Case T‑154/10

French Republic

v

European Commission

(State aid — Aid allegedly implemented by France in the form of an implied, unlimited guarantee in favour of La Poste as a result of its status as a publicly-owned establishment — Decision declaring the aid incompatible with the internal market — Action for annulment — Interest in bringing proceedings — Admissibility — Burden of proving the existence of State aid — Advantage)

Summary — Judgment of the General Court (Sixth Chamber), 20 September 2012

1.      Actions for annulment — Actions of the Member States — Action brought against the Commission decision finding aid to be incompatible with the common market — Admissibility not subject to proof of interest in bringing proceedings

(Art. 263 TFEU)

2.      Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Commission decision finding aid to be incompatible with the common market — Challengeable act — Withdrawal by the Member State of the measure categorised as existing aid by the Commission decision a number of months before it was adopted — No effect

(Art. 263 TFEU)

3.      Proceedings — Introduction of new pleas during the proceedings — Conditions

(Rules of Procedure of the General Court, Arts 44(1) and 48(2))

4.      State aid — Definition — Legal nature — Interpretation on the basis of objective factors — Judicial review — Scope

(Art. 107(1) TFEU)

5.      State aid — Commission decision — Assessment of legality by reference to the information available at the time of adoption of the decision

6.      State aid — Commission decision — Judicial review — Free assessment of the facts and evidence

7.      National law — French law — Unlimited State guarantee for debts of publicly-owned establishments

8.      State aid — Concept — Aid granted in the form of a guarantee — Reference to the findings of ratings agencies in order to establish a financial advantage

(Art. 107(1) TFEU)

9.      State aid — Administrative procedure — Obligations of the Commission — Need to ensure a the presence of a sufficient basis of information in order to find that an advantage constitutes State aid

1.      See the text of the decision.

(see paras 36-37)

2.      A Commission decision in which it is found that there was State aid in the form of an unlimited guarantee in favour of an undertaking and that that aid is incompatible with the common market, is necessarily intended to produce binding legal effects and is, therefore, a challengeable act under Article 263 TFEU.

It should be observed in that regard that even where a Member State, for its own reasons and without any constraints placed on it by the Commission, decides to withdraw the measure categorised as existing aid by the contested decision a number of months before it is adopted, the fact remains that the Member State was legally bound to implement the contested decision. The fact that in the implementation of the contested decision there may have been a convergence between the interests defended by the Commission and those of the Member State does not preclude the latter from bringing an action for annulment of that same decision. Such an approach leads to the Member States being penalised depending on whether or not they had an interest in complying with a Commission decision and is eminently subjective in nature. However, the examination of the question whether a given act is liable to be challenged through an action for annulment because it produces or is intended to produce binding legal effects which affect the applicant’s interests must be based on an objective assessment of that measure.

(see paras 38, 40)

3.      See the text of the decision.

(see paras 54-56)

4.      See the text of the decision.

(see para. 58)

5.      See the text of the decision.

(see para. 59)

6.      See the text of the decision.

(see para. 65)

7.      See the text of the decision.

(see paras 66, 76, 78, 83-84, 87, 90-91, 94, 96, 98)

8.      The grant of a guarantee on terms which are not equivalent to market conditions, such as an unlimited guarantee granted without consideration, is, as a rule, liable to confer an advantage on the recipient of those terms, in that that party thereby enjoys an improvement in its financial position through a reduction of charges which would normally encumber its budget. The definition of aid is more general than that of a subsidy because it includes not only positive benefits, such as subsidies themselves, but also State measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the word, are similar in character and have the same effect. In order to determine whether a State measure constitutes State aid, it is therefore necessary to establish whether the recipient undertaking receives an economic advantage which it would not have obtained under normal market conditions.

An unlimited State guarantee enables its recipient inter alia to obtain more favourable credit terms than what it would have obtained on its own merits alone and, therefore, eases the pressure on its budget. In order to establish that a publicly-owned establishment enjoys more favourable terms of credit and, therefore, a financial advantage, the Commission may refer to the findings of the ratings agencies and, more specifically, to the principal ones. If it is established that the market takes account of the ratings of major ratings agencies in assessing the credit to be granted to a given undertaking, a rating by those agencies which is better than would have been given without a guarantee is liable to procure an advantage for the publicly-owned establishment that it would not have obtained under normal market conditions.

(see paras 106-109)

9.      The Commission cannot assume that an undertaking has benefited from an advantage constituting State aid solely on the basis of a negative presumption, based on a lack of information enabling the contrary to be found, if there is no other evidence capable of positively establishing the actual existence of such an advantage. In that perspective, the Commission is, at the very least, required to ensure that the information at its disposal, even if incomplete and fragmented, constitutes a sufficient basis on which to conclude that an undertaking has benefited from an advantage amounting to State aid.

In that regard the nature of the evidence the Commission must adduce depends, to a large extent, on the nature of the State measure at issue. In particular, proof of the existence of an implied State guarantee may be inferred from a bundle of converging facts having a certain degree of reliability and coherence, taken inter alia from an interpretation of the relevant provisions of national law and, in particular, be inferred from the legal effects flowing from the legal status of the recipient undertaking. In that regard, memoranda and interpretation bulletins may be considered relevant for demonstrating that a State has granted an implied financial guarantee which, by definition, is not explicitly provided for by national law, to an undertaking having a particular status.

The Commission is not required to demonstrate the actual effects of the disputed measure in respect of aid already granted. It is not necessary to draw any distinction whatsoever between existing aid and unlawful aid. Moreover, the actual effect of an advantage conferred by a State guarantee may be presumed. Such a guarantee enables the borrower to enjoy a lower interest rate or provide a lower level of security. Even an advantage granted in the form of a potential additional burden for the State is liable to constitute State aid. This is most often the situation with guarantees which are generally linked to a loan or other financial obligation entered into by a borrower with a lender.

(see paras 119-120, 123-124)