Provisional text
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 16 May 2024 (1)
Case C‑697/22 P
Koiviston Auto Helsinki Oy, formerly Helsingin Bussiliikenne Oy
v
European Commission
(Appeal – State aid – Coach and bus transport – Equipment loan and capital loans granted by the City of Helsinki – Decision declaring the aid incompatible with the internal market and ordering its recovery – Economic continuity – Procedural rights of interested parties – Article 6(1) of Regulation (EU) 2015/1589 – Publication of a supplementary or corrective opening decision – Breach of an essential procedural requirement – Principle of proportionality)
I. Introduction
1. The present Opinion concerns an appeal brought by the company Koiviston Auto Helsinki Oy, formerly Helsingin Bussiliikenne Oy, seeking to have set aside the judgment of the General Court of the European Union of 14 September 2022, Helsingin Bussiliikenne v Commission. (2) By that judgment, the General Court dismissed the action seeking annulment of Commission Decision (EU) 2020/1814 of 28 June 2019 on State aid implemented by Finland for the appellant. (3)
2. In its decision, the European Commission had identified the appellant as the actual beneficiary of the aid because of its economic continuity with the original beneficiary of that aid. Nevertheless, since the transfer of the business operations to the appellant, on which that continuity was based, took place after the opening of the formal investigation procedure, the Commission did not offer the appellant the opportunity to submit comments during that procedure.
3. The General Court held that, although the Commission had failed to respect the appellant’s right to be involved in the formal investigation procedure, as required by Article 108(2) TFEU and Article 6(1) of Regulation (EU) 2015/1589, (4) the appellant had not established that, had it been given the opportunity to submit comments, those comments would have been capable of altering the Commission’s assessment as regards the economic continuity of the beneficiaries of the aid at issue. In that context, there was no reason to annul the decision at issue.
4. The present appeal provides the Court of Justice with a further opportunity to interpret the phrase ‘relevant issues of fact and law’ in Article 6(1) of Regulation 2015/1589, and to clarify the legal consequences ensuing from the failure to grant the actual beneficiary of unlawful aid the opportunity to submit comments during the formal investigation procedure, in particular where the commercial activity concerned is transferred to its new owner after the expiry of the period granted by the Commission in the context of the notice to the interested parties.
II. Legal framework
5. Article 1 of Regulation 2015/1589, entitled ‘Definitions’, provides:
‘For the purposes of this Regulation, the following definitions shall apply:
…
(h) “interested party” means any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations.’
6. Article 6 of Regulation 2015/1589, entitled ‘Formal investigation procedure’, provides:
‘1. The decision to initiate the formal investigation procedure shall summarise the relevant issues of fact and law, shall include a preliminary assessment of the Commission as to the aid character of the proposed measure and shall set out the doubts as to its compatibility with the internal market. The decision shall call upon the Member State concerned and upon other interested parties to submit comments within a prescribed period which shall normally not exceed 1 month. In duly justified cases, the Commission may extend the prescribed period.
…’
III. Factual background
7. The background to the dispute is described in paragraphs 2 to 9 of the judgment under appeal and may be summarised as follows.
8. Helsingin Bussiliikenne (‘the former HelB’) (5) was formed on 1 January 2005 by Suomen Turistiauto Oy, a private transport company owned by Helsingin kaupunki (City of Helsinki, Finland), after Suomen Turistiauto Oy acquired the assets and liabilities of HKL-Bussiliikenne Oy, an undertaking which was a spin-off from the transport services department of the City of Helsinki. The former HelB operated bus routes in the Helsinki area (Finland) and offered charter transport and bus leasing services. It was wholly owned by the City of Helsinki.
9. Between 2002 and 2012, the City of Helsinki took various measures in favour of HKL-Bussiliikenne and the former HelB (‘the measures at issue’). Accordingly, first, in 2002, HKL-Bussiliikenne was granted a EUR 14.5 million equipment loan to fund the procurement of bus transport equipment. The former HelB assumed that loan on 1 January 2005. Second, the City of Helsinki granted the former HelB, upon its establishment, a capital loan in the total amount of EUR 15 893 700.37 to refinance certain liabilities of HKL-Bussiliikenne and Suomen Turistiauto. Third, on 31 January 2011 and 23 May 2012, the City of Helsinki granted the former HelB two new capital loans in the amounts of EUR 5.8 million and EUR 8 million respectively.
10. On 31 October 2011, the public transport services Nobina Sverige AB and Nobina Finland Oy lodged a complaint with the Commission, which their parent company, Nobina AB, joined on 15 November 2011. By that complaint, they alleged that the Republic of Finland had granted unlawful aid to the former HelB. On 22 November 2011, the Commission forwarded that complaint to the Republic of Finland.
11. By decision C(2015) 80 final of 16 January 2015, (6) the Commission initiated the formal investigation procedure provided for in Article 108(2) TFEU in respect of the measures at issue. That decision was published in the Official Journal of the European Union on 10 April 2015 and interested parties were invited to submit their comments within one month of that publication.
12. Moreover, on 24 June 2015, during the procedure, the City of Helsinki informed the Commission of the implementation of the sale process of the former HelB. On 5 November 2015, the Republic of Finland forwarded to the Commission the draft sales contract drawn up with the appellant.
