JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
28 October 2015 (*)
(State aid — Sale and leasing of plots of land and a production site — Decision declaring the aid incompatible with the internal market and ordering recovery thereof — Lack of a tendering procedure — Determination of the market price — Private investor test — Effect on trade between Member States)
In Case T‑253/12,
Hammar Nordic Plugg AB, established in Trollhättan (Sweden), represented by I. Otken Eriksson and U. Öberg, lawyers,
applicant,
v
European Commission, represented by D. Grespan and P.-J. Loewenthal, acting as Agents, assisted by L. Sandberg-Morch, lawyer,
defendant,
APPLICATION for the annulment of Commission Decision 2012/293/EU of 8 February 2012 on State aid SA.28809 (C 29/10) (ex NN 42/10 and ex CP 194/09) implemented by Sweden in favour of Hammar Nordic Plugg AB (OJ 2012 L 150, p. 78),
THE GENERAL COURT (Seventh Chamber),
composed of M. van der Woude, I. Wiszniewska-Białecka and I. Ulloa Rubio (Rapporteur), Judges,
Registrar: C. Heeren, Administrator,
having regard to the written procedure and further to the hearing on 26 March 2015,
gives the following
Judgment (1)
Background to the dispute
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Administrative procedure
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Contested decision
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Procedure and forms of order sought
25 By application lodged at the Registry of the General Court on 8 June 2012, the applicant brought the present action.
26 The applicant claims that the Court should:
– annul the contested decision in whole or in part;
– order the Commission to pay the costs.
27 The Commission contends that the Court should:
– dismiss the application as unfounded;
– order the applicant to pay the costs.
Law
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The first plea, alleging errors of assessment in classifying an operation as State aid
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32 In order to determine whether the sale of land by a public authority to a private individual constitutes State aid, the Commission must apply the test of a private investor in a market economy, so as to determine whether the price paid by the presumed recipient of the aid corresponds to the selling price which a private investor, operating in normal competitive conditions, would be likely to have set. As a rule, the application of that test requires the Commission to make a complex economic assessment (Commission v Scott, cited in paragraph 31 above, EU:C:2010:480, paragraph 68).
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The failure to take account of the transfer price of SEK 8 000 000
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40 Next, it should be borne in mind, so far as concerns the applicant’s third argument to the effect that there was no reason to have recourse to a formal tendering procedure before the sale, that the Commission is bound by the guidelines and notices that it issues, to the extent to which they do not depart from the TFEU rules and are accepted by the Member States (judgment of 16 July 2014 in Zweckverband Tierkörperbeseitigung v Commission, T‑309/12, EU:T:2014:676, paragraph 212).
41 Accordingly, the Commission was entitled, in the absence of an open and unconditional tendering procedure, to rely on the assessments available to it, in accordance with paragraph 2(a) of the notice.
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The failure to consider whether State aid existed when the facility was purchased by FABV for SEK 17 000 000
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60 In the first place, it should be noted that, in the summary of its decision to open a formal procedure examining the sale of the facility by FABV to the applicant, the Commission stated, with regard to the sale of that Chips facility to FABV, as follows:
‘The purchase price paid by FABV for the production facility does not appear to be higher than market value, as indicated by independent external consultants. Any element of aid in this first operation, which does not constitute State aid within the meaning of Article 107(1) TFEU, can therefore be excluded.’
61 The Commission thus adopted, with regard to the sale of the chips facility to FABV, a decision in conformity with Article 4(2) of Council Regulation (EEC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), the terms of which clearly indicate that it is final.
62 If a Commission decision finds that a measure does not constitute State aid, within the meaning of Article 107(1) TFEU without initiating the formal investigation procedure provided for in Article 108(2) TFEU and if an interested party seeks to safeguard its procedural rights under the same provision, that party must bring an action to overturn that decision before the General Court within the time limit prescribed in the fifth paragraph of Article 263 TFEU (order of 27 November 2001, Wöhr v Commission, T‑222/00, Rec, EU:T:2001:274, paragraph 34 ).
63 In the present case, it must be pointed out that the applicant has not brought such an action within that time limit.
64 Second, as the Commission indicates, the procedure allowing revocation of a final decision in which it has found that a measure did not constitute State aid is provided for in Article 9 of Regulation No 659/1999, under which the Commission may revoke such a decision if it was adopted on the basis of incorrect information that was a determining factor.
65 The applicant’s only argument concerning allegedly incorrect information concerns the vacancy rate for the premises taken into account in the first estimate. The applicant states that the memorandum for the sale of the chips facility to FABV is based on a vacancy rate of 10%, whereas that rate was in fact 100% with regard to empty premises. The applicant also challenges the Commission’s contention that it was informed by the local authorities that a lessee was found as from 13 February 2008.
66 In that regard, it must be pointed out that the applicant has produced no evidence in support of those assertions and, moreover, has not even explained what vacancy rate would, in its view, be the correct one for the facility as a whole.
67 The applicant’s other arguments are merely unproven assertions and do not meet the requirements laid down by Article 9 of Regulation No 659/1999.
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The failure to have recourse to the test of a private investor in a market economy
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78 In this case, it is undisputed that, on the same day, that is to say 13 February 2008, FABV acquired the facility for the sum of SEK 17 000 000 and granted the applicant a purchase option for a sum of SEK 8 000 000.
79 In the first place, it must be pointed out that it is doubtful whether a private investor would have undertaken such a transaction.
80 Second, it must be observed that it is clear from paragraph 16 of the decision initiating the procedure that FABV accepted a lower resale price in the hope of ensuring that the facility would continue as a going concern and safeguarding employment. The parties also agree that the municipality has always pursued that aim, a fact which the applicant itself mentions in its application. It is also stated, in paragraph 58 of the contested decision, that that aim is also the only one mentioned by the Swedish authorities to the Commission.
81 Moreover, it is apparent from the letter of 27 November 2009, referred to by the applicant, that FABV considered that the plan whereby it would purchase the facility and then lease it to the applicant, which in turn would lease it to Nya Topp, would enable the facility to continue operating and would safeguard jobs threatened by its closure.
82 FABV then decided, as is indicated in that letter, to request from the municipality a contribution of SEK 9 000 000 in order to cover the loss involved in the sale of the facility to the applicant for SEK 8 000 000. In that connection, the Commission has produced a copy of a judgment of the kammarrätt i Göteborg (Administrative Court of Appeal, Gothenburg, Sweden) of 1 December 2012 concerning a request from FABV to be allowed to deduct a capital loss following the sale of the facility to the applicant.
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The unreliability of the last estimate, adopted by the Commission
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The failure to take account of the subsequent transfer of the facility for the sum of SEK 8 000 000
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The lease between the applicant and Nya Topp
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The second plea, concerning the effect on trade between Member States and distortion of competition
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The third plea, concerning the obligation to carry out an examination and provide a statement of reasons, and also the rights of the defence
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The Commission’s obligation to undertake an examination
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The obligation to give a statement of reasons
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The applicant’s rights of defence
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Costs
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On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders Hammar Nordic Plugg AB to bear its own costs and to pay those of the European Commission.
Van der Woude | Wiszniewska-Białecka | Ulloa Rubio |
Delivered in open court in Luxembourg on 28 October 2015.
[Signatures]