Appeal brought on 26 May 2016 by European Commission against the judgment of the General Court (Second Chamber) delivered on 16 March 2016 in Case T-103/14: Frucona Košice a.s. v European Commission

(Case C-300/16 P)

(2016/C 260/43)

Language of the case: English

Parties

Appellant: European Commission (represented by: L. Armati, T. Maxian Rusche, B. Stromsky, K. Walkerová, agents)

Other party to the proceedings: Frucona Košice a.s.

Form of order sought

The appellant claims that the Court should:

In the alternative, the Commission requests that the Court

Pleas in law and main arguments

According to the Commission the contested judgment should be set aside on the following grounds concerning, first, the applicability of the private creditor test, and, second, the application of the private creditor test.

With regard to the applicability of the private creditor test, the Commission raises three grounds of appeal. First, a misinterpretation of the contested decision; second, an error in law in the interpretation of Article 107(1) TFEU concerning the applicability of the private creditor test; and third, a misapplication of res iudicata.

The judgment under appeal takes the view that the private creditor test is applicable, even where the Member State argues in the administrative procedure on the basis of detailed arguments that the public authority has not acted on the basis of considerations that would guide a private market participant, as long as an interested party claims the opposite. The Commission’s understanding of the case-law is that the position of the Member State is of fundamental importance when it comes to the applicability of the private creditor test.

With regard to the application of the private creditor test, the Commission will raise two grounds of appeal. First, a violation of Article 107(1) TFEU concerning the application of the private creditor test. Second, the General Court erred in the interpretation of the obligation to conduct a diligent and impartial investigation into alleged State aid pursuant to Article 107(1) TFEU.

The General Court requires the Commission to reconstruct ex officio the behaviour of the ideal, rational and fully informed hypothetical private creditor. What is more, that requirement exists independently of what the Member State concerned actually did or said. The Commission's understanding of the case law is that it requires the Commission not to itself gather the evidence and information a rational private creditor would have gathered before making its assessment where the public authority in question has not done so. Rather, its task is limited to verify whether, subjectively, the public authority, on the basis of its behaviour and the evidence and information it actually had at its disposal when taking its decision, behaved like a private creditor in a situation as close as possible to that of the public authority in coming to the decision to grant the measure in question.