Case T‑284/15

(publication by extracts)

AlzChem AG

v

European Commission

(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)

Summary — Judgment of the General Court (Sixth Chamber), 13 December 2018

1.      State aid — Concept — Grant of advantages attributable to the State — Involvement of a national court in the adoption of a measure — Included

(Art. 107(1) TFEU)

2.      State aid — Concept — Assessment under the private creditor test — Assessment of the individual situation of each of the public creditors involved

(Art. 107(1) TFEU)

1.      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 following a decision of a national court.

In that regard, the Commission must, when it finds that there is no State aid in relation to the continued operation of an insolvent entity while referring to the fact that that continuation is based on a decision taken by private creditors, despite the presence of a national court on the competent committee called on to decide whether or not to continue the operation of the entity concerned, set out in the decision the reasons which led it to conclude that the decision to continue operating the undertaking is not attributable to that national court.

(see paras 104, 107, 108)

2.      When applying the private creditor test, the Commission must carry out an assessment of the individual situation of the public creditors at issue, in particular based on their status as preferential or unsecured creditors, in order to determine, in essence, whether the choices made by them go beyond what is justified by commercial constraints or whether they could be explained by the desire to confer an advantage on the undertaking concerned. Accordingly, public creditors must not be regarded as a single entity and their specific characteristics must be taken into consideration.

In that regard, 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 do.

(see paras 188, 196)