Case C‑579/16 P

European Commission

v

FIH Holding A/S and FIH Erhvervsbank A/S

(Appeal — State aid — Definition of ‘aid’ — Definition of ‘economic advantage’ — Market economy operator principle — Conditions governing applicability and application — Financial crisis — Successive bank bail outs — Whether account to be taken, in the assessment of the second bail out, of the risks arising from commitments entered into by a Member State in the first bail out)

Summary — Judgment of the Court (Grand Chamber), 6 March 2018

1. State aid—Definition—Criteria for assessment—Cumulative conditions

   (Art. 107(1) TFEU)

2. State aid—Definition—Assessment according to the criterion of the private investor—Assessment of all factors relevant to the transaction at issue and its context—Obligation on the Member State to provide all of the relevant elements for the examination of the criterion of the private investor

   (Art. 107(1) TFEU)

3. State aid—Definition—Assessment according to the criterion of the private investor—Information needed for an assessment—Risks resulting from State aid previously granted and linked to the State’s actions as a public authority

   (Art. 107(1) TFEU)

1.  The classification of a measure as ‘State aid’ for the purposes of Article 107(1) TFEU requires all of the conditions set out in that provision to be fulfilled. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition.

   As regards the third condition concerning selective advantage, interventions that, whatever their form, are likely directly or indirectly to favour certain undertakings, or fall to be regarded as an economic advantage that the recipient undertaking would not have obtained under normal market conditions, are regarded as State aid.

   (see paras 43, 44)

2.  Having regard to the objective of Article 107(1) TFEU of ensuring undistorted competition, including between public and private undertakings, the definition of ‘aid’, within the meaning of that provision, cannot cover a measure granted to an undertaking through State resources where it could have obtained the same advantage in circumstances which correspond to normal market conditions. The assessment of the conditions under which such an advantage was granted is therefore made, in principle, by applying the private operator principle.

   That principle is one of the factors that the Commission is required to take into account for the purposes of establishing the existence of aid and is not, therefore, an exception that applies only if a Member State so requests, when it has been found that the constituent elements of ‘State aid’, as laid down in Article 107(1) TFEU, exist.

   Consequently, when it appears that the private operator principle might be applicable, it is for the Commission to ask the Member State concerned to provide it with all the relevant information enabling it to determine whether the conditions for applying that test are satisfied.

   (see paras 45-47)

3.  In order to assess whether the same measure would have been adopted in normal market conditions by a private operator in a situation as close as possible to that of the State, only the benefits and obligations linked to the situation of the State as a private operator, to the exclusion of those linked to its situation as a public authority, are to be taken into account.

   Thus, in the assessment of the economic rationality of a State measure, required by the private operator principle, the Court has found it necessary to disregard the costs incurred by the State as a result of redundancies, unemployment benefits and aid for the restructuring of the industrial infrastructure and also from guarantees granted and loans held by the State, in so far as they constitute State aid.

   In particular, as regards the latter situation, since, by granting aid, a Member State pursues, by definition, objectives other than that of making a profit from the resources made available to undertakings, it must be held that those resources are, in principle, granted by the State exercising its prerogatives as a public authority.

   It follows that the risks to which the State is exposed and which are the result of State aid that it has previously granted are linked to its actions as a public authority and are not among the factors that a private operator would, in normal market conditions, have taken into account in its economic calculations.

   (see paras 55-58)