JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

13 December 2018 (*) (1)

(State aid — Chemical industry — Decision to continue the operation of an undertaking during insolvency proceedings — Decision finding no State aid — Action for annulment — Individual concern — Admissibility — Concept of State aid — Advantage — Private creditor test — Whether attributable to the State — Duty to state reasons)

In Case T-284/15,

AlzChem AG, established in Trostberg (Germany), represented initially by P. Alexiadis, Solicitor, A. Borsos and I. Georgiopoulos, lawyers, and subsequently by P. Alexiadis, A. Borsos, E. Kazili, P. Oravec et K. Csach, lawyers,

applicant,

v

European Commission, represented by G. Conte and L. Armati, acting as Agents,

defendant,

supported by

Slovak Republic, represented by B. Ricziová, acting as Agent,

and by

Fortischem a.s., established in Nováky (Slovakia), represented by C. Arhold, P. Hodál and M. Staroň, lawyers,

interveners,

APPLICATION pursuant to Article 263 TFEU seeking the annulment of Article 2 of Commission Decision (EU) 2015/1826 of 15 October 2014 on the State aid SA.33797 — (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ (OJ 2015 L 269, p. 71),

THE GENERAL COURT (Sixth Chamber),

composed of G. Berardis, President, S. Papasavvas and O. Spineanu-Matei (Rapporteur), Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 11 April 2018,

gives the following

Judgment

I.      Background to the dispute

1        The applicant, AlzChem AG, is a company whose registered office is in Germany and which is active in several fine chemicals markets in a number of European Union Member States, including the Slovak Republic.

2        Novácké chemické závody, a.s. v konkurze (‘NCHZ’), was a privately owned chemical producer with three divisions. It operated a chemical plant located in the Trenčín region (Slovakia). The company’s main activities were the production of calcium carbide and technical gases, polyvinyl chloride (PVC) and its by-products, and an increasing share of low tonnage heavy chemicals and fine chemicals.

3        On 8 October 2009, NCHZ, having declared its inability to continue its operations and its insolvency, became the subject of insolvency proceedings.

4        On 5 November 2009, the Slovak Republic adopted the zákon č. 493/2009 Z.z. o niektorých opatreniach týkajúcich sa strategických spoločností a o zmene a doplnení niektorých zákonov (Law No 493/2009 on certain measures regarding strategic companies and on the amendment of certain laws, ‘the Law on Strategic Companies’). That legislation, which entered into force on 1 December 2009, gave the State a right of pre-emption enabling it to purchase strategic companies which were the subject of insolvency proceedings and required the presence of an insolvency administrator (‘the administrator’) to ensure the continued operation of the strategic company while those proceedings were ongoing. On 2 December 2009, NCHZ was classified by the Slovak authorities as a strategic company under that legislation and enjoyed that status until the expiry of the legislation on 31 December 2010. NCHZ was the only company subject to the application of the legislation (‘the first insolvency period’).

5        After 31 December 2010, NCHZ became subject to the application of the zákon č. 7/2005 Z.z. o konkurze a reštrukturalizácii a o zmene a doplneni niektorých zákonov (Law No 7/2005 on insolvency and restructuring and the amendments to certain laws, ‘the law on insolvency’) (‘the second insolvency period’). At the joint meeting of 26 January 2011 between the unsecured creditors, gathered under the committee of creditors (‘the creditors’ committee’), and the secured creditors concerned (‘the meeting of 26 January 2011’), the administrator then informed them that the operating costs generated by NCHZ’s operations were higher than the operating income. The administrator also informed the creditors of its economic analysis dated 23 December 2010 (‘the economic analysis’) which was supplemented by a management presentation. The aforementioned creditors then decided that NCHZ’s operations were to be continued (‘the decision of 26 January 2011’). That decision having been approved by decision of the súd v Trenčíne, (Regional Court, Trenčín, Slovak Republic), on 17 February 2011 (‘the decision of the súd v Trenčíne (Regional Court of Trenčin)’ or ‘the decision of 17 February 2011’), the administrator continued those operations. In the present case, in accordance with the law on insolvency, the creditors’ committee, the secured creditors, and the súd v Trenčíne (Regional Court of Trenčín) comprised the relevant committee (‘the relevant committee’).

6        On 13 October 2011, the European Commission received a complaint alleging that the Slovak Republic had granted unlawful aid to NCHZ. That complaint was supplemented on 14 June 2012.

7        The Commission forwarded the complaint to the Slovak authorities on 17 October 2011 together with a request for information. On 22 March and 21 June 2012, the Commission sent the Slovak authorities further requests for information. The Slovak authorities responded to all of those requests.

8        On 31 July 2012, NCHZ was bought by Via Chem Slovakia a.s., which sold on the chemical division of NCHZ, with the exception of immovable assets, to Fortischem a.s. on 1 August 2012.

9        On 24 January 2013, a meeting was held between the Commission and the complainant, at the request of the complainant, which submitted additional information by emails of 8 and 22 March 2013.

10      By letter dated 2 July 2013, the Commission notified the Slovak authorities of its decision to initiate the formal investigation procedure under Article 108(2) of the TFEU (OJ 2013 C 297, p. 85), as regards, on the one hand, the authorisation of the State, as a result of the law on strategic companies, to continue NCHZ’s operations from December 2009 to December 2010 and, on the other, the creditors’ decision of January 2011 to continue NCHZ’s operations after the expiry of the law on strategic companies. The Commission also expressed doubts as to whether the tender procedure by which NCHZ was sold was unconditional and took the view that there were strong indications that there had been no break in the financial continuity between NCHZ and the new entity.

11      Following the decision of 2 July 2013, the Commission received comments from the Slovak authorities as well as the complainant and another interested party. The comments from those interested parties, together with further questions, were sent to the Slovak authorities, which submitted their comments on 14 January 2014.

12      On 7 October 2013 and 17 February 2014, meetings were held between the Commission and the Slovak authorities, at the request of the Slovak authorities. On 20 March 2014, the Commission sent an additional request for clarification to one of the interested third parties, which replied on 6 May 2014. On 2 May 2014, the Commission sent further questions to the Slovak authorities, to which they replied on 14 and 30 May 2014.

II.    Contested decision

13      On 15 October 2014, the Commission adopted Decision (EU) 2015/1826 concerning State aid SA.33797 (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ (OJ 2015 L 269, p. 71) (‘the contested decision’).

14      The Commission took the view that granting NCHZ strategic company status (‘the first measure’) constituted a selective advantage in favour of that company, was attributable to the State, led to the use of State resources and distorted competition in a market open to trade between Member States. The Commission concluded that the measure constituted State aid within the meaning of Article 107(1) TFEU, and that the aid was unlawful and incompatible with the internal market (recitals 110 and 114 to 124 of the contested decision). After having taken the view that the State aid amounted to EUR 4 783 424.10, it took the view that the aid had to be recovered from NCHZ and that Fortischem should also be covered by the recovery order since there was an economic continuity with NCHZ (recitals 101 and 174 of the contested decision).

15      By contrast, the Commission found that the continued operation of NCHZ pursuant to the decision by the creditors on 26 January 2011 (‘the second measure’) did not constitute State aid within the meaning of Article 107(1) TFEU since at least two cumulative conditions for the existence of State aid, namely that the measure at issue is attributable to the State and that there is an economic advantage, were not satisfied (recital 113 of the contested decision).

16      The operative part of the contested decision is worded as follows:

‘Article 2

The decision to allow continued operation of NCHZ after the expiry of the Act on the basis of the decision of the creditors’ committee did not constitute State aid within the meaning of Article 107(1) [TFEU].

…

Article 6

This Decision is addressed to the [Slovak Republic].’

III. Procedure

17      By application lodged at the Registry of the General Court on 1 June 2015, the applicant brought the present action.

18      By document lodged at the Court Registry on 6 October 2015, the Slovak Republic applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

19      On 13 October 2015, the present case was allocated to a new Judge-Rapporteur sitting in the Ninth Chamber.

20      By document lodged at the Court Registry on 22 October 2015, Fortischem applied for leave to intervene in the proceedings in support of the form of order sought by the Commission.

21      By orders of 16 February 2016, the President of the Ninth Chamber of the General Court granted the Slovak Republic and Fortischem leave to intervene. The decision on the merits of the requests for confidential treatment submitted by the applicant, vis-à-vis the interveners, concerning certain information contained in the application, the defence, the reply together with an annex thereto, and in the rejoinder, was reserved. Non-confidential versions of various procedural documents, prepared by the applicant, were sent to the interveners. Fortischem stated that it had no objections to the request for confidential treatment, whereas the Slovak Republic did not submit any observations in that regard.

22      The interveners submitted their statements in intervention. The applicant submitted its observations on those statements in intervention within the prescribed period. Since the applicant had requested the confidential treatment of certain information contained in the observations on the statement in intervention submitted by Fortischem, in respect of Fortischem and the Slovak Republic, a non-confidential version of those observations was sent to them. The Commission stated that it did not have any observations on the statements in intervention, but clarified that it did not agree with certain claims made by Fortischem regarding the assessment made, in the contested decision, of the first measure, which is the subject matter of Case T‑121/15, Fortischem v Commission.

23      By decision of the President of the General Court of 7 October 2016, the present case was allocated to a new Judge-Rapporteur. Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure of the General Court, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was accordingly allocated.

24      Upon hearing the report of the Judge-Rapporteur, the Court (Sixth Chamber) decided, on 6 February 2018, to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, put some written questions to the parties and asked them to produce certain documents. They responded to those questions within the prescribed period and produced the documents requested.

25      The parties presented oral argument and answered the questions put to them by the Court at the hearing on 11 April 2018. At the end of the hearing, the Court asked the Commission to produce, within one week, the letter from the Slovak authorities dated 14 May 2014 (see paragraph 12 above). The Commission complied with that request within the prescribed period and the document was sent to the applicant as well as the Slovak Republic and Fortischem.

26      On 30 May 2018, the oral part of the procedure was closed.

IV.    Forms of order sought

27      The applicant claims, in essence, that the Court should:

–        annul Article 2 of the contested decision;

–        order the Commission to pay its own costs;

–        order the Slovak Republic and Fortischem to bear their own costs.

28      The Commission and the Slovak Republic contend that the Court should:

–        dismiss the application;

–        order the applicant to pay the costs.

29      Fortischem submits that the Court should:

–        declare the action inadmissible;

–        dismiss the application;

–        order the applicant to pay the costs.

V.      Law

A.      Admissibility

30      Although it did not plead the inadmissibility of the action by separate document, the Commission puts forward arguments to that effect in the defence and rejoinder by relying on the applicant’s lack of locus standi, on account of its lack of individual concern. In its statement in intervention, Fortischem argues that the action is inadmissible.

31      The applicant disputes the arguments put forward by the Commission and by Fortischem and contends that the action is admissible.

32      It is not disputed that the applicant has an interest in bringing an action for annulment of the contested decision.

33      However, the Commission, supported by Fortischem, challenges the applicant’s locus standi. In that regard, although, as the Commission confirmed at the hearing in reply to a question from the Court, it does not dispute that Article 2 of the contested decision directly affects the applicant, it disputes that that article affects it individually.

34      Under the fourth paragraph of Article 263 TFEU, ‘any natural or legal person may … institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and which does not entail implementing measures’.

35      Since the applicant is not the addressee of the contested decision and the applicant’s direct concern is established, it is appropriate to check whether the applicant is also individually concerned by the contested decision, without it being necessary, if so, to check whether the contested decision constitutes a regulatory act which does not entail implementing measures.

36      It is settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned by a decision within the meaning of the second paragraph of Article 263 TFEU only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 107; of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 53; and of 5 November 2014, Vtesse Networks v Commission, T‑362/10, EU:T:2014:928, paragraph 36).

37      As regards, more specifically, the field of State aid, an applicant who challenges the merits of a decision appraising aid taken on the basis of Article 107(3) TFEU or at the end of the formal examination procedure is considered to be individually concerned by that decision if its market position is substantially affected by the aid to which the contested decision relates (judgment of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 54; see also, to that effect, judgments of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 30 and the case-law cited, and of 5 November 2014, Vtesse Networks v Commission, T‑362/10, EU:T:2014:928, paragraph 37).

38      In that regard, it should be noted that is not for the EU Courts, when considering whether an application is admissible, to make a definitive finding on the competitive relationship between an applicant and the beneficiaries of the measures at issue. In that context, it is for the applicant alone to adduce relevant evidence to show why the contested decision is liable to harm its legitimate interests by substantially affecting its position on the market in question (order of 11 January 2012, Phoenix-Reisen and DRV v Commission, T‑58/10, not published, EU:T:2012:3, paragraph 45; see also, to that effect, judgment of 21 October 2004, Lenzing v Commission, T‑36/99, EU:T:2004:312, paragraph 80).

