ORDER OF THE PRESIDENT OF THE GENERAL COURT
6 May 2014 (*)
(Application for interim measures — State aid — Alcohol and spirits — Cancellation of a tax debt in a collective bankruptcy procedure — Decision declaring the aid incompatible with the internal market and ordering its recovery — Application for suspension of operation of a measure — Lack of any urgency — Prima facie case not made out)
In Case T‑103/14 R,
Frucona Košice a.s., established in Košice (Slovakia), represented by K. Lasok QC, B. Hartnett, J. Holmes, Barristers, and O. Geiss, lawyer,
applicant,
v
European Commission, represented by K. Walkerová and L. Armati, acting as Agents,
defendant,
APPLICATION for suspension of the operation of Commission Decision C(2013) 6261 final of 16 October 2013 on State aid SA.18211 (C 25/2005) (ex NN 21/2005), implemented by the Slovak Republic for Frucona Košice a.s., in so far as it orders the Slovak Republic to recover the aid,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the case
1 Frucona Košice is a company incorporated under Slovak law that used to be active in, inter alia, the alcohol and spirits production sector.
2 In February 2004, Frucona Košice was unable to pay the excise duties for which it was liable. Consequently, its licence to produce and process alcohol and spirits was revoked. Since then, it has confined itself to distributing spirits bought from an undertaking producing them under licence in the applicant’s distilleries. Frucona Košice also found itself in a position of indebtedness for the purpose of the Slovak legislation on bankruptcy and composition with creditors.
3 Under Slovak law, the procedures governing bankruptcy and composition with creditors are placed under the supervision of a court, which seeks to resolve the financial situation of indebted companies. Whereas the bankruptcy procedure has the result that the indebted company ceases to exist, composition allows it to pursue its activities, leading to an agreement under which the indebted company repays a part of its debt in return for the writing off of the balance.
4 In July 2004, the applicant’s creditors, including its local Tax Office, accepted a proposed composition approved by the court with jurisdiction, noting that the composition provided for 35% of the Slovak tax authorities’ claim to be repaid, that is to say, an amount to be paid of approximately 224 million Slovak koruny (SKK).
5 In December 2004, the applicant having paid the local Tax Office a sum of about SKK 224 million, equivalent to 35% of its total debt, the court declared the composition procedure closed. Following a complaint filed with the Commission of the European Communities concerning allegedly unlawful aid in favour of Frucona Košice, the Slovak Republic asked the Commission to approve that aid as rescue aid to a company in difficulties.
6 In Decision 2007/254/EC of 7 June 2006 on State aid C 25/2005 (ex NN 21/2005) implemented by the Slovak Republic for Frucona Košice a.s. (OJ 2007 L 112, p. 14), the Commission considered, however, that the aid, in the sum of SKK 416 515 990, was incompatible with the common market and ordered it to be recovered by the Slovak authorities.
7 The action brought by the applicant against that decision was dismissed as unfounded by the General Court on 7 December 2010 in Case T‑11/07 Frucona Košice v Commission [2010] ECR II‑5453. Hearing an appeal brought by the applicant, the Court of Justice, by judgment in Case C‑73/11 P Frucona Košice v Commission [2013] ECR, set aside the judgment given by the General Court and referred the case back to the latter for it to give judgment afresh on Decision 2007/254 (Case T‑11/07 RENV).
8 In those circumstances, with a view to remedying the defects found by the Court in Case C‑73/11 P Frucona Košice v Commission, on 16 October 2013 the Commission adopted Decision C(2013) 6261 final of 16 October 2013 on State aid SA.18211 (C 25/2005) (ex NN 21/2005), implemented by the Slovak Republic for Frucona Košice a.s. (‘the contested decision’). By this decision, the Commission repealed Decision 2007/254 (Article 1 of the contested decision), found that State aid incompatible with the internal market had been granted to the applicant (Article 2 of the contested decision) and ordered the Slovak Republic to recover the aid from the applicant (Article 3 of the contested decision), specifying that repayment must be made without delay. Under Article 4 of the contested decision, the Slovak Republic must inform the Commission, within a period of two months, of the measures taken to comply with the decision.
9 The contested decision, addressed to the Slovak Republic (Article 5 of that decision), was notified to the applicant on 24 October 2013.
10 In Case T‑11/07 RENV, the applicant has desisted from reformulating its claims and pleas in law by directing them against the contested decision, for it had it in mind to challenge the legality of that decision by introducing a new action for annulment. In consequence, the General Court decided by order of 21 March 2014 that there was no longer any need to adjudicate on the action for annulment of Decision 2007/254.
11 On 17 January 2014 the applicant received notice of the opening national proceedings for the execution of the contested decision. It was told that the execution was to be realised by means of compulsory debiting from bank accounts, appropriation of monetary receivables and the sale of movable assets. In addition, it has been forbidden to dispose of any economic resources subject to the execution.
