Case T‑220/14

(publication by extracts)

Saremar — Sardegna Regionale Marittima SpA

v

European Commission

(State aid — Maritime transport — Public service compensation — Capital increase — Decision declaring aid incompatible with the internal market and ordering that it be recovered — Bankruptcy of the applicant — Capacity to be a party to legal proceedings — Continued interest in bringing proceedings — Failure to find that there was no need to adjudicate — Concept of aid — Service of general economic interest — Private investor test — Manifest error of assessment — Error of law — Plea of illegality — Obligation to state reasons — Rights of the defence — Decision 2011/21/EU — Guidelines on State aid for rescuing and restructuring firms in difficulty — Union framework applicable to State aid in the form of public service compensation — Altmark judgment)

Summary — Judgment of the General Court (Eighth Chamber), 6 April 2017

1.      Actions for annulment — Natural or legal persons — Legal persons — Autonomous concept of EU law — Requirement of legal personality and the capacity to bring proceedings — Examination in relation to the relevant national law

(Art. 263, fourth para., TFEU)

2.      Actions for annulment — Actions of Member States, the Parliament, the Council and the Commission — Admissibility not conditional upon establishing a legal interest in bringing proceedings

(Art. 263, second para., TFEU)

3.      Actions for annulment — Natural or legal persons — Interest in bringing proceedings — Action brought by a beneficiary of State aid against a Commission decision declaring that aid incompatible and unlawful and ordering that it be recovered — Liquidation of the applicant — Admissibility — Conditions

(Arts 108 TFEU and 263, fourth para., TFEU)

4.      Actions for annulment — Admissibility criteria — Interest in bringing proceedings — To be considered of the Court’s own motion

(Art. 263 TFEU; Rules of Procedure of the General Court, Art. 113)

1.      Whilst the concept of ‘legal person’ in the fourth paragraph of Article 263 TFEU does not necessarily coincide with the corresponding concepts specific to the different legal orders of the Member States, it implies, in principle, the existence of a legal personality constituted under the law of a Member State or third country and capacity to be a party to legal proceedings recognised under that law. Thus, it is only in exceptional circumstances, including when imperatives of ensuring effective judicial protection so require, that the admissibility of an action brought by an entity that does not have capacity to be a party to legal proceedings may be allowed. The existence of legal personality and the capacity to be a party to legal proceedings must be examined in the light of the relevant national law.

(see para. 45)

2.      See the text of the decision.

(see para. 50)

3.      The admissibility of an action brought by natural and legal persons as referred to in the fourth paragraph of Article 263 TFEU is subject to the condition that the interest in bringing proceedings must exist at the stage of lodging the action, which is a distinct condition of admissibility from locus standi. Like the purpose of the action, the interest in bringing proceedings must continue until the final decision, failing which there will be no need to adjudicate. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it.

In the case of an action brought by a beneficiary of State aid against a Commission decision declaring that aid incompatible and unlawful and ordering that it be recovered, such a decision, by that fact alone, brings about a change in the legal position of the applicant, which, as from the time of adoption of that decision, is no longer entitled to receive that aid and has to expect, in principle, to have to repay it. That conclusion is not called into question by the liquidation of the applicant in the course of the proceedings, as the contested decision has not been repealed or withdrawn, so that the action retains its purpose. Moreover, the legal effects of the contested decision do not become obsolete solely due to the liquidation of the applicant. The mere fact that the undertaking has been placed in bankruptcy proceedings, inter alia when those proceedings lead to the undertaking’s being liquidated, does not affect the principle that aid is to be recovered. In such a scenario, the re-establishment of the previous situation and the elimination of the distortion of competition resulting from the unlawfully paid aid may, in principle, be achieved by entry of the liability relating to the repayment of the aid in question in the schedule of liabilities.

Consequently, because of the contested decision, the disputed aid must, at the very least, remain in the applicant’s liabilities, so that, even if it cannot be repaid, it is no longer included in the applicant’s assets. Annulment of the contested decision would have the effect of significantly improving the economic situation of the applicant, as the disputed aid could once again be integrated into its assets.

(see paras 51, 53, 55-58, 60, 61)

4.      See the text of the decision.

(see para. 52)