39      With regard to the determination of a substantial effect on the position of an undertaking present in the market in question, it is apparent from the case-law that the mere fact that a measure, such as the contested decision, may exercise an influence on the competitive relationships existing in the relevant market and that the undertaking concerned was in a competitive relationship with the addressee of that measure cannot in any event suffice for that undertaking to be regarded as being individually concerned by that measure. Accordingly, an undertaking cannot for that reason rely solely on its status as a competitor of the undertaking in receipt of aid, but must also show that its circumstances distinguish it in a similar way to the recipient undertaking (judgments of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraphs 47 and 48; of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 99 and 100; and order of 21 April 2016, Royal Scandinavian Casino Århus v Commission, C‑541/14 P, not published, EU:C:2016:302, paragraph 23).

40      In addition to the undertaking in receipt of aid, competing undertakings have been recognised as individually concerned by a Commission decision terminating the formal examination procedure where they played an active role in that procedure, provided that their position on the market is substantially affected by the aid which is the subject of the decision at issue (see judgment of 22 November 2007 Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 55 and the case-law cited).

41      In that regard, it must be noted that demonstrating a substantial adverse effect on a competitor’s position on the market cannot simply be a matter of the existence of certain factors indicating a decline in its commercial or financial performance (see judgments of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 53 and the case-law cited, and of 5 November 2014, Vtesse Networks v Commission, T‑362/10, EU:T:2014:928, paragraph 40 and the case-law cited).

42      Furthermore, the existence of a substantial effect on the applicant’s position on the market does not depend directly on the amount of the aid, but on the significance of the adverse effect which that aid may have on that position. That adverse effect may vary, in respect of aid of a similar amount, in the light of criteria such as the size of the market concerned, the specific nature of the aid, the length of the period for which it was granted, whether the activity affected is the applicant’s main or ancillary activity and the possibilities which the applicant has to circumvent the negative effects of the aid (judgment of 5 November 2014, Vtesse Networks v Commission, T‑362/10, EU:T:2014:928, paragraph 41).

43      First of all, it should be noted that it is now established that the applicant is the complainant mentioned in the contested decision. In its application for leave to intervene in Case T‑121/15, Fortischem v Commission, it stated that it had participated in a meeting with the Commission on 24 January 2013 and that it had submitted observations on several occasions during the administrative proceedings, as mentioned in the contested decision (recitals 4 and 42 respectively of the contested decision) without it being disputed by the Commission (see, to that effect, order of 22 September 2015, Fortischem v Commission, T‑121/15, not published, paragraphs 2 and 3).

44      Moreover, it must be held that it is the applicant’s complaint of 13 October 2011, supplemented on 14 June 2012 and on 8 and 22 March 2013, following the meeting of 24 January 2013, which is behind the formal investigation procedure (recitals 1 and 4 of the contested decision). The applicant also submitted detailed observations, on 12 November 2013, following the publication of the decision to initiate that procedure. It is not disputed that its observations had some influence on the conduct thereof. These are factors which are relevant to the assessment of the applicant’s locus standi (see, to that effect, judgments of 28 January 1986, Cofaz and Others v Commission, 169/84, EU:C:1986:42, paragraphs 24 and 25, and of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 56).

45      Secondly, as regards the substantial effect on the applicant’s market position, it should first of all be noted that the relevant market is the market for calcium carbide. That market was referred to by the Commission in the contested decision in its assessment of the requirement relating to the distortion of competition and the effect on trade (recitals 98 and 99 of the contested decision). Although that assessment concerned the first measure examined by the Commission, it is not disputed that NCHZ’s operations continued on the same market during the second insolvency period, during which the second measure was applied. Moreover, the definition of the relevant market put forward by the applicant in its application for leave to intervene in Case T‑121/15, Fortischem v Commission, was not disputed (see, to that effect, order of 22 September 2015, Fortischem v Commission, T‑121/15, not published, paragraphs 2 and 3). Therefore, Fortischem’s arguments seeking to dispute that definition must be rejected.

46      Secondly, as regards the number of competitors on the relevant market, the Commission noted in the contested decision (recital 99 of the contested decision) that the number of calcium carbide producers was limited. Moreover, in its application for leave to intervene in Case T‑121/15, Fortischem v Commission, the applicant stated that, when the contested decision was adopted, there were only four competitors on that market, which neither the Commission nor the applicant has disputed (see, to that effect, order of 22 September 2015, Fortischem v Commission, T‑121/15, not published, paragraphs 2 and 3), two of those competitors being NCHZ and the applicant. It also stated that, when the action was brought, only two competitors, including the applicant, remained on the market, which has not been disputed.

47      Furthermore, the file shows that the applicant was in direct competition with NCHZ, as a result of which Fortischem cannot effectively claim that it should, at the very least, have conducted a market analysis in order to establish the specific goods or geographic markets in respect of which it is in competition with the recipient of the alleged aid. It appears from the file that the applicant is a supplier of calcium carbide, like NCHZ. In that regard, it should be noted that the applicant had also indicated its presence and that of NCHZ on the calcium carbide market in its application for leave to intervene in Case T‑121/15, Fortischem v Commission, which neither the Commission nor Fortischem disputed (see, to that effect, order of 22 September 2015, Fortischem v Commission, T‑121/15, not published, paragraphs 2 and 3). Moreover, in the contested decision (recital 99 of the contested decision), the Commission indicated that, in view of the limited number of producers of calcium carbide, the goods at issue are sold throughout the European Union. Finally, it must be stated that neither the Commission nor Fortischem provide any evidence seeking to call into question the existence of competition between NCHZ and the applicant.

48      Thirdly, it should be noted that it was following the decision of 26 January 2011 and the decision of 17 February 2011 that the administrator was able to continue NCHZ’s operations. Therefore, it cannot be disputed that NCHZ’s customers were not compelled, on account of the fact that NCHZ had ceased trading, to switch to alternative sources of supply and, in particular, to the applicant.

49      Fourthly, the applicant submits that the Commission is well aware that, from 2011 to 2012, it [confidential] (2) calcium carbide for desulphurisation, a carbide application in respect of which it was in direct competition with NCHZ. The Commission does not dispute this.

50      In that regard, the applicant claims that the alleged aid enabled NCHZ to sell its products in the European Economic Area at prices approximately [confidential] lower than the average prices of its competitors. As argued by the applicant, it is apparent from an internal memo of 10 September 2012 relating to a business visit by its employees, in France, to its client [confidential], that those employees noted that its prices for calcium carbide were significantly higher than those of its competitors (by approximately EUR [confidential] per tonne for deliveries to the production plant of [confidential] and by approximately EUR [confidential] per tonne for other deliveries). It also follows from that note that, therefore, since [confidential] and the applicant wished to remain in contact, the idea was that the former ordered from the latter [confidential]. Moreover, the applicant relies on an internal note of 7 November 2013 to Mr S. and Mr G. relating to the situation of the calcium carbide market. The applicant notes that the words ‘Almamet/Novacke’ in that note refer to NCHZ, because the first undertaking, Almamet GmbH, acted as a distributor of the second undertaking, namely NCHZ, which is not disputed. It is apparent from that note that the applicant was subjected to very significant competition by ‘Almamet/Novacke’, which ‘aggressively’ reduced its sale price for calcium carbide. It thus appears that although the applicant was still able to charge an average price of EUR [confidential] per tonne in the 2011 to 2012 period, it had to lower its sales price to EUR [confidential] per tonne between 2012 and the first half of 2013, and subsequently to EUR [confidential] per tonne between July and October 2013. Furthermore, it is apparent from that document that, since NCHZ charged, at least for the customer mentioned in paragraph 50 above, [confidential], EUR [confidential] per tonne in October 2013, the applicant had to charge that customer a price of EUR [confidential] per tonne, applicable retroactively as from 1 July 2013. It follows that, contrary to what the Commission contends, the applicant did explain the reasons why its sales had fallen.

51      In that regard, it cannot be excluded that the decision to continue NCHZ’s operations in 2011 and that the circumstances in which those operations were continued, having regard in particular to non-payment of the debts accrued vis-à-vis public bodies (recitals 68 and 69 of the contested decision), enabled NCHZ to sell its products at lower prices than its competitors, which, according to the applicant’s undisputed statements, included, in the relevant market, on the date that the contested decision was adopted, the applicant and two other undertakings and, on the date that the action was brought, the applicant and another undertaking (see paragraph 46 above).

52      Fifthly, the applicant claimed, without being challenged on this point by the Commission or Fortischem, that there was an overcapacity in the relevant market and that its market share in 2011 and 2012 had fallen, NCHZ’s having increased in 2012. Accordingly, in view of the very small number of producers on the market (see paragraph 46 above), and the possible production overcapacity on that market, in particular between 2010 and 2013, NCHZ’s disappearance might have had substantial effects on the competitive position of the other producers, including the applicant, in the form of a reduction in their surplus capacity and an improvement in their commercial situation.

53      Sixthly, it must be observed that neither the Commission nor Fortischem provided any factual information capable of calling into question the correctness of the data produced by the applicant.

54      Consequently, it must be held that the applicant properly stated the reasons why the contested decision was liable to harm its legitimate interests by substantially affecting its position in the relevant market, and that it can therefore be concluded that it is individually concerned by the contested decision.

55      The action must therefore be regarded as admissible.

B.      Substance

56      In support of the action, the applicant relies on two pleas in law. The first plea alleges infringement of Article 107(1) TFEU on account of errors of law and manifest errors of assessment made by the Commission. The second alleges an infringement of the obligation to state reasons within the meaning of Article 296 TFEU.

57      The Commission, supported by the Slovak Republic and Fortischem, disputes the merits of the applicant’s arguments. In that regard, the Slovak Republic stated, in response to a question put by the Court at the hearing, that it supported both the forms of order sought and the line of argument put forward by the Commission in its pleadings before the Court. Moreover, at the hearing, it was explained to the parties that the Court had taken note of the Slovak Republic’s observations concerning the mistake in the translation into the language of the proceedings of paragraph 3 of its statement in intervention, which the applicant, the Commission and Fortischem had been informed of during the written part of the procedure, as well as, additionally, the applicant’s observations in that regard.

58      Having recalled the relevant case-law, it is appropriate, first of all, to examine the second plea, alleging infringement of the obligation to state reasons, relating, more specifically, to the question whether the continued operation of NCHZ during the second insolvency period was attributable to the State. It should be noted that the applicant, in the context of the first plea, which will subsequently be examined, also repeatedly relied on non-compliance with the obligation to state reasons as regards the grant of an economic advantage resulting from the continued operations of NCHZ during the second insolvency period.

1.      Review of the case-law

59      Classification as aid requires that all the conditions set out in Article 107(1) TFEU are fulfilled. Thus, first, there must be an intervention by the State or through State resources. Secondly, the intervention must be liable to affect trade between the Member States. Thirdly, it must confer an advantage on the recipient. Fourthly, it must distort or threaten to distort competition (see judgments of 23 March 2006, Enirisorse, C‑237/04, EU:C:2006:197, paragraphs 38 and 39 and the case-law cited, and of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 19 and the case-law cited).

60      According to the settled case-law of the Court, the conditions that a measure must meet in order to be regarded as ‘aid’, within the meaning of Article 107 TFEU, are not fulfilled if the recipient undertaking, in circumstances corresponding to normal market conditions, could have obtained the same advantage as that made available to it through State resources. When a public creditor grants payment facilities in respect of a debt payable to it by an undertaking, that assessment is made by applying, in principle, the private creditor test (judgments of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraphs 70 and 71; of 21 March 2013, Commission v Buczek Automotive, C‑405/11 P, not published, EU:C:2013:186, paragraphs 31 and 32; and of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraph 25).

61      Such payment facilities constitute State aid where, taking account of the significance of the economic advantage thereby granted, the recipient undertaking would manifestly not have obtained comparable facilities from a private creditor who is in a situation as close as possible to that of the public creditor and is seeking to recover sums due to it by a debtor in financial difficulty (see judgments of 21 March 2013, Commission v Buczek Automotive, C‑405/11 P, not published, EU:C:2013:186, paragraph 46 and the case-law cited; of 20 March 2014, Rousse Industry v Commission, C‑271/13 P, not published, EU:C:2014:175, paragraph 57 and the case-law cited; and of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraph 26 and the case-law cited).

62      In that context, the Commission must carry out an overall assessment, taking into account all relevant evidence in the case enabling it to determine whether the recipient company would manifestly not have obtained comparable facilities from such a private creditor (see judgments of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 73 and the case-law cited, and of 21 March 2013, Commission v Buczek Automotive, C‑405/11 P, not published, EU:C:2013:186, paragraph 47 and the case-law cited). It must ask the Member State concerned to provide it with all relevant information enabling it to determine whether the conditions for applying the private creditor test are met (judgments of 21 March 2013, Commission v Buczek Automotive, C‑405/11 P, not published, EU:C:2013:186, paragraph 33, and of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 24).