Procedure and forms of order sought
12 By application lodged at the Registry of the Court of First Instance on 17 February 2014, the applicant brought an action for annulment of the contested decision. In support of its action, it alleges, essentially, that the Commission breached its rights of the defence and committed several errors in applying the test of a normally prudent and diligent private creditor, as clarified by the Court of Justice in its judgment in Case C‑73/11 P Frucona Košice v Commission.
13 By separate document, lodged at the Court Registry on 18 February 2014, the applicant brought the present application for interim relief, in which it claims, in essence, that the President of the Court should:
– suspend the operation of Articles 3(1) and (2) and 4 of the contested decision, pending judgment in the main action;
– grant such interim relief as may seem just and appropriate in the circumstances of the case;
– order the Commission to pay the applicant’s costs.
14 In its observations on the application for interim relief, lodged at the Court Registry on 6 March 2014, the Commission contends that the President of the Court should:
– dismiss the application for interim relief as unfounded;
– order the applicant to pay the costs.
15 The applicant replied to the Commission’s observations by statement of 17 March 2014. The Commission adopted a final position on the latter in a statement of 25 March 2014.
Law
16 It is apparent from a reading of Articles 278 TFEU and 279 TFEU, on the one hand, in conjunction with Article 256(1) TFEU, on the other, that the judge hearing the application for interim relief may, if he considers that the circumstances so require, order the suspension of operation of an act challenged before the General Court or prescribe any interim measures necessary. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, acts adopted by the institutions of the Union enjoying a presumption of lawfulness. It is therefore only exceptionally that the judge hearing an application for interim relief may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures necessary (see the order of the President of the Court of 17 January 2013 in Case T‑507/12 R Slovenia v Commission, not published in the ECR, paragraph 6 and the case-law cited).
17 Article 104(2) of the Rules of Procedure requires applications pursuant to Articles 242 EC or 243 EC to state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. The judge hearing an application for interim relief may order suspension of operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable damage to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if either of them is not satisfied (order of the President in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30).
18 In the context of that overall examination, the judge hearing the application for interim measures enjoys broad discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of EU law imposing a pre-established scheme of analysis within which the need to order interim measures must be analysed (orders of the President of the Court of 19 July 1995 in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and of 3 April 2007 C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25). The judge hearing the application for interim relief also proceeds, where necessary, to weigh up the interests at stake (order of the President of the Court of Justice of 23 February 2001 in C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73).
19 Having regard to the material in the file, the President of the Court of First Instance considers that he has all the information necessary in order to rule on the present application for interim measures, without its being necessary first to hear oral argument from the parties.
20 In the circumstances of this case, it is first to be considered whether the condition of a prima facie case has been satisfied.
The prima facie case
21 In this respect, it must as a preliminary point be noted that the part of the applicant’s arguments relating to a prima facie case that is based on a general reference to the main action joined to the application for interim relief (paragraph 23 of that application) must be declared inadmissible.
22 It is settled case-law that an application for interim relief must be sufficiently clear and precise to enable, of itself alone, the defendant to prepare its observations and the judge hearing the application to give a ruling, if necessary without other supporting information. Thus, the essential matters of fact and law on which the application is based must be coherently and comprehensibly apparent from the text of the application itself. If specific points in that text can be supported and supplemented by references to particular passages in the documents attached, a general reference to other documents, even to documents attached to the application for interim relief, cannot compensate for lack of essential information in the application itself (see order of the President of the General Court of 29 July 2010 in T‑252/10 R Cross Czech v Commission, not published in the ECR, paragraphs 9 to 11 and the case-law cited; see also, to that effect, the order of the President of the Court of Justice of 30 April 2010 in C‑113/09 P(R) Ziegler v Commission, not published in the ECR, paragraph 13).
23 According to settled case-law, the condition relating to a prima facie case is satisfied when at least one of the pleas in law put forward by the applicant for interim measures in support of the main action appears, prima facie, not unfounded. That is the case, inter alia, if one of the pleas relied on reveals the existence of difficult legal issues the solution to which is not immediately obvious and therefore calls for a detailed examination that cannot be carried out by the judge hearing the application for interim measures but must be the subject of the main proceedings, or when the discussion of issues by the parties reveals that there is a major legal disagreement whose resolution is not immediately obvious (see, to that effect, the order of the Vice-President of the Court in C‑278/13 P(R) Commission v Pilkington Group [2013] ECR, paragraph 67 and the case-law cited).
24 In this instance, first, the applicant claims that the contested decision is vitiated by an error of law, for it was adopted without the Commission giving it the opportunity beforehand of being heard on the points raised by the Commission that are new in relation to Decision 2007/254. This breach of the principle audi alteram partem is incontrovertible. In its observations of 17 March 2014, the applicant adds that, inasmuch as the Commission has criticised it for failing to demonstrate the relevance of the Liehofruct White Lady Distillery, that criticism necessarily presupposes that Frucona Košice, as an interested party, has the right to provide the Commission with relevant information before a decision adverse to it is made. It did not, however, enjoy this right when the Commission adopted the contested decision.
