Joined Cases C‑214/12 P, C‑215/12 P and C‑223/12 P

Land Burgenland (C‑214/12 P), Grazer Wechselseitige Versicherung AG (C‑215/12 P)

and

Republic of Austria (C‑223/12 P) v European Commission

‛Appeals — Competition — State aid — Aid declared illegal and incompatible with the common market — Aid granted to the Grazer Wechselseitige group (GRAWE) at the time of the privatisation of Bank Burgenland — Determination of the market price — Tender procedure — Unlawful conditions with no impact on the highest offer — ‘Private vendor’ test — Distinction between a State’s obligations in cases where it acts as a public authority and where it acts as a shareholder — Distortion of evidence — Obligation to state reasons’

Summary — Judgment of the Court (Second Chamber), 24 October 2013

1. State aid — Concept — Assessment according to the criterion of the private investor — Taking into account of the risk for determining the sale price of an undertaking represented by the existence of a statutory guarantee measure benefiting the undertaking to be sold — Not included

   (Art. 87(1) EC)

2. State aid — Concept — Assessment according to the private investor test — State as a shareholder of an undertaking — State acting as a public authority — Distinction in the light of the application of the private investor test

   (Art. 87(1) EC)

3. Appeals — Pleas in law — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted

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

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

   (Art. 87(1) EC)

5. Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid

   (Arts 87(1) EC and 253 EC)

6. State aid — Concept — Assessment according to the private investor test — Sale of an undertaking — Determination of the price — Preference to be given to the result of an open, transparent and unconditional tender procedure as opposed to a study — Unlawful conditions with no impact on the highest offer

   (Art. 87(1) EC)

1.  A statutory guarantee measure, which involves the obligation for State authorities, inter alia regional ones, to intervene in the event of insolvency or liquidation of the credit institution in question and according to which the creditors of the credit institutions can exercise a direct right against the public authority acting as guarantor in a situation where the credit institution is in liquidation or insolvent and the assets of that institution do not suffice to satisfy them, was not entered into on normal market conditions, given its characteristics, and could not be taken into account when assessing the conduct of the national authorities in the light of the criteria of the private investor in the market economy.

   What is decisive, when applying the private investor test, is whether the measures in question are those which such an investor, who counts on making a profit in the shorter or longer term, could have granted.

   (see paras 48-50)

2.  See the text of the decision.

   (see paras 52, 53, 56-60)

3.  See the text of the decision.

   (see paras 73, 76)

4.  See the text of the decision.

   (see paras 77-80)

5.  See the text of the decision.

   (see paras 81, 120)

6.  The market price is the highest price which a private investor acting under normal competitive conditions is ready to pay for a company in the situation it is in. For the purposes of checking the market price, the national authorities may take into consideration, in particular, the form of the transfer of company, for example public tendering, deemed to ensure that a sale takes place under market conditions or any expert’s report prepared at the time of the transfer. Thus, where a public authority proceeds to sell an undertaking belonging to it by way of an open, transparent and unconditional tender procedure, it can be presumed that the market price corresponds to the highest offer, provided that it is established, first, that that offer is binding and credible and, secondly, that the consideration of economic factors other than the price is not justified. In such circumstances, the Commission is not obliged to resort to other methods in order to check the market price, such as independent studies. In addition, the highest bid submitted in a tender procedure which is unlawful on account of the presence of unlawful conditions can nevertheless correspond to the market price where the deficiencies of the conditions of the call for tenders did not affect the amount of that bid by pushing it lower.

   Moreover, the private market-economy vendor will opt, in principle, for the highest offer, where that offer is binding and credible, regardless of the reasons which led the potential buyer to submit that offer. From the perspective of a private vendor, the reasons which lead a certain bidder to submit an offer of a certain amount are not decisive. Where an undertaking is bought at the highest price which a private investor acting under normal competitive conditions was ready to pay for that company in the situation it was in, that company is valued in every respect at the market price and the acquirer cannot be regarded as having benefited from an advantage in relation to other market operators.