63      In that regard, all information liable to have a significant bearing on the decision-making process of a normally prudent and diligent private creditor, who is in a situation as close as possible to that of the public creditor and is seeking to recover sums due to it by a debtor experiencing difficulty in making the payments, must be regarded as being relevant (see judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 60 and the case-law cited). The decisive factor is whether the measure in question satisfied an economic rationality test, so that a private creditor, who counts on maximising his chances of recovering his claim or, at the very least, most of that claim, might also agree to take such a measure (see judgment of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:C:2016:152, paragraph 251 and the case-law cited). It appears undeniable that the prospect of restoring the debtor’s viability is a decisive factor for the decision-making process of a private creditor in the context of the choice of appropriate measures to obtain the recovery of sums due (see, to that effect, judgment of 20 March 2014, Rousse Industry v Commission, C‑271/13 P, not published, EU:C:2014:175, paragraph 62).

64      Moreover, for the purposes of applying the private creditor test, the only relevant evidence is the information which was available, and the developments which were foreseeable, at the time when the decision was taken (judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 61).

65      It is not disputed that the examination by the Commission of whether particular measures can be classified as State aid because the public authorities did not act in the same way as a private creditor requires a complex economic assessment (see judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 62 and the case-law cited; see also, to that effect, judgment of 22 November 2007, Spain v Lenzing, C‑525/04 P, EU:C:2007:698, paragraph 59).

66      In that regard, it must be observed that, in the context of the review conducted by the European Union Courts on complex economic assessments made by the Commission in the field of State aid, it is not for those Courts to substitute their own economic assessment for that of the Commission (see judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 63 and the case-law cited).

67      When the Commission makes complex economic assessments, the review by the EU judicature is necessarily limited. It is limited to determining whether the rules governing procedure and the requirement for a statement of reasons have been complied with, whether the facts are accurately stated and whether there has been any manifest error of assessment or any misuse of powers (judgment of 9 December 2015, Greece and Ellinikos Chrysos v Commission, T‑233/11 and T‑262/11, EU:T:2015:948, paragraph 81).

68      In order to establish that the Commission made a manifest error in assessing the facts capable of justifying the annulment of the contested decision, the evidence adduced by the applicant must be sufficient to render the factual assessments used in the contested decision implausible (see judgment of 9 December 2015, Greece and Ellinikos Chrysos v Commission, T‑233/11 and T‑262/11, EU:T:2015:948, paragraph 82).

69      The EU judicature must, inter alia, establish not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 64 and the case-law cited).

70      Moreover, as is apparent from settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the EU judicature to exercise its power of review (see judgment of 22 April 2008, Commission v Salzgitter, C‑408/04 P, EU:C:2008:236, paragraph 56 and the case-law cited).

71      The obligation to provide a statement of reasons must be assessed on the basis of the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern, for the purpose of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations (see, to that effect, judgment of 1 July 2008, Chronopost and La Poste v UFEX and Others, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 88).

72      It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 6 September 2006, Portugal v Commission, C‑88/03, EU:C:2006:511, paragraph 88 and the case-law cited). In particular, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned. It is sufficient if it sets out the facts and the legal considerations of fundamental importance in the context of the decision (see judgment of 27 September 2012, France v Commission, T‑139/09, EU:T:2012:496, paragraph 38 and the case-law cited).

73      The reasoning must be logical and must not disclose any internal contradictions (judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 169).

74      It is also apparent from the case-law that, other than in exceptional circumstances, the statement of reasons must be contained in the decision itself, and it is not sufficient for it to be explained subsequently for the first time before the EU judicature (see judgments of 2 July 1992, Dansk Pelsdyravlerforening v Commission, T‑61/89, EU:T:1992:79, paragraph 131 and the case-law cited; of 14 May 1998, Buchmann v Commission, T‑295/94, EU:T:1998:88, paragraph 171 and the case-law cited; and of 15 September 1998, European Night Services and Others v Commission, T‑374/94, T‑375/94, T‑384/94 and T‑388/94, EU:T:1998:198, paragraph 95 and the case-law cited).

2.      Whether the continued operation of NCHZ during the second insolvency period is attributable to the State (second plea)

75      The applicant alleges that the statement of reasons for the contested decision is inadequate in respect of whether the continued operation of NCHZ is attributable to the State, in particular in view of the arguments it submitted, as a complainant, as part of the administrative proceedings relating, on the one hand, to the approval by the súd v Trenčíne (Regional Court of Trenčin) of the decision adopted by the creditors to continue NCHZ’s operations in 2011 (first part) and, on the other, to the veto rights enjoyed by secured creditors (second part). In the reply, the applicant claims that the Commission systematically attempts to correct or supplement the insufficient grounds set out in the contested decision by referring to statements in the defence, which is contrary to the case-law.

76      The Commission, supported by the Slovak Republic and Fortischem, disputes the merits of the applicant’s arguments. It contests the applicant’s claim that it is supplementing the contested decision.

77      It is appropriate to examine, first, the second part of the second plea and, secondly, the first part of that plea.

78      As a preliminary point, it should be noted that the Commission took the view that the disputed measure was the decision allowing the continued operation of NCHZ in the second insolvency period, pursuant to the decision of 26 January 2011 (recital 113 and Article 2 of the contested decision), although, having regard to the latter point, it referred, in Article 2 of the contested decision, following what must be deemed a clerical error, to the decision of the creditors’ committee, and not the decision of 26 January 2011. It also stated that the decision of 26 January 2011 had been confirmed by the decision of 17 February 2011, which made it binding on the administrator (recital 102 of the contested decision). It is not disputed that, according to the law on insolvency, it is the decision of 17 February 2011 which authorised the administrator to continue NCHZ’s operations during the second insolvency period.

(a)    Infringement of the obligation to state reasons concerning the assessment of the existence of veto rights for the public creditors under Slovak insolvency law (second part of the second plea)

79      The applicant considers that the Commission did not address the specific and relevant arguments which it submitted in order to establish that the secured creditors could have used their right of veto in the decision regarding the continued operation of NCHZ.

80      First, the applicant claims that, in its capacity as a plaintiff during the administrative proceedings, by an email dated 7 October 2013, it sent the Commission a legal analysis of the content and interpretation of Slovak law concerning the existence of veto rights for secured creditors. In recital 103 of the contested decision, the Commission noted, without any reference to that analysis, that no member of the creditors’ committee or any secured creditor had a right of veto under the law on insolvency. Thus, the Commission rejected the applicant’s arguments without providing any explanation as to the ground for the rejection. In addition, the applicant disputes the Commission’s claim that, in view of the arguments it raised during the formal investigation procedure, its argument concerning the existence of veto rights could be rejected in the briefest of terms.

81      Secondly, even if the Commission was justified in rejecting the applicant’s legal analysis ‘in the briefest of terms’, which it is not, it cannot conclude, however, that Slovak insolvency law does not grant public creditors any right of veto. According to the applicant, rather than merely rejecting the relevant arguments which it put forward, the Commission should itself have examined that issue and, to the extent that it failed to do so, did not state the reasons for its finding.

82      The Commission, supported by the Slovak Republic, disputes the merits of the applicant’s arguments. It contends that the ‘specific and relevant arguments’ provided by the applicant in its ‘legal analysis’ consist of very short and unsubstantiated indications set out in a one-page email, which cannot be deemed a ‘legal analysis’. Furthermore, the applicant relied on provisions of the law on insolvency that did not support its submission on the existence of a right of veto and which, in any event, were not the relevant provisions in the present case. The applicable provisions were also devoid of any reference to the alleged right of veto.

83      In those circumstances, the Commission contends that it was entirely appropriate for it to reject the applicant’s argument relating to the existence of a right of veto in the briefest of terms. In the contested decision, it clearly stated that ‘the formal investigation procedure revealed that no member of the creditors’ committee or the secured creditors had a veto right under the ... [law on insolvency]’, from which it logically follows that the State was not answerable for the decision to continue NCHZ’s operations. According to the Commission, although the applicant may disagree with that interpretation of the Slovak law on insolvency and may ask the Court to verify whether there has been a manifest error of assessment in that regard, it cannot submit that the reasons for which the State was not answerable for the decision authorising the continued operation of NCHZ are not set out in the contested decision.

84      First of all, it should be noted that the applicant’s argument concerning the existence of a right of veto is limited to the situation of secured public creditors which are members of the relevant committee and does not concern those which were members of the creditors’ committee.

85      It should further be pointed out that the findings concerning the alleged veto rights of creditors are set out in recitals 103 and 104 of the contested decision.

86      In recital 103 of the contested decision, the Commission found as follows:

‘The continuation of NCHZ’s operations after the expiry of the [law on strategic companies] was based on a decision of the creditors’ committee (representative body of non-secured creditors), whose members were mainly private companies. The formal investigation procedure revealed that no member of [that] committee or ... secured [creditor] had a veto right under the Slovak [law on insolvency]. In fact, the voting in these bodies took place by majority. Therefore, no state entity could have enforced its interests in stopping further accumulation of the debts.’

87      In recital 104 of the contested decision, the Commission went on to state:

‘It can therefore be concluded that the continuation of NCHZ’s operations was based on a decision determined by the private creditors, as the public creditors were not in a position to veto NCHZ’s continued operation. For this reason, the decision to continue operating NCHZ after the [law on strategic companies] expired cannot be considered [attributable] to the State.’

88      In that regard, it must be held that, in the contested decision, the Commission stated that the question of the existence of a right of veto available to creditors which were members of the relevant committee, raised in the decision to initiate the formal examination procedure (recitals 76 and 77 of the decision), had been discussed.

89      Nevertheless, it must be noted that the Commission justified the absence of those veto rights by the fact that the members of the relevant committee had, in the case of both unsecured and secured creditors, which comprised two ‘bodies’, adopted their decisions by a majority (recital 103 of the contested decision).

90      Before the Court, the Commission, supported in essence by the Slovak Republic and Fortischem, claimed, in response to an argument of the applicant, that it had not taken the view that the secured creditors which were members of the relevant committee were a collective body, which is apparent, for example, from recital 15 of the contested decision, nor that they had voted by a majority or in some other way. Moreover, the Commission justifies the absence of those creditors’ right of veto by the fact that such a right is not laid down in the applicable provisions of the law on insolvency.

91      However, it must be held that recital 15 of the contested decision appears in the section of the contested decision dealing with the description of the measures under assessment, not in the section relating to the assessment of the second measure.

92      Furthermore, recital 15 of the contested decision is worded as follows:

‘There were two relevant creditors’ bodies involved in deciding whether to continue operation of NCHZ: the Creditors’ Committee, consisting of 5 entities ..., four of which were privately owned. The one public entity in the Committee was the Slovak National Property Fund (Fond národného majetku Slovenskej Republiky). In addition, NCHZ had six secured creditors. Of these six secured creditors, four were public entities ...’

93      Therefore, it is not apparent from that wording that the Commission did not take the view that the secured creditors which were members of the relevant committee were brought together in a ‘body’. Moreover, the Commission acknowledged, in essence, at the hearing, in reply to a question from the Court, that the wording of recital 103 of the contested decision could make it unclear. In that regard, it points out that it was also stated in recitals 33 to 35 of the contested decision that, in essence, the secured creditors do not constitute a ‘body’, but made their views known individually at the meeting of 26 January 2011. However, it is clear that such a finding does not follow from those recitals.

94      Moreover, assuming that it can be understood, by a reading of recitals 15 and 33 to 35 of the contested decision, that the secured creditors which are members of the relevant committee made their views known individually at the meeting of 26 January 2011, it must be held that the reason why they did not have a right of veto is not set out in the contested decision.

95      Therefore, it must be concluded, in accordance with the case-law cited in paragraph 73 above, that the statement of reasons for the contested decision is contradictory in that the Commission gave inconsistent explanations, both within the decision and before the Court, in relation to how secured creditors which are members of the relevant committee made their views known at the meeting of 26 January 2011.

96      The second part of the second plea must therefore be upheld.

(b)    Infringement of the obligation to state reasons regarding whether the second measure is attributable to the State because of the approval by the súd v Trenčíne (Regional Court of Trenčín) of the decision of 26 January 2011 (first part of the second plea)

97      The applicant submits that, as the Commission stated in recital 46 of the contested decision, it submitted in its capacity as a complainant that the decision to authorise the continued operation of NCHZ was attributable to the State, in particular inasmuch as that decision had been confirmed and made binding by the súd v Trenčíne (Regional Court of Trenčín).

98      Although the Commission acknowledges, in recitals 14, 33, 35, 36 and 102 of the contested decision, the involvement of the súd v Trenčíne (Regional Court of Trenčín) in the decision-making process, it makes no reference, in recitals 103 and 104 of the contested decision, in which it sets out its analysis as to whether the second measure is attributable to the State, to the issue of the role played by that court. The applicant concludes from this that, whilst the decisions of national courts are generally regarded as attributable to the State, the Commission has not provided any information to explain why the decision of the súd v Trenčíne (Regional Court of Trenčín) is irrelevant or, if it is relevant, why it is insufficient to establish that the second measure is attributable to the State.