13. On 14 December 2015, the former HelB was sold to the appellant, formerly known as Viikin Linja Oy. In accordance with the terms of the deed of sale, Viikin Linja Oy was renamed Helsingin Bussiliikenne Oy (‘the new HelB’). The transaction documents included a provision fully indemnifying the buyer of the former HelB in the event of a State aid recovery claim (‘the indemnification provision’) and part of the sale price was deposited into an escrow account until a final decision on State aid had been reached or, at the latest, until 31 December 2022.
14. The transfer to Viikin Linja covered all the business operations of the former HelB. The former HelB had no assets left except for the sums included in or credited to the escrow account. The liabilities arising from the measures at issue were not transferred to the new HelB. Following the sale of the former HelB, it was exempted by the City of Helsinki from repaying the outstanding amount due in respect of the 2002 equipment loan. Furthermore, on 11 December 2015, the City of Helsinki converted the capital loans of 2005, 2011 and 2012, which had not been repaid, into equity of the former HelB.
15. On 28 June 2019, the Commission adopted the decision at issue without giving the appellant notice to submit comments. The operative part of the decision at issue is worded as follows:
‘Article 1
The State aid amounting to EUR 54 231 850 unlawfully granted by [the Republic of] Finland under [the] Measures [at issue], in breach of Article 108(3) [TFEU], in favour of Helsingin Bussiliikenne Oy is incompatible with the internal market.
Article 2
1. [The Republic of] Finland shall recover the aid referred to in Article 1 from the beneficiary.
2. In view of the economic continuity between [the former] HelB (now Helsingin kaupungin Linja-autotoiminta Oy) and [the] new HelB (full name – Helsingin Bussiliikenne Oy, previously – Viikin Linja Oy), the obligation to repay the aid shall be extended to the new HelB (full name – Helsingin Bussiliikenne Oy).
3. The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiary until their actual recovery.
…
Article 4
1. Within two months following notification of this Decision, [the Republic of] Finland shall submit the following information to the Commission:
(a) the total amount (principal and recovery interests) to be recovered from the beneficiary;
…’
IV. The procedure before the General Court and the judgment under appeal
16. The new HelB, supported by the Republic of Finland, asked the General Court to annul the decision at issue.
17. In support of its action, it put forward five pleas in law, the first alleging a substantial procedural error in so far as the decision at issue was adopted in violation of its procedural rights, the second alleging a manifest error on the part of the Commission in its assessment of the existence of economic continuity between the former and the new HelB, the third, that insufficient reasons were given for the decision at issue, the fourth, that the principles of the protection of legitimate expectations and proportionality had not been observed and the fifth, that Article 107(1) TFEU had been infringed.
18. By the judgment under appeal, the General Court dismissed the action in its entirety.
19. In the first place, as regards the plea in law alleging a substantial procedural error, which is the subject of the present appeal, the General Court held, first, that the Commission was not required to extend the formal investigation procedure by means of a new or corrective opening decision, as the appellant had argued. (7)
20. However, the General Court held, second, that, in accordance with the case-law following from the judgment of 11 November 2021, Autostrada Wielkopolska v Commission and Poland, (8) as the Commission intended to examine the question of economic continuity between the former HelB’s business and that of the new HelB, the particular circumstances of the case justified the Commission involving the appellant further, in its capacity as the actual beneficiary of the measures at issue, in the procedure. The General Court concluded that, by failing to put the appellant in a position to submit its comments on the question of economic continuity, the Commission had violated the right guaranteed by Article 108(2) TFEU. (9)
21. Third, the General Court held that, given that the violation established concerned not the Commission’s obligations at the date on which the formal investigation procedure was initiated but the obligations on it due to a particular circumstance arising during that procedure, (10) that institution had to be regarded as having incurred a procedural irregularity and not as having breached an essential procedural requirement. (11) However, according to the General Court, the appellant had not established, as is required by the case-law in a case such as the one at hand, that, had it been given the opportunity to submit its comments on the question of economic continuity, those comments would have been capable of altering the Commission’s assessment in that regard. (12)
22. In the second place, as regards the plea in law alleging a failure to observe the principle of proportionality, the General Court held, first, that the appellant was not justified in claiming that the obligation to recover the State aid arising from the measures at issue should relate only to an amount lower than the full amount of that aid. (13) Second, the General Court observed that, contrary to the appellant’s assertion, the Commission was not required to determine the extent to which the aid resulting from the measures at issue was to be recovered from the appellant. It was for the Republic of Finland, to which the decision at issue was addressed, in the context of the measures which it is required to take under Article 288 TFEU, in order to secure effective recovery of the sums due, to recover the aid in question, if not from the former HelB, then from the appellant. (14)
V. Forms of order sought
23. By its appeal, the appellant claims that the Court should:
– set aside the judgment under appeal;
– annul the decision at issue;
– order the Commission to pay all the costs incurred by the appellant before the General Court and the Court of Justice, together with statutory interest.
24. The Commission claims that the Court should:
– dismiss the appeal;
– order the appellant to pay all the Commission’s costs.
VI. Analysis
25. In support of its appeal, the appellant puts forward two grounds of appeal, alleging a substantial procedural error and a failure to observe the principle of proportionality.
