OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 21 June 2022 (1)

Case C‑284/21 P

European Commission

Anthony Braesch,

Trinity Investments DAC,

Bybrook Capital Master Fund LP,

Bybrook Capital Hazelton Master Fund LP,

Bybrook Capital Badminton Fund LP

(Appeal – State aid – Restructuring aid – Banking sector – Preliminary examination phase – Decision declaring the aid compatible with the internal market – Admissibility – Fourth paragraph of Article 263 TFEU – Locus standi – Article 108(2) TFEU – Concept of ‘party concerned’ – Regulation (EU) 2015/1589 – Article 1(h) – Concept of ‘interested party’)

Introduction

1. By its appeal, the Commission requests that the Court set aside the judgment of the General Court of the European Union of 24 February 2021, Braesch and Others v Commission, (2) which declared admissible an action for annulment of a decision of the European Commission not to raise objections, adopted on the basis of Article 4(3) of Regulation (EU) 2015/1589, (3) whereby the Commission, at the close of the preliminary examination stage and on the basis of the commitments offered by the Italian authorities, had declared that State aid granted by the Italian Republic in favour of Banca Monte dei Paschi di Siena (‘BMPS’) was compatible with the internal market. (4)

2. This case provides the Court with the opportunity to clarify the conditions for the admissibility of an action against a decision not to raise objections to a State aid measure and, specifically, the conditions on which persons who are not competitors of a beneficiary of that measure and do not claim to be affected by it on the market may be categorised as ‘parties concerned’, within the meaning of Article 108(2) TFEU, or ‘interested parties’, within the meaning of Article 1(h) of Regulation 2015/1589, (5) in order to claim standing to bring proceedings against that decision.

Background to the dispute

3. The applicants at first instance are, first, (6) a representative of the holders of ‘Floating Rate Equity-Linked Subordinated Hybrid-FRESH’ 2008 bonds (‘the FRESH bonds’), while the others (7) are holders of such bonds.

4. The bonds were issued in the course of 2008 in the context of the following transaction:

– BMPS carried out a capital increase of EUR 950 million reserved to J.P. Morgan Securities Ltd (‘JPM’), which subscribed to BMPS shares, namely ‘the FRESH shares’, and concluded with BMPS a usufruct agreement, under which JPM retains bare ownership of the shares while BMPS is entitled to usufruct, and a company swap agreement (‘the FRESH contracts’);

– JPM obtained the necessary funds to subscribe to the FRESH shares from the Bank of New-York Mellon (Luxembourg), replaced by Mitsubishi UFJ Investor Services & Banking SA (Luxembourg) (‘MUFJ’), which issued the FRESH bonds, under Luxembourg law, for an amount of EUR 1 billion;

– under a swap agreement between JPM and MUFJ and a fiduciary contract between MUJF and the FRESH bondholders, (8) described by the applicants as ‘the FRESH instruments’, the fees received by JPM from BMPS under the FRESH contracts were passed on to MUFJ and then to the FRESH bondholders in the form of coupons.

5. In the course of 2016, the Italian authorities adopted Decree Law 237/2016, (9) setting out the legal framework for liquidity aid and precautionary recapitalisations (10) and, in 2017, they notified the Commission of aid for the recapitalisation of BMPS of EUR 5.4 billion (‘the aid at issue’), (11) accompanied by a restructuring plan and commitments. (12)

6. The restructuring plan provided, inter alia, for burden-sharing measures, whereby capital, hybrid shares and subordinated debt would contribute to compensating for any losses incurred by BMPS before State aid was granted to it. Those measures entailed the cancellation of the FRESH contracts.

7. In the decision at issue, adopted at the end of the preliminary examination stage, the Commission concluded that the aid at issue was compatible with the internal market pursuant to Article 107(3)(b) TFEU, (13) having regard, in particular to the Communication from the Commission on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (‘[the] Banking Communication’) (14) and to Directive 2014/59/EU. (15)

8. As regards, specifically, the compatibility of the aid at issue with the Banking Communication, the Commission considered, in particular, that the burden sharing by holders of existing shares and subordinate debt was adequate, in that it limited the restructuring costs and amount of aid to a minimum, in line with the requirements of the Banking Communication. (16)

The procedure before the General Court and the judgment under appeal

9. By application lodged at the Registry of the General Court on 5 March 2018, the applicants brought an action under the fourth paragraph of Article 263 TFEU for annulment of the decision at issue.