99      The Commission takes the view that the statement of reasons relating to the contested decision is sufficient. It contends that it disclosed in a clear and unequivocal fashion the reasoning it followed, thus enabling the applicant to understand that reasoning and the Court to exercise its power of review. It submits that it already clarified that, in a situation in which all of the creditors, the majority of which are private, expressly decide that it is in their economic interest to allow the continued operation of the insolvent undertaking, their decision is not attributable to the State simply because a court subsequently confirms it and makes it binding. According to the Commission, although the applicant may disagree with the merits of this approach, it cannot claim that it did not understand the logic behind the Commission’s finding, since, despite the brevity of the contested decision on the issue, that line of reasoning emerges unequivocally from it, and in particular, recitals 102 to 104 thereof.

100    As a preliminary point, it must be understood that, by its line of argument, the applicant alleges, in essence, infringement of the obligation to state reasons regarding the role of the súd v Trenčíne (Regional Court of Trenčín) in the decision-making process.

101    It must be noted that, in recital 102 of the contested decision, the Commission stated that ‘all creditors on the creditors’ committee and the secured creditors agreed in January 2011 that NCHZ should continue to operate’ and that ‘this decision was subsequently confirmed by the [súd v Trenčíne (Regional Court of Trenčín)] in accordance with the Slovak [law on insolvency] and thus became binding for the administrator’.

102    In recital 103 of the contested decision, the Commission examined the question whether the creditors’ committee and the secured creditors had a right of veto and concluded, in that regard, that ‘no state entity could have enforced its interests in stopping further accumulation of the debts’.

103    In recital 104 of the contested decision, the Commission stated that ‘it can therefore be concluded that the continuation of NCHZ’s operations was based on a decision determined by the private creditors, as the public creditors were not in a position to veto NCHZ’s continued operation’, and that, ‘for [that] reason, the decision to continue operating NCHZ after the [law on insolvency] expired cannot be considered imputable to the State’.

104    It is common ground that, having regard to the circumstances of the case and in accordance with the provisions of the law on insolvency, the súd v Trenčíne (Regional Court of Trenčín) formed part of the relevant committee responsible for deciding whether to continue the operation of NCHZ and that, in accordance with Article 83(4) of the law on insolvency, the administrator was bound by the decision of 17 February 2011.

105    However, it should be noted that, in the contested decision, the Commission did not clearly indicate how it had considered the role of the súd v Trenčíne (Regional Court of Trenčín) in the decision-making process. In recitals 14, 26 and 32 and Article 2 of that decision, it mentioned only the decision of 26 January 2011, without referring to the intervention of that court (see paragraph 78 above), whereas, in recitals 33, 35, 36 and 102 of the contested decision, it referred to the decision of that court, without explaining its precise role in the present case, having regard to the wording of Article 83(4) of the law on insolvency, thus suggesting that it only had to approve the decision of 26 January 2011 and make it binding (see, in particular, recital 33 of the contested decision).

106    Moreover, in its assessment of the decision to continue NCHZ’s operations during the second insolvency period, although the Commission mentioned the existence of the decision of 17 February 2011 in recital 102 of the contested decision, it should be noted that, in recitals 103 to 112 of the contested decision, and more particularly in recitals 103 and 104 of that decision, no mention is made of the decision. The Commission thus mentioned only the decision of 26 January 2011.

107    In addition, as stated by the Commission at the hearing, it cannot be ruled out that a measure may be regarded as a decision attributable to the State within the meaning of Article 107(1) TFEU because of a decision of a national court (see, to that effect, judgments of 26 October 2016, DEI and Commission v Alouminion tis Ellados, C‑590/14 P, EU:C:2016:797, paragraphs 59, 77 and 81, and of 3 March 2016, Simet v Commission, T‑15/14, EU:T:2016:124, paragraphs 38, 44 and 45).

108    In that context, it must be held that the Commission should have explained, in the contested decision, the reasons which led it to conclude that the decision to continue NCHZ’s operations was not attributable to the súd v Trenčíne (Regional Court of Trenčín).

109    In that regard, with respect to the Commission’s argument that it clearly and unequivocally presented the reasoning it followed, it must be noted that its explanations, mentioned in paragraph 99 above, are in no way apparent from the contested decision, but from its submissions to the Court and that, contrary to what it submits, it does thus supplement the statement of reasons for the contested decision. In accordance with the case-law cited in paragraph 74 above, the statement of reasons must be contained in the body of the contested decision and may not be set out subsequently for the first time before the EU judicature.

110    Consequently, as argued by the applicant, the Commission failed to set out in the contested decision the reasons why the decision of the súd v Trenčíne (Regional Court of Trenčín) had no impact on its analysis of whether the measure under examination was attributable to the State.

111    In addition, at the hearing, the Commission was questioned by the Court, which was seeking to understand, in the light of the provisions of the law on insolvency, if a court involved pursuant to Article 83(4) of that law, such as, in this case, the súd v Trenčíne (Regional Court of Trenčín), was merely to assess compliance with the formal aspects of the creditors’ decision or whether it was also required to check the validity of the decision and, where applicable, could come to a different decision. It must be stated, however, that the Commission was not able to provide an answer in that regard. It merely claimed that, in the present case, the súd v Trenčíne (Regional Court of Trenčín) had no choice but to confirm the decision of 26 January 2011, without arguing that the review by that court was restricted in law.

112    It follows that, having regard to the particular circumstances in which the súd v Trenčíne (Regional Court of Trenčín) intervened in the present case, since it was a member of the relevant committee, the contested decision is vitiated by a lack of reasoning concerning whether the decision to continue NCHZ’s operations during the second insolvency period was attributable to the State.

113    That conclusion is not called into question by the Commission’s argument that the level of explanation given in the contested decision is more than sufficient, further taking the context into account, since the applicant instead relied on the decision of 26 January 2011 in order to allege that the decision was attributable to the State in its observations during the administrative proceedings. In that regard, it is sufficient to note that, contrary to what the Commission states, the applicant explicitly raised the question of whether the decision of the súd v Trenčíne (Regional Court of Trenčín) was attributable to the State.

114    Contrary to what the Commission contends, the applicant clearly stated in its observations of 12 November 2013 that, even if the decision of 26 January 2011 was not to be considered attributable to the State, the decision of the súd v Trenčíne (Regional Court of Trenčín) clearly was. In addition, it can be observed, as the applicant did, that the Commission mentioned in the contested decision that the question had been raised by the interested parties during the administrative proceedings (recital 46 of the contested decision).

115    In view of the above, the first part of the second plea and, accordingly, the second plea, must be upheld.

116    It follows that it is not necessary to rule on the second part of the first plea, alleging the incorrect nature of the Commission’s assessment relating to whether the decision to continue the operation of NCHZ during the second insolvency period was attributable to the State, in respect of both the existence of veto rights for public creditors and the role of the súd v Trenčíne (Regional Court of Trenčín) in the decision-making process.

117    However, the lack of reasoning noted as regards whether the decision to continue NCHZ’s operations during the second insolvency period was attributable to the State is not sufficient for the annulment of Article 2 of the contested decision. The Commission, supported by the Slovak Republic, correctly argues that the conditions in Article 107(1) TFEU are cumulative. Accordingly, the action may be upheld, and Article 2 annulled, only if the Commission incorrectly concluded that there was no economic advantage or if the statement of reasons for the contested decision does not meet the requirements of Article 296 TFEU in that regard.

118    It is therefore necessary to examine the first part of the first plea, alleging an error of law and a manifest error of assessment made by the Commission when assessing the existence of an economic advantage.

3.      On the existence of an economic advantage as a result of the decision to continue NCHZ’s operations during the second insolvency period (first part of the first plea)

119    The applicant claims in essence that, contrary to the finding in the contested decision, an economic advantage within the meaning of Article 107(1) TFEU was granted to NCHZ as a result of the decision of 26 January 2011, confirmed by the decision of 17 February 2011 (recitals 105 to 112 of the contested decision).

120    The first part of the first plea in law is divided into four subsections. First, the Commission incorrectly applied the private creditor test; secondly, it followed from the specific circumstances of the case that the conduct of the private creditors could not be used as a point of comparison to justify the Slovak Republic’s conduct; thirdly, the economic analysis and the NCHZ Nováky — Feasibility Study Reengineering, drafted by NCHZ’s management team (‘the management presentation’), which the Commission relies on, were not relevant for the purpose of assessing the conduct of the Slovak Republic; and, fourthly, the Slovak Republic could have opposed the continued operation of NCHZ during the second insolvency period, which caused the accumulation of additional public debts.

121    According to the Commission, the first part of the first plea should be rejected, since none of the arguments advanced by the applicant, taken separately or together, is such as to call into question the conclusion in the contested decision that no advantage was granted to NCHZ as a result of the decision of 26 January 2011, confirmed by the decision of 17 February 2011, to continue the operation of NCHZ during the second insolvency period.

122    It is appropriate to begin by examining the second subsection, then the fourth subsection, then the first subsection and, finally, the third subsection.

(a)    The fact that the conduct of the private creditors cannot be used as a valid benchmark in order to justify the conduct of the Slovak Republic (second subsection)

123    The applicant claims that the facts of the case, as set out in the contested decision, clearly suggest that, when the private creditors decided to continue the operation of NCHZ in 2011, their vote was influenced by the conduct of the State and that their conduct did not therefore constitute an appropriate point of comparison for the purposes of the application of the private creditor test. Thus, the vote was affected, first, by the conduct of the Slovak Republic and, secondly, by the vote of the public creditors.

124    The Commission, supported by the Slovak Republic and Fortischem, disputes the merits of the applicant’s arguments.

125    As a preliminary point, it should be noted that the applicant observes that, in its statement in intervention, the Slovak Republic made no comment on the line of argument developed in the present subsection, which should be interpreted as an implicit confirmation of the applicant’s arguments. In that regard, it is sufficient to note that, in response to a question from the Court, the Slovak Republic expressed its support both for the forms of order sought and the line of argument put forward by the Commission (see paragraph 57 above) and that it is not apparent, even implicitly, from its statement in intervention that it disagrees in that regard with the Commission.

(1)    The alleged political support of the Slovak Government

126    The applicant submits that in the decision of 26 January 2011, the private creditors were influenced by the strong political support for NCHZ, which became manifest as a result of the application of the law on strategic companies to NCHZ until the end of 2010 and never ceased to exist, as attested by a statement from the spokesman of the Slovak Government in 2013.

127    In the first place, it must be held that, even if it is appropriate to conclude that there was strong political support for the classification of NCHZ as a strategic company, this did not entail that that support was necessarily maintained, during the second insolvency period, as claimed by the applicant.

128    First, as pointed out by the Commission, the law on strategic companies expired on 31 December 2010 and NCHZ then became once again subject to the provisions of the law on insolvency. Pursuant to those provisions, the administrator once again requested instructions from the relevant committee, which led to the adoption of the decision of 26 January 2011 and the decision of 17 February 2011, and to the continued operation of NCHZ. It must therefore be held that two successive periods passed during which different rules were applied. Accordingly, it cannot be presumed that any political support during the first insolvency period, which became manifest inter alia through the adoption of the law on strategic companies and its application to NCHZ, continued during the second insolvency period.

129    As regards the press article of 3 July 2013, relied on by the applicant in order to argue that the political support for NCHZ never ceased to exist, it must be noted that it was published on a date significantly later than the date of the decision of 26 January 2011. The applicant claims however that, in any event, it shows that two and a half years after the decision of the relevant committee, the Slovak Government continued to support NCHZ, including as part of the Commission’s ‘investigation’ which led to the adoption of the contested decision. In that regard, it is important to note that the administrative proceedings concerned the Slovak Republic, which was an addressee of the final decision. The applicant does not state how the Slovak Government, which was asked to justify the conduct of the relevant public creditors, accordingly provided political support to NCHZ during the administrative proceedings.

130    In any event, between the first insolvency period and the date of the article cited by the applicant, there was a political change within the Slovak Government, which the applicant does not dispute. Accordingly, even if there had been political support during the first insolvency period which ended at the end of 2010, or that such support existed in 2013, at a time when the established Slovak Governments, headed by the same former Prime Minister, were of a certain political orientation, that circumstance does not mean that that political support existed in the interim, in January 2011, when the creditors took the view that NCHZ’s operations should be continued, even though a government of a different political orientation was in power in Slovakia.

131    Secondly, in response to the Commission’s argument relating to the political changes in Slovakia between 2010 and 2012, the applicant relies on the fact that the law on strategic companies was not repealed by the new Slovak Government, but was allowed to expire at the end of 2010, which is six months after the change of government, which provides tangible evidence of the strong political support then enjoyed by NCHZ.

132    That argument must be rejected. As explained by Fortischem, the new government, established in July 2010 and which came into power in January 2011, was entitled to take the view that since the law on strategic companies was destined to expire on 31 December 2010, there was no need to launch a procedure to repeal it, because it would not have substantially changed the date on which that legislation was to expire. At the hearing, in response to a question from the Court, the Slovak Republic confirmed, in essence, Fortischem’s claims that several months were necessary for a legislative proposal from the government to become an applicable law. It also stated that, although, in 2010, a parliamentary session was exceptionally held during the summer period, its purpose was not to discuss legislative proposals, but was rather a result of the formation of the government in July 2010 and the ensuing period of 30 days for its agenda to be put forward. Finally, Fortischem stated, without it being disputed, that there was no indication that the law on strategic companies was among the areas that the newly formed Slovak Government had placed among its priorities.