A. First ground of appeal, alleging a substantial procedural error
26. By its first ground of appeal, the appellant submits that the General Court erred in law in concluding that the Commission had not breached an essential procedural requirement during the formal procedure for investigating the measures at issue.
27. That ground is divided into three parts, relating, first, to the Commission’s obligation to extend the formal investigation procedure by publishing a supplementary or corrective opening decision, second, to the General Court’s classification of the infringement of Article 108(2) TFEU as a procedural irregularity rather than as an infringement of an essential procedural requirement and, third, to the finding that the appellant’s comments on the question of economic continuity would not have been capable of altering the Commission’s assessment in the decision at issue.
1. The first part, relating to the Commission’s obligation to extend the formal investigation procedure by publishing a supplementary or corrective opening decision
28. By the first part of the present ground of appeal, the appellant submits that the General Court erred in holding that the Commission was not required to extend the decision to initiate the formal investigation procedure after the transfer of the former HelB’s business to it. According to the appellant, such a transfer was a new issue, not contained in the opening decision, which should have led the Commission to extend the investigation procedure by adopting a supplementary opening decision or, at the very least, a correction to the original opening decision. Such a step by the Commission would have given the appellant notice to submit its comments as an interested party, in particular on the question of economic continuity with the former HelB, as required by Article 108(2) TFEU.
29. The Commission disputes those arguments. It maintains, as did the General Court, that the existence of economic continuity between the former and the new HelB did not mean that there was a change in the opinion regarding the beneficiary in respect of which the Commission was required to assess the existence of aid and its compatibility with the internal market. Nor did the finding of economic continuity mean that the Commission had extended the subject matter of the investigation procedure. In those circumstances, the Commission submits that it was not required to extend the formal investigation procedure, either by adopting a supplementary opening decision or by publishing a corrective decision.
30. Pursuant to the first subparagraph of Article 108(2) TFEU, if, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State or through State resources is not compatible with the internal market having regard to Article 107 TFEU, or that such aid is being misused, it is to decide that the State concerned must abolish or alter such aid within a period of time to be determined by the Commission.
31. According to settled case-law, the formal investigation procedure provided for in Article 108(2) TFEU is essential where the Commission encounters serious difficulties in verifying whether a measure constitutes aid within the meaning of Article 107 TFEU and in determining whether aid is compatible with the internal market. (15) The procedure has two aims: first, to allow the Commission to be fully informed of all the facts of the case before taking its decision and, second, to protect the rights of potentially interested third parties. (16)
32. In the latter respect, it follows from the case-law of the Court of Justice that even if, in view of its general scheme, the aid procedure is a procedure initiated only in respect of the Member State responsible for granting the aid, (17) Article 108(2) TFEU requires the Commission, when it decides to initiate the formal investigation procedure in respect of an aid measure, to give interested parties the opportunity to submit their comments. (18)
33. The scope of that obligation is determined by Article 1(h) of Regulation 2015/1589, which includes in the category of ‘interested parties’, inter alia, any undertaking whose interests might be affected by the granting of aid, in particular the beneficiary of the aid.
34. The Court of Justice has also made it clear that the publication of a notice in the Official Journal of the European Union is an appropriate means of informing all the parties concerned that a procedure has been initiated. That communication is intended to obtain from persons concerned all information required for the guidance of the Commission with regard to its future action. That communication also guarantees to the sectors concerned an opportunity to make their views known. (19)
35. Lastly, it must be recalled that, even though the interested parties cannot rely on rights of the defence during the formal investigation procedure, because that procedure is not adversarial, (20) they do have the right to be involved in the administrative procedure followed by the Commission in an adequate manner taking into account the circumstances of the case. (21)
36. In the present case, in paragraphs 36 to 41 of the judgment under appeal, the General Court rejected the appellant’s argument that the Commission was required to supplement or correct the opening decision following the transfer of the former HelB. (22)
37. In essence, the General Court considered, first, that the Commission had not altered the analysis that it had carried out in the opening decision concerning the beneficiary of the measures at issue and, more generally, the existence of aid or its compatibility with the internal market.
38. Second, the General Court held that the fact that, in the operative part of the decision at issue, the Commission had found that the obligation to recover the aid resulting from the measures at issue had to be extended to the new HelB, owing to the economic continuity with the former HelB, could not be equated with an alteration of the beneficiary of the measures in respect of which the Commission was required to assess the existence of aid and its compatibility with the internal market.
39. In my view, such reasoning should not be accepted.
40. It must be recalled that Article 6(1) of Regulation 2015/1589 sets out the mandatory content that the decision to initiate the formal investigation procedure must contain. That provision requires the Commission to summarise, in the decision, the issues of fact and law relevant to the investigation to be carried out in the context of that procedure, to include a preliminary assessment of the measure in question in terms of its aid character and to set out the doubts as to the measure’s compatibility with the internal market.