10. In support of that action, the applicants raised five pleas in law, the final one of which alleged infringement of Article 108(2) and (3) TFEU, Article 4(3) and (4) of Regulation 2015/1589 and breach of their procedural rights, in that the Commission had not initiated the formal investigation procedure, although there were serious doubts about the compatibility with EU law of the burden-sharing measures that were part of the aid at issue. (17)

11. By separate document lodged at the Registry of the General Court on 16 May 2018, the Commission raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court. The applicants submitted their comments on that plea on 10 July 2018 and the parties presented oral argument and answered the written and oral questions put by the Court at the hearing on 9 July 2020.

12. By the judgment under appeal, the Court, without adjudicating on the substance, rejected the plea of inadmissibility raised by the Commission. (18) Having found, in paragraphs 35 to 41 of that judgment, that the applicants had the status of ‘parties concerned’ or ‘interested parties’ within the meaning of Article 108(2) TFEU and Article 1(h) of Regulation 2015/1589, respectively, the Court considered that they had, first, an interest in bringing proceedings (19) and, second, standing to bring proceedings, since the decision was of direct and individual concern to them as both ‘parties concerned’ and ‘interested parties’. (20)

The procedure before the Court of Justice and the forms of order sought

13. By its appeal, the Commission claims that the Court should set aside the judgment under appeal, itself give judgment on the action at first instance, dismissing the action as inadmissible, and order the applicants at first instance to pay the costs.

14. The applicants at first instance, and respondents to the appeal, contend that the Court should dismiss the appeal and order the Commission to pay the costs.

15. The parties also answered the questions put by the Court at the hearing on 7 April 2022.

Analysis

16. In the judgment under appeal, the Court held that the action brought by the applicants at first instance was admissible in that they had an interest in bringing proceedings and standing to bring proceedings under the fourth paragraph of Article 263 TFEU. As regards, in particular, their standing to bring proceedings, the applicants at first instance were held to be entitled to seek the annulment of the decision at issue as ‘interested parties’ and in order to safeguard the procedural rights which they derived from Article 108(2) TFEU and Article 6(1) of Regulation 2015/1589.

17. In support of its appeal, the Commission raises a single ground of appeal, alleging that the Court erred in characterising the applicants at first instance as ‘interested parties’.

18. In analysing the appeal, I shall essentially adhere to the three-part structure of the arguments followed by the parties. I shall address, first of all, the concept of standing to bring proceedings of the ‘interested parties’ in EU State aid law, then examine the application of the concept of ‘interested parties’ by the judgment under appeal, which is the object of the Commission’s single ground of appeal and, last, deal briefly with the Commission’s argument that the proceedings brought before the national courts are not pertinent for the respondents’ standing to bring proceedings.

Standing to bring proceedings as an ‘interested party’ in EU law and the Court’s case-law on State aid

19. In the first place, I recall that, in the words of Article 108(3) TFEU, where the Commission considers that an aid plan is not compatible with the internal market, it is to initiate without delay the formal examination procedure provided for in paragraph 2 of that article. Under the latter provision, following that procedure, the Commission is to adopt a decision ‘after giving notice to the parties concerned to submit their comments’.

20. In that context, Article 4 of Regulation 2015/1589 provides for a preliminary examination stage of the aid measures, which is intended to allow the Commission to form an initial opinion on whether those measures constitute State aid and whether they are compatible with the internal market. In accordance with paragraph 3 of that article, where the Commission finds that no doubts are raised as to the compatibility with the internal market of the measure, in so far as it falls within the scope of Article 107(1) TFEU, it is to adopt a decision not to raise objections. (21)

21. In the second place, as regards the admissibility of an action against such a decision, I note, first, that under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings, inter alia, against an act which is of direct and individual concern to them.

