Action brought on 14 February 2017 — BTB Holding Investments and Duferco Participations Holding v Commission
(Case T-100/17)
Language of the case: French
Parties
Applicants: BTB Holding Investments SA (Luxembourg, Luxembourg), Duferco Participations Holding SA (Luxembourg) (represented by: J.-F. Bellis, R. Luff and M. Favart, lawyers)
Defendant: European Commission
Form of order sought
The applicants claim that the Court should:
declare the present action admissible and well founded;
annul Article 1(a), (b) and (d) and Article 2 of the Commission Decision of 20 January 2016 on State aid SA.33926 2013/C (ex 2013/NN, 2011/CP) implemented by Belgium in favor of Duferco;
order the defendant to pay the costs.
Pleas in law and main arguments
In support of the action, the applicants rely on three pleas in law, in respect of the first measure, namely the transfer by Foreign Strategic Investment Holding (FSIH) of a 49.9% interest in Duferco US to Duferco Industrial Investment.
1. First plea in law, alleging errors of law and of assessment in respect of the market economy investor criterion and of the condition of the existence of an advantage set out in Article 107(1) TFEU and of a breach of the obligation to state reasons. That plea is divided into two parts:
first part, alleging errors of law and infringement of the market economy investor principle and of the burden of proof inasmuch as the Commission conflated the applicability and the application of the market economy investor criterion;
second part, alleging failure to state reasons, lack of care and breach of the duty of sound administration, as well as infringement of the market economy investor principle and Article 107(1) TFEU, in that the Commission failed to carry out an overall assessment of the market economy investor criterion in order to demonstrate the existence of an advantage.
2. Second plea in law, alleging errors of law and of assessment by the Commission, in that it failed to take account of all the relevant factors, did not acknowledge the economic rationality of the transaction and did not take account of the essential arguments relating to the profitability of the transaction in assessing the market economy investor criterion, thus disregarding the market economy investor principle, the obligation to state reasons within the meaning of Article 296 TFEU and the conditions of Article 107(1) TFEU. That plea is divided into three parts:
first part, alleging failure to take account of all the relevant factors;
second part, alleging failure to take account of the economic rationality of the transaction;
third part, alleging failure to state reasons, as well as infringement of the principle of sound administration and of the market economy investor criterion in that the Commission did not take account of the profitability of FSIH’s investment.
3. Third plea in law, alleging manifest errors of law and assessment, breach of the principles of due diligence and sound administration, of the market economy investor criterion, of the conditions relating to the existence of an advantage within the meaning of Article 107(1) TFEU and of the obligation to state reasons, inasmuch as the Commission did not properly evaluate FSIH’s participation in Duferco US in quantifying the amount of the alleged aid. That plea is divided into five parts:
first part, alleging inappropriate reference to Duferco US’s own funds;
second part, alleging that the enterprise value was incorrectly taken into account without the company’s debts being deducted;
third part, alleging the taking into account of the results of the 2006 financial year only;
fourth part, alleging the application of an arbitrary multiple which is too high;
fifth part, alleging arbitrary rejection of almost all of KPMG’s report of 28 May 2014.
Only BTB Holding Investments SA then relies on three pleas in law, relating to the second measure, namely the sale by FSIH of a 25% holding in Duferco Participations Holding Limited to Bolmat Holding Limited.
1. First plea in law, alleging manifest errors of law and assessment and disregard for the principle of the market economy investor, the burden of proof, the condition of the existence of an advantage referred to in Article 107(1) TFEU and the obligation to state reasons referred to in Article 296 TFEU in that the Commission incorrectly applied the criterion of the market economy investor;
2. Second plea in law, alleging errors of law and assessment in that the Commission did not take account of essential information submitted by the parties, thus disregarding the principle of the market economy investor, the conditions of Article 107(1) TFEU, the duty of diligence and the obligation to state reasons within the meaning of Article 296 TFEU;
3. Third plea in law, alleging errors of law and of assessment in quantifying the amount of the alleged aid, in breach of the principles of sound administration and of the market economy investor and of Articles 107(1) and 296 TFEU.
BTB Holding Investments SA then relies on two pleas in law in so far as it concerns the fourth measure, namely the loan to Ultima Partners Limited.
1. First plea in law, alleging manifest errors of assessment of the facts and errors of law in that the Commission rejects the comparative approach in breach of the principle of the market economy investor, of Article 107(1) TFEU, as regards the existence of an advantage, of the obligation to state reasons and of the general principles of the protection of legitimate expectations and sound administration.
2. Second plea in law, alleging manifest errors of assessment of the facts and errors of law in determining the reference rate, leading to the incorrect application of the market economy investor criterion and infringement of the condition of the existence of an advantage within the meaning of Article 107(1) TFEU. That plea is divided into two parts:
first part, alleging that the Commission wrongly awarded a BB rating to Ultima Partners Limited in breach of the general principle of sound administration and of the obligation to state reasons within the meaning of Article 296 TFEU;
second part, alleging manifest errors of assessment in the classification of the security rights granted to FSIH in breach of the general principles of sound administration and of the protection of legitimate expectations, and of the obligation to state reasons within the meaning of Article 296 TFEU.
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