Case C‑300/16 P

European Commission

v

Frucona Košice a.s.

(Appeal — State aid — Concept of ‘aid’ — Concept of ‘economic advantage’ — Private creditor test — Conditions of applicability — Application — Investigation obligations on the European Commission)

Summary — Judgment of the Court (First Chamber), 20 September 2017

1.        State aid — Concept — Grant of an advantage to the beneficiaries — Criteria for assessment — Recovery of public debts — Private creditor test — Conditions of applicability — Obligations on the Commission when applying that test — Scope

(Art. 107 TFEU)

2.        Appeal — Grounds — Plea directed against a superfluous ground — Invalid plea in law — Rejection

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

3.        State aid — Examination by the Commission — Private creditor test — Complex evaluation of economic matters — Judicial review — Limits

(Art. 107(1) TFEU)

4.        State aid — Commission decision — Assessment of the legality by reference to the information available at the time of adoption of the decision — Information available when applying the private creditor test — Investigation obligations on the Commission

(Art. 108(2) TFEU)

1.      The conditions that a measure must meet in order to be treated as ‘aid’ for the purposes of Article 107 TFEU are not met if the recipient undertaking could, in circumstances which correspond to normal market conditions, have obtained the same advantage as that which has been made available to it through State resources. When a public creditor grants payment facilities in respect of a debt payable to it by an undertaking, that assessment is made by applying, in principle, the private creditor test.

Accordingly, the private creditor test is not an exception which applies only if a Member State so requests, when all the constituent elements of State aid incompatible with the common market, as laid down in Article 107(1) TFEU, exist. Where it is applicable, that test is among the factors which the Commission is required to take into account for the purposes of establishing the existence of such aid. It follows that nothing prevents the recipient of the aid from invoking the applicability of that test and, if the recipient does invoke that test, it falls to the Commission to assess whether the test needs to be applied and, if so, to assess its application. In that respect, it is for the Commission to ask the Member State concerned to provide it with all the relevant information enabling it to determine whether the conditions for applying that test are satisfied.

The starting point for determining whether the private operator test is to be applied must be the economic nature of the Member State’s action. In that context, the private creditor test is intended to determine whether the recipient undertaking could, in circumstances which correspond to normal market conditions, have obtained the same advantage as that which has been made available to it through State resources. It follows from this that the assessment which the Commission is required, where appropriate, to carry out cannot be limited to just the options that the competent public authority actually took into consideration, but must necessarily cover all the options that a private creditor would reasonably have envisaged in such a situation.

(see paras 21-24, 26-29)

2.      See the text of the decision.

(see para. 41)

3.      See the text of the decision.

(see paras 59-64)

4.      The lawfulness of a decision concerning State aid falls to be assessed by the European Union judicature in the light of the information available to the Commission at the time when the decision was adopted.

The information ‘available’ to the Commission when applying the private creditor test includes all relevant evidence that enables it to determine whether the recipient company would manifestly not have obtained comparable facilities from such a private creditor and that could have been obtained, upon request, during the administrative procedure.

In that regard, all information liable to have a significant influence on the decision-making process of a normally prudent and diligent private creditor, in a situation as close as possible to that of the public creditor and seeking to recover sums due to it by a debtor experiencing difficulty in making the payments, must be regarded as being relevant. Moreover, for the purposes of applying the private creditor test, the only relevant evidence is the information which was available, and the developments which were foreseeable, at the time when the decision was taken.

(see paras 59-61, 70, 71)