41. As regards the phrase ‘relevant issues of fact and law’ in Article 6(1) of Regulation 2015/1589, it follows, in essence, from the case-law of the Court of Justice that it must be interpreted in the light of the purposes of the formal investigation procedure, in particular that of enabling the interested parties to submit their comments on the reasons which led the Commission to initiate that procedure, thereby ensuring the effectiveness of Article 108(2) TFEU. (23)
42. Moreover, even if the Court of Justice has not expressly ruled in that regard in its case-law, the General Court has repeatedly held that the identification of the beneficiary of aid, (24) if it is possible at the stage of initiating the formal investigation procedure, (25) constitutes a relevant issue within the meaning of Article 6(1) of Regulation 2015/1589. It is on the basis of such identification that the Commission orders the Member State concerned, where it concludes that illegal aid has been implemented, to take all necessary measures for its recovery. (26)
43. The foundations of that case-law – which, in my view, the Court of Justice could easily adopt – remain valid as regards the actual beneficiary of aid, given that it is that person who is under an obligation to repay the aid where, as in the present case, the Commission finds that there is economic continuity with the initial beneficiary of that aid. That actual beneficiary must therefore be regarded as a relevant issue within the meaning of Article 6(1) of Regulation 2015/1589 and, accordingly, provided that it is possible to identify the beneficiary at that stage, even on a provisional basis, the beneficiary must mandatorily be included in the account in the decision to open the formal investigation procedure.
44. However, the question that arises in the present case is whether, where the actual beneficiary is known only after the expiry of the period given, pursuant to Article 6(1) of Regulation 2015/1589, by the Commission to interested parties for them to submit comments, a new decision or, at least, a corrective decision must be published before the final decision is adopted.
45. In that regard, it should be recalled at the outset that the legislation governing procedure in State aid cases does not provide expressly for the possibility of adopting a new or corrective opening decision as regards a pending procedure.
46. Nevertheless, according to the case-law of the Court of Justice, that finding does not mean that such a correction may not be made or, where necessary, that the formal investigation procedure may not be extended, if the initial decision to open that procedure is based on an incomplete set of facts or on an incorrect legal characterisation of those facts. (27)
47. The case-law of the Court of Justice similarly invites the view that a decision to open the formal investigation procedure is based on incomplete facts, not only where it fails to refer to facts known at the time of its adoption, but also where new or different facts have arisen in the course of that procedure. (28)
48. It follows that, in so far as a fact is capable of constituting a ‘relevant issue’ within the meaning of Article 6(1) of Regulation 2015/1589, its absence or incomplete or even erroneous nature in the account in the decision to open the formal investigation procedure requires the Commission to adopt either a supplementary decision or a corrective decision, (29) irrespective of whether or not that fact precedes the opening of that procedure.
49. In the present case, it must be noted that, as is apparent from paragraphs 42 to 46 of the judgment under appeal, the Commission had been informed of the process of the transfer of the former HelB’s business since June 2015 and that a period of three and a half years elapsed between the date of that transfer and the date of adoption of the decision at issue. Moreover, the transfer between the former and the new HelB led the Commission to find, in Article 2 of the decision at issue, that there was economic continuity between those two undertakings and, on that basis, that the appellant had an obligation to repay the aid in question, as defined in Article 1 of that decision.
50. In my view, it is clear from the above findings that the scope of the investigation actually carried out by the Commission in the course of the formal procedure – which was given concrete expression in the operative part of the decision at issue – went beyond that initially defined in the decision to open the procedure. Because it took place at a later date, the transfer between the former and the new HelB was not referred to in the opening decision, even though the Commission had made it one of the main aspects of its investigation in order to designate the appellant as the actual beneficiary of the aid in question.
51. That clearly shows, first, that the transfer that took place between the former and the new HelB, once brought to the Commission’s attention, became a relevant issue in its investigation, within the meaning of Article 6(1) of Regulation 2015/1589, and that the decision to initiate the formal procedure was therefore based on an incomplete account of the relevant issues.
52. Second, in so far as the decision to initiate the formal investigation procedure was not supplemented by the identification of the appellant as the actual beneficiary of the aid, a discrepancy can be observed between the framework of the investigation carried out by the Commission and the Commission’s obligation to give notice to interested parties pursuant to Article 108(2) TFEU and Article 6(1) of Regulation 2015/1589.
53. In particular, as the appellant had not been identified as the actual beneficiary of the aid in question, it had not at any stage of the procedure before the Commission been given notice to submit its comments pursuant to Article 108(2) TFEU, even though it was an interested party directly concerned by one of the relevant issues of the formal investigation procedure. As the appellant submits, even though it was in a situation comparable to that of the initial beneficiary of the aid, it did not have the slightest opportunity to submit its own comments, relevant information or evidence concerning the actual benefit of the aid in question before the Commission adopted a decision on its recovery.
54. The other parties concerned by the procedure should also have been given notice to submit their comments on the economic continuity between the former and the new HelB. In that regard, it is sufficient to note, for example, that the appellant’s competitors, which were at the origin of the complaint to the Commission, might well have wished to submit comments regarding the recovery of the aid from the new HelB, which, following the transfer of the former HelB’s business, had become their competitor on the market. Since no supplementary decision was published by the Commission to inform of that new fact which had arisen during the formal investigation procedure, they also did not have the opportunity to submit their views on that matter.
