Case T‑103/14
Frucona Košice a.s.
v
European Commission
(State aid — Excise duties — Partial remission of a tax debt in the context of an arrangement — Decision declaring the aid to be incompatible with the internal market and ordering its recovery — Rights of the defence — Procedural rights of the interested parties — Private creditor test — Burden of proof)
Summary — Judgment of the General Court (Second Chamber), 16 March 2016
1. State aid — Examination by the Commission — Administrative procedure — Obligation of the Commission to give notice to the interested parties to submit their comments — Exclusion of those parties from rights of defence — Right of the aid beneficiary to be sufficiently associated with the proceedings
(Art. 108(2) TFEU)
2. Acts of the institutions — Withdrawal — Unlawful acts — Decision declaring aid incompatible with the common market — Adoption of a new decision — No obligation to reopen the formal investigation procedure — Resumption of the procedure at the point at which the illegality becomes apparent
(Art. 108(2) TFEU)
3. State aid — Administrative procedure — No obligation to hear the views of the recipient of State aid resources on the legal assessment by the Commission
(Art. 108 TFEU)
4. Actions for annulment — Grounds — Infringement of essential procedural requirements — Infringement of the rights of the defence — Illegality individual by nature — Invocation solely by the Member State concerned
(Art. 263 TFEU)
5. Actions for annulment — Grounds — Infringement of essential procedural requirements — To be considered of the Court’s own motion — Scope — Exclusion of any ground concerning the substantive legality of the contested act
(Art. 263 TFEU)
6. State aid — Concept — Intervention having the effect of mitigating the burdens of an undertaking — Included
(Art. 107(1) TFEU)
7. State aid — Concept — Remission of debts granted by public bodies to a firm in difficulty — Undertaking subject to an arrangement procedure — Application of the private creditor test — Choice between several procedures — Criteria for the Commission’s assessment of those procedures, including their duration — Burden of proof on the Commission
(Art. 107(1) TFEU)
8. State aid — Concept — Assessment by the private creditor test — Applicability of the private creditor test — State acting other than in its capacity as a public authority
(Art. 107(1) TFEU)
9. State aid — Concept — Assessment by the private creditor test — Assessment having regard to all the relevant factors of the operation in question — Possibility both for a Member State and for the aid beneficiary to rely on the private creditor test — Burden of proof
(Art. 107(1) TFEU)
10. Actions for annulment — Jurisdiction of the EU judicature — Substitution of an institution’s grounds for a decision — Not permissible
(Arts 263 TFEU and 264 TFEU)
11. State aid — Administrative procedure — Obligations of the Commission — Diligent and impartial examination — Account to be taken of the most complete and reliable information possible
(Art. 108(2) TFEU)
12. State aid — Commission decision — Assessment of legality by reference to the information available at the time the decision adopted
(Art. 108(2) TFEU)
13. State aid — Examination by the Commission — Private creditor test — Complex evaluation of economic matters — Judicial review — Limits
(Art. 107(1) TFEU)
14. State aid — Examination by the Commission — Possibility of the Commission using outside experts
(Art. 107(1) TFEU)
15. State aid — Concept — Assessment by the private creditor test — Assessment independent of the form of the advantage — Decisive factor the economic rationality of a private creditor taking the measure in question
(Art. 107(1) TFEU)
1. See the text of the decision.
(see paras 52, 56, 69, 77)
2. See the text of the decision.
(see paras 61, 64)
3. See the text of the decision.
(see para. 70)
4. See the text of the decision.
(see paras 81, 82)
5. See the text of the decision.
(see paras 84, 85)
6. See the text of the decision.
(see paras 91, 92)
7. When a public creditor grants payment facilities in respect of a debt payable to it by an undertaking, such payment facilities constitute state aid for the purposes of Article 107(1) TFEU where, taking account of the significance of the economic advantage thereby granted, 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 recover sums due to it by a debtor in financial difficulty. That assessment is made, in principle, by applying the private creditor test, which, where applicable, is among the factors which the Commission is required to take into account for the purposes of establishing whether such aid exists. It is therefore for the Commission to carry out an overall assessment, taking into account all relevant evidence in the case enabling it to determine whether the recipient undertaking would manifestly not have been able to obtain comparable facilities from such a private creditor. In that regard, all information 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 public creditor and seeking to recover sums due to it by a debtor experiencing difficulty in making the payments, must be regarded as being relevant.
