Request for a preliminary ruling from the tribunal de commerce de Paris (France) lodged on 2 June 2021 – AA, AA, née BB, Groupe AA SNC, SI, AM, RH, RT, OE, MD, CJ, MI, Brouard-Daude SCP, acting through Xavier Brouard in his capacity as insolvency administrator of Groupe AA SNC v Allianz Bank SA, Allianz France SA, successor in law to Métropole SA, Abitbol & Rousselet SCP, acting through Frédéric Abitbol in his capacity as insolvency administrator of Groupe AA SNC, BDR & Associés, acting through Xavier Brouard in his capacity as insolvency administrator of Groupe AA SNC, SELAFA MJA, acting through Jérôme Pierrel, insolvency co-administrator of AA, SELARL Axym, acting through Didier Courtoux, insolvency co-administrator of AA, Bibus SA, formerly Matinvest, Allianz I.A.R.D. SA, successor in law to Métropole SA
(Case C-344/21)
Language of the case: French
Referring court
Tribunal de commerce de Paris
Parties to the main proceedings
Applicants: AA, AA, née BB, Groupe AA SNC, SI, AM, RH, RT, OE, MD, CJ, MI, Brouard-Daude SCP, acting through Xavier Brouard in his capacity as insolvency administrator of Groupe AA SNC
Defendants: Allianz Bank SA, Allianz France SA, successor in law to Métropole SA, Abitbol & Rousselet SCP, acting through Frédéric Abitbol in his capacity as insolvency administrator of Groupe AA SNC, BDR & Associés, acting through Xavier Brouard in his capacity as insolvency administrator of Groupe of AA SNC, SELAFA MJA, acting through Jérôme Pierrel, insolvency co-administrator of AA, SELARL Axym, acting through Didier Courtoux, insolvency co-administrator of AA, Bibus SA, formerly Matinvest, Allianz I.A.R.D. SA, successor in law to Métropole SA
Questions referred
Must the rules on the control of concentrations under Regulations No 4064/89 1 and No 139/2004 2 be interpreted as meaning that a concentration implemented in infringement of the prior notification and standstill obligations must be classified as a non-notified concentration and, if it must, what are the legal consequences of a failure to notify on legal acts subsequently entered into on the basis of that first concentration? Specifically, must the non-notified concentration be regarded as ‘incompatible’ within the meaning of Regulations No 4064/89 and No 139/2004?
Must Article 3(5)(a) of Regulations No 4064/89 and No 139/2004 be interpreted as meaning that the fact that a financial or credit institution or an insurance company holds securities for over a year with no authorisation by the Commission gives rise to an incompatible concentration?
What are the legal consequences under Article 3(5)(a) of Regulations No 4064/89 and No 139/2004 of infringement of the obligation to request the Commission to extend the one-year period for which credit institutions and other financial institutions or insurance companies can hold securities?
Must compliance with the general principle of legal certainty be interpreted as meaning that it limits the ability to challenge operations that are unlawful under EU law, where that unlawfulness has existed for a particularly long time and where natural and legal persons have established individual rights on the basis of the unlawful operation. Where infringements of EU law are found to occur, do they confer entitlement to bring actions for damages against the persons responsible for the unlawful conduct?
Must the case-law of the Court of Justice of the European Union on the non-contractual liability of the Member States be interpreted as meaning that infringements of EU law caused by a financial institution that is a subdivision of the State impose an obligation on that State to compensate the victims of the unlawful conduct, on the general terms established by EU law?
Must Article 108(3) TFEU be interpreted as meaning that, before the judgment in Stardust Marine, a selective loan at a preferential rate giving rise to an advantage compared with normal market conditions could be regarded as organically coming from ‘State resources’ because it was granted by a public undertaking, and that it is not necessary to verify whether it was functionally attributable to the State?
Does the obligation of sincere cooperation by the Member States under Article 4(3) TEU, in conjunction with the effectiveness and direct effect of Article 88(3) [of the EC Treaty, now Article 108(3) TFEU], require the court hearing the substantive case of its own motion to draw attention to and, where applicable, declare unlawful any State aid that has not been notified to the Commission?
What are the legal consequences of a failure to notify State aid to the European Commission in infringement of Article 108(3) TFEU, including as regards the validity of any acquisitions carried out using that State aid?
Must Article 108(3) TFEU be interpreted as meaning that the fact that a public credit institution mobilises its capital on a large scale for the selective benefit of another bank constitutes State aid?
Must Article 101 TFEU, as interpreted by the Court of Justice in its Allianz Hungaria case-law, be construed as meaning that an agreement concluded by an agent with other undertakings which entails infringement of a legal obligation must be regarded as constituting a restriction on competition by object since under French national law an agent cannot be the purchaser of an asset which the agent is entrusted to sell and has a duty to act fairly and a duty to provide information to the principal or principals?
Is Article 101 TFEU infringed where undertakings have reached an agreement to acquire a third undertaking at a price significantly below its market value, and where that acquisition involved one of the undertakings in the agreement infringing the duty to act fairly, the duty to provide information or the prohibition on acquiring the asset which French law imposes on an agent?
Is Article 101 TFEU infringed where an agreement between undertakings has contributed to concealing information from the European Commission in relation to the concentration-related obligations (in particular the notification obligation) on the undertakings or certain undertakings
Is Article 101 TFEU infringed where an agreement between undertakings had the object or effect, inter alia, of State aid not being duly notified to the European Commission?
Must Article 3 of Directive 2014/104/EU 3 be interpreted as meaning that in the present case ‘full compensation’ under that directive is the same as the current market value of Adidas?
Having regard to all the relevant facts in the present case, must Article 10 of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union or the principle of effectiveness that it embodies be interpreted as meaning that the right to reparation of harm resulting from the infringements of Articles 101 and 102 TFEU alleged by the applicants must be found to be time-barred or not to be time-barred?
Since that directive does not apply to infringements of EU law relating to concentrations and State aid, what rules of EU law should be applied in respect of any limitation of the right to reparation and how must those rules be interpreted in the light of the relevant facts of the case?
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1 Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1).
2 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).
3 Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1).