Case T‑1/12

French Republic

v

European Commission

(State aid — Aid for rescuing and restructuring firms in difficulty — Restructuring aid which the French authorities proposed to grant to SeaFrance SA — Increase in capital and loans granted by the SNCF to SeaFrance — Decision declaring the aid incompatible with the internal market — Concept of State aid — Private investor test — Guidelines on State aid for rescuing and restructuring firms in difficulty)

Summary — Judgment of the General Court (Eighth Chamber), 15 January 2015

1.      State aid — Concept — Legal nature — Interpretation on the basis of objective factors — Judicial review

(Art. 107(1) TFEU)

2.      State aid — Concept — Assessment according to the private investor test — Assessment having regard to all relevant factors of the disputed operation and its context — Consecutive State interventions inseparably linked to each other — Assessment of the measures taken in their entirety — Lawfulness

(Art. 107(1) TFEU)

3.      State aid — Concept — Assessment according to the private investor test — Assessment having regard to all relevant factors of the disputed operation and its context — Consecutive interventions inseparably linked to each other — Overall analysis of the return on those interventions

(Art. 107(1) TFEU)

4.      State aid — Concept — Assessment solely in the context of Article 107(1) TFEU —Previous practice not to be taken into account

(Art. 107(1) TFEU)

5.      Actions for annulment — Subject-matter — Decision based on several grounds, each sufficient to justify the operative part — Decision on State aid — Pleas relating to an error or other illegality affecting only one of the grounds — Plea not entailing annulment of the decision

(Art. 263 TFEU)

6.      State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid for restructuring firms in difficulty — Guidelines on State aid for rescuing and restructuring firms in difficulty — Beneficiary’s own contribution — Loan not to be taken into account as part of the beneficiary’s own contribution

(Art. 107(3) TFEU; Commission Notice 2004/C 244/02, paras 7, 43 and 44)

7.      State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid for restructuring firms in difficulty — Guidelines on State aid for rescuing and restructuring firms in difficulty — Beneficiary’s own contribution — Authorisation of a contribution below 50% in exceptional circumstances and cases of particular difficulty — Information needed for an assessment — Economic crisis and tightening of financial markets affecting all undertakings — Exclusion

(Art. 107(3) TFEU; Commission Notice 2004/C 244/02, para. 44)

8.      European Union — Rules governing the system of property ownership — Principle of neutrality — Application of fundamental rules of the Treaty — Relationship with the provisions on State aid

(Arts 107(1) TFEU and 345 TFEU)

1.      See the text of the decision.

(see paras 29, 30)

2.      When it examines application of the private investor test the Commission must always examine all the relevant features of the transaction at issue and its context and, where the private investor test is to be applied to several consecutive measures of State intervention, the Commission must examine whether those interventions are so closely linked that they are inseparable from one another and that therefore those interventions must, for the purposes of Article 107(1) TFEU, be regarded as a single intervention.

Examination of whether several consecutive measures of State intervention are inseparable must be carried out in the light of the criteria laid down by case-law, including, inter alia, the chronology of those interventions, their purpose and the circumstances of the beneficiary undertaking at the time of those interventions.

In that regard, in a situation in which a public undertaking consecutively grants to its distressed subsidiary rescue aid, a recapitalisation and loans — which loans, according to the Member State concerned, constitute not aid but an autonomous investment for the purposes of the private investor test — the Commission may take into account, inter alia, the evolution of the restructuring plan, the dual role of the public undertaking as provider both of the aid and of the funds intended to form part of the beneficiary’s own contribution, and the lack of participation in the restructuring operation of a private investor independent of the State.

(see paras 32-34, 47, 50, 55)

3.      In a situation in which a public undertaking consecutively grants to its subsidiary in difficulty rescue aid, a recapitalisation and loans, which constitute an inseparable set of measures, the Commission correctly applies the private investor test where, taking into account the effect which payment of the interest and repayment of the loans at issue have on the return on the recapitalisation, it undertakes an overall analysis of the return which the said public undertaking could, as a sole private investor, expect from the measures it put in place or planned as part of the rescue and restructuring of the beneficiary undertaking, taken as a whole. In such a case, the Commission does not have to undertake a precise analysis as to whether the conditions for granting each of the loans at issue complied with market conditions.

In applying the private investor test to such an inseparable set of measures, the fact that the public undertaking, which acts in the dual roles of provider of the aid and provider of the funds intended to form part of the beneficiary’s own contribution, is alone in supplying the beneficiary with the resources needed to finance the restructuring, because no external private investor acts alongside it in that operation, corroborates the conclusion that an investor in a market economy would not provide such a set of measures for an undertaking in difficulty.

(see paras 47, 53, 54)

4.      The question whether a measure constitutes State aid must be assessed solely in the context of Article 107(1) TFEU and not in the light of an alleged earlier decision-making practice of the Commission. It would be particularly difficult moreover to take as a basis the Commission’s past practice in the area of rescue aid and restructuring, in which the assessment of each case depends to a great extent on the individual financial circumstances of the beneficiary of the aid, the general economic situation in the sector in which it operates and the regulatory framework in which it exists.

(see para. 58)

5.      Where some of the grounds in a decision on their own provide a sufficient legal basis for the decision, any errors in the other grounds of the decision have no effect on its operative part. It is, moreover, settled case-law that a plea which, even if it were well founded, is incapable of bringing about the annulment which the applicant seeks must be rejected as ineffective.

(see para. 73)

6.      Where measures granted by a public undertaking to its subsidiary in difficulty, namely loans, recapitalisation and rescue aid, assessed jointly, constitute State aid, those loans are necessarily excluded from the beneficiary’s own contribution to its restructuring within the meaning of paragraphs 7, 43 and 44 of the Community Guidelines on State aid for rescuing and restructuring firms in difficulty.

(see para. 86)

7.      According to paragraph 44 of the Community Guidelines on State aid for rescuing and restructuring firms in difficulty, in exceptional circumstances and in cases of particular hardship, which must be demonstrated by the Member State, the Commission may accept a contribution below the 50% applicable to large firms.

In that regard, since the economic crisis and the tightening of the financial markets affect all firms, they cannot be described as exceptional circumstances or particular difficulties affecting a single firm.

(see paras 88, 89)

8.      See the text of the decision.

(see paras 94, 95, 99, 100)