25 The fact remains, in that regard, that the plea alleging breach of the principle audi alteram partem, as presented in these proceedings for interim relief, cannot be considered to reveal the existence of difficult legal issues or of a major legal disagreement the solution to which is not immediately obvious, within the meaning of the case-law cited in paragraph 23 above.
26 It is established that the applicant was requested by the Commission, pursuant to Article 6(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 108 TFEU (OJ 1999 L 83, p. 1), to submit its comments during the formal examination procedure leading to the adoption of Decision 2007/254 and that the applicant lodged written observations on 25 October 2005 and submitted oral observations on 28 March 2006.
27 The sole aim of this request made to the interested parties is to obtain from them all information required for the guidance of the Commission in the formal examination procedure it has put in hand, which essentially confers on them the role of sources of information, whereas they may not invoke the rights of the defence granted to persons against whom a procedure has been instituted (C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraphs 80 to 83; see also, to that effect, Joined Cases T‑371/94 and T‑394/94 British Airways and Others and British Midland Airways v Commission [1998] ECR II‑2405, paragraphs 59 and 60 and the case-law cited).
28 In those circumstances, it cannot, prima facie, be claimed that the Commission breached the applicant’s rights of the defence when it replaced Decision 2007/254 with the contested decision, basing the latter on the same facts and the same formal examination procedure as those on which the earlier decision had been founded, among them the written and oral submissions made to the Commission by the applicant, a fortiori because contact between the parties had become more intense in the course of the judicial proceedings before the General Court and the Court of Justice. This is particularly true with regard to the applicant’s reference to the Liehofruct White Lady Distillery company. It is apparent from recital 117 in, and footnote 40 to, the contested decision that that company had been mentioned in the applicant’s written observations of 25 October 2005, but that this part of the decision has not been challenged before the judge hearing the application for interim relief. In consequence, the Commission could clearly take account of it in the contested decision, without being obliged to reopen the formal examination procedure on this precise point by inviting the applicant to make known its views afresh on that company.
29 Inasmuch as the applicant relies upon the judgment of the Court in Case C‑294/90 British Aerospace and Rover v Commission [1992] ECR I‑493 to substantiate the plea in law alleging breach of its rights of the defence, suffice it to bear in mind that, as the Commission has correctly observed, the case giving rise to that judgment, which related to two different instances of State aid with the result that the Commission had to open two different formal examination procedures, must be clearly distinguished from this case, which relates to one instance only of State aid and one formal examination procedure only, the Commission having replaced Decision 2007/254 with the contested decision solely in order to take account of the judgment of 24 January 2013 in Frucona Košice v Commission (see paragraphs 7 and 8 above).
30 In that context, it must be added that, even when replacing Decision 2007/254 with the contested decision, the Commission ultimately confirmed its original appraisal to the effect that the applicant had been granted State aid incompatible with the internal market. The Commission specifically did not, therefore, repeal a decision favourable to the recipient of the State aid at issue, under Article 9 of Regulation No 659/1999, a repeal that would have obliged it to open a second formal examination procedure and to invite the applicant to submit fresh observations.
31 Lastly, in so far as it would seem that the applicant pleads a breach of the Slovak Republic’s rights of the defence, the Commission has rightly emphasised that breach of those rights constitutes an irregularity which by its nature is subjective, so that it is not open to the applicant to raise a plea in law alleging breach of the rights of the defence of the Member State concerned, in this case the Slovak Republic (judgment of 1 July 2010 in Case T‑64/08 Nuova Terni Industrie Chimiche v Commission, not published in the ECR, paragraphs 186 and 187 and the case-law cited), all the more so because the latter has brought no action seeking annulment of the contested decision.
32 It follows that the first plea raised by the applicant in these proceedings for interim relief is not, at first sight, capable of establishing the existence of a prima facie case.
33 Secondly, the applicant maintains that the Commission failed, in the contested decision, to apply the private creditor test expounded by the Court of Justice in paragraphs 68 to 90 of C‑73/11 P Frucona Košice v Commission. In recital 83 in the contested decision, the Commission makes the new claim that a measure constitutes State aid if the Member State omitted to consider the question of State aid when it adopted the measure or if it later requests that the measure be treated as rescue aid. Conceding that, at the material time, the Slovak tax authorities had not considered the question of State aid when they gave their consent to the composition procedure and indeed asked the Commission to treat the measure as rescue aid, the applicant considers that nothing in the abovementioned judgment lends support to the idea that either of those factors is at all relevant.
34 The applicant states that the Court, in paragraphs 78 to 80 of that judgment, clearly indicated that, in order to conclude that State aid existed, it was necessary, on the one hand, to examine all information liable to have significant influence on the decision-making process of a normally prudent and diligent private creditor and, on the other, to appraise, on the basis of that information, the choice that such a creditor would have made. Neither the fact that the Member State had not considered the question of State aid nor the fact that subsequently the Member State believed that the measure could be rescue aid is a factor that could have been of relevance to the decision-making process of a normally prudent and diligent private creditor at the material time.
