Case T-88/09

Idromacchine Srl and Others

v

European Commission

(Non-contractual liability – State aid – Commission decision to initiate a formal investigation procedure – Information detrimental to a third-party company – Sufficiently serious breach of a rule of law conferring rights on individuals – Duty to respect business secrecy – Non-material damage – Material damage – Causal link – Default and compensatory interest)

Summary of the Judgment

1.      Non-contractual liability – Conditions – Sufficiently serious breach of a rule of law intended to confer rights on individuals – Disclosure of confidential information in a State aid decision – Infringement of the obligation of business secrecy – Included

(Arts 287 EC and 288, second para., EC)

2.      Non-contractual liability – Conditions – Actual and certain damage – Damage caused by publication in the Official Journal of information causing harm to the image and reputation of an undertaking – Included

(Art. 288, second para., EC)

3.      State aid – Examination by the Commission – Administrative procedure – Obligation on the Commission to put the parties concerned on notice to submit their observations – Right of the recipient of the aid to be heard – Limits

(Art. 88(2) and (3) EC)

4.      State aid – Examination by the Commission – Administrative procedure – Duty of the Commission to respect business secrecy

(Arts 88 EC and 287 EC; Council Regulation No 659/1999, recital 21 and Art. 24)

5.      State aid – Examination by the Commission – Administrative procedure – Duty of the Commission to respect business secrecy – Scope

(Arts 88 EC and 287 EC; Council Regulation No 659/1999, Arts 24 and 25; Commission Notice 2003/C 297/03, paragraph 25 et seq.)

6.      Non-contractual liability – Damage – Compensation – Account taken of inflation – Default interest – Rules for calculation

(Art. 288 EC)

7.      Actions for damages – Jurisdiction of the EU judicature – Reparation imposed on the Community for damage in accordance with general principles common to the laws of the Member States on non-contractual liability – Reparation in kind in the form of an injunction to perform or abstain from an act

(Arts 235 EC and 288, second para., EC)

8.      Non-contractual liability – Damage – Damage for which compensation is available – Costs incurred for the proceedings

(Art 288, second para., EC; Rules of Procedure of the General Court, Arts 90 and 91(2))

1.      In order for the Community to incur non-contractual liability, in accordance with the second paragraph of Article 288 EC, for unlawful conduct on the part of its institutions, a number of conditions must be satisfied: the conduct of the institution in question must be unlawful, actual damage must have been suffered, and there must be a causal link between the conduct and the damage pleaded.

As regards the condition relating to the unlawfulness of the alleged conduct of the institution or body concerned, case-law requires that there must be established a sufficiently serious breach of a rule of law intended to confer rights on individuals. In relation to the requirement that there must be a sufficiently serious breach, the decisive criterion for establishing that a breach of Community law is sufficiently serious is whether the Community institution or body concerned manifestly and gravely disregarded the limits on its discretion. Where that institution or body has only a considerably reduced or even no discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach.

Where, in a State aid decision and without it being necessary for the purposes of that decision, the Commission discloses confidential information affecting the reputation of an undertaking, and thus breaches the obligation of business secrecy under Article 287 EC, given that the purpose of that obligation is to protect the rights conferred on individuals, and given that the Commission does not enjoy a broad discretion in deciding whether it should, in any given case, depart from the rule of confidentiality, it commits a breach of Community law sufficient to establish the existence of a sufficiently serious infringement.

(see paras 23-24, 56)

2.      The non-contractual liability of the Community, pursuant to the second paragraph of Article 288 EC, for unlawful conduct of its organs, is incurred only where the applicant has actually suffered real and certain loss. It is for the applicant to produce to the Court the evidence to establish the fact and the extent of such loss.

The mere publication in the Official Journal of the European Union of information concerning an undertaking, by name, in a Commission decision on State aid, presenting that undertaking unfavourably and in such a way as to cause harm to its image and reputation, is sufficient to establish the real and certain nature of the damage which the undertaking has suffered.

(see paras 25, 60-61)

3.      The procedure for reviewing State aid is, in view of its general scheme, a procedure initiated in respect of the Member State responsible, in light of its Community obligations, for granting the aid. Moreover, in the procedure for reviewing State aid, interested parties other than the Member State concerned cannot themselves seek to engage in an adversarial debate with the Commission in the same way as is offered to the Member State. Finally, in the context of the procedure for reviewing State aid provided for in Article 88 EC, the preliminary stage of the procedure for reviewing aid under Article 88(3) EC, which is intended merely to allow the Commission to form a prima facie opinion on the partial or complete conformity of the aid in question, must be distinguished from the examination under Article 88(2) EC. It is only in connection with the latter, which is designed to enable the Commission to be fully informed of all the facts of the case, that the EC Treaty imposes an obligation on the Commission to give the parties concerned notice to submit their comments. It is thus clear that the Commission is in no way required, during the preliminary stage of the procedure for reviewing State aid, to consult an undertaking which is not a beneficiary of the aid in question, and which, moreover, does not constitute a third party having an interest in the procedure, since it is neither the beneficiary of, nor a competitor of the beneficiary of the aid in question.