133    Furthermore, it should be observed that the applicant does not refer to any provision concerning the existence of accelerated procedures which it relies on.

134    Therefore, contrary to the applicant’s claims, it cannot be held that the failure to repeal the law on strategic companies by the new Slovak Government which came into power in January 2011 could be interpreted as an indication of its political support for NCHZ.

135    Thirdly, the applicant argues that the best evidence of the continued political support for NCHZ lies in the fact that even the newly established Slovak Government had chosen not to oppose NCHZ’s continued operations by exercising its control over the public creditors in the relevant committee. In that regard, it must be noted that the applicant does not provide any evidence to show that, assuming that the Slovak Government was able to exercise control over the public creditors which were members of the relevant committee, those creditors’ choice was made on the basis of political instructions given by that government.

136    Fourthly, the applicant notes that the press articles cited by the Commission in its pleadings before the Court were not drafted or accompanied by a translation into the language of the case. It alleges, in that regard, an infringement of Article 46 of the Rules of Procedure preventing it from checking whether those articles do indeed support the Commission’s claims, and a fortiori from defending itself, and maintains that, in the absence of a full translation into the language of the case of the supporting documents, the Commission should withdraw all claims based on information which is not translated.

137    In that regard, it must be observed that the first of the press articles described in paragraph 136 above was sent by mistake by the Commission as part of the measures of organisation of procedure and that it was produced together with a version in the language of the case. The parties agreed, at the hearing, to maintain it in the file before the Court. As the Commission argues, it is also stated in that article that the law on strategic companies had been the subject of criticism by the opposition members of parliament during the parliamentary debate leading to the adoption of that law. Accordingly, that article makes it possible to confirm that, as a result of the change of government (see paragraph 130 above), it cannot be assumed that any political support for NCHZ, which existed during the first insolvency period, was ongoing after the new government had been established.

138    As regards the second press article of 19 June 2010, while it is true that it was not produced in the language of the case, it must be noted that its title was translated by the Commission into the language of the case and reads as follows: ‘the centre-right government wants to repeal the law on strategic companies’. Even if, as the applicant submits, to the extent that it predates the formation of the new government, that article does not necessarily reflect the official view of the Slovak Government, the fact remains that it is an indication that any political support that the previous Slovak Government provided NCHZ could disappear, which contradicts the applicant’s claims to the contrary.

139    As regards the third press article of 13 August 2010, produced by the Commission in the language of the case as part of the measures of organisation of the procedure, it appears that, as the latter claims, the Slovak Prime Minister then indicated that the law on strategic companies would not be extended, but would not be repealed. It further stated that the government would not submit similar projects in the future. Therefore, contrary to the applicant’s assertions, it is not apparent from that article that measures supporting NCHZ or other companies were envisaged.

140    It follows that the press articles referred to by the Commission contradict the applicant’s claim concerning the existence of strong political support by the established Slovak Government for NCHZ at the time that the decision of 26 January 2011 was taken.

141    In the second place, the applicant claims that the creditors which were part of the creditors’ committee were entitled to assume that the Slovak Government would be willing to step in at any time in the future using any means at its disposal in order to support NCHZ on non-commercial grounds. It is sufficient to note that this is only a statement which is not supported by any evidence and that the applicant was not able to demonstrate the existence of political support in January 2011 (see paragraphs 127 to 140 above). Consequently, it cannot be presumed that the creditors concerned had formed such an assumption.

142    Consequently, the applicant’s arguments must be rejected.

(2)    The influence of the public creditors

143    The applicant alleges that the vote by the public creditors on the relevant committee influenced the private creditors which are members of that committee. In that regard, it is sufficient to note that the applicant does not provide any evidence in support of its claim and that the conduct of the private creditors, which must be presumed to have acted pursuant to their interests, is the subject of pure conjecture. The applicant’s argument therefore cannot be upheld.

144    It follows from all of the foregoing considerations that the second subsection of the first part of the first plea must be rejected.

(b)    The fact that the Slovak Republic was able to oppose the continued operation of NCHZ and the accumulation of debts (fourth subsection)

145    The applicant takes the view that the Slovak Republic could oppose the accumulation of debt generated by the continued operation of NCHZ during the second insolvency period. First, it claims that the Sociálna poisťovňa (social insurance company, Slovakia) could and should have intervened before the súd v Trenčíne (Regional Court of Trenčín) in order to challenge that continued operation. Secondly, it takes the view that the fact that that company had used all the means at its disposal to avoid further losses did not exempt the Slovak Republic from its responsibility to avoid the debts owed to it continuing to accumulate by other means.

146    The Commission, supported by the Slovak Republic and Fortischem, disputes the merits of the applicant’s arguments.

147    In the contested decision, after referring to the steps taken by the social insurance company concerning its claims against NCHZ (recitals 57, 60 and 61 of the contested decision), the Commission stated, in recital 110 of the contested decision, as follows:

‘The main public creditors to whom the amounts owed mounted up during the [insolvency] proceedings, in particular the public health and social security insurance companies, were not represented on any of the creditor bodies deciding on the continuation of NCHZ’s operation. Therefore, they had no possibility of directly influencing the decision-making and thus could not prevent NCHZ’s continued operation. Those public creditors did all they could to recover the debts by registering their claims with the [insolvency] administrator and using all the enforcement mechanisms available under the [law on insolvency].’

148    In the first place, the applicant disputes the Commission’s conclusion that, since the social insurance company was neither a secured creditor nor a member of the creditors’ committee, it can be assumed that it was unable to prevent NCHZ’s continued operation.

149    In that regard, it should be noted that the applicant does not dispute that the social insurance company took the steps mentioned in the contested decision in recitals 57, 60, 61 and 110. Moreover, it is common ground that that company was not a member of the relevant committee required to decide, in 2011, upon the continued operation of NCHZ.

150    However, the applicant claims that the social insurance company could intervene before the súd v Trenčíne (Regional Court of Trenčín) in order to oppose the continued operation of NCHZ. It must be noted that it does not indicate, in that regard, any provision of the law on insolvency, or any other provision, under which a creditor which was not a member of the relevant committee could have made such an application for leave to intervene. In so far as it claims that Fortischem does not refer to any source to confirm that such an action was impossible, it must, as an applicant which makes an argument challenging the lawfulness of the contested decision, substantiate its argument and, in that case, prove that, contrary to the findings of the Commission, the social insurance company did not use all the means at its disposal in order to defend its interests. It must also be observed that the applicant does not state that a post-insolvency private creditor intervened before the súd v Trenčíne (Regional Court of Trenčín), thus demonstrating that such an intervention was possible. Therefore, that argument must be rejected.

151    In any event, it is not apparent from the provisions of the law on insolvency, and in particular Article 83(4) of that law, that, in the circumstances of the case, the social insurance company could intervene in the decision-making process relating to the continuation of NCHZ’s operations before the súd v Trenčíne (Regional Court of Trenčín).

152    It must therefore be concluded, as the Commission did in the contested decision (recital 110 of the contested decision), and as argued by the Slovak Republic and Fortischem, that the social insurance company did not have such an opportunity to intervene.

153    In the second place, the applicant submits that, in the context of an analysis under Article 107(1) TFEU, the Slovak Republic is responsible for the conduct of all of the entities it owns and the actions of one of those entities cannot exempt it from its overall responsibility in respect of the actions or abstentions of other entities. The fact that the social insurance company used all the means at its disposal to avoid incurring further losses does not exempt the Slovak Republic from its responsibility to avoid accumulating further debts to the State by other means, in the present case, by ensuring that other State-owned entities, particularly those that were members of the relevant committee, vote against NCHZ’s continued operation. According to the applicant, a compartmentalisation of Member States’ responsibilities to ensure that public debts are paid would have the effect of creating a precedent which would ultimately allow Member States to circumvent EU law on State aid.

154    In that regard, it should be noted that the applicant bases its argument on the premiss that all public entities should be treated as a single whole. Consequently, that argument must be linked to the first complaint in the first subsection and will be examined together with the argument submitted in that regard (see paragraphs 182 and 184 below).

155    It follows from the above that the fourth subsection of the first plea must be rejected.

(c)    Misapplication of the private creditor test (first subsection)

156    The applicant takes the view that the Commission incorrectly applied the private creditor test, and relies on three complaints in that regard. The first complaint alleges that the Slovak Republic, or, at the very least, certain public creditors, were not in a legal and financial situation which was comparable to that of NCHZ’s private creditors. The second complaint concerns the issue of capital ties between certain creditors and the owners of NCHZ. By the third complaint, the applicant submits that there is an inherent contradiction in the contested decision as to what constitutes conduct conforming to market conditions.

157    The Commission, supported by the Slovak Republic and Fortischem, disputes the merits of the applicant’s arguments.

158    It is appropriate first of all to examine the third complaint, then the second, and, finally, the first.

(1)    The contradiction in the contested decision (recital 105, last sentence of recital 110 and recital 111 of the contested decision)

159    The applicant claims that the contested decision is vitiated by an inherent contradiction as to what constitutes conduct in conformity with market conditions, as the Commission took the view that both the measures taken in support of the continued operations (recital 105 of the contested decision) and the efforts made to put an end to those operations were consistent with the private creditor test (last sentence of recital 110 and recital 111 of the contested decision).

160    The Commission, supported by the Slovak Republic and Fortischem, disputes the merits of the applicant’s arguments.

161    In recital 105 of the contested decision, the Commission took the view that the decision of the public creditors actively to support the operation of NCHZ in the second insolvency period, during which NCHZ was subject to the application of the law on insolvency, was consistent with the market economy creditor principle in that it ‘was taken at the same time and under the same conditions (pari passu) as the decisions of the comparable private creditors’. In recital 110 of the contested decision, the Commission stated that ‘the main public creditors to whom the amounts owed mounted up during the [insolvency] proceedings, in particular the public health and social security insurance companies, were not represented on any of the creditor bodies deciding on the continuation of NCHZ’s operation’ and that ‘they had no possibility of directly influencing the decision-making and thus could not prevent NCHZ’s continued operation’. In recital 110, in its last sentence, the Commission concluded that ‘those public creditors did all they could to recover the debts by registering their claims with the [insolvency] administrator and using all the enforcement mechanisms available under the [law on insolvency]’. In recital 111 of the contested decision, the Commission took the view that ‘the behaviour of the different state entities was in line with the private creditor test’.

162    It is not disputed that the Commission took the view that it should examine separately the situation of two classes of public creditors, namely, on the one hand, those which were members of the relevant committee, which held, at the very least, claims against NCHZ prior to the initiation of the insolvency proceedings on 8 October 2009 (‘the pre-insolvency creditors’ and the ‘pre-insolvency claims’, respectively) and, on the other hand, those which were not members of that committee, which only held claims dating from after 8 October 2009 (‘the post-insolvency creditors’ and ‘the post-insolvency claims’, respectively). It is also common ground that the pre-insolvency creditors and the post-insolvency creditors were not in comparable situations.

163    In the contested decision, the Commission made separate assessments of the conduct of the creditors which were members of the relevant committee, all of whom had spoken in favour of continuing NCHZ’s operations (recital 105 of the contested decision), and of the creditors which were not members of that committee, which had tried to put an end to the accumulation of unpaid debts (last three sentences of recital 110 of the contested decision). It took the view that all the public creditors had acted in a manner consistent with the private creditor test (recital 111 of the contested decision). Thus, the conclusion reached by the Commission in recital 105 and in the last sentence of recital 110 of the contested decision is based on the approach taken by the Commission, which was to make a distinction between the two classes of creditors, which led to the overall conclusion set out in recital 111 of the contested decision.

164    Therefore, it cannot be held that there is a contradiction between the considerations in recital 105, in the last sentence of recital 110, and in recital 111 of the contested decision.

165    That conclusion cannot be called into question by the applicant’s other arguments.

166    First, the applicant observes that, according to recital 58 of the contested decision, the social insurance company was informed by the administrator that, in order to optimise the proceeds of NCHZ’s sale, its claims could not be honoured in the light of the prospective continuation of NCHZ’s operations and, in recital 61 of the contested decision, the Commission stated that that company had nevertheless chosen to persist in putting an end to the accumulation of NCHZ’s debts, going so far, in order to do so, as to bring criminal proceedings. In that regard, it is sufficient to note that the Commission only mentioned the conduct of a post-insolvency public creditor, whose conduct was assessed in recital 110 of the contested decision (see paragraphs 161 to 163 above).

167    Secondly, the applicant claims that there also appears to be some confusion in the contested decision as to whether the support for NCHZ’s continued operations constituted a form of rational market conduct by the Slovak Republic or whether the purpose of the efforts expended by the Slovak Republic, through the social insurance company, was to put an end to the accumulation of losses which resulted from the continued operations of NCHZ.