35 In this respect, it is to be emphasised that, in its setting out of those arguments in the application for interim relief, the applicant claims, in essence, that recital 83 in the contested decision is incompatible with the Court’s expounding of the private creditor test in Case C‑73/11 P Frucona Košice v Commission.
36 Clearly, this argument too cannot be considered to reveal the existence of difficult legal issues or of a major legal disagreement the solution to which is not immediately obvious, within the meaning of the case-law mentioned in paragraph 23 above.
37 In fact, as is made clear in recital 81 in the contested decision, the Commission found that the conditions that a measure must meet if it is to fall within the ambit of State aid are not met if the recipient undertaking can, in circumstances corresponding to normal market conditions, obtain the same advantage as that made available to it through State resources, which has to be assessed by applying, in principle, the private creditor test. Referring to Case C‑124/10 P Commission v EDF [2012] ECR, paragraph 79 and to Case C‑73/11 P Frucona Košice v Commission, paragraphs 71 and 72, the Commission stated that, when a public creditor grants payment facilities in respect of a debt payable to it by an undertaking, those facilities constitute State aid if, taking account of the significance of the economic advantage thereby conferred, the recipient undertaking would manifestly not have obtained comparable facilities from a private creditor in a situation as close as possible to that of the public creditor and seeking to obtain payment of sums owed to it by a debtor in financial difficulties.
38 Next, in paragraph 82 of the contested decision, the Commission applied to the aid granted the criteria developed in Commission v EDF (paragraphs 81 to 85), in the following terms:
‘The applicability of a private market operator test ultimately depends on the Member State concerned having conferred, otherwise than in its capacity as public authority, an economic advantage on an undertaking. It follows that, if a Member State relies on that test during the administrative procedure, it must, where there is doubt, establish unequivocally and on the basis of objective and verifiable evidence that the measure implemented falls to be ascribed to the State acting as a private market operator. That evidence must show clearly that, before or at the same time as conferring the economic advantage, the Member State concerned took the decision to act as it did. In that regard, it may be necessary to produce evidence showing that the decision was based on economic evaluations comparable to those which, in the circumstances, a rational private market operator in a situation as close as possible to that of the Member State would have had carried out. However, it is not enough to rely on economic evaluations made after the advantage was conferred, or on a retrospective finding that the course of action chosen by the Member State concerned was actually beneficial, or on subsequent justifications of the course of action actually chosen.’
39 It was in recital 83 in the contested decision that the Commission, recalling that the Slovak Republic itself considered the measure to constitute State aid and requested that it be treated as recue aid, while acknowledging that, at the time of the composition, the question of State aid had not been contemplated (see paragraphs 3 to 5 above), drew the inference that the conditions laid down in the case-law cited at paragraph 38 above had not, in the circumstances of the case, been satisfied, with the result that the disputed measure constituted State aid within the meaning of Article 107(1) TFEU.
40 It is accordingly apparent that the Commission, if it based the contested decision on the same factual and procedural matters as those on which Decision 2007/254 had been founded (see paragraph 28 above), none the less took into account developments undergone by the case-law relevant in the field of State aid by the time the contested decision was adopted, notably, the judgment delivered by the Grand Chamber of the Court in Commission v EDF. As the Commission has rightly observed, that judgment rules on the applicability of the private investor test, making it subject to the finding that the Member State concerned was aware, before, or at the same time as, granting the financial advantage, that it conferred that advantage in its capacity as an economic operator and not in its capacity as a public authority. The Slovak authorities not having considered whether they were acting as private operators or as public authorities, it cannot prima facie be alleged that the Commission had failed to have regard to Case C‑73/11 P Frucona Košice v Commission when it relied upon the criteria laid down in paragraphs 81 to 85 of Commission v EDF.
41 The applicant contests those considerations, stressing that they were not the object of the proceedings in Case C‑73/11 P Frucona Košice v Commission. In that regard, suffice it to find that that case concerned an appeal brought against the judgment in Case T‑11/07 Frucona Košice v Commission which had ruled on the legality of Decision 2007/254. Judgment in Commission v EDF having been delivered on 5 June 2012, the criteria for applicability laid down in paragraphs 81 to 85 thereof could have influenced neither that decision of the Commission nor that judgment of the General Court. In consequence, while the judgment of 24 January 2013 in Case C‑73/11 P Frucona Košice v Commission admittedly post-dates the judgment in Commission v EDF, Case C‑73/11 P Frucona Košice v Commission was confined to the questions of law raised in the judgment in Case T‑11/07 Frucona Košice v Commission, which did not include the criteria laid down in Commission v EDF, for the General Court had not applied them. Likewise, Decision 2007/254 being silent as to those criteria, the Court necessarily did not rule in that regard when, in dealing with the case on appeal, it examined in paragraphs 94 to 104 of the judgment in Case C‑73/11 P Frucona Košice v Commission the legality of that decision.
42 It follows that there was nothing at first sight to prevent the Commission’s basing the contested decision on the criteria for the applicability of the private investor test, as set out in Commission v EDF.