55. In the light of the foregoing, I consider that, in so far as the decision to initiate the formal investigation procedure did not initially include all the relevant issues on which the Commission then based its analysis, a supplementary decision should have been published in order to comply with the obligations arising from Article 108(2) TFEU and Article 6(1) of Regulation 2015/1589. (30)
56. That conclusion cannot be called into question by the Commission’s arguments.
57. First, contrary to what the Commission maintains, it should be stated that, in so far as the investigation carried out in the decision at issue identifies the appellant as being the beneficiary responsible for repaying the aid in question, the General Court could not find, without committing an error, that the analysis which it had carried out in the opening decision with regard to the beneficiary of the measures at issue had not been altered. In that regard, it must be borne in mind that the company which was the initial beneficiary of the aid had essentially disappeared and had only residual assets, and that therefore the appellant, as the actual beneficiary of the aid according to the Commission, became the only undertaking from which recovery of the aid could be sought.
58. Second, the approach which I propose that the Court of Justice adopt is not capable of altering, contrary to the Commission’s claims, the bilateral nature of the formal investigation procedure between the Commission and the Member State concerned, as set out in the Court’s settled case-law. On the contrary, it is intended to enforce the obligations that the wording of Article 108(2) TFEU and of Article 6(1) of Regulation 2015/1589 explicitly imposes on the Commission in relation to the rights granted by those provisions to interested parties.
59. Third, the fact that the Commission has the power to adopt related and supplementary decisions concerning the actual beneficiary of aid, as it argues, is not capable of calling into question the previous assessment. It must be noted that that was not the case here, where the Commission decided to make a decision on the actual beneficiary of the aid directly in the decision at issue following the formal investigation procedure. Furthermore, it should be noted that, when related and supplementary decisions are adopted, the actual beneficiary of the aid may submit comments regarding economic continuity with another undertaking, which was certainly not possible in the present case.
60. It follows that the General Court erred in law in holding, in paragraph 41 of the judgment under appeal, that the Commission was not required to publish a supplementary opening decision following the transfer of business between the former HelB and the appellant.
61. In those circumstances, the first part of the first ground of appeal should, in my view, be upheld, and the Court of Justice should therefore set aside the judgment under appeal, without it being necessary to rule on the other two parts of the present ground of appeal or on the second ground of appeal relied on by the appellant.
62. In addition, I would like to point out that, pursuant to the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice may itself, where the state of the proceedings so permits, give final judgment in the matter.
63. In the present case, since the appellant’s action for annulment before the General Court is based on pleas in law that have been the subject of an exchange of arguments before the General Court and the examination of those pleas does not, in my view, require the adoption of any additional measures of organisation of procedure or of inquiry, I consider that the Court of Justice is in a position to give a final ruling on the present dispute.
64. It must be noted that the appellant’s first plea in law for annulment before the General Court was based on a substantial procedural error in so far as the decision at issue was adopted in violation of the appellant’s procedural rights.
65. In that regard, it follows from the case-law of the Court of Justice that the obligation to give notice to the interested parties to submit their comments when initiating the formal investigation procedure is in the nature of an essential procedural requirement and that the omission from the decision to initiate the formal investigation procedure of a relevant issue within the meaning of Article 6(1) of Regulation 2015/1589 must be regarded as a breach of such a procedural requirement, which entails the annulment of that decision by force of law. (31)
66. Such a consequence must naturally be recognised, in the same terms, where the Commission has erred by failing to publish a supplementary opening decision following the occurrence of a new fact constituting a relevant issue within the meaning of Article 6(1) of Regulation 2015/1589.
67. In the present case, in so far as the Commission’s failure to publish a supplementary opening decision constituted a breach of an essential procedural requirement, the first plea in law for annulment put forward by the appellant before the General Court should be upheld and, in accordance with the form of order sought by the appellant in its action, the decision at issue should be annulled.
68. Having regard to all the foregoing considerations, it is only in the alternative, and in so far as the Court of Justice does not agree with my earlier proposals, that I shall briefly examine the second and third parts of the present ground of appeal.
2. The second part, relating to the General Court’s classification of the failure to have regard to Article 108(2) TFEU as a procedural irregularity
69. By the second part of its first ground of appeal, the appellant submits that the General Court erred in holding that the violation of the appellant’s right to be involved in the administrative procedure did not constitute a breach of an essential procedural requirement, but merely a procedural irregularity, which could entail the annulment of the decision at issue only if it were shown that, in the absence of such irregularity, that decision might have been substantively different.
70. The Commission disputes those arguments. Although it agrees with the General Court’s conclusion that there was no breach of an essential procedural requirement, it submits that the Court of Justice should substitute the grounds of the judgment under appeal, since it considers that it did not commit any irregularity by failing to involve the appellant further in the formal investigation procedure.
71. As a preliminary point, it must be noted that the present part of the first ground of appeal is based on the premiss that, contrary to the conclusion reached in my analysis above, the Commission was not required to publish a supplementary opening decision following the transfer of the business of the former HelB to the appellant. Such a finding does not rule out the possibility that the Commission was nevertheless required to involve the appellant in the procedure, on the basis of Article 108(2) TFEU.