168    However, as already noted (see paragraph 162 above), the Commission examined the situation of public creditors differently depending on whether they were creditors which were members of the relevant committee or not, and not the conduct of the Slovak State as an entity bringing together all the public creditors concerned. As regards the applicant’s argument relating to recital 76 of the decision to initiate the formal investigation procedure, in which the Commission stated that ‘the State and the State-controlled entities with claims against NCHZ should be primarily assessed as one single entity’, it must be rejected. It follows from the reading of that recital in its entirety that the Commission was examining the question whether the decision of the public creditors which were members of the creditors’ committee was attributable to the State, and was not taking a view on the question whether the various public creditors of NCHZ were to be treated as a single entity, namely the State.

169    Accordingly, the applicant’s third complaint must be rejected.

(2)    The capital ties between the private creditors and ‘the owners’ of NCHZ

170    Having regard to the capital ties between some private creditors and ‘the owners’ of NCHZ, and in the light of the doubts expressed by the Commission in the decision to initiate the formal investigation procedure as to whether it was appropriate to take into consideration the conduct of those creditors in order to assess the conduct of the Slovak Republic, the applicant claims that it does not understand what led the Commission to use, without any reservations, the decision of the creditors’ committee as a benchmark for applying the private creditor test.

171    The Commission, supported by the Slovak Republic and Fortischem, disputes the merits of the applicant’s arguments.

172    First of all, it must be observed that, contrary to the Commission’s claims, it is apparent from recital 75 of the decision initiating the formal investigation procedure that it did not merely take note of the applicant’s allegations, but stated that established capital ties might raise doubts as to whether the creditors’ committee’s decision had been influenced by considerations other than the maximisation of debt recovery.

173    Next, in so far as the applicant alleges a failure to state reasons in the contested decision regarding the taking into account of the decision of the private creditors which were members of the creditors’ committee, despite the observation made in recital 75 of the decision to initiate the formal investigation procedure, it must be observed that, in footnote 9 of the contested decision, the Commission listed the private members of the creditors’ committee. Other than DAK KIABA, s. r. o., they included Invest-Kredit, s. r. o., belonging to Disor Holdings Ltd, the sole shareholder of NCHZ, Novácka Energetika, a.s., originally a subsidiary of NCHZ, in which the majority shareholder since January 2011 was Stupefy Holdings, and M-ENERGO s. r. o., in which the majority shareholder was Stupefy Holdings.

174    It is thus apparent from the contested decision that the Commission did mention the majority shareholders in the private creditors which were members of the creditors’ committee, and that only one of them had a close link with NCHZ. Although it is true that the Commission could have further clarified its assessment, it must be held that it can be inferred from that statement that it took the view that the capital ties were not so significant as to entail a difficulty taking into account the decision of the private members of the creditors’ committee, in particular Invest-Kredit, for the purpose of examining the conduct of public creditors which are members of that committee, in applying the private creditor test.

175    Moreover, as the Commission points out, the fact that two creditors, namely Novácka Energetika and M-ENERGO, have the same majority shareholder, namely Stupefy Holdings, does not entail any capital ties between those creditors and the owner of NCHZ.

176    The applicant appears to concede in the reply that the ties between ‘the owners’ of NCHZ and all the private creditors of the creditors’ committee were not established. It challenges the validity of the contested decision, criticising the Commission for having taken into account the votes of all private creditors which were members of the creditors’ committee. It thus argues that the capital ties between NCHZ and certain private creditors on the relevant committee should have led the Commission to ‘screen out’ certain private creditors, while, in the case of those remaining, in essence, it should have assessed whether the claims which they had were of actual economic significance.

177    Even if that head of claim were admissible, to the extent that, as the applicant argued in response to a question put by the Court at the hearing, it constitutes an amplification of the argument put forward in the application, it must be noted that, first, although the applicant submits that the capital ties between NCHZ and certain private creditors should have led the Commission to ‘screen out’ the latter, it does not specify the creditors to which it refers and, in response to a question put by the Court at the hearing, it referred only to Invest-Kredit, which was a member of the creditors’ committee. In any event, it does not explain how the decision of creditors which, in its submissions, should have been excluded, vitiated the decision of the creditors’ committee. In addition, it does not call into question the fact that at least one creditor, member of the creditors’ committee, namely DAK KIABA, had no capital ties with NCHZ. Even on the assumption that the vote of that single creditor should have been taken into account once all the other private creditors of that committee had been screened out, and that it would therefore have constituted the reference vote of private creditors, the fact remains that that creditor voted in favour of the continuation of NCHZ’s operations, which the applicant does not dispute. Consequently, its argument in that regard is ineffective.

178    Secondly, with respect to the applicant’s argument that, as regards the other creditors, the Commission should have assessed whether the claims which they had were of actual economic significance and not purely symbolic or marginal, and whether their situation was comparable to that of the public creditors at issue, it must be joined to the first complaint of the present subsection on the comparability of the situation of the public and private creditors and will be discussed with the arguments put forward in that regard (see paragraph 182 below).

179    Thirdly, with regard to the applicant’s observation that the Slovak Republic did not make any comments in its statement in intervention on the issue of the abovementioned capital ties, which could indicate that it does not share the Commission’s arguments, it is sufficient to refer to paragraph 57 above in order to reject it.

180    It follows from the foregoing considerations that the applicant’s second complaint must be rejected.

(3)    The comparability of the situation of the public and private creditors

181    According to the applicant, the Slovak Republic, or, at the very least, some public creditors, were not in a legal and financial situation which was comparable to that of NCHZ’s private creditors.

(i)    The State being treated as a single creditor

182    The applicant claims that NCHZ’s private creditors were represented on the creditors’ committee as well as among the secured creditors and that most of their debts had accumulated prior to the insolvency. A significant share of the unpaid claims held by the State through various State-owned entities arose from NCHZ’s loss-making operations during the insolvency procedure. As a result, the Slovak Republic and the private pre-insolvency creditors found themselves in a different legal and economic situation.

183    The Commission, supported by the Slovak Republic and Fortischem, disputes the merits of the applicant’s arguments.

184    It must be held that, as the Commission, supported by the Slovak Republic and Fortischem, contends, the applicant’s line of argument in that regard is based on the premiss that the Commission should not have taken account of each public creditor individually, but of the Slovak Republic as the sole public creditor, representing all the public creditors concerned.

185    Both the Commission and the interveners submit that that premiss is incorrect, since it follows from the private creditor test that each public creditor must decide in the light of the characteristics of the claims held against the debtor concerned, and that the comparison should be between the decision of each public creditor and that which a private creditor, placed in the same situation, would have taken.

186    It should be noted at the outset that the applicant does not cite any case-law in support of that argument; it merely disputes that the case-law relied on by the Commission supports the latter’s contention. It takes the view that the issue was not decided, whereas the Commission contends that it did not have to be, as it is part of the very essence of the application of the private creditor test.

187    First, in the judgment of 11 July 2002, HAMSA v Commission (T‑152/99, EU:T:2002:188), relied on by the Commission, the EU judicature held that it was for the Commission to determine, for each of the public bodies in question, whether the debt remission it had granted was manifestly more substantial than that which would have been granted by a hypothetical private creditor who was, vis-à-vis the applicant, in a situation comparable to that of the relevant public body and who was seeking to recover the sums owed to it. Thus, according to the EU judicature, each creditor is required to make a choice with regard to the amount offered to him under the proposed agreement on the one hand, and the amount he believes he can recover following the possible liquidation of the company on the other, its choice being influenced by a number of factors, such as its status as a preferential or unsecured creditor, the nature and extent of any security it holds, its assessment of the company’s chances of being restored to viability and the amount it would receive in the event of liquidation (see, to that effect, judgment of 11 July 2002, HAMSA v Commission, T‑152/99, EU:T:2002:188, paragraphs 168 and 170).

188    Accordingly, it is apparent from the judgment of 11 July 2002, HAMSA v Commission (T‑152/99, EU:T:2002:188), and in particular paragraphs 166 to 172 thereof, that the EU judicature called for an examination of the individual situation of the public creditors, in particular based on its status as a preferential or unsecured creditor, to determine, in essence, whether the choices made by them went beyond what was justified by commercial constraints or if it could be explained by the desire to confer an advantage on the undertaking concerned. It follows that the EU judicature found that the public creditors should not be considered as a single entity, but that their specific characteristics should be taken into account.

189    Furthermore, it is necessary to reject the applicant’s argument that the judgment of 11 July 2002, HAMSA v Commission (T‑152/99, EU:T:2002:188), is not relevant, since, in the case which gave rise to that judgment, all public creditors consented to the remission of the debt of the recipient of the aid in question, whereas, in the present case, the interests of the social insurance company were evidently not taken into account for the application of the private creditor test. The interests of the latter were taken into consideration, as a post-insolvency creditor (see recital 110 of the contested decision) (see paragraphs 161 to 163 above).

190    Finally, it must be observed that the considerations set out in the judgment of 11 July 2002, HAMSA v Commission, T‑152/99, EU:T:2002:188, paragraphs 168 and 170), were referred to in the judgment of 17 May 2011 in Buczek Automotive v Commission (T‑1/08, EU:T:2011:216, paragraph 84).

191    Secondly, having regard to the judgment of 11 September 2012, Corsica Ferries France v Commission (T‑565/08, EU:T:2012:415, paragraphs 85 to 94), also relied on by the Commission, it must be held that, as the applicant claims, it is irrelevant in the present case. The issue was whether the Commission had defined, in an unambiguous manner, the French State’s economic activities for which a need to protect the brand image might potentially exist and not whether the State should have been assessed as a single creditor.

192    Thirdly, it must be recalled that, in the judgments cited in paragraph 61 above, the Court indicated the need to take account, when applying the private creditor test, of a private creditor which was in a situation as close as possible to that of the public creditor and seeking to obtain payment of the sums owed to it by a debtor experiencing financial difficulties, which entails not having to look at the State as a single creditor, bringing together all the public creditors concerned.

193    Fourthly, as the Commission rightly points out, according to the applicable case-law on State aid, it is necessary in certain situations to distinguish between the role of the State as an economic operator and its role as a public authority (see, to that effect, judgment of 14 September 1994, Spain v Commission, C‑278/92 to C‑280/92, EU:C:1994:325, paragraph 22). It follows that, in the field of State aid, the State should not necessarily be considered a single entity.

194    Fifthly, the applicant’s argument concerning certain declarations of the Slovak Republic supporting its argument that it was neither inconceivable nor impossible for a public creditor to take into account the interests of other creditors, whether public or private, when voting in 2011 on the question of continuing NCHZ’s operations, must be dismissed.

195    In that regard, it must be held that the Slovak Republic, in noting that ‘the Slovak National Property Fund [, as a member of the creditors’ committee,] not only represented its own interests on the creditors’ committee, but also those of the other unsecured creditors’, refers to the fact that the members of the creditors’ committee were elected by all of the creditors and voted in accordance with their interests as well. This situation is therefore not that alleged by the applicant in that part of its line of argument, which refers to a comprehensive taking account of the interests of the public creditors, whatever their situation, pre-insolvency or post-insolvency, through the State as a sole public creditor.

196    It follows from all of the foregoing that an assessment of the State as a single creditor could lead to accepting that certain public creditors should take a decision contrary to their interests and not act in the same way that a private creditor, placed in the same situation, would, which is contrary to the case-law cited in paragraph 61 above. Therefore, the applicant’s argument relating to the State being treated as a single creditor must be rejected.

197    Therefore, the applicant’s arguments mentioned in paragraphs 153 and 154 above can only be rejected. That conclusion cannot be called into question by the applicant’s argument relating to recital 76 of the decision to initiate the formal investigation procedure. In that regard, it is sufficient to refer to the considerations set out in paragraph 168 above in order to dismiss it. In any event, even assuming that, in that recital, the Commission had then intended to address the question of the private creditor, it must be held that it cannot be criticised for having dismissed an approach, mentioned in the decision initiating the formal investigation procedure, which was possibly incorrect.

198    The applicant nonetheless claims that, even if the case-law supported the Commission’s argument — which it does not —, the Commission did not assess, in the present case, whether the Slovak Republic was nevertheless able to oppose NCHZ’s continued operation by exercising its control over the public creditors which were members of the relevant creditors’ bodies. According to the applicant, the Slovak Republic had this option in respect of at least three public creditors, namely the Slovak National Property Fund, the Environmentálny fond (Environmental Fund, Slovakia) and Slovenská záručná a rozvojová banka, a.s. (Slovak Guarantee and Development Bank, Slovakia).

199    In that regard, it is sufficient to note that, as part of the assessment of the application of the private creditor test, the issue, in accordance with the case-law cited in paragraph 61 above, was to assess whether the public creditors concerned, which had taken the view that NCHZ’s operations should be continued, had taken a decision that could have been taken by a private creditor in the same position. Consequently, in that context, the question whether the Slovak Republic was able to influence the conduct of public creditors which were members of the relevant creditors’ bodies in order to get them to oppose NCHZ’s continued operation, and thus take a different decision from the one they adopted, is not in itself relevant. In any event, the applicant does not put forward any evidence making it possible even to assume the existence of guidelines given by the Slovak authorities to the creditors mentioned in paragraph 198 above.

