Case T-335/08

BNP Paribas and Banca Nazionale del Lavoro SpA (BNL)

v

European Commission

(State aid – Measures taken by the Italian authorities concerning certain restructured banks – Scheme for the realignment of the value of assets for tax purposes – Decision classifying the aid scheme as incompatible with the common market and ordering recovery of the aid – Action for annulment – Individual concern – Admissibility – Concept of State aid – Advantage – Selective nature – Duty to state reasons)

Summary of the Judgment

1.      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision prohibiting a sectoral aid scheme – Action brought by an undertaking which has been a beneficiary of individual aid that was granted under that scheme and must be recovered – Admissibility

(Art. 230, fourth para., EC)

2.      Acts of the institutions – Statement of reasons – Obligation – Scope – Commission decision on State aid

(Art. 253 EC)

3.      State aid – Concept – Selective nature of the measure – Derogation from the general tax system

(Art. 87(1) EC)

4.      State aid – Examination by the Commission – No comments by the interested parties – No effect on the validity of the Commission’s decision

(Art. 88(2) EC)

1.      Natural or legal persons other than the addressees may claim that a decision is of individual concern to them only if that decision affects them by reason of certain attributes which are peculiar to them, or by reason of factual circumstances which differentiate them from all other persons and thereby distinguish them individually in the same way as the person addressed. Accordingly, an undertaking cannot, as a general rule, bring an action for the annulment of a Commission decision prohibiting a sectoral aid scheme if it is concerned by that decision solely by virtue of the fact that it belongs to the sector in question and is a potential beneficiary of the scheme. Such a decision is, vis-à-vis that undertaking, a measure of general application covering situations which are determined objectively and entails legal effects for a class of persons envisaged in a general and abstract manner.

However, an undertaking is in a different position if it is concerned by the decision at issue not only as an undertaking in the sector in question and a potential beneficiary of the aid scheme but also as an actual recipient of individual aid granted under that scheme, recovery of which had been ordered by the Commission. Such an undertaking is individually concerned by the Commission’s decision and the action which it brings against it is admissible.

(see paras 64-66)

2.      The question whether the statement of reasons meets the requirements of Article 253 EC must be assessed in the light not only of its wording but also of its context and of all the legal rules governing the matter in question.

The Commission, in stating in particular the reasons for the decisions which it takes to enforce the rules on competition, is not required to discuss all the issues of fact and law and the considerations which have led it to adopt its decision. It is none the less required under Article 253 EC to set out at least the facts and considerations having decisive importance in the scheme of the decision, thereby enabling the Community Court and the persons concerned to know the circumstances in which it has applied the Treaty.

(see paras 93-94)

3.      One of the characteristics of State aid within the meaning of Article 87(1) EC is the requirement that a measure must be of a specific nature or selective in its application. Article 87(1) EC requires that the measure in question favours ‘certain undertakings or the production of certain goods’ in comparison with other undertakings which, in the light of the objective pursued by that measure, are in a comparable factual and legal situation.

For the application of Article 87 EC, it is irrelevant that the situation of the presumed beneficiary of the measure is better or worse in comparison with the situation under the law as it previously stood, or, on the contrary, has not altered over time. The only question to be determined is whether, under a particular statutory scheme, a State measure is such as to favour certain undertakings or the production of certain goods within the meaning of Article 87(1) EC in comparison with other undertakings which are in a legal and factual situation that is comparable in the light of the objective pursued by the measure in question.

The determination of the reference framework for the purpose of examining whether a measure is selective has a particular importance in the case of tax measures, since the very existence of an advantage may be established only when compared with ‘normal’ taxation, that is to say, the taxation normally applicable to undertakings which are, in the light of the objective pursued by the scheme in question, in a factual and legal situation that is comparable to that of the undertakings benefiting from the scheme. Moreover, the fact that undertakings benefiting from an exemption from normal tax enjoy such an economic advantage cannot be challenged on the ground that other exemptions from that tax are available to other undertakings. Accordingly, the fact that there are other derogations from the normal tax regime in addition to that of the scheme in question does not undermine the finding that the scheme is, in fact, derogatory in nature.

In examining an aid scheme in the light of the rules on State aid, the Commission carries out an objective assessment. In order to determine whether the scheme in question entails, from an objective standpoint, an economic advantage by reference to the tax provisions from which it derogates which would normally have been applicable in the absence of the scheme, the Commission is required to examine the scheme objectively. It is not for the Commission to envisage the subjective choices that might have been made by the beneficiaries of that scheme in the absence of such a scheme.

(see paras 160-162, 169, 187, 204)

4.      Article 88(2) EC requires the Commission to seek comments from interested parties before it reaches a decision. However, it does not prevent the Commission from determining that aid is incompatible with the common market in the absence of any such comments. In particular, it cannot be complained that the Commission failed to take into account matters of fact or law which could have been submitted to it during the administrative procedure but which were not, since it is under no obligation to consider, of its own motion and on the basis of prediction, what information might have been submitted to it.

(see para. 188)