22. Second, according to the Court’s consistent case-law, any interested party, within the meaning of Article 1(h) of Regulation 2015/1589, is directly and individually concerned by a decision not to raise objections adopted in accordance with Article 4(3) of that regulation. The beneficiaries of the procedural guarantees provided for in Article 108(2) TFEU and Article 6(1) of that regulation are able to ensure that those guarantees are respected only if it is possible for them to challenge such a decision before the Courts of the European Union. (22)

23. Therefore, in the present case, since the decision at issue is a decision not to raise objections and the applicants at first instance claimed a breach of their procedural rights, (23) it is sufficient for them to show that they have the status of interested parties in order for them to be considered to have standing to bring proceedings for the purposes of the fourth paragraph of Article 263 TFEU.

24. In the third place, I note that, in the words of Article 1(h) of Regulation 2015/1589, ‘interested party’ means, among others, any person, undertaking or association of undertakings whose interests might be affected by the granting of aid and in particular the beneficiary of the aid, competing undertakings and trade associations. (24) That term therefore covers an indeterminate group of persons. (25) In addition, according to the Court’s settled case-law, in order for a person, undertaking or association of undertakings to be categorised as an ‘interested party’, that party must establish, to the requisite legal standard, that the aid is likely to have a specific effect on its situation or that of the persons whom it represents. (26)

25. In the present case, the respondents are not among the ‘interested parties’ expressly mentioned, by way of example, in Article 1(h) of Regulation 2015/1589. (27) The question is therefore whether the aid at issue is likely to have a specific effect on their situation.

26. In that regard, the Commission claims that the Court has consistently accepted, as interested parties, only applicants that have shown that the State aid at issue was likely to have a ‘competition-related’ specific effect on their situation, while the respondents contend that while, for the purpose of showing his or her status as an ‘interested party’, an applicant must show that the measure at issue has a harmful effect on his or her situation, that effect is not required to be related to competition.

27. I note that the Court has held on numerous occasions that a specific effect on an applicant’s situation may come as a consequence of the applicant’s competitive position being affected, even in the absence of a direct competitive relationship with the beneficiary of the measure at issue, as was the case, in particular, in the judgments in 3F (28) and Commission v Kronoply and Kronotex, (29) on which the Commission relies.

28. More specifically, in the judgment in 3F, first of all, the Court stated that ‘it [was] not excluded that a trade union may be regarded as “concerned” within the meaning of Article 88(2) EC [now Article 108(2) TFEU] if its shows that its interests or those of its members might be affected by the granting of aid’ and that ‘the trade union must, however, show to the requisite legal standard that the aid is likely to have a real effect on its situation or that of the seafarers it represents’, (30) without further clarifying that concept of ‘real effect’. Next, applying that principle to the case before it, the Court stated, in particular, that ‘the applicant [was] always [required to] show to the requisite legal standard that his interests might be affected by the granting of the aid, which it [was] possible for him to do by showing that he [was] in fact in a competitive position in relation to other trade unions operating in the same market’. (31)

29. In the judgment in Commission v Kronoply and Kronotex, the Court referred, first of all, to the principle established in paragraph 33 of the judgment in 3F, by which, in order to be categorised as an interested party, ‘it is necessary for [an] undertaking to establish, to the requisite legal standard, that the aid is likely to have a specific effect on its situation’, and proceeded to apply that principle to the case before it, concluding that the Court had not erred in law when it had held that the applicants had the status of interested parties within the meaning of Article 1(h) of Regulation No 659/99 (which was replaced by Article 1(h) of Regulation 2015/1589) because, in essence, those applicants had established to the requisite legal standard the existence of a relationship of rivalry as well as the potential adverse effects on their market position, attributable to the grant of the aid at issue. (32)

30. However, while it follows from those two judgments that the adverse effect on an applicant’s market position, whether or not it is a direct competitor of the beneficiary of the presumed aid, is sufficient for that applicant to be categorised as an ‘interested party’, it cannot be inferred that that adverse effect is also necessary for accepting that categorisation.