200    It follows that the applicant’s arguments, set out in paragraphs 182 and 198 above, must be rejected.

(ii) The situation of the public creditors, members of the relevant committee, whose pre-insolvency claims increased during the insolvency period

201    The applicant nonetheless also disputes the Commission’s claim that its line of argument depends entirely on the ability to consider all of the outstanding public debt as a whole as being owed to a single lender. Its criticism focuses first on the Commission’s failure to take account of the interests of certain public creditors whose debts arose during the insolvency proceedings and whose legal and financial situation was not comparable to that of the private creditors in the relevant committee.

202    In that regard, according to the applicant, it follows from recital 109 of the contested decision that the claims of the majority of the private creditors which were members of the relevant committee did not increase during the insolvency proceedings. Therefore, when deciding whether to continue NCHZ’s operations, the only consideration for the majority of private creditors was the maximisation of the proceeds that could be realised from NCHZ’s sale. Conversely, creditors which had accumulated significant post-insolvency claims, should have balanced the potential benefits of continuing NCHZ’s operations, such as achieving a potentially higher sales price, with the risk that continuing the activities could lead to increased debts.

203    Thus, according to the applicant, the reference in recitals 109 and 110 of the contested decision to the further increase in the debt of certain private and public creditors during the second insolvency period is intended to make the situation of those public creditors artificially comparable to that of the private creditors which were members of the relevant committee, all or the majority of whose debts arose before the insolvency proceedings began.

204    At the hearing, in response to a question from the Court, the applicant stated that, by that line of argument, it sought to challenge the analysis carried out by the Commission when assessing, in the light of the private creditor test, the situation of public creditors, such as the Environmental Fund, which were members of the relevant committee, because they held pre-insolvency claims, but which, in January 2011, saw their claims increase because of the continued operation of NCHZ after the beginning of the insolvency proceedings.

205    It must be noted at the outset that, by its arguments, in its written pleadings before the Court, the applicant challenges both the merits of the Commission’s assessment and the adequacy of the reasoning in the contested decision in that regard. It thus alleged the incomplete nature of the statement of reasons concerning the extent of the debt held by the public and private creditors, arguing that the mere mention, in various passages of the contested decision, of the amount of the debt held by private and public creditors, was not sufficient to release the Commission from its obligation to provide a complete statement of reasons for the contested decision. It further argued that there was a contradiction as to what constitutes conduct conforming to market conditions, referring in particular to recitals 105 and 110 of the contested decision. Finally, the applicant asserted that the Commission had not, in the contested decision, provided any explanation as to how the conclusions of the economic analysis and the management presentation were relevant for a creditor with significant claims arising from the operations during the period of insolvency.

206    In the first place, it is apparent, in essence, from the contested decision (recitals 102 and 105 of the contested decision) and the pleadings of the Commission before the Court, supported by the Slovak Republic and Fortischem, that, first, the Commission took the view that, under the law on insolvency, the creditors which were asked to submit observations on whether to continue NCHZ’s operations were only the pre-insolvency creditors and that, on the other hand, the post-insolvency creditors were excluded (see paragraph 162 above).

207    Secondly, according to the Commission, there were two classes of creditors involved in the decision to continue NCHZ’s activity in 2011: (i) unsecured creditors, members of the creditors’ committee, representing all of the unsecured creditors, and (ii) secured creditors.

208    Thirdly, the Commission noted that, both within the creditors’ committee and among the secured creditors, private and public creditors had all, at the same time, taken the view that it was in their interests that NCHZ’s operations be continued.

209    From those three elements, mentioned in paragraphs 206 and 208 above, the Commission inferred the absence of an economic advantage, because the public and private creditors concerned, both unsecured and secured, which were in a comparable situation, had adopted the same approach (see recital 105 of the contested decision), the comparability of their situation resulting from their status as pre-insolvency creditors (see paragraphs 162 and 163 above).

210    Moreover the explanations on the economic analysis are set out in the contested decision, according to the Commission, for the sake of completeness (recitals 106 and 107 of the contested decision). They were confirmed by the Commission in its written pleadings before the Court and at the hearing. It is apparent from those explanations that creditors which had taken a position during the meeting of 26 January 2011 were in a situation in which they were not taking any risks in favour of NCHZ’s continued operation. According to the Commission, they had to choose between two options. On the one hand, they could opt for bringing NCHZ’s operations to an end and, accordingly, its immediate sale, which implied the probable loss of the total amount of their pre-insolvency claims. On the other hand, they could opt for its operations to be continued and thus have the opportunity to recover at least part of that amount.

211    In that regard, however, it must be noted that it is also apparent from the contested decision that, during the ‘insolvency period’, NCHZ’s debt increased in respect of at least some private creditors (recital 109 of the contested decision), whose names are not specified, and that the claims of certain secured public creditors, members of the relevant committee, namely the Environmental Fund and the municipality of Nováky (Slovakia), increased during the second insolvency period (recital 110 of the contested decision).

212    In the second place, in its replies to the measures of organisation of procedure and at the hearing, the Commission indicated that the reference to the increase in claims of certain private creditors (recital 109 of the contested decision), in respect of which it stated that they were unsecured creditors, members of the creditors’ committee, followed from its intention to show that the risk of increasing claims did not concern only the public creditors.

213    Moreover, it is apparent from the figures provided by the Commission as part of the measures of organisation of procedure that, for the two public creditors which saw their claims increase during the insolvency period (recital 110 of the contested decision), those claims increased both during the first insolvency period and during the second insolvency period. Therefore, it must be held that, at the time of taking a decision at the meeting of 26 January 2011, their position was already no longer that of a creditor with only pre-insolvency claims and, thus, in the situation described in paragraph 210 above.

214    First, it follows from the foregoing that the explanations in the contested decision, confirmed by the Commission before the Court, according to which the decisions of the public and private creditors were pari passu (recital 105 of the contested decision) and that those creditors were placed in a risk-free situation (see paragraphs 209 and 210 above) are not consistent with the indication in recital 110 of the contested decision that some of those public creditors were in a different situation, as a result of the fact that their claims had increased during the first insolvency period. Moreover, it should be noted that the Commission did not state, either in the contested decision or before the Court, that, as a result of NCHZ’s continued operations during the second insolvency period, the potential increase in their claims was inconceivable at the meeting of 26 January 2011.

215    In addition, the Commission admitted in its responses in the context of measures of organisation of procedure and at the hearing, that a pre-insolvency creditor which runs the risk that its claims increase during the insolvency period could have a different perspective to that of a creditor not running such a risk.

216    However, at the hearing, the Commission argued that, by mentioning the increase in claims of two public creditors during the second insolvency period (recital 110 of the contested decision), it was not referring to the pari passu analysis, but was rather seeking to ‘verify the economic analysis in the light of the private creditor test’ as well as the rationality of the creditors’ decision, since the latter knew that the amount of their claims would increase.

217    It must nevertheless be noted, in that regard, that it has not been shown, in the contested decision, that the economic analysis raised the question of the possible increase of creditors’ claims in the event that NCHZ’s operations were continued during the second insolvency period. Therefore, there does not appear to be a link between the content of recital 110 of the contested decision and a ‘verification of the economic analysis in the light of the private creditor test’.

218    In addition, the Commission stated, in the contested decision, that the economic analysis was available to the creditors, which it had examined ‘for the sake of completeness’, as it was information available to creditors and the súd v Trenčíne (Regional Court of Trenčín) at the ‘relevant point in time’, namely when they formed their opinion, in 2011, on the issue of NCHZ’s continued operation. It follows that, when the Commission referred to the content of the economic analysis, it examined the question of the existence of an economic advantage and, in that context, the comparability of the situations of the public and private creditors, such an examination having to be conducted while taking account of the situation prevailing when it was decided to continue NCHZ’s operations, in accordance with the case-law cited in paragraph 64 above. Consequently, although it is during the assessment of the economic analysis that the Commission discovered the existence of a factor relevant to certain public creditors when taking the decision of 26 January 2011, namely the risk of increased claims, it is not clear why, first of all, it had already found that there was no economic advantage (recital 105 of the contested decision); it then mentioned the economic analysis only ‘for the sake of completeness’ and, finally, it verified after the event the rationality of the decision of the creditors, by assessing the actual increase in claims (recitals 109 and 110 of the contested decision), without assessing the risk of the claims increasing at the ‘relevant point in time’, as per the terms used in recital 106 of the contested decision. As noted by the Slovak Republic, in order to assess the conduct of the public creditors, it is necessary to place oneself in the context of the period during which the measures were taken in order to assess the economic rationality of their conduct, and thus to refrain from any assessment based on a later situation (see, to that effect, judgment of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 71).

219    Secondly, neither the considerations set out in the contested decision nor the explanations given by the Commission in its replies to the measures of organisation of the procedure or at the hearing, in response to questions from the Court, make it possible to verify how, when applying the private creditor test, the Commission had taken account of the specific situation of the public creditors mentioned in recital 110 of the contested decision (see paragraph 213 above).

220    The names of the private creditors referred to in recital 109 of the contested decision are not specified in that decision. The Commission stated, in its replies to the measures of organisation of procedure and at the hearing, that they were unsecured creditors, members of the creditors’ committee (see paragraph 212 above). Even if that were the case, it failed to explain in the contested decision the reason why the situation of the unsecured creditors could be compared with that of the secured creditors, when the creditors of those two categories ran the risk of seeing their claims increase during the insolvency period and, in particular, during the second insolvency period. It insisted, before the Court, on the fact that the position of the unsecured creditors should be distinguished from that of the secured creditors where the creditors of those two categories did not run the risk of seeing their claims increase during the insolvency period and, in particular, during the second insolvency period. The reason for which its approach could be different in both the above cases is not apparent either from the contested decision or its explanations before the Court.

221    Moreover, it must be stated that the analysis of the level of risk of an increase in claims incurred, at the time of the decision of the creditors at the meeting of 26 January 2011, in accordance with the case-law cited in paragraphs 64 and 218 above, is not apparent from the contested decision. The Commission set out in that decision only the situation after the event. Furthermore, it cannot be established that, as stated by the Commission at the hearing, the risk of increased claims during the insolvency period was lower for private creditors.

222    In any event, even supposing that the Commission had found that, because of particular circumstances relating to the present case which should have been established and specified then, a comparison of the unsecured private creditors and the secured public creditors referred to in recitals 109 and 110 of the contested decision was relevant and a subsequent evaluation could also be relevant, it must be held that certain essential information does not appear in the contested decision, and in particular in the aforementioned recitals. Substantiated indications regarding the extent of the increase in creditors’ claims, private and public, compared to the initial amount of those claims, are not therefore mentioned; nor is the fact that the position of those creditors was comparable. In that regard, whether the Commission, in the contested decision, in its replies to the measures of organisation of procedure and at the hearing in reply to the Court’s questions, referred to the limited increase in the claims of the two public creditors, it must be noted that that statement cannot be verified from the data contained in the contested decision or from the data provided by the Commission before the Court.

223    It follows from all of the foregoing that, although the Commission had established the existence of a risk for certain secured public creditors of their claims increasing in the event of NCHZ’s continued operation in 2011 and although it took the view that that factor had to be taken into account when applying the private creditor test, the answer to the question whether the Commission had taken that factor into consideration in its analysis of the existence of an economic advantage, and, a fortiori, the manner in which the Commission took it into account are not sufficiently clearly apparent from the contested decision so as to enable the Court to verify the legality thereof. Furthermore, it must be observed that, at the hearing, even though the Commission was questioned on the issue by the Court, it was unable to provide information making it possible to understand its reasoning in the contested decision.

224    In those circumstances, it must be held that the contested decision is not coherently reasoned to the requisite legal standard with regard to the assessment of whether the conduct of the public creditors mentioned in the first sentence of recital 110 of the contested decision satisfied the private creditor test so as to make it possible to establish that all the relevant elements had been taken into consideration in the contested decision in that regard.

225    In addition, to the extent that the statement of reasons for the contested decision was inadequate as regards the position of the public secured creditors, and not of the unsecured creditors, and that the applicant did not submit any arguments capable of calling into question the fact that the unsecured public creditors were placed in the position described in paragraph 210 above, the applicant’s argument, set out in paragraph 178 above, can only be rejected.

226    Consequently, it must be concluded that, in the light of the applicant’s arguments, set out in paragraphs 202 to 205 above, the first subsection must be upheld in that the contested decision is vitiated by an inadequate statement of reasons, as noted in paragraph 224 above, without it being possible to rule on the merits of the Commission’s assessment of whether the conduct of the public creditors mentioned in the first sentence of recital 110 of the contested decision was consistent with the private creditor test. Conversely, the first subsection must be rejected in so far as it relates to the applicant’s arguments set out, as part of the first plea, in paragraphs 182 and 198 above and the second and third pleas (see paragraphs 169, 180 and 200 above).

