Case C‑667/13

Estado português

v

Banco Privado Português SA

and

Massa Insolvente do Banco Privado Português SA

(Request for a preliminary ruling from the Tribunal do Comércio de Lisboa)

‛Reference for a preliminary ruling — State aid — State guarantee underwriting a loan — Decision 2011/346/EU — Questions concerning validity — Admissibility — Article 107(1) TFEU — Statement of reasons — Effect on trade between Member States — Article 107(3)(b) TFEU — Serious disturbance in the economy of a Member State’

Summary — Judgment of the Court (Second Chamber), 5 March 2015

1. State aid — Commission decision finding aid incompatible with the internal market and ordering its recovery — Decision not challenged under the sixth paragraph of Article 263 TFEU by the beneficiary of the aid, who was informed in due time — Challenge to the validity of the decision before the national court — Challenge which must be rejected based on the risk that the definitive nature of an EU measure might be circumvented

   (Arts 108(2) TFEU and 263, sixth para., TFEU)

2. Questions referred for a preliminary ruling — Assessment of validity — No application having been made for suspension of operation of that measure pursuant to Article 278 TFEU — No effect on admissibility

   (Arts 267 TFEU and 278 TFEU)

3. Questions referred for a preliminary ruling — Admissibility — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer

   (Art. 267 TFEU)

4. State aid — Commission decision finding aid incompatible with the internal market — Obligation to state reasons — Scope — No infringement

   (Art. 107(3)(b) TFEU)

5. State aid — Effect on trade between Member States — Adverse effect on competition — Criteria for assessment

   (Art. 107(1) TFEU)

6. State aid — Commission decision finding, in a provisional manner, the incompatibility of an aid measure with the internal market — Finding of unlawfulness of the aid prior to the finding of its incompatibility with the internal market — Lawfulness — Conditions

   (Art. 108(3) TFEU)

7. State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Discretion of the Commission — Complex evaluation of economic matters — Judicial review — Limits

   (Art. 107(3) TFEU)

8. State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid to remedy serious disturbance in the economy of a Member State — Grant of a State guarantee — Conditions

   (Art. 107(3)(b) TFEU; Commission Notice 2008/C 270/02)

1.  See the text of the decision.

   (see paras 28-30)

2.  The admissibility of a question referred for a preliminary ruling concerning the validity of an EU measure cannot be conditional upon an application having been made for suspension of operation of that measure pursuant to Article 278 TFEU. The inadmissibility of such a question is not dependent on the enforceability of the EU measure the validity of which is called into question, but is based rather on the risk that the definitive nature of that measure might be circumvented.

   (see para. 31)

3.  See the text of the decision.

   (see paras 34-36, 41, 42)

4.  See the text of the decision.

   (see paras 44-48, 62-64)

5.  In the context of State aid, where a guarantee confers an advantage on a bank which was able to obtain a loan under better financial conditions than those normally available in the market for companies in similar circumstances, if indeed such loans would have been available at all, the advantage in question is liable to affect trade between Member States in view of that bank’s activities and its position in national and international financial markets. Without the injection of capital made possible by the guarantee, the bank’s customers would have probably opted for a competing bank once the bank began to show signs of financial difficulties.

   In that respect, it is only when the banking licence of the bank that received the aid is revoked that the risk of trade between Member States being affected is eliminated. Until its banking licence is revoked, that bank is capable of resuming its normal commercial activity.

   (see paras 46, 49, 51, 52, 54)

6.  An aid measure put into effect in breach of the obligations arising from Article 108(3) EC is unlawful. In addition, the Commission’s decision on the compatibility of an aid measure does not affect the unlawfulness of that measure resulting from the infringement of the obligation laid down in the first sentence of Article 108(3) TFEU.

   In those circumstances, the fact that a decision mentions different dates from which the State aid must be regarded as unlawful, on the one hand, and incompatible with the internal market, on the other, does not disclose any contradiction in the statement of reasons underlying that decision. Accordingly, an aid measure may be regarded as unlawful as from a date subsequent to that from which it has been found incompatible with the internal market. That is the case, in particular, where the declaration of the compatibility of a State aid measure with the internal market is of a provisional nature and the aid is declared definitively incompatible with the internal market on the ground that the conditions to which its approval were subject have not been complied with.

   (see paras 56, 57, 59-61, 63)

7.  See the text of the decision.

   (see paras 66, 67)

8.  In the context of State aid, as regards the assessment, in the light of Article 107(3)(b) TFEU, of State guarantees granted to financial institutions in the context of the global financial crisis, the Commission imposed a limit on the exercise of its discretion by adopting the Communication on the application of State aid rules to support measures in favour of banks in the context of the financial crisis. It is clear from that Communication that the grant of a State guarantee must be regarded as an emergency measure and must, accordingly, necessarily be temporary. Such a guarantee must also be accompanied by restructuring or liquidation measures in relation to the beneficiary.

   Accordingly, the temporal limitation of aid granted in the form of a State guarantee and the obligation to notify any subsequent extension of that guarantee, as well as the obligation resting on the beneficiary of that guarantee to submit a restructuring plan are not mere formal requirements, but rather necessary conditions for that aid to be declared compatible with the internal market and means of ensuring that the emergency aid granted to an undertaking in difficulty does not go beyond what is necessary to achieve the common-interest objective concerned, which consists in preventing a serious disturbance in the national economy.