In a case where a normally prudent and diligent private creditor in a situation as close as possible to that of the public creditor has the choice between several procedures for the purposes of recovering the sums owed to it, it must weigh up the advantages and disadvantages of each of those procedures in order to identify the more advantageous alternative. Its decision-making process, influenced by a number of factors, including the creditor’s status as the holder of a secured, preferential or ordinary claim, the nature and extent of any security it may hold, its assessment of the chances of the firm being restored to viability, the amount it would receive in the event of liquidation, and the risks of seeing its losses increase still further, is also liable to be influenced significantly by the duration of the procedures, postponing the recovery of the sums due and thus potentially affecting, in the case of lengthy procedures, inter alia, their value.
In such a case, therefore, the Commission must determine whether, taking those factors into account, for the purposes of obtaining payment of the sums due to it, such a private creditor would clearly not have accepted the proposed arrangement and must compare, by reference to the interests of a private creditor, the advantages and disadvantages of each of the said procedures, the burden of proof that the conditions of the private creditor test have been fulfilled being borne by the Commission.
(see paras 93, 94, 131-139, 269, 280)
8. See the text of the decision.
(see paras 94-96)
9. In State aid matters, if a Member State relies on the private creditor 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 is ascribable to the State acting as a private market operator. If the Member State concerned provides the Commission with the requisite evidence, it is for the Commission to carry out a global assessment, taking into account, in addition to the evidence provided by that Member State, any other relevant evidence enabling it to determine whether the said Member State took the measure in question in its capacity as shareholder or as a public authority.
It does not however follow that, where the Member State concerned does not rely on the private creditor test and considers that the disputed measure constitutes State aid, the Commission may, on that ground alone, dispense with an examination of that test or consider it to be inapplicable.
Moreover, the private creditor test may be relied on by the aid beneficiary in order to demonstrate that the measure in question does not constitute State aid, that test being neither an exception which applies only if a Member State so requests nor reserved solely for the Member State concerned. Like a Member State which relies on the private creditor test, where the aid beneficiary relies on it, it must, in case of doubt, establish unequivocally and on the basis of objective and verifiable evidence that the measure implemented falls to be ascribed to that Member State acting as a market operator.
Where the beneficiary relies on that test and submits documents for that purpose, it is for the Commission to establish whether those documents correspond to the requirements laid down by EU law and, if so, to carry out a global assessment, taking into account, in addition to the evidence provided, any other relevant evidence enabling it to determine whether the Member State at issue took the measure in question in its capacity as market operator or as a public authority.
(see paras 97, 98, 108-112, 115, 118)
10. See the text of the decision.
(see paras 105, 106)
11. See the text of the decision.
(see para. 141)
12. See the text of the decision.
(see para. 142)
13. See the text of the decision.
(see paras 144-147, 270)
14. See the text of the decision.
(see paras 172, 177)
15. In State aid matters, the applicability of the private creditor test depends not on the form in which an advantage has been conferred but on the classification of the measure taken as a decision adopted by a private operator. The decisive factor in this regard is whether the measure in question satisfied an economic rationality test, so that a private creditor, who counts on maximising his chances of recovering his claim or, at the very least, most of that claim, might also agree to take such a measure.
In those circumstances, the mere fact that a tax execution procedure is not accessible to a private creditor with a view to recovering his debt does not preclude an analysis of the private creditor test for the purpose of comparing that procedure with the arrangement procedure. That fact does not preclude verification of the economic rationality of the local tax office’s decision to subject an undertaking to an arrangement procedure implying annulment of a tax debt of that undertaking towards that authority.
(see paras 251, 253)