31. That interpretation seems to me, moreover, to be confirmed by the more recent judgment of 2 September 2021, Ja zum Nürburgring v Commission, (33) where the Court, following the proposal of the Advocate General, (34) explicitly rejected the Commission’s argument that the status of ‘interested party’ presupposes the existence of a competitive relationship, establishing, in particular, that an undertaking that is not a competitor of the beneficiary of the aid at issue can be categorised as being an ‘interested party’ provided that it has demonstrated that its interests could be adversely affected by the grant of that aid, which means that it must demonstrate that the aid is likely to have a ‘specific effect on its situation’. (35)

32. While it follows from that case-law that the status of ‘interested party’ does not necessarily depend on the existence of a specific competition-related effect on the applicant’s situation, but on the existence of a specific effect on its situation that may be broader, it is still necessary to establish the extent and the limits of such a specific effect.

33. In order to do so, the concept of ‘interested party’ cannot in my view be extended to include every party that may be concerned about a decline in its material situation by simply comparing that situation before and after the decision not to raise objections, without that decision, or more specifically the State aid which it declares compatible, being at the origin of that situation, which would de facto lead to the introduction of an ‘actio popularis’. It is therefore necessary, in order to define the concept of ‘interested party’, to refer to a specific interest, namely an interest linked to the application of the rules on State aid and which therefore concerns factors that are relevant for assessing the compatibility of the aid. (36) Adopting a broader approach would to my mind risk diverting the rules on State aid to other objectives.

34. In my opinion, such a specific interest, that is to say one linked with the application of the rules on State aid, might be found where the applicant is (or is likely to be) adversely affected by the grant of the aid at issue, that is to say, where that aid, as approved by the Commission in the decision not to raise objections (37) is likely to have a specific effect on his or her situation, (38) regardless of any competitive relationship (actual or potential), within the meaning of Article 107(1) TFEU, with the beneficiary of the aid or of any competition-related effect. (39)

35. In that regard, it seems appropriate to refer to a recent judgment of the General Court of 15 September 2021, CAPA and Others v Commission, (40) in which the Court did not recognise the status of ‘interested parties’ for applicants, such as a cooperative of fishermen and fisheries undertakings or skippers of fishing vessels who challenged a decision not to raise objections by which the Commission had declared that six French offshore wind farm projects, located inside marine areas exploited as fisheries by the applicant fishermen, were compatible with the internal market.

36. In that case, the applicants, who did not claim to be in a competitive relationship with the beneficiaries of the aid in question, claimed that the aid at issue was likely to have a specific effect on their situation owing, in particular, to the regulatory limitations on navigation planned in the areas affected by those projects and to the potentially adverse effect of those projects on the marine environment and the fish stocks. (41) The Court considered, however, that the applicants had not demonstrated the risk that the aid would have a specific effect on their situation because, in essence, there was no link between the mechanism for granting the aid and the alleged impact of the projects in question on the activities of the applicant fishermen. (42)

37. Without prejudice to my Opinion in that case, which is currently under appeal, (43) the judgment of the Court in that case seems to me to confirm that, to date, the case-law of the Courts of the European Union, while accepting, for the purposes of the categorisation of ‘interested party’, the possibility of relying on a specific effect on the applicant’s situation that is not necessarily linked with his or her market position, precludes the possibility of extending that categorisation to situations in which that effect is not directly linked to the aid in question – including all the factors relevant for its compatibility – and therefore to the decision not to raise objections to the aid.

38. In conclusion, it seems to me that the status of ‘interested party’ requires proof of a specific effect on that party’s situation that is linked with the application of the rules on State aid and, more specifically, to the grant of State aid. In other words, if that aid, as approved by the decision not to raise objections, is the cause of the adverse effect on the applicant, the latter may be categorised as an ‘interested party’.

39. In my view, significant evidence to that effect may be inferred from the actual decision at issue. Where it is apparent from that decision that the Commission, in assessing the compatibility of State aid, has taken into account the interests of certain parties or the implications of that aid for other parties (which is the case as regards commitments), that circumstance helps to identify a restricted circle of persons whose interests are affected by that decision. (44)

The status as ‘interested parties’ of the applicants at first instance

40. By its single ground of appeal, the Commission, in essence, takes issue with the Court for having found that the applicants had standing under the fourth paragraph of Article 263 TFEU to bring proceedings against the decision at issue, by categorising them as ‘interested parties’ simply because of the economic loss which they claimed to have sustained as FRESH bondholders, because of the burden-sharing measures applied by the Italian Republic to the subordinated creditors of BMPS. The Court is thus said to have applied an excessively broad interpretation of the concept of ‘interested party, including not only entities for which the State aid could have competitive effects, but also entities challenging other aspects of that aid, which have no connection with competition.