   (see paras 69, 70, 74)

Case C‑667/13

Estado português

v

Banco Privado Português SA

and

Massa Insolvente do Banco Privado Português SA

(Request for a preliminary ruling from the Tribunal do Comércio de Lisboa)

‛Reference for a preliminary ruling — State aid — State guarantee underwriting a loan — Decision 2011/346/EU — Questions concerning validity — Admissibility — Article 107(1) TFEU — Statement of reasons — Effect on trade between Member States — Article 107(3)(b) TFEU — Serious disturbance in the economy of a Member State’

Summary — Judgment of the Court (Second Chamber), 5 March 2015

1. State aid — Commission decision finding aid incompatible with the internal market and ordering its recovery — Decision not challenged under the sixth paragraph of Article 263 TFEU by the beneficiary of the aid, who was informed in due time — Challenge to the validity of the decision before the national court — Challenge which must be rejected based on the risk that the definitive nature of an EU measure might be circumvented

   (Arts 108(2) TFEU and 263, sixth para., TFEU)

2. Questions referred for a preliminary ruling — Assessment of validity — No application having been made for suspension of operation of that measure pursuant to Article 278 TFEU — No effect on admissibility

   (Arts 267 TFEU and 278 TFEU)

3. Questions referred for a preliminary ruling — Admissibility — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer

   (Art. 267 TFEU)

4. State aid — Commission decision finding aid incompatible with the internal market — Obligation to state reasons — Scope — No infringement

   (Art. 107(3)(b) TFEU)

5. State aid — Effect on trade between Member States — Adverse effect on competition — Criteria for assessment

   (Art. 107(1) TFEU)

6. State aid — Commission decision finding, in a provisional manner, the incompatibility of an aid measure with the internal market — Finding of unlawfulness of the aid prior to the finding of its incompatibility with the internal market — Lawfulness — Conditions

   (Art. 108(3) TFEU)

7. State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Discretion of the Commission — Complex evaluation of economic matters — Judicial review — Limits

   (Art. 107(3) TFEU)

8. State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid to remedy serious disturbance in the economy of a Member State — Grant of a State guarantee — Conditions

   (Art. 107(3)(b) TFEU; Commission Notice 2008/C 270/02)

1.  See the text of the decision.

   (see paras 28-30)

2.  The admissibility of a question referred for a preliminary ruling concerning the validity of an EU measure cannot be conditional upon an application having been made for suspension of operation of that measure pursuant to Article 278 TFEU. The inadmissibility of such a question is not dependent on the enforceability of the EU measure the validity of which is called into question, but is based rather on the risk that the definitive nature of that measure might be circumvented.

   (see para. 31)

3.  See the text of the decision.

   (see paras 34-36, 41, 42)

4.  See the text of the decision.

   (see paras 44-48, 62-64)

5.  In the context of State aid, where a guarantee confers an advantage on a bank which was able to obtain a loan under better financial conditions than those normally available in the market for companies in similar circumstances, if indeed such loans would have been available at all, the advantage in question is liable to affect trade between Member States in view of that bank’s activities and its position in national and international financial markets. Without the injection of capital made possible by the guarantee, the bank’s customers would have probably opted for a competing bank once the bank began to show signs of financial difficulties.

   In that respect, it is only when the banking licence of the bank that received the aid is revoked that the risk of trade between Member States being affected is eliminated. Until its banking licence is revoked, that bank is capable of resuming its normal commercial activity.

   (see paras 46, 49, 51, 52, 54)

6.  An aid measure put into effect in breach of the obligations arising from Article 108(3) EC is unlawful. In addition, the Commission’s decision on the compatibility of an aid measure does not affect the unlawfulness of that measure resulting from the infringement of the obligation laid down in the first sentence of Article 108(3) TFEU.

   In those circumstances, the fact that a decision mentions different dates from which the State aid must be regarded as unlawful, on the one hand, and incompatible with the internal market, on the other, does not disclose any contradiction in the statement of reasons underlying that decision. Accordingly, an aid measure may be regarded as unlawful as from a date subsequent to that from which it has been found incompatible with the internal market. That is the case, in particular, where the declaration of the compatibility of a State aid measure with the internal market is of a provisional nature and the aid is declared definitively incompatible with the internal market on the ground that the conditions to which its approval were subject have not been complied with.

   (see paras 56, 57, 59-61, 63)

7.  See the text of the decision.

   (see paras 66, 67)

8.  In the context of State aid, as regards the assessment, in the light of Article 107(3)(b) TFEU, of State guarantees granted to financial institutions in the context of the global financial crisis, the Commission imposed a limit on the exercise of its discretion by adopting the Communication on the application of State aid rules to support measures in favour of banks in the context of the financial crisis. It is clear from that Communication that the grant of a State guarantee must be regarded as an emergency measure and must, accordingly, necessarily be temporary. Such a guarantee must also be accompanied by restructuring or liquidation measures in relation to the beneficiary.

   Accordingly, the temporal limitation of aid granted in the form of a State guarantee and the obligation to notify any subsequent extension of that guarantee, as well as the obligation resting on the beneficiary of that guarantee to submit a restructuring plan are not mere formal requirements, but rather necessary conditions for that aid to be declared compatible with the internal market and means of ensuring that the emergency aid granted to an undertaking in difficulty does not go beyond what is necessary to achieve the common-interest objective concerned, which consists in preventing a serious disturbance in the national economy.

   (see paras 69, 70, 74)