Action brought on 9 September 2011 - Banco Privado Português, S.A. and Massa insolvente do Banco Privado Português v Commission

(Case T-487/11)

Language of the case: Portuguese

Parties

Applicants: Banco Privado Português, S.A. - em liquidação ('BPP') and Massa insolvente do Banco Privado Português, S.A. - em liquidação ('assets in the insolvency') (Lisbon, Portugal) (represented by: C. Fernandez, F. Pereira Coutinho, M. Esperança Pina, T. Mafalda Santos, R. Leandro Vasconcelos and A. Kéri, lawyers)

Defendant: European Commission

Form of order sought

Annul Commission Decision No 2011/346/EU of 20 July 2010 on the State aid C 33/09 (ex NN 57/09, CP 191/09) implemented by Portugal in the form of a State guarantee to BPP ('the contested decision'); ¹

Or, alternatively, annul the contested decision in so far as it declared the State aid involved in the guarantee to be unlawful and incompatible for the period between 5 December 2008 and 5 June 2009;

Alternatively, annul the contested decision in so far as it ordered the recovery of the (alleged) aid under Articles 2 to 4 thereof;

Alternatively, annul the contested decision in so far as it ordered recovery between 5 December 2008 and 5 June 2009;

Order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicants rely on the following pleas in law.

First plea in law: lack of reasoning:

The Commission did not explain to what extent the grant of the guarantee was likely to affect trade between Member States and consequently distort competition. The method of calculating the amount of the alleged aid is not adequately reasoned. The Commission failed to state reasons - or at least it put forward reasoning that was obscure and/or contained an irreconcilable contradiction - so far as the duration of the alleged aid and hence the calculation of the relevant amount was concerned.

Second plea in law: infringement of Article 107(3) TFEU:

-    The Commission failed to have regard to the fact that the State guarantee granted to BPP was justified under Article 107(3)(b) TFEU concerning State aid 'to remedy a serious disturbance in the economy of a Member State'.

Third plea in law: manifest error of assessment of the facts and consequently infringement of Article 107(1) TFEU

The Commission applied the law incorrectly to the facts and did not have regard, in particular, to the fact that BPP was no longer trading or that the purpose of the guarantee was exclusively to provide funding to meet certain balance-sheet liabilities predating the grant of the guarantee. The guarantee granted did not confer an advantage on BPP, did not affect trade between Member States, did not distort competition, nor was it likely to produce those effects, and accordingly it could not be regarded as incompatible with the internal market.

Fourth plea in law: infringement of Article 108(2) TFEU

The contested decision ordered the alleged aid, which is not incompatible with the internal market, to be recovered on purely procedural grounds. The method of calculating the amount to be recovered did not have regard to the principles laid down by the Commission's Guidelines.

Fifth plea in law: infringement of the right to sound administration:

The Commission imposed an exorbitant requirement having no legal basis, in that Portugal must notify the extension of the guarantee in an identical manner to the formal notifications required for new aid.

Sixth plea in law: infringement of the principles of legal certainty and of the protection of legitimate expectations:

The contested decision infringes the principles of legal certainty and of the protection of legitimate expectations in so far as it orders the recovery of the alleged aid.

Seventh plea in law: infringement of the right to fair treatment:

The contested decision infringes the right to fair treatment, in so far as the present case was treated differently from similar situations.

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¹ - OJ 2011 L 159, p. 95.