43 Lastly, in paragraph 22 of the application for interim relief, the applicant states as follows:
‘The “new assessment” carried out by the Commission after the judgment of the Court of Justice and incorporated into recitals 103-119 of the Second Decision does not apply the test laid down by the Court of Justice. The Commission ignores information that the normally prudent and diligent private creditor would have taken into account (such as expert evaluations of liquidation factors), substitutes its own views of what the liquidation factors might be (which no normally prudent and diligent private creditor would do), contradicts itself (compare, for example, recital 85 and Table 3 with footnote 31), and acknowledges the existence of uncertainties in the information available to a normally prudent and diligent private creditor (see, for example, recitals 115-117) but fails to identify what the normally prudent and diligent private creditor could be expected to make of such uncertainties.’
44 Inasmuch as the applicant criticises the Commission for failing to have regard to Case C‑73/11 P Frucona Košice v Commission, in that it omitted to apply the normally prudent and diligent private creditor test, it is to be borne in mind that the Court, in disposing of the case, ruled as follows:
‘100 It follows, inter alia, from paragraphs 78 to 81 above that, in a situation such as that of the present case, the duration of the bankruptcy procedure is a factor which is liable to have a significant influence on the decision-making process of a normally prudent and diligent private creditor in a situation as close as possible to that of the local Tax Office and that, therefore, the Commission was required to take into account, in its assessment of the private creditor test, the available information relating to, inter alia, the duration of such a procedure.
101 It must, however, be stated that … [D]ecision [2007/254] ..., do[es] not contain any reference to the duration of such a procedure.
102 In so far as the Commission submits that … the duration of a bankruptcy procedure was not liable to influence the decision-making process of a private creditor … [it] was required to set out in the contested decision, at least in summary form, the considerations which led it to that conclusion.
103 It follows from the foregoing that, having failed to take account, in its assessment of the private creditor test, of the duration of the bankruptcy procedure, the Commission committed a manifest error of assessment. In so far as that factor was taken into consideration by the Commission, the latter did not set out sufficient reasons for its decision.’
45 It was in order to take account of the grounds of censure set out in paragraph 103 of Case C‑73/11 P Frucona Košice v Commission that the Commission, in recitals 109 to 112 in the contested decision, explained the reasons why it considered that the duration of the bankruptcy procedure in Slovakia would have had no significant influence on the decision of a hypothetical private creditor. It follows that the applicant may clearly not criticise the Commission for omitting to apply the test relating to such a creditor.
46 For the rest, the assertions made in paragraph 22 of the application for interim measures cannot be considered to be sufficiently clear and precise to enable, of themselves alone, the judge hearing the application to give a ruling without other supporting information (see paragraph 22 above). Having regard to the confused, incoherent nature of the matters raised, it would be necessary to supplement them with other documents of the applicant’s in order to give them a meaning capable of making out the prima facie case claimed. In principle, it is not for the judge hearing the application for interim measures, instead of and in the place of the party concerned, to seek out the matters contained in annexes or in the main application that could substantiate the application for interim measures.
47 It follows from all the foregoing that the condition relating to a prima facie case has not been satisfied. In consequence, the conditions relating to urgency and to weighing up of interests will be examined merely for the sake of completeness.
Urgency and weighing up of interests
48 Stating that it had brought proceedings before the national court in order to challenge the enforcement of the contested decision, the applicant claims that, under the Slovak procedure applicable, its objections may at any moment be rejected and that enforcement can then take place forthwith. In that case, enforcement would be made in the first fortnight of April 2014 at the latest, which would cause it serious, irreparable damage. If that were to happen, it would have to cease trading and sell every asset it possessed in order to repay some fraction of the alleged aid. Even if its assets were not already pledged, their total value would clearly be insufficient to repay the debt. It would thus have no alternative but to declare itself bankrupt, composition procedures being inconceivable inasmuch as it would be excessively in debt if the alleged aid were recovered. As a result, the bankruptcy procedure would imperil the applicant’s existence before the General Court has given final judgment on the contested decision. If that decision were to be annulled in the main proceedings, no reparation of the damage caused would be available to the applicant.
49 Against that background, the applicant states that as at 12 December 2013 the alleged aid to be recovered from it by the Slovak Republic came to the sum of EUR 20 585 118.75. Referring to the expert’s report drawn up by Guropea Trading, it states that the total value of its assets came to EUR 5 381 600 on 29 January 2014, which is little more than a quarter of the amount it would have to pay. Any reimbursement would therefore be far beyond the applicant’s available resources, its after-tax profits for 2013 amounting to EUR 28 745. The applicant adds that it would be unable to secure alternative resources in order to reimburse the alleged aid. As of now, its immovable assets have all been pledged. What is more, it has already been unsuccessful in its attempts to obtain a loan from two banks.
