transfer of assets leads to the risk of circumvention of the effects of the recovery order, and in particular if, as a result of the takeover of assets, the original beneficiary of the aid is left like an ‘empty shell’ from which it is not possible to secure repayment of the unlawful aid. Moreover, that widening may be justified by the fact that the person or entity acquiring the assets retains the actual benefit of the competitive advantage connected with the receipt of the aid granted.

In that regard, where an undertaking that has benefited from unlawful aid is bought at the market price, the purchaser cannot be regarded as having benefited from an advantage in relation to other market operators. The purchaser cannot therefore be required to repay such aid. More specifically, in the case of the takeover of assets, even though a purchase price in line with the market has been paid by the purchaser for the takeover of assets, the purchaser does not retain the actual benefit of the competitive advantage connected with the receipt of the aid granted to the vendor. In such a case, it cannot be found that the original beneficiary of the aid is left like an ‘empty shell’ from which it is not possible to secure repayment of the unlawful aid or that the purchaser has retained the actual benefit of the competitive advantage connected with the receipt of the aid.

(see paras 66-67)