(see paras 33-36)

4.      Article 287 EC provides that the members of the institutions of the Community, the members of committees, and the officials and other servants of the Community shall be required, even after their duties have ceased, not to disclose information of the kind covered by business secrecy, in particular information about undertakings, their business relations or their cost components. Regulation No 659/1999, in relation to the application of Article 88 EC, reiterates the Commission’s duty to maintain business secrecy when investigating State aid.

The information covered by business secrecy may be both confidential information and business secrets. As regards, generally, the nature of business secrets or other information covered by the obligation of business secrecy, it is necessary, first of all, that such business secrets or confidential information be known only to a limited number of persons. Next, it must be information whose disclosure is liable to cause serious harm to the person who has provided it or to third parties. Finally, the interests liable to be harmed by disclosure must, objectively, be worthy of protection. The assessment of the confidentiality of an item of information requires, in this connection, that the individual legitimate interests opposing disclosure of the information be weighed against the public interest in ensuring that the activities of the Community institutions take place as openly as possible.

With regard to the disclosure of information in a Commission decision on State aid, information that an undertaking, which has not benefited from the aid in question, has been unable to deliver to its co-contractor goods conforming to current standards and within the contractual terms, that information having been conveyed by the Member State concerned to the Commission for the sole purposes of the administrative procedure for investigating the aid in question and moreover concerning business relations between the two companies, must be regarded as being confidential in nature. Moreover, such information is likely to cause serious harm to the undertaking concerned where it refers to it by name in an unfavourable light. Furthermore, where disclosure of the information is likely to cause harm to an undertaking’s image and reputation, that undertaking’s interest in the information being withheld is objectively worthy of protection. Finally, such disclosure is disproportionate in light of the purpose of the Commission’s decision, since it is sufficient for the latter to mention the contractual breaches either in very general terms, or, if necessary, in more specific terms, without it being necessary in either case to mention the name of the undertaking, so that the legitimate interests of the latter can be safeguarded.

(see paras 42-43, 45, 47-51)

5.      Whilst Articles 24 and 25 of Regulation No 656/1999, in relation to the application of Article 88 EC, and paragraph 25 et seq. of the Commission’s communication on business secrecy in State aid decisions make it clear that the Commission is to notify its decision to the Member State concerned, which will then normally have 15 days to raise the issue of the confidentiality of information which it considers to be covered by the obligation of business secrecy, they do not absolve the Commission of its duty, under Article 287 EC, not to disclose professional secrets; nor do they prevent the Commission from deciding, of its own initiative, not to disclose information which it regards as being covered by the obligation of business secrecy, even where it receives no request to that end from the Member State concerned.

(see para. 55)

6.      Where the conditions for engaging the Community’s non-contractual liability have been met, the adverse consequences of a lapse of time between the occurrence of the actionable event and the date of payment of compensation cannot be disregarded, inasmuch as the effects of inflation must be taken into account. Those inflationary effects are reflected in the annual inflation rate for the period in question, as established by Eurostat, in the Member State where the companies are established. The amount of compensation payable may be accompanied by default interest from the date of delivery of the judgment declaring a party liable to make good the damage claimed. The interest rate to be applied is calculated on the basis of the rate set by the European Central Bank for main refinancing operations, applicable during the period in question, increased by two percentage points.

(see paras 77, 79)

7.      It follows from the second paragraph of Article 288 EC and Article 235 EC, which do not preclude the grant of compensation in kind, that the Courts of the European Union have the power to impose on the Community any form of reparation that accords with the general principles of non-contractual liability common to the laws of the Member States, including, if it accords with those principles, compensation in kind, if necessary in the form of an injunction to perform or abstain from an act.

(see para. 81)

8.      Under Article 91(2) of the Rules of Procedure of the General Court, expenses necessarily incurred by the parties for the purpose of the proceedings are recoverable costs.

In that regard, the costs of an expert report commissioned by the applicant, in an action seeking to establish the non-contractual liability of the Commission, in order to establish the quantum of damage allegedly suffered, constitute costs incurred for the purpose of judicial proceedings which cannot be regarded as constituting damage distinct from the burden of costs. Thus, the applicant is not entitled, under the second paragraph of Article 288 EC, to compensation for the cost of the expert report which they commissioned for the purposes of the proceedings.

Moreover, as regards the legal expenses and travel costs which an applicant incurs before judicial proceedings commence, even though, as a rule, substantial legal work is carried out during that phase, to regard such costs as a loss for which compensation may be awarded in an action for damages would be inconsistent with the fact that costs incurred during the phase before the judicial proceedings are not recoverable. Article 91 of the Rules of Procedure refers only to proceedings before the General Court, to the exclusion of any prior stage. That follows in particular from Article 90 of the Rules of Procedure, which refers to ‘proceedings before the General Court’.

(see paras 97-100)