50 The Commission replies, inter alia, that the application contains no reference to the national legislation under which enforcement is ordered, or any description or mention of the procedure by which the opening of enforcement proceedings may be challenged, when those are matters of importance, for in order to establish urgency the applicant would have to show that the domestic remedies provided by national law do not protect it from being caused serious irreparable damage. The applicant having stated that it is currently awaiting a ruling by the national court hearing an application for interim relief, the Commission queries the usefulness, in terms of procedural economy, of the same question’s being considered by the Union judicature. The Commission adds that the application is silent as to the identity and financial capacity of the shareholders of the applicant. It is, however, settled case-law that the financial situation of the persons controlling the applicant must be taken into account when assessing the imminence of the necessary serious irreparable damage. When the financial viability of a company is considered, the latter’s financial situation could be made by taking account of, in particular, the characteristics of the group composed of those shareholders.
51 In accordance with settled case-law, the urgency of an application for interim measures must be assessed in relation to the necessity of an interim order to prevent serious and irreparable damage to the party applying for those measures. It need not be established absolutely certainly that that damage is imminent. It is enough that it should be foreseeable to a sufficient degree of probability. The party invoking it is, nevertheless, required to prove the facts forming the basis of his claim that serious and irreparable damage is likely (see, to that effect, the order in Commission v Pilkington Group, paragraphs 36 and 37 and the case-law cited).
52 In the instant case, the damage alleged by the applicant is of a financial nature. According to consistent case-law, where the damage referred to is of a financial nature, the interim measures sought are, in principle, justified when it is apparent that, without those measures, the party applying for them would find itself in a position that could imperil its financial viability before final judgment is given in the main action or its market share would be affected substantially having regard to, inter alia, the size and turnover of its undertaking and to the characteristics of the group to which it belongs (see, to this effect, order of the Vice-President of the Court in Case C‑551/12 P(R) EDF v Commission [2013] ECR, paragraph 54 and the case-law cited).
53 It is settled case-law that, in order to assess the material circumstances of a company, especially its financial viability, account is to be taken of the characteristics of the group of companies to which it belongs, directly or indirectly, through its shareholders, and in particular of the resources available to that group as a whole (see order of the President of the General Court of 26 September 2013 Case T‑397/13 R Tilly-Sabco v Commission, not published in the ECR, paragraph 40 and the case-law cited), which could lead the judge hearing the application for interim measures to hold that the condition of urgency has not been satisfied, in spite of the foreseeable insolvency of the undertaking, viewed in isolation (see, to this effect, order of the President of the Court of 18 October 2002 in Case C‑232/02 P(R) Commission v Technische Glaswerke Ilmenau [2002] ECR I‑8977, paragraph 56 and the case-law cited). The point is therefore to assess whether the damage alleged can be classified as serious and irreparable, taking into consideration the characteristics of the group to which the applicant belongs (see, to this effect, the order of the President of the Court of 15 April 1998 in Case C‑43/98 P(R) Camar v Commission and Council [1998] ECR I‑1815, paragraph 36 and the case-law cited).
54 This taking into consideration of the financial strength of the group to which the applicant belongs is based on the idea that the objective interests of the undertaking concerned are not distinct from those of the persons that control it or are members of the same group. Whether the damage alleged is serious and irreparable must therefore be appraised at the level of the group comprising those persons. That coincidence of interests is justification for the applicant’s interest in carrying on business not being appraised independently of the interest the persons controlling it have in its continued survival (see, to this effect, Ziegler v Commission, paragraph 46 and the case-law cited, and the order of the President of the General Court of 18 June 2008 in Case T‑475/07 R Dow AgroSciences v Commission, not published in the ECR, paragraph 79), it being made clear that this approach is applicable not only to legal persons but to natural persons as well (orders of the President of the Court of 14 December 1999 in Case C‑335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 64; C‑364/99 P(R) DSR-Senator Lines v Commission [1999] ECR I‑8733, paragraph 50; and Ziegler v Commission, paragraph 46).
55 It follows that the applicant, in order to establish that the damage alleged was serious and irreparable, ought either to have produced all the evidence that would have enabled the judge hearing the application for interim measures to evaluate the financial characteristics of the group of which it, as a public limited company, with its shareholders, forms part, or to have shown that its objective interests were independent of those of its shareholders. Nevertheless, the applicant has produced no evidence of this kind that would have permitted the judge hearing the application for interim measures to examine the relevance of the notion of ‘group’ in the circumstances of this case or to assess whether the damage alleged was serious and irreparable, by comparing it to the total turnover of the group to which the applicant belongs.
56 The applicant does no more than assert, in its pleadings of 17 March 2014, that neither in Decision 2007/254 nor in the contested decision did the Commission find that the Slovak authorities had granted State aid on the ground that the applicant had access to the funds necessary to pay its tax debts, since those funds were available from its shareholders or other persons. Nor did the Commission find that the applicant’s inability to pay its tax and other debts was due to substantial profits being extracted from it by the shareholders. According to the applicant, those two decisions proceed on the basis that it was genuinely in financial difficulties and had no access to alternative forms of finance. That is why the applicant’s creditors, including the Slovak tax authorities, had to have recourse to composition or bankruptcy procedures, those authorities having the option too of resorting to tax enforcement proceedings.