72. In that regard, the General Court found, in paragraph 48 of the judgment under appeal, that as the Commission intended to examine the question of economic continuity between the former HelB’s business and that of the new HelB, the particular circumstances of the case at hand justified the Commission involving the appellant further, in its capacity as the actual beneficiary of the measures at issue, in the procedure. By failing to put the appellant in a position to submit its comments on the question of economic continuity, the Commission – in the General Court’s view – violated the right guaranteed by Article 108(2) TFEU.
73. As regards, in the first place, the Commission’s request for substitution of grounds, I agree with the General Court that the appellant should have had greater involvement in the formal investigation procedure, and that the absence of such involvement gave rise to a breach of its procedural rights.
74. As stated in point 47 of the present Opinion, the Court of Justice has ruled that there are circumstances in which the establishment of facts that are new or different from those referred to in the opening decision may require greater involvement of the interested parties. (32)
75. In the present case, the General Court correctly considered, in the light of the abovementioned case-law, that the transfer of the business of the former HelB to the new HelB constituted a circumstance justifying the appellant’s involvement in the formal investigation procedure, having regard, in particular, to the fact that the Commission examined the question of economic continuity between the former HelB’s business and that of the new HelB during that procedure, and that it based the grounds and operative part of the decision at issue on the conclusions drawn from such an examination.
76. Since the Commission at no point involved the appellant, in its capacity as the actual beneficiary of the measures at issue, in the procedure, even though it decided, at the end of that procedure, to extend the obligation to repay the aid in question to the appellant, it failed to comply with the procedural obligations incumbent on it vis-à-vis the appellant.
77. Accordingly, I consider that the General Court’s finding that the Commission violated the appellant’s right guaranteed by Article 108(2) TFEU is correct.
78. The substitution of grounds requested by the Commission should, in my view, be rejected.
79. With regard, in the second place, to the legal consequences arising from the Commission’s failure to comply with its procedural obligations vis-à-vis the appellant, the General Court, in paragraphs 49 to 51 of the judgment under appeal, classified that failure as a ‘procedural irregularity’.
80. In essence, the General Court held that the violation consisting in the failure to involve the appellant in the formal investigation procedure concerned not the obligations on the Commission at the date on which that procedure was initiated, which would have led it to find that there had been an infringement of an essential procedural requirement, but the obligations on it due to a particular circumstance arising from an event occurring after the interested parties had been invited to submit their comments and before the decision at issue was adopted. The General Court relied in that regard on the judgment in Commission v Freistaat Bayern and Others. (33)
81. In those circumstances, the General Court concluded that the decision at issue could only be annulled in whole or in part if it had been shown that in the absence of such irregularity that decision might have been substantively different.
82. In my view, however, the distinction drawn by the General Court for the purpose of finding a failure to respect an essential procedural requirement or, alternatively, a procedural irregularity, is based on artificial premisses, inasmuch as the infringement of the procedural rights of the interested parties cannot be penalised differently depending on when that infringement occurred. Otherwise, as the appellant submits, interested parties having acquired that status before the initiation of the formal investigation procedure would be placed at an advantage over those having acquired it subsequently – following, as in the present case, an event which occurred after that initiation –which would therefore be subject to a more stringent obligation to provide evidence in order to obtain the annulment of the act concerned.
83. On the other hand, as indicated in point 48 of the present Opinion, the only decisive circumstance, in order to find that there has been a breach of an essential procedural requirement, is that the Commission did not offer the interested parties the opportunity to submit their views, at least initially, on a ‘relevant issue’ within the meaning of Article 6(1) of Regulation 2015/1589, subsequently used in the context of the final decision. That is the case irrespective of whether or not that issue predates the opening of the formal investigation procedure.
84. That is all the more so where, as in the present case, the interested party whose comments have not been obtained by the Commission is precisely the party that is required to repay in full the aid found to be unlawful and incompatible in the decision at issue.
85. Following a question put by the Court of Justice to the Commission to be answered at the hearing, the Commission confirmed that the language of the decision at issue prevented it from reconsidering the appellant’s status as actual beneficiary and from adjusting the amount of aid which, according to the operative part of the decision at issue, it was required to repay to the Republic of Finland. The appellant, for its part, confirmed that both the authorities responsible for implementing the decision at issue at State level and the highest national courts acted in accordance with that interpretation of that decision.
86. It follows that the appellant did not have the opportunity to submit comments either before the Commission, since the Commission did not give it the opportunity to do so, or before the national authorities, in the latter case because the grounds and operative part of the decision at issue precluded any discretion on the part of those authorities in terms of assessing the actual advantage received by the appellant as a result of the transfer of business by the former HelB.
87. Consequently, although I can understand the considerations of a pragmatic nature underpinning the case-law relating to the requirement to show that the decision at issue could have had a different result following the finding of a procedural irregularity – namely the need not to unnecessarily obstruct the administrative procedures implemented by the Commission – I do not believe that the appellant’s position in the present case is supported by such an approach, the compatibility of which with Article 41 of the Charter of Fundamental Rights of the European Union seems to me to be highly debatable.
88. In the light of the foregoing, I therefore invite the Court of Justice to hold that the failure to respect the appellant’s right to be involved in the procedure amounts to a breach of an essential procedural requirement, entailing in itself the annulment of the decision at issue, without the appellant having to provide any further evidence.
