Case T‑305/13

Servizi assicurativi del commercio estero SpA (SACE)
and
Sace BT SpA

v

European Commission

(State aid — Export-credit insurance — Reinsurance cover provided by a public undertaking to its subsidiary — Capital contributions to cover the subsidiary’s losses — Concept of State aid — Imputability to the State — Private investor test — Obligation to state reasons)

Summary — Judgment of the General Court (Seventh Chamber), 25 June 2015

1.      State aid — Concept — Aid granted to a public undertaking — Undertaking controlled by the State — Imputability to the State of the aid measure — Included — Evidence to be taken into consideration

(Art. 107(1) TFEU)

2.      State aid — Concept — Aid granted to a public undertaking — Undertaking controlled by the State — Imputability to the State of the aid measure — Included — Evidence to be taken into consideration — Appointment of the board of directors by several ministries — Insufficient

(Art. 107(1) TFEU)

3.      State aid — Concept — Aid granted to a public undertaking — Undertaking controlled by the State — Imputability to the State of the aid measure — Included — Undertaking not carrying on its market activities in normal conditions of competition with private operators — Evidence to be taken into consideration

(Art. 107(1) TFEU)

4.      State aid — Commission decision — Judicial review — Limits — Assessment of legality by reference to the information available at the time the decision was adopted

(Arts 108(2) TFEU and 263 TFEU)

5.      State aid — Concept — Assessment according to the criterion of the private investor — Account taken of the context and the information available at the time support measures were adopted

(Art. 107(1) TFEU)

6.      State aid — Administrative procedure — Obligations of the Commission — Diligent and impartial examination — Account taken of the fullest and most reliable evidence possible — Scope of the obligation

(Art. 108(2) TFEU)

7.      State aid — Concept — Assessment according to the criterion of the private investor — Assessment having regard to all relevant factors of the disputed operation and its context — Obligation of the Member State to provide objective and verifiable evidence showing the economic character of its activity

(Art. 107(1) TFEU)

8.      State aid — Administrative procedure — Determination of the amount of the aid — Reference to previous decision-making practice — Not permissible

(Arts 107(1) TFEU and 296 TFEU)

9.      State aid — Concept — Criterion for appraisal — Reasonableness of the operation for a private investor following a relatively long-term strategy

(Art. 107(1) TFEU)

1.      The mere fact that a public undertaking is under State control is not sufficient for measures taken by that undertaking, such as the financial support measures in question, to be imputed to the State. It is also necessary to examine whether the public authorities must be regarded as having been involved in any way in the adoption of those measures.

In that regard, the concept of the specific involvement of the State must be understood as meaning that the measure in question was adopted under the actual influence or control of the public authorities or that the absence of such influence or such control is unlikely, without it being necessary to examine the effect of that involvement on the content of the measure. In particular, it cannot be demanded, in order to satisfy the condition of imputability, that it be demonstrated that the public undertaking’s conduct would have been different if it had acted autonomously. As regards the objectives pursued by the measure in question, although they may be taken into consideration in determining imputability, they are not crucial.

Moreover, the autonomy conferred, by its legal form, on a public undertaking does not preclude the State from exerting a dominant influence in respect of the adoption of certain measures. As the possible specific involvement of the State was not excluded by the autonomy enjoyed in principle by the public undertaking, proof of such involvement may be provided on the basis of all the relevant facts and points of law which can form a set of sufficiently precise and convergent indicators of the exercise of actual influence or control by the State.

(see paras 41, 48, 51)

2.      In the matter of State aid granted through a public undertaking, the fact that, at the very least, the initial appointment of the board of directors of such an undertaking must, pursuant to a specific legislative provision, be made in agreement with several important ministries shows the special links between that undertaking and the public authorities and may constitute an indicator of the involvement of the public authorities in the public undertaking’s activity. However, these organic indicators, although significant in so far as they demonstrate the limited independence of the public undertaking in question from the State, are not sufficient in themselves to establish the specific involvement of the State in the adoption of the measures at issue and must be assessed together with the other indicators.

(see paras 61, 63)

3.      With regard to the exercise by a public export credit insurance undertaking of its activities on the market in normal conditions of competition with private operators, and to the question whether the public authorities use that undertaking to support the system of undertakings in the Member State in question and thereby to promote the country’s economic development, the following general indicators concerning the context in which measures classified as aid by the Commission were adopted, taken as a whole, allow it to be established to a sufficient legal standard that those measures are attributable to a Member State, having regard to their importance for the economy of the latter.

In the first place, the indicator concerning the coverage of political risks, catastrophe risks, economic, commercial and exchange risks and further risks to which operators and companies linked to or controlled by them are exposed in their activities abroad and relating to the internationalisation of the economy of the Member State in question falls within a general interest mission, which goes beyond the simple mission of providing cover for non-marketable risks, which does not fall within the competitive sector.

In the second place, as regards the indicator concerning the State guarantee enjoyed by the said public undertaking, even if it relates solely to the latter’s activity in the non-marketable risks insurance sector, it nevertheless confirms that the activities of that undertaking are not activities exercised by a commercial export-credit insurance company under market conditions, but are those of a public insurance company benefitting from exceptional status and pursuing objectives of supporting the economy defined by the public authorities, utilising an export promotion instrument, in particular through the State guarantee.

In the third place, the indicator concerning the annual audit of the accounts of the said undertaking by the national court of auditors and the obligation of the Ministry of Economy and Finance of that State to present an annual report on the activity of the undertaking in question to the Parliament of the Member State concerned, whilst not in itself conclusive, nevertheless bears witness to the interest of the Member State concerned in the activities of the said undertaking, and is therefore relevant as a factor in the set of indicators on which the Commission may rely when classifying a measure as State aid.