57 By this line of argument, which relates only to the reasons prompting the Commission to adopt Decision 2007/254 and the contested decision, the applicant fails to have regard to the fact that a distinction has to be drawn between, on the one hand, the legal obligation to pay imposed on a natural or legal person by an administrative measure and, on the other, the financial strength possessed by that person for the purpose of performing his duty to pay. Consequently, if the other members of the group to which the applicant belongs are not legally obliged, under the contested decision, jointly and severally to reimburse the amount considered by the Commission to be aid granted to the applicant, the judge hearing the application for interim measures is called upon to ascertain, in relation to the concept of a group, whether those members have both the financial resources necessary to support the applicant as well as an objective interest in lending such support. The purpose of employing this concept is to mitigate, in particular, the danger that a group might prefer to arrange for the insolvency of a company that was the addressee of a decision obliging it to repay a sum of money, which would make it impossible for that company to make that reimbursement once the General Court had given judgment in the main proceedings. Account is not, therefore, to be taken of the personal interest of the shareholders of that company in letting the latter initiate winding-up proceedings rather than supporting it financially (see, to this effect, the order of the President of the Court of First Instance of 21 June 2001 in Case T‑209/11 R MB System v Commission, not published in the ECR, paragraph 33 and the case-law cited).
58 In consequence, having regard to the case-law on taking into consideration the characteristics of the group to which that company belongs, the applicant has not established urgency.
59 It must be added that, according to settled case-law, when a undertaking that is a recipient of State aid is faced with a Commission decision addressed to a Member State and ordering recovery of that aid, the existence of domestic remedies permitting that undertaking to defend itself against recovery measures at national level is capable of allowing that undertaking to escape serious irreparable damage caused by the repayment of the aid (order of the President of the Court of 14 December 2011 in Case C‑446/10 P(R) Alcoa Trasformazioni v Commission, not published in the ECR, paragraph 46; see also, to that effect, orders of the President of the Court of 6 February 1986 in Case 310/85 R Deufil v Commission [1986] ECR 537, paragraph 22, and of 15 June 1987 in Case 142/87 R Belgique v Commission [1987] ECR 2589, paragraph 26). It follows that in proceedings for interim measures seeking such a decision, it is for that undertaking to show that the domestic means of obtaining redress offered by the applicable national law for contesting the immediate recovery of the aid do not enable it, by relying in particular on its financial situation or on the illegality of the national recovery measure, to avoid suffering serious and irreparable damage, failing which the judge hearing the application for interim measures will find that urgency has not been established in the proceedings before him (see order of the President of the General Court of 11 March 2013 in Case T‑27/13 R Elan v Commission, not published in the ECR, paragraph 23 and the case-law cited).
60 That case-law — which thus makes the interlocutory proceedings before the Union judicature subsidiary to any proceedings that may be brought before the national court hearing applications for interim measures, which is undoubtedly better placed to appraise the legality of national measures and the situation of the undertaking concerned in the light of the national rules on insolvency and winding-up — rests on the reasoning that, in national proceedings for the recovery of State aid, it is not contrary to the law of the Union for the national court to order suspension of operation of an order for recovery adopted by the national authorities pending the General Court’s ruling on the merits or a ruling by the Court of Justice on a question referred to it pursuant to Article 267 TFEU. Inasmuch as the applicant has challenged the legality of the contested Union decision under Article 263 TFEU, the national court is not bound by that decision’s being definitive. In addition, the fact that an application for suspension of operation has been unsuccessful before the Union judicature does not prevent the national court ordering suspension (see orders of the President of the General Court of 29 August 2013 in Case T‑366/13 R France v Commission, not published in the ECR, paragraph 45, and Elan v Commission, paragraph 24 and the case-law cited).
61 In the circumstances of this case, the fact remains that the information provided in this respect by the applicant is ambiguous.
62 While the applicant has stated that it had brought proceedings before the national court in order to challenge enforcement of the contested decision, but that under the Slovak procedure applicable its objections could at any time be rejected, and that enforcement could then follow forthwith, that is to say, by the first fortnight in April 2014 at the latest (see paragraph 48 above), it has claimed, in answer to the Commission’s objections (see paragraph 50 above), that it would be contradictory to oblige it to bring an action for annulment before the General Court but to forbid it to seek interim measures in that action and for that purpose send it back to the national court, with the result that that court would have to bring the question of the validity of the contested decision before the Court of Justice, so creating a costly, extremely complicated situation for the applicant with multiple proceedings before three different courts. Faced with this situation, the national court would normally have to find that, because the legality of the contested decision has been directly challenged before the General Court, the issue of interim relief would be dealt with by the latter so as to avoid diverging approaches to the question of which court was responsible for ruling on an action for interim measures. According to the applicant, it is the responsibility of the President of the General Court to order the interim measures necessary to ensure the effectiveness of the future decision on the merits, and it is impossible for this responsibility to be delegated to another court.