89. Moreover, I should like to point out, in line with the view expressed in point 58 above, that the approach which I propose that the Court of Justice adopt is not capable of altering the bilateral nature of the formal investigation procedure between the Commission and the Member State concerned. On the contrary, it seeks to provide adequate legal protection for the procedural rights guaranteed under Article 108(2) TFEU for the appellant as an interested party that has not been given the slightest opportunity to comment on one of the decisive elements of the decision at issue which directly concerns it.
90. Furthermore, this approach does not contradict the judgment in Commission v Freistaat Bayern and Others, cited by the General Court in support of its reasoning. In that judgment, the Court of Justice held that the omission of a relevant issue from the decision to initiate the formal investigation procedure was to be regarded as constituting a breach of an essential procedural requirement. However, the Court of Justice did not rule out the possibility that such a legal characterisation might also apply to the Commission’s infringement of the right guaranteed by Article 108(2) TFEU, not at the outset but during the formal investigation procedure.
91. Lastly, the proposed approach does not contradict the judgments of the Court of Justice in Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo (34) and in Autostrada Wielkopolska v Commission and Poland, (35) also cited in the judgment under appeal. The cases which gave rise to those two judgments concerned a change in the legal framework during the formal investigation procedure concerning the aid measure. The Court of Justice held, in essence, in the light of its earlier case-law, (36) that, where there is a change in the legal regime after the Commission has given interested parties the opportunity to submit their comments and before it has adopted a final decision on proposed aid, the failure to request further comments from those parties is not, as such, capable of leading to the annulment of that decision. In the present case, in contrast to the facts in those judgments, it must be noted once again that the appellant was not given the slightest opportunity to submit comments to the Commission.
92. In those circumstances, the second part of the first ground of appeal should, in my view, be upheld.
93. Moreover, since upholding that part would have the same legal consequences for the decision at issue as upholding the first part, as I have proposed, the considerations set out in points 62 to 67 of the present Opinion also apply.
3. The third part, alleging an error of law inasmuch as the General Court held that the administrative irregularity committed by the Commission could not have led to a different decision
94. By the third part of the first ground of appeal, the appellant challenges the General Court’s finding that the decision at issue could not have been different in content if the appellant had been able to submit its comments on the question of economic continuity during the administrative procedure. In essence, the appellant maintains that it could have submitted additional comments on whether the aid at issue had actually been transferred to it and, in particular, information relating to the transfer of the business, the conditions of the market concerned, the conformity of the purchase price with the market and economic continuity.
95. The Commission disputes those arguments. According to it, the appellant is in fact challenging the factual assessment made by the General Court in the context of the first plea in law examined in the judgment under appeal. Such a challenge is not admissible as part of an appeal, unless a distortion of the facts is alleged, which, according to the Commission, is not the case here.
96. As a preliminary point, it should be noted that the examination of the present part of the ground of appeal presupposes that the Court of Justice considers that the Commission’s failure to involve the appellant in the formal investigation procedure constitutes, as the General Court found in the judgment under appeal, a procedural irregularity and not a breach of an essential procedural requirement.
97. In that regard, it must be noted that, in line with settled case-law, an appellant who alleges an infringement of his or her procedural rights cannot be required to show that the decision of the EU institution concerned would have been different in content but simply that such a possibility cannot be totally ruled out. (37) In any event, that question must be assessed in the light of the factual and legal circumstances of the case. (38)
98. Moreover, it is settled case-law that economic continuity between undertakings that are parties to a transfer of assets is assessed in the light of several factors relating to the subject matter of the transfer (assets and liabilities, maintenance of the workforce, bundled assets), the transfer price, the identity of the shareholders or owners of the acquiring undertaking and the original undertaking, the moment when the transfer takes place (after the commencement of the investigation, opening of the procedure or the final decision) and also the economic logic of the operation. (39)
99. In the present case, the General Court examined, in paragraphs 52 to 63 of the judgment under appeal, the arguments put forward by the appellant in order to demonstrate that, if it had had the opportunity to make its views known during the administrative procedure conducted by the Commission, prior to the adoption of the decision at issue, the assessment contained in that decision with regard to the economic continuity between the former and the new HelB could have been different. However, the General Court concluded that, contrary to the appellant’s contention, it had not succeeded in demonstrating that.
100. In the context of the present appeal, it is sufficient to note, as did the Commission, that the arguments put forward by the appellant do not differ from those already put forward before the General Court. The appellant merely asserts, as it did previously in the action for annulment, that it would have forwarded to the Commission decisive additional information concerning the question of whether the aid at issue had been transferred to it. In so doing, however, it fails to explain, in particular, how the General Court’s assessment was incorrect.
101. In those circumstances, I consider that the appellant fails to challenge the conclusion in paragraph 64 of the judgment under appeal that its comments could not have altered the Commission’s decision if it had been given the opportunity to submit them during the formal investigation procedure.
102. The third part of the first ground of appeal should not, in my view, be upheld.
4. Interim conclusion
103. Having regard to all the foregoing considerations, I propose that the first part of the first ground of appeal be upheld or, in the alternative, the second part of that ground of appeal be upheld.
