Case C‑544/17 P

BPC Lux 2 Sàrl and Others

v

European Commission

(Appeal — State aid — Action for annulment — Admissibility — Aid granted by the Portuguese authorities for the resolution of the financial institution Banco Espírito Santo SA — Creation and capitalisation of a Bridge Bank — Decision of the European Commission declaring the aid compatible with the internal market — Interest in bringing proceedings — Action before the national courts seeking annulment of the decision to put Banco Espírito Santo into resolution)

Summary — Judgment of the Court (First Chamber) of 7 November 2018

1.        Action for annulment — Natural or legal persons — Interest in bringing proceedings — Need for an actual and current interest — Assessment at the time when the action was lodged — Action capable of securing a benefit for the applicant — Burden of proof

(Art. 263 TFEU)

2.        Appeal — Grounds — Review by the Court of the legal classification of the facts — Lawfulness

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

3.        Action for annulment — Natural or legal persons — Interest in bringing proceedings –Annulment of a contested measure capable of procuring an advantage for the applicant in proceedings before the national courts — Admissibility — Whether the EU Courts can assess the likelihood that an action brought before national courts is well founded — Precluded

(Art. 263, fourth para., TFEU)

1.      See the text of the decision.

(see paras 28, 29, 33, 34, 45)

2.      See the text of the decision.

(see para. 31)

3.      In principle, a party retains its interest in continuing an action for annulment where that action may constitute the basis of an action for damages. The possibility of an action for damages suffices to justify such an interest in bringing proceedings, in so far as that interest is not hypothetical. An interest in bringing proceedings could also arise from any action before the national courts in the context of which the possible annulment of the contested act before the EU Courts is capable of benefiting the applicant.

In that respect, as regards, first, an action brought before the EU Courts against a Commission decision finding that State aid consisting of the injection of capital into a national bank is compatible with EU law, and, second, an action before a national court seeking a declaration that the decision to put that bank into resolution is incompatible with national law, given the inextricable links between those decisions, which demonstrate, in particular, that the State aid at issue was granted in the context of the resolution of the relevant bank, it must be held that the EU Courts are not permitted to conclude, without substituting themselves for the national courts for the purposes of the assessment of the merits of the action for annulment of that resolution decision, that, because the subject matter of the latter action was not the same as that of the action brought before the EU Courts, a possible annulment of the contested decision could not in any way affect the national courts’ assessment of the action brought before them.

It is not for the EU Courts, for the purposes of determining an interest in bringing proceedings before them, to assess the likelihood that an action brought before national courts under national law is well founded and, therefore, to substitute themselves for those courts in making such an assessment. It is, by contrast, necessary, but sufficient, that, by its outcome, the action for annulment brought before the EU Courts would be capable of benefiting the party which brought it.

(see paras 42-44, 52, 55, 56)