63 With regard to that line of argument, it must be stated that the applicant has furnished no information about the proceedings pending before the national court. It has in particular omitted to state what the state of those proceedings was or whether its application for interim relief had already been granted or dismissed. At all events, the applicant has neither established, nor even claimed, that the internal means of redress offered it by Slovak law for challenging the measures for enforcement of the contested decision (see paragraph 11 above) would not allow it, by pleading its individual financial situation and, if appropriate, the illegality of those measures, to escape serious and irreparable damage. The judge hearing this application for interim measures cannot, therefore, do other than find that applicant has failed to show that the relevant Slovak remedies are defective.
64 Finally, as regards the criticism levelled at the principle that proceedings for interim measures before the Union judicature are subsidiary to those before the national court with equivalent jurisdiction, suffice it to observe that, contrary to what the applicant would seem to acknowledge, that subsidiarity by no means consists of transferring to the national court the jurisdiction in interlocutory proceedings of the Union judicature. What it does mean is that it is rather for the latter court to consider, with regard to the condition of urgency, whether urgency may be held to be excluded because it is possible for the undertaking to prevent the occurrence of serious and irreparable damage by bringing the matter before the national court.
65 Moreover, there exist judicial decisions that, in situations similar to that in the present case, have allowed applications for suspension of operation brought before a national court. For example, on the one hand, reference may be made to the order of the President of the General Court of 3 December 2002 in Case T‑181/02 R Neue Erba Lautex v Commission [2002] ECR II‑5081, paragraph 108), in which it is apparent that the German national court had suspended national proceedings for the recovery of State aid after the President of the Court had dismissed the application for interim measures brought before the Court by the Federal Republic of Germany and relating to the same recovery. On the other, in the case giving rise to the order of the President of the General Court of 1 July 2013 in Case T‑152/13 R SEA Handling v Commission, not published in the ECR, concerning a Commission decision ordering the Italian State to recover State aid of EUR 360 million paid to SEA Handling, the application for suspension of operation was discontinued after the Italian administrative court had suspended the national recovery order (see Il Giorno Milano of 23 May 2013).
66 Having regard to the foregoing, the President of the General Court cannot but find that the applicant has not established that, failing the grant of suspension of operation of the contested decision, it would be likely to suffer serious and irreparable damage. The condition of urgency has not, therefore, been satisfied.
67 This outcome is consistent with the weighing up of the various interests involved, in the context of which the judge hearing the application for interim measures must determine, in particular, whether or not the applicant’s interest in obtaining the interim measures sought outweighs the interest in immediate application of the contested decision (see, to this effect, the order of the President of the Court of 26 June 2003 in Joined Cases C‑182/03 R and C‑217/03 R Belgium and Forum 187 v Commission [2003] ECR I‑6887, paragraph 142).
68 In this connection, it is to be borne in mind that the first paragraph of Article 108(2) TFEU provides that, if the Commission finds that aid granted by a State or through State resources is not compatible with the internal market, it is to decide that the State concerned must abolish or alter such aid within a period of time to be determined by the Commission. It follows that the general interest in the name of which the Commission performs the duties entrusted to it by Article 108(2) TFEU and by Article 7 of Regulation No 659/1999 in order to ensure that the functioning of the internal market is not distorted by State aid damaging to competition is of particular importance. The purpose of obliging the Member State concerned to do away with aid incompatible with the internal market is to re-establish the status quo ante (see, to that effect, the order in Elan v Commission, paragraph 28 and the case-law cited).
69 Consequently, it has been held that, in connection with an application for suspension of operation of the obligation imposed by the Commission to repay aid it has declared incompatible with the internal market, the interest of the Union must normally take precedence over that of the recipient of the aid in avoiding enforcement of the obligation to repay the aid before judgment is given in the main proceedings. It is only in extraordinary circumstances and only when, in particular, the condition of urgency has been met that the recipient of that aid may obtain the grant of interim relief (see the order in Elan v Commission, paragraph 29 and the case-law cited).
70 As has just been found, the applicant has not in the circumstances of the case satisfied the condition of urgency.
71 With regard to whether there are any extraordinary circumstances, the applicant takes the view that the grant of suspension of operation sought would not damage the Commission or the general interest or any third party’s interest. From its adoption in 2006 till its repeal in 2013 there were no proceedings to enforce Decision 2007/254. There is no reason that could warrant altering the status quo now. Moreover, there can be no public interest in the illegal enforcement of State aid decisions. Accordingly, the Commission ought to oppose neither this application for interim measures nor the action for annulment of the contested decision, the latter plainly being illegal.
72 Suffice it to find that the applicant has patently not pleaded any extraordinary circumstance that could warrant a weighting of interests in its favour and justify suspending the operation of the contested decision, the latter enjoying a presumption of legality, without any need of further consideration of the obstacles encountered in the enforcement of Decision 2007/254.
73 It follows from all the foregoing that none of the conditions for the grant of suspension of operation has been met and that the application for interim measures must therefore be dismissed.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 6 May 2014.