104. In both cases, the Court of Justice would be required, if it decided to uphold one of those parts, to set aside the judgment under appeal and, furthermore, pursuant to Article 61 of the Statute of the Court of Justice of the European Union, to uphold the appellant’s action for annulment before the General Court and to annul the decision at issue.
105. On the other hand, if the Court of Justice were to disagree with the foregoing proposals and were to reject the first and second parts of the first ground of appeal, it would also be necessary to reject the third part, as well as that ground of appeal in its entirety.
B. Second ground of appeal, alleging a failure to observe the principle of proportionality
106. By the second ground of appeal, the appellant criticises the General Court for rejecting the fourth plea of law in its action, relating to a failure to observe the principle of proportionality. In essence, the appellant argued before the General Court that the decision at issue failed to observe the principle of proportionality, inasmuch as it obliged the Finnish authorities to recover aid that went beyond the actual advantage which the appellant had received as a result of the transfer of the business of the former HelB.
107. The Commission disputes those arguments. It submits that there is a difference between establishing economic continuity and determining the proportion in which recovery should be effected from the various beneficiaries. In order to establish economic continuity, it is therefore not necessary, according to the Commission, for it to determine the exact proportion in which the beneficiaries of the unlawful State aid must repay the aid. The Commission submits that, as the General Court pointed out in paragraph 159 of the judgment under appeal, it was not required to determine the extent to which the aid ordered to be recovered by the decision at issue was to be recovered from the appellant, and that it is for the Republic of Finland to take the appropriate measures to achieve effective recovery of the sums due.
108. In accordance with settled case-law, abolishing unlawful aid by means of recovery is the logical consequence of a finding that it is unlawful, and seeks to restore the previously existing situation. That objective is attained once the aid in question, together, where appropriate, with default interest, has been repaid by the recipient, or, in other words, by the undertakings which actually enjoyed the benefit of it. The recovery of that aid cannot, as such, be regarded as disproportionate to the objectives of the provisions of the FEU Treaty on State aid. (40)
109. It is also settled case-law, as already indicated, that the obligation to recover the aid paid to a company may be extended to a new company to which the company receiving the aid has transferred part of its assets, where that transfer makes it possible to establish economic continuity between the two companies.
110. In my view, it should be recalled, first of all, that the Commission confirmed at the hearing, (41) following a question put by the Court of Justice, that the language of the decision at issue prevented it from reconsidering the appellant’s status as actual beneficiary and from adjusting the amount of aid which, according to the operative part of the decision at issue, it had to repay to the Republic of Finland. The appellant, for its part, confirmed that both the authorities responsible for implementing the decision at issue at State level and the highest national courts had considered that they had no discretion to assess the actual advantage received by the appellant following the transfer of the business by the former HelB.
111. In those circumstances, it must be stated the General Court was wrong to hold, in paragraph 159 of the judgment under appeal, that the Commission was not required to determine the extent to which the aid resulting from the measures at issue should be recovered from the appellant. The Republic of Finland, to which the decision at issue was addressed, did not in fact have the possibility of adjusting the amount to be recovered from the appellant.
112. That said, it must be noted that, by its argument, the appellant calls into question the assessment of the General Court resulting from its examination of economic continuity and, in particular, the findings made by that court in relation to the argument that the sale price did not correctly reflect the market price at the time of the transfer of the business of the former HelB.
113. However, in so far as the appellant has not challenged the General Court’s assessment of the second plea in law put forward at first instance, relating to the Commission’s assessment of the existence of economic continuity between the former and the new HelB, it should be noted that the findings of the judgment on that subject, which are moreover covered by the operative part of the judgment, have the force of res judicata. (42) That necessarily includes the determination of the amount of aid which the Commission required the Finnish authorities to recover from the appellant.
114. In those circumstances, and in line with the case-law cited in point 108 above, it must be concluded that the arguments put forward by the appellant are not capable of calling into question the proportionality of the amount of the recovery.
115. In the light of the foregoing, I take the view that the General Court did not err in law in concluding that the Commission had not failed to observe the principle of proportionality.
116. The second ground of appeal should therefore be rejected, and, provided that the Court also rejects the first ground of appeal, the appeal should be dismissed in its entirety.
VII. Costs
117. Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings.
118. According to Article 138(1) of the Rules of Procedure, which also applies to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
119. On the basis of the main proposal in the present Opinion, set out in point 61 above, inviting the Court of Justice to regard the Commission as the unsuccessful party in the present appeal, the Commission should be ordered to pay the costs in accordance with the form of order sought by the appellant.
VIII. Conclusion
120. In view of all the foregoing considerations, I propose that the Court of Justice should:
– sets aside the judgment of the General Court of the European Union of 14 September 2022, Helsingin Bussiliikenne v Commission (T‑603/19, EU:T:2022:555);
– annul Commission Decision (EU) 2020/1814 of 28 June 2019 on State aid SA.33846 – (2015/C) (ex 2014/NN) (ex 2011/CP) implemented by Finland for Helsingin Bussiliikenne Oy;
– declare that the European Commission is to bear its own costs, relating to both the proceedings before the General Court and to the appeal proceedings, and order it to pay the costs incurred by Koiviston Auto Helsinki Oy in those two sets of proceedings.