In the fourth place, as regards the indicator concerning approval by the Inter-Ministerial Committee for Economic Planning of a draft plan of the operations and categories of risks which may be assumed by the undertaking in question as well as financial needs related to certain risks and the definition by that committee of global limits for the non-marketable risks to be assumed by the undertaking in question, approval of the draft plan by the said committee, which is the highest organ for coordinating and managing the economic policy of the Member State concerned, demonstrates that that undertaking does not carry on its business in conditions of total managerial independence and may thus be regarded as acting under the control of the public authorities, at least as regards the adoption of important decisions.

In those circumstances, taking account of the extent and subject-matter of the measures classified as aid by the Commission, those indicators as a whole demonstrate that it is improbable that the public authorities were not involved in the adoption of the contested measures.

(see paras 66, 67, 71-74, 76, 77, 81, 82)

4.      See the text of the decision.

(see paras 83, 94, 133)

5.      In State aid matters, the private investor test is applied in order to determine whether, because of its effects, the advantage granted to an undertaking, in whatever form, through State resources distorts or threatens to distort competition and affects trade between Member States. In that regard, Article 107(1) TFEU does not distinguish between measures of intervention of a public body by reference to their causes or their aims but defines them in relation to their effects.

In order to examine whether or not the Member State or the public body concerned has adopted the conduct of a prudent private operator operating in a market economy, it is necessary to place oneself in the context of the period during which the measures at issue were taken in order to assess the economic rationality of the conduct of the Member State or of the public body, and thus to refrain from any assessment based on a later situation. The comparison between the conduct of public and private operators must thus be made in relation to the attitude which, at the time of the operation in question, a private operator would have had in similar circumstances having regard to the available information and foreseeable developments at the time. Consequently, the retrospective finding of the actual profitability of the operation performed by the Member State or the public body concerned is irrelevant. That is especially so where the Commission is seeking to determine whether there has been State aid in relation to a measure which was not notified to it and which, at the time when the Commission carries out its examination, has already been implemented by the public body concerned.

(see paras 92-94)

6.      In accordance with the principles on the burden of proof in the State aid sector, the Commission must provide proof of such aid. In this regard, the Commission is required to conduct a diligent and impartial examination of the measures at issue, so that it has at its disposal, when adopting a final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible.

Consequently, where it appears that the private investor test could be applicable, the Commission is under a duty to ask the Member State concerned to provide it with all relevant information enabling it to determine whether the conditions governing the applicability and the application of that test are met. If the Member State provides it with evidence of the required nature, 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 a private operator.

(see paras 95, 96, 112, 184-186)

7.      In the course of the administrative procedure for reviewing State aid, and more particularly when applying the private investor test, it is for the Member State or the public body concerned to communicate to the Commission objective and verifiable evidence showing that its decision is based on economic evaluations comparable to those which, in the circumstances, a rational private operator in a situation as close as possible to that of that State or of that body would have had carried out, before adopting the measure in question, in order to determine its future profitability.

To that end, the provision, during the administrative procedure, of studies by independent consultancy firms which were commissioned prior to the adoption of the measure in question may help to show that the Member State or the public body implemented that measure as an operator on the market.

However, the evidence of the economic evaluation required from the public body providing the aid must be assessed in each specific case and varies depending on the nature and the extent of the economic risks involved. It must, in particular, be varied depending on the nature and the complexity of the operation in question, the value of the assets, goods or services concerned, and the circumstances of the case.

(see paras 97, 98, 121, 122, 178)

8.      In order to establish the existence of aid, the Commission cannot confine itself to referring to its decision-making practice. It is required to conduct a diligent and impartial examination, having regard to the relevant legislation, of all the objective evidence at its disposal. The same applies where the Commission determines the amount of the aid of which it orders recovery. If the Commission decides to order the recovery of a specific amount, it must assess as accurately as the circumstances of the case will allow the actual value of the benefit received from the aid by the beneficiary.

Accordingly, the Commission cannot fulfil its obligation to state reasons simply by referring to a methodology developed in another case without any explanation of the relevance of that methodology in assessing a measure potentially involving State aid in a different factual context.

(see paras 149, 152-154)

9.      In the matter of State aid, in order to assess whether a public investor’s contribution to an undertaking’s capital is compliant with the private investor test, the conduct of a private investor with which the conduct of a public investor must be compared need not be the conduct of an ordinary investor laying out capital with a view to realising a profit in the relatively short term. That conduct must at least be the conduct of a private holding company or a private group of undertakings pursuing a structural policy — whether general or sectoral — and be guided by prospects of profitability in the longer term.

In so far as the requirement of a prior economic evaluation seeks only to compare the conduct of the public undertaking concerned with that of a rational private investor in a similar situation, that requirement is consistent with the principle of equal treatment between the public and private sectors, implying that the Member States may invest in economic activities and that the capital placed directly or indirectly at the disposal of an undertaking by the State in circumstances which correspond to normal market conditions cannot be regarded as State aid.

Moreover, the margin of assessment available to the public investor cannot relieve it of the task of conducting an appropriate prior economic evaluation. It is true that a distinction may be made between an estimate of the probable return on a project, where there is a certain margin of assessment for the public investor, and the examination which that investor makes in order to determine whether the return seems to it to be sufficient in order to make the investment in question, where the margin of assessment is narrower, since it is possible to compare the transaction in question with other possibilities for investing the capital. However, the margin of assessment available to the public investor in respect of the estimate of the probable return on a project cannot exempt the investor from the obligation to conduct an economic evaluation based on an analysis of the available information and foreseeable developments which is appropriate having regard to the nature, the complexity, the size and the context of the operation.

(see paras 181, 187, 188)