(d)    The lack of relevance of the economic analysis and of the management presentation (third subsection)

227    The applicant takes the view that the Commission made a manifest error of assessment in relying on the economic analysis and on the management presentation in order to assess whether the conduct of the Slovak Republic was consistent with the private creditor test.

228    The Commission, supported by the Slovak Republic and Fortischem, disputes the merits of the applicant’s arguments.

229    As a preliminary point, it should be noted that, contrary to what the applicant seems to imply, recital 107 of the contested decision relates only to the economic analysis, while recital 108 thereof refers to the management presentation.

(1)    The economic analysis

230    In support of its claim that the Commission could not rely on the economic analysis, first of all, the applicant submits that it is apparent from the non-confidential version of the economic analysis to which it had access that no independent expert participated in the drafting of that document. It further states that the fact that the Commission chose to rely on a non-independent analysis contravenes its established decision-making practice and highlights the fact that the Commission itself doubts the pari passu nature of the decision to continue NCHZ’s operations. In that regard, it refers, by way of analogy, to Title II, point 2(a), of the Commission communication on State aid elements in sales of land and buildings by public authorities (OJ 1997 C 209, p. 3). The lack of an independent valuation does not relieve the Commission of its own obligation to examine the possibility of obtaining an independent evaluation.

231    It should be noted, as the Commission has done, that the communication referred to by the applicant concerns sales of land and buildings by public authorities and is not applicable to the present case.

232    In any event, since it cannot be concluded that there was no independent assessment, in that it took account of other interests than those of the creditors concerned, the Commission cannot be criticised for not having commissioned a further analysis, which would have been independent. It must be stated that the administrator does not act in the interests of the company. As noted by Fortischem, the applicant’s argument ignores the fact that the administrator is a body whose functions are defined by the law on insolvency and which consist in working in the sole interests of the creditors of the insolvent entity and that, under that law, an administrator who is in breach of its obligations is to be held personally liable. Therefore, as argued by Fortischem, one of its tasks may consist in analysing the financial advantages and disadvantages of continuing the operations of the undertaking concerned in order to facilitate decision making within the relevant committee, which is required to decide on whether to continue the operations of the company or to place it in liquidation. As noted by the Slovak Republic, Article 5 of the law on insolvency provides that, in the event that that law is applied, the insolvency court, the administrator and the creditors’ committee must act in such a way as to satisfy, as far as possible, the creditors of the insolvent entity. In those circumstances, it may be concluded that the administrator had the necessary independence, as it was not linked to NCHZ’s interests and fulfilled the necessary conditions so as to ensure that the analysis was produced in the interest of the creditors concerned, and not to their detriment.

233    In addition, the applicant submits, relying on the judgment of 29 March 2007, Scott v Commission (T‑366/00, EU:T:2007:99, paragraph 134), that it is questionable whether the economic analysis was carried out on the basis of a generally accepted and standardised valuation method, in so far as the method for calculating certain anticipated costs is not explained. In that regard, it should be noted that that argument is mentioned in a footnote, without being further substantiated; nor does the applicant indicate the costs to which it refers. Since the economic analysis concerns complex economic data, it must be concluded, having regard to the case-law cited in paragraphs 67 and 68 above, that there is no indication that costs were not calculated on the basis of a generally accepted valuation method and that, therefore, the taking into account of those figures by the Commission is not vitiated by a manifest error of assessment.

234    In the second place, the applicant claims that, although it does not deny that the economic analysis could have shown that the continued operation of NCHZ was in the interest of creditors, the Commission does not identify, in the contested decision, the creditors for which the sale of NCHZ as a going concern was the most advantageous option. It appears to be clear from the context in which the economic analysis was drawn up, and from the first sentence of recital 107 of the contested decision, that the scenarios had been compared from the point of view of the pre-insolvency creditors, without taking into account the situation of a creditor which had accumulated, and was likely to continue to accumulate, significant additional debts in the course of NCHZ’s insolvency.

235    Admittedly, as the Commission claims, it stated in the contested decision that it had checked the economic analysis ‘for the sake of completeness’ (recital 106 of the contested decision). However, the Commission relies on the existence of and conclusions reached in the economic analysis to justify the decision of at least some of the creditors (see paragraph 216 above). Consequently, the applicant’s argument concerning the economic analysis should not be regarded as ineffective, as contended by the Commission.

236    First, the applicant, the Commission and the Slovak Republic all agree that the merits of the decision to continue the operation of NCHZ are immaterial when examining the relevance of the economic analysis. It is necessary to consider whether that analysis made it possible to assess whether the conduct of the public creditors was consistent with the private creditor test, and not whether they had made the right decision.

237    Secondly, it is apparent from the economic analysis that different scenarios were presented by the administrator, as the Commission stated in recital 106 of the contested decision. In that context, it is not stated that the more specific interests of certain creditors were taken into account in the examination of the various costs. Conversely, it is stated in the economic analysis that the administrator refers to Article 88(2) of the law on insolvency in order to assess the interests of the creditors, that article referring to the relevant committee. As noted by the Commission, the creditors concerned were then the pre-insolvency creditors, which were the ones which could decide on NCHZ’s continued operation and whose declarations would be transmitted to the súd v Trenčíne (Regional Court of Trenčín). This was confirmed by the Slovak Republic, in essence, in its replies to the measures of organisation of procedure. Moreover, it is not apparent from the law on insolvency that the post-insolvency creditors could participate in the decision-making process and, in particular, intervene before that court for that purpose (see paragraphs 148 to 152 above). The applicant was not able to provide evidence to the contrary. Finally, it is apparent from the economic analysis (Section XI, 1) that the administrator’s finding, that the end of NCHZ’s operations was not in the common interest of the creditors, was taken having regard to the pre-insolvency creditors’ interest.

238    It must be noted that, in the contested decision, the Commission stated that the economic analysis had served as a basis, together with the presentation by NCHZ’s management, for the pre-insolvency creditors’ decision (recital 109 of the contested decision).

239    Moreover, it must be held that, as argued by the Commission, supported in that regard by the Slovak Republic and Fortischem, the line of argument that the analysis should have taken account of the interests of the post-insolvency creditors is based on the idea that the Commission should regard the public creditors as a single entity, whether pre-insolvency or post-insolvency. It was concluded that the applicant’s argument to that effect should be rejected (see paragraph 196 above).

240    It follows from the foregoing that the Commission correctly held that the economic analysis could serve as a basis for the decision of the pre-insolvency unsecured public creditors.

241    In contrast, to the extent that it has previously been indicated, in the context of the assessment of the conduct of the creditors which were party to the decision of 26 January 2011, that the Commission should take account of the fact that some of the pre-insolvency secured public creditors had claims which increased during the insolvency period, and to the extent that, moreover, the applicant alleged a breach of the duty to state reasons with respect to the relevance of the economic analysis in that regard (see paragraph 205 above), it must be noted that, in the contested decision, there is no indication that the economic analysis took account of the cost to those creditors of the continued operation of NCHZ during the second insolvency period. Moreover, it is not apparent from the contested decision why that analysis could therefore serve as a basis for an examination of the conduct of those public creditors in the light of the private creditor test (see paragraphs 206 to 224 above). It follows that it is not possible to rule on the merits of the applicant’s arguments disputing the irrelevance of the economic analysis in that regard.

(2)    The management presentation

242    In the contested decision, the Commission took the view that the management presentation concluded that ‘the creditors would be best off if NCHZ were sold as a going concern’ (recital 108 of the contested decision).

243    It must be noted that, in so far as the economic analysis was able to serve as a basis for the decision of the creditors which are members of the relevant committee, including the pre-insolvency unsecured public creditors (see paragraph 240 above), the applicant’s argument concerning the management presentation is thus ineffective.

244    Furthermore, as regards the assessment of the conduct of certain public creditors in the light of the private creditor test (see paragraphs 206 to 224 above), it should be noted that (i) the Commission does not claim that the management presentation would be relevant in that regard and (ii) that, at the very least, the contested decision is vitiated by the same inadequate reasoning in respect of the management presentation as it is in respect of the economic analysis.

245    It follows that the contested decision is vitiated by an inadequate statement of reasons as to the relevance of the economic analysis and of the management presentation for the purposes of the Commission’s analysis of the position of the public secured creditors which are members of the relevant committee, referred to in recital 110 of the contested decision. Consequently, the third subsection of the first part of the first plea in law must be upheld in that regard and, on the other hand, rejected in so far as it concerns the relevance of those two documents for the purposes of analysing the decision of the public unsecured pre-insolvency creditors (see paragraphs 240 and 243 above).

246    It follows that the first part of the first plea must be upheld in so far as it is based on an inadequate statement of reasons for the contested decision.

4.      Conclusions on the outcome of the action

247    It follows from all of the foregoing considerations that the contested decision is vitiated by an inadequate statement of reasons as regards the assessment that there was no economic advantage, in particular as regards the analysis by the Commission of the fact that the conduct of the public creditors, mentioned in the first sentence of recital 110 of the contested decision, satisfied the private creditor test (see paragraph 224 above), and a failure to state reasons as regards whether the decision to continue the operation of NCHZ in 2011 was attributable to the State.

248    Furthermore, it must be observed that the Commission based its reasoning on the fact that the creditors had taken a unanimous decision and that both the Commission and the interveners, in their written pleadings and at the hearing, stressed the importance of the unanimous nature of the creditors’ decision when the súd v Trenčíne (Regional Court of Trenčín) was asked to rule on the question of the continued operation of NCHZ in 2011. Accordingly, it cannot be held that a possible error by the Commission, as to whether the public creditors mentioned in the first sentence of recital 110 of the contested decision acted in a manner consistent with the private creditor test, had no impact on its assessment of the conditions relating to economic advantage, or whether the decision wasattributable to the State. Therefore, it must be held that the Court is not in a position to exercise its power to review the legality of the contested decision in that regard.

249    It follows that it is necessary to annul Article 2 of the contested decision in so far as the Commission infringed the obligation to state reasons pursuant to Article 296 TFEU when assessing the conditions referred to in Article 107(1) TFEU, relating to economic advantage and whether the decision wasattributable to the State. Moreover, it is not necessary for the Court to rule on the applicant’s request to make additional submissions concerning documents mentioned in the context of the administrative proceedings.

VI.    Costs

250    Under Article 134(1) 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. As the Commission has been unsuccessful, it must be ordered to bear its own costs and also to pay those incurred by the applicant.

251    In addition, under Article 138(1) of the Rules of Procedure, the Member States which intervened in the proceedings are to bear their own costs. Moreover, paragraph 3 of that article provides that the Court may order an intervener other than a Member State to bear its own costs. Therefore, the Slovak Republic and Fortischem are ordered to bear their own costs.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Annuls Article 2 of Commission Decision (EU) 2015/1826 of 15 October 2014 on State aid SA.33797 (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ;

2.      Orders the European Commission to bear its own costs and to pay those of AlzChem AG;

3.      Orders the Slovak Republic and Fortischem a.s. to bear their own costs.

Berardis Papasavvas Spineanu-Matei

Delivered in open court in Luxembourg on 13 December 2018.

E. Coulon G. Berardis

Registrar President

Table of contents

I. Background to the dispute

II. Contested decision

III. Procedure

IV. Forms of order sought

V. Law

A. Admissibility

B. Substance

1. Review of the case-law

2. Whether the continued operation of NCHZ during the second insolvency period is attributable to the State (second plea)

(a) Infringement of the obligation to state reasons concerning the assessment of the existence of veto rights for the public creditors under Slovak insolvency law (second part of the second plea)

(b) Infringement of the obligation to state reasons regarding whether the second measure is attributable to the State because of the approval by the súd v Trenčíne (Regional Court of Trenčín) of the decision of 26 January 2011 (first part of the second plea)

3. On the existence of an economic advantage as a result of the decision to continue NCHZ’s operations during the second insolvency period (first part of the first plea)

(a) The fact that the conduct of the private creditors cannot be used as a valid benchmark in order to justify the conduct of the Slovak Republic (second subsection)

(1) The alleged political support of the Slovak Government

(2) The influence of the public creditors

(b) The fact that the Slovak Republic was able to oppose the continued operation of NCHZ and the accumulation of debts (fourth subsection)

(c) Misapplication of the private creditor test (first subsection)

(1) The contradiction in the contested decision (recital 105, last sentence of recital 110 and recital 111 of the contested decision)

(2) The capital ties between the private creditors and ‘the owners’ of NCHZ

(3) The comparability of the situation of the public and private creditors

(i) The State being treated as a single creditor

(ii) The situation of the public creditors, members of the relevant committee, whose pre-insolvency claims increased during the insolvency period

(d) The lack of relevance of the economic analysis and of the management presentation (third subsection)

(1) The economic analysis

(2) The management presentation

4. Conclusions on the outcome of the action

VI. Costs

*      Language of the case: English.

1      This judgment is the subject of a publication by extracts.

2      Confidential data removed.