41. In the judgment under appeal, the Court held that the decision at issue was of direct and individual concern to the applicants, since they were ‘interested parties’ (45) and since they had claimed a breach of their procedural rights. (46) In essence, without having qualified the applicants as actual or potential competitors of the beneficiary of the aid at issue or having found that the decision at issue was likely to have a specific ‘competition-related’ effect on their situation, the Court considered that that aid was likely to have such an effect because the commitments given by the Italian authorities, and in particular the restructuring plan at the origin of the presumed economic loss, were an integral part of that aid and, as such, had been examined in the compatibility assessment by the Commission, it being irrelevant that the applicants did not challenge the compatibility per se of those measures with the internal market. (47)

42. The main difficulty raised by this case lies in the fact that the applicants at first instance were not affected by the measures at issue, that is to say, by the liquidity aid and the recapitalisation in favour of BMPS, but rather by the burden-sharing measures which are part of the commitments adopted by the Italian authorities in order to secure approval of the aid at issue, which made up the set of measures notified by those authorities and approved by the Commission.

43. In the light of the case-law examined in points 22 to 37 of this Opinion, it seems to me that the Court did not err in law in finding that the circumstances relied on were sufficient for the applicants to be categorised as ‘interested parties’.

44. In fact, it is true, first of all, that the cancellation of the FRESH contracts, which involved the loss of coupon payments connected with the FRESH bonds held by the applicants, is the consequence of the Italian authorities’ decision to envisage burden-sharing by the shareholders and subordinated creditors of BMPS in the context of the plan for the latter’s restructuring. It is also true, as the Commission claims, that the applicants do not dispute, in principle, the compatibility of the measures at issue with the internal market.

45. However, as the Court observed, (48) the measures at issue and the commitments are intrinsically linked, in so far as the latter are a precondition for the declaration of compatibility. (49) It follows from paragraphs 41, 43 and 44 of the Banking Communication that the adequate burden-sharing which is stated by that communication to be a prerequisite for the grant of State aid entails, first, that losses are absorbed by equity, then, as a general rule, by a contribution from subordinated debt holders. (50)

46. It is therefore not possible to consider, as the Commission does, that the burden-sharing measures in the context of the restructuring plan for BMPS were independent of the State aid and constituted a free choice by the Italian authorities. I would point out that the burden-sharing measures were an integral part of the aid at issue, as notified by the Italian authorities and approved by the Commission, and that they played an important role in the assessment of the compatibility of those measures with the internal market. (51)

47. Contrary to the Commission’s arguments, therefore, it does not seem to me that the burden-sharing measures constitute a mere ‘factual assumption’ of the Commission’s authorisation, but are rather a precondition, imposed by the Commission, in the Banking Communication, for the compatibility of the notified aid. (52)

48. As regards, more particularly, the Commission’s argument that conforming with the provisions on burden-sharing in that communication were sufficient but not necessary for it to declare the aid at issue compatible with the internal market and that a Member State is free not to propose to it the burden-sharing measures provided for in that communication if it has alternative ideas, it must be stated that it is difficult to imagine what ‘alternative ideas’ or ‘customised’ measures, to which it refers, might replace the key principle of burden-sharing, which plays a fundamental role in the system introduced by that communication for the application of Article 107(3)(b) TFEU, especially in the circumstances of the present case, where the Italian authorities’ intervention to avoid the failure of BMPS and the consequent need for approval by the Commission were of an exceptionally urgent nature.

49. Next, it is also true, as the Commission submits in the alternative, that the applicants themselves do not hold any FRESH shares (issued by BMPS and subscribed to by JPM) and are not parties to the FRESH contracts (concluded between BMPS and JPM), which were cancelled following the burden-sharing measures, but they are holders of FRESH bonds (issued by MUFJ in order to grant JPM the necessary funds to subscribe to the FRESH shares).

