Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 29 April 2013 – Commerz Nederland NV; other party: Havenbedrijf Rotterdam NV

(Case C-242/13)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: Commerz Nederland NV

Other party: Havenbedrijf Rotterdam NV

Questions referred

Is the imputability – required for purposes of classification as State aid within the meaning of Articles 107 TFEU and 108 TFEU – to the public authorities of a guarantee provided by a public undertaking necessarily precluded by the fact that that guarantee, as in the present case, was provided by the (sole) director of the public undertaking who, while he had the power to do so under civil law, acted on his own authority, deliberately kept the provision of the guarantee secret and ignored the requirements under the articles of association of the public undertaking by failing to seek the approval of the Raad van Commissarissen (Council of Commissioners), and where, furthermore, it must be assumed that the public body concerned (in this case, the Gemeente (Municipality)) did not want the guarantee to be provided?

If the circumstances described do not necessarily preclude imputability to the public authorities, are those circumstances then irrelevant for the purpose of answering the question as to whether the provision of the guarantee may be imputed to the public authorities, or should the court consider the matter in the light of the other indicators which argue for or against imputability to the public authorities?