   (see paras 92-96, 99, 114, 117)

Joined Cases C‑214/12 P, C‑215/12 P and C‑223/12 P

Land Burgenland (C‑214/12 P), Grazer Wechselseitige Versicherung AG (C‑215/12 P)

and

Republic of Austria (C‑223/12 P) v European Commission

‛Appeals — Competition — State aid — Aid declared illegal and incompatible with the common market — Aid granted to the Grazer Wechselseitige group (GRAWE) at the time of the privatisation of Bank Burgenland — Determination of the market price — Tender procedure — Unlawful conditions with no impact on the highest offer — ‘Private vendor’ test — Distinction between a State’s obligations in cases where it acts as a public authority and where it acts as a shareholder — Distortion of evidence — Obligation to state reasons’

Summary — Judgment of the Court (Second Chamber), 24 October 2013

1. State aid — Concept — Assessment according to the criterion of the private investor — Taking into account of the risk for determining the sale price of an undertaking represented by the existence of a statutory guarantee measure benefiting the undertaking to be sold — Not included

   (Art. 87(1) EC)

2. State aid — Concept — Assessment according to the private investor test — State as a shareholder of an undertaking — State acting as a public authority — Distinction in the light of the application of the private investor test

   (Art. 87(1) EC)

3. Appeals — Pleas in law — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted

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

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

   (Art. 87(1) EC)

5. Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid

   (Arts 87(1) EC and 253 EC)

6. State aid — Concept — Assessment according to the private investor test — Sale of an undertaking — Determination of the price — Preference to be given to the result of an open, transparent and unconditional tender procedure as opposed to a study — Unlawful conditions with no impact on the highest offer

   (Art. 87(1) EC)

1.  A statutory guarantee measure, which involves the obligation for State authorities, inter alia regional ones, to intervene in the event of insolvency or liquidation of the credit institution in question and according to which the creditors of the credit institutions can exercise a direct right against the public authority acting as guarantor in a situation where the credit institution is in liquidation or insolvent and the assets of that institution do not suffice to satisfy them, was not entered into on normal market conditions, given its characteristics, and could not be taken into account when assessing the conduct of the national authorities in the light of the criteria of the private investor in the market economy.

   What is decisive, when applying the private investor test, is whether the measures in question are those which such an investor, who counts on making a profit in the shorter or longer term, could have granted.

   (see paras 48-50)

2.  See the text of the decision.

   (see paras 52, 53, 56-60)

3.  See the text of the decision.

   (see paras 73, 76)

4.  See the text of the decision.

   (see paras 77-80)

5.  See the text of the decision.

   (see paras 81, 120)

6.  The market price is the highest price which a private investor acting under normal competitive conditions is ready to pay for a company in the situation it is in. For the purposes of checking the market price, the national authorities may take into consideration, in particular, the form of the transfer of company, for example public tendering, deemed to ensure that a sale takes place under market conditions or any expert’s report prepared at the time of the transfer. Thus, where a public authority proceeds to sell an undertaking belonging to it by way of an open, transparent and unconditional tender procedure, it can be presumed that the market price corresponds to the highest offer, provided that it is established, first, that that offer is binding and credible and, secondly, that the consideration of economic factors other than the price is not justified. In such circumstances, the Commission is not obliged to resort to other methods in order to check the market price, such as independent studies. In addition, the highest bid submitted in a tender procedure which is unlawful on account of the presence of unlawful conditions can nevertheless correspond to the market price where the deficiencies of the conditions of the call for tenders did not affect the amount of that bid by pushing it lower.

   Moreover, the private market-economy vendor will opt, in principle, for the highest offer, where that offer is binding and credible, regardless of the reasons which led the potential buyer to submit that offer. From the perspective of a private vendor, the reasons which lead a certain bidder to submit an offer of a certain amount are not decisive. Where an undertaking is bought at the highest price which a private investor acting under normal competitive conditions was ready to pay for that company in the situation it was in, that company is valued in every respect at the market price and the acquirer cannot be regarded as having benefited from an advantage in relation to other market operators.

   (see paras 92-96, 99, 114, 117)