50. However, as the Court found in the judgment under appeal, having regard to the interdependence of the various contractual links underpinning the FRESH instruments, the cancellation of the FRESH contracts was likely to cause economic loss to the applicants at first instance, in view of the loss of coupon payments connected to the FRESH bonds and, accordingly, the adoption of the decision at issue was likely to have a specific effect on their situation. It seems to me, therefore, that – if the commitments given by the Italian authorities with a view to obtaining a declaration of compatibility are included – the aid at issue, as notified by the Italian authorities and declared compatible with the internal market by the decision at issue, causes damage to the applicants. (53)

51. Last, I am of the view that the order of 26 March 2014 in Adorisio and Others v Commission (54) and the judgment of 19 December 2019, BPC Lux 2 and Others v Commission, (55) on which the Commission relies, do not alter that assessment. (56) In the order in Adorisio and Others v Commission, the Court held that the holders of the subordinated bonds of a bank, which were expropriated in the context of a measure taken for the nationalisation of that bank, had no interest in bringing proceedings against a Commission decision not to raise objections against two aid measures notified in the context of that nationalisation, (57) an assessment which is irrelevant for the purposes of the interpretation of the different condition of standing to bring proceedings. (58) In the judgment in BPC Lux 2 and Others v Commission, the Court held that the holders of subordinated bonds of a bank, the value of which had declined after the bank had been put into resolution, did not have standing to bring proceedings for the annulment of a Commission decision not to raise objections against an aid measure notified in the context of that resolution. (59) In that judgment, the Court found that the decline in the value of the bonds in question was attributable to the decision by the national authorities to put the bank into resolution – to which there was no alternative, given the loss-making financial condition of that bank – and not to the grant of the aid at issue, unlike the present case, where the cancellation of the FRESH contracts is the consequence of the burden-sharing measures that are an integral part of the notified and approved aid at issue.

52. In conclusion, it seems to me that the Commission has not shown that the Court made an error of law when, in rejecting the plea of inadmissibility raised by the Commission, it declared the action admissible.

The lack of pertinence of the proceedings brought before the national court for the respondents’ standing

53. Without raising a separate plea, the Commission submits that the fact that the respondents brought proceedings before the Luxembourg courts against the cancellation of the FRESH contracts by BMPS does not allow them to be regarded as ‘interested parties’ and does not confer standing on them to challenge the contested decision. It maintains that those proceedings are relevant only for the purposes of the examination of the respondents’ interest in bringing an action, a requirement distinct from that of standing to bring proceedings, which forms the subject matter of the present appeal.

54. It is sufficient to observe, in that regard, that the General Court drew no conclusions from those proceedings as regards the respondents’ status as interested parties, within the meaning of Article 108(2) TFEU and Article 1(h) of Regulation 2015/1589.

55. This argument therefore has no relevance for the present case and is accordingly ineffective.

Costs

56. Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. In accordance with Article 138(1) of the Rules of Procedure, applicable to the procedure on an appeal pursuant to Article 184(1) of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

57. As the Commission has been unsuccessful, I propose that it be ordered to pay the costs.

Conclusion

58. Having regard to the foregoing considerations, I propose that the Court should:

– dismiss the appeal;

– order the European Commission, in addition to bearing its own costs, to pay those incurred by the respondents.

1 Original language: French

2 Case T‑161/18, EU:T:2021:102; ‘the judgment under appeal’.

3 Council Regulation of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9).

4 Decision C(2017) 4690 final of 4 July 2017 on State Aid SA.47677 (2017/N) – Italy – New aid and amended restructuring plan of Banca Monte dei Paschi di Siena, (‘the decision at issue’).

5 As I shall explain, according to the Court’s settled case-law, the concept of ‘parties concerned’, within the meaning of Article 108(2) TFEU, coincides with that of ‘interested party’, within the meaning of Article 1(h) of Regulation 2015/1589 (see footnote 24 of this Opinion). Where there is no need to distinguish those two concepts, I shall in the present Opinion generally use the expression ‘interested party(ies)’.

6 Mr Anthony Braesch.

7 Trinity Investments DAC, Bybrook Capital Master Fund LP, Bybrook Capital Hazelton Master Fund LP and Bybrook Capital Badminton Fund LP.

8 These two contracts are governed by Luxembourg law.

9 Decreto-legge n. 237 – Disposizioni urgenti per la tutela del risparmio nel settore creditizio (Decree-Law No 237, laying down urgent provisions for the protection of savings in the credit sector), of 23 December 2016 (GURI No 299, of 23 December 2016), which was amended and converted into a law by the legge di conversione (Conversion Law) of 17 February 2017 (GURI No 43, of 21 February 2017).

10 This action on the part of the Italian legislature followed a Europe-wide stress test carried out by the European Banking Authority (EBA) in 2016, which had revealed, in particular, that BMPS had a capital shortfall in the adverse scenario. Previously, restructuring aid granted to BMPS by the Italian Republic, on the basis of a restructuring plan and certain commitments, had already been approved by the Commission in 2013 and had been repaid in full by BMPS in 2015.

11 That aid consisted of two aid measures in favour of BMPS (‘the measures at issue’). The first consisted of liquidity aid in the sum of EUR 15 billion, in the form of State guarantees on senior liabilities, and the second consisted of aid for the precautionary recapitalisation of BMPS in the sum of EUR 5.4 billion, referred to in point 5 of this Opinion.

12 That notification followed a request for extraordinary public financial support in the form of a precautionary recapitalisation under Decree-Law 237/2016, submitted by BMPS following the failure of an attempt to raise new private capital. Previously, still in 2016, following a statement by the European Central Bank (ECB) that BMPS was solvent, the Commission had temporarily approved individual liquidity aid of EUR 15 billion to BMPS, on the basis of the commitments offered by the Italian authorities, which had committed to presenting a restructuring plan within two months of the grant of the guarantees, unless the aid was repaid within that period.

13 According to that provision, aid, inter alia, to remedy a serious disturbance in the economy of a Member State may be considered to be compatible with the internal market.

14 OJ 2013 C 216, p. 1.

15 Directive of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190). In that regard, the Commission considered that the conditions under which the aid measures had been granted were in line with the exemption provided for in Article 32(4)(d) of that directive.

16 Otherwise, the Commission established that the restructuring plan was apt to restore the long-term viability of BMPS and contained sufficient burden-sharing measures and sufficient guarantees to limit undue distortions of competition. It also observed that proper monitoring of the implementation of the restructuring plan was ensured.

17 The first four pleas alleged (i) infringement of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1) and a failure to state reasons; (ii) that the Commission unlawfully required the cancellation of the FRESH contracts; (iii) that the contested decision discriminated against the FRESH bondholders; and (iv) that, by endorsing the application of burden-sharing measures to the FRESH instruments, the Commission infringed the property rights of the FRESH bondholders.

18 By adjudicating on the admissibility of the action by way of judgment, the Court clearly intended that its decision should serve as a precedent.

19 The judgment under appeal, paragraphs 43 to 55.

20 The judgment under appeal, paragraphs 56 to 63.

21 Conversely, in accordance with Article 4(4) of Regulation 2015/1589, where the Commission finds that doubts are raised as to the compatibility with the internal market of a notified measure, it is required to adopt a decision to initiate the formal investigation procedure. In the words of Article 6(1) of that regulation, such a decision is to call upon the Member State concerned and upon other interested parties to submit comments within a prescribed period.

22 See, to that effect, judgment of 24 May 2011, Commission v Kronoply and Kronotex (C‑83/09 P, EU:C:2011:341; ‘the judgment in Commission v Kronoply and Kronotex’; paragraph 47 and the case-law cited). In that regard, the Court stated that where an applicant seeks the annulment of a decision not to raise objections, it essentially contests the fact that the Commission adopted the decision in relation to the aid at issue without initiating the formal investigation procedure, alleging that the Commission thereby acted in breach of the applicant’s procedural rights (see, to that effect, the judgment in Commission v Kronoply and Kronotex, paragraph 59). On the other hand, if the applicant contests the merits of the decision assessing the aid