Language of document : ECLI:EU:T:2018:940

Case T‑167/13

(publication by extracts)

Comune di Milano

v

European Commission

(State aid — Groundhandling services — Capital injections provided by SEA in favour of Sea Handling — Decision declaring the aid incompatible with the internal market and ordering its recovery — Concept of aid — Whether imputable to the State — Private investor test — Audi alteram partem rule — Rights of the defence — Right to sound administration — Legitimate expectations)

Summary — Judgment of the General Court (Third Chamber, Extended Composition), 13 December 2018

1.      Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Individual concern — Criteria — Commission decision declaring the aid incompatible with the internal market and ordering its recovery — Action of a public authority, which has the capacity of aid provider — Admissibility — Conditions

(Art. 263, fourth para., TFEU)

2.      Action for annulment — Natural or legal persons — Interest in bringing proceedings — Need for an actual and current interest

(Art. 263, fourth para., TFEU)

3.      State aid — Concept — Aid from State resources — Aid granted to a public undertaking — Resources of the undertaking constantly under public control — Included

(Art. 107(1) TFEU)

4.      State aid — Concept — Consecutive State interventions inseparably linked to each other — Criteria for assessment

(Art. 107(1) TFEU)

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

(Art. 107(1) TFEU)

6.      State aid — Concept — Assessment according to the private investor test — Assessment of all factors relevant to the transaction at issue and its context — Account taken of available information and foreseeable developments at the time the decision on the measure in question was taken

(Art. 107 and Art. 108(1) and (3) TFEU)

7.      State aid — Concept — Assessment according to the private investor test — Assessment of all factors relevant to the transaction at issue and its context — Burden of proof on the Commission — Scope — Judicial review — Limits

(Art. 107(1) TFEU)

1.      The legal position of a body other a Member State, which has legal personality and has adopted a measure classified as State aid in a final decision by the Commission, may be individually concerned by that decision if the decision prevents it from exercising its own powers, which consist, in particular, in granting the aid at issue.

In that regard a public authority which has been involved in the adoption of the measures at issue such a point that they are imputable to it in accordance with the criteria set out by the case-law of the Court of Justice must be regarded as the provider of the aid.

(see paras 34, 41)

2.      See the text of the decision.

(see paras 45, 46)

3.      See the text of the decision.

(see paras 60-62)

4.      Since State interventions take various forms and have to be assessed in relation to their effects, it cannot be excluded that several consecutive measures of State intervention must, for the purposes of Article 107(1) TFEU, be regarded as a single intervention. That could be the case in particular where consecutive interventions, having regard to their chronology, their purpose and the circumstances of the undertaking at the time of those interventions, are so closely related to each other that they are inseparable from one another.

(see para. 71)

5.      The imputability of a measure to the State cannot be inferred from the mere fact that the measure at issue was taken by a public undertaking. Even if the State is in a position to control a public undertaking and to exercise a dominant influence over its operations, actual exercise of that control in a particular case cannot be automatically presumed. A public undertaking may act with more or less independence, according to the degree of autonomy left to it by the State.

Therefore, the mere fact that a public undertaking is under State control is not sufficient for measures taken by that undertaking to be imputed to the State. It is also necessary to examine whether the public authorities must be regarded as having been involved, in one way or another, in the adoption of these measures. On that point, it cannot be demanded that it be demonstrated, on the basis of a precise instruction, that in the particular case the public authorities specifically incited the public undertaking to take the aid measures in question. First, having regard to the fact that relations between the State and public undertakings are close, there is a real risk that State aid may be granted through the intermediary of those undertakings in a non-transparent way and in breach of the rules on State aid laid down by the Treaty. Second, it will, as a general rule, be very difficult for a third party, precisely because of the privileged relations existing between the State and a public undertaking, to demonstrate in a particular case that aid measures taken by such an undertaking were in fact adopted on the instructions of the public authorities. For those reasons, the imputability to the State of an aid measure taken by a public undertaking may be inferred from a set of indications arising from the circumstances of the case and the context in which that measure was taken.

In addition, any other indicator showing, in the particular case, involvement by the public authorities in the adoption of a measure or the unlikelihood of their not being involved, having regard also to the scope of the measure, its content or the conditions which it contains, could, as the case may be, be relevant for the purpose of concluding that a measure taken by a public undertaking is imputable to the State.

(see para. 75)

6.      See the text of the decision.

(see paras 102-105)

7.      In accordance with the principles on the burden of proof concerning State aid, the Commission must provide proof of such aid. In this regard, it 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. With regard to the standard of proof required, the nature of the evidence the Commission must adduce depends, to a large extent, on the nature of the planned State measure.

Furthermore, the Commission is required to make a complex economic assessment when it examines whether particular measures can be classified as State aid because the public authorities did not act in the same way as a private investor. However, in the context of the review conducted by the EU Courts on complex economic assessments made by the Commission in the field of State aid, it is not for those Courts to substitute their own economic assessment for that of the Commission, and they must restrict their review to verifying whether the relevant rules governing procedure and the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment of those facts or a misuse of powers.

In order to establish that the Commission committed a manifest error in assessing the facts such as to justify the annulment of the contested decision, the evidence adduced by the applicants must be sufficient to render the factual assessments used in the decision implausible.

Not only must the EU Courts establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it.

Thus, when applying the private creditor test, 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 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. Moreover, for the purposes of applying the private creditor test, the only relevant evidence is the information which was available, and the developments which were foreseeable, at the time when the decision was taken. The Commission is not obliged to examine information if the evidence produced has been established after the adoption of the decision to make the investment in question, and that evidence does not relieve the Member State concerned from its task of carrying out an appropriate prior evaluation of the profitability of its investment before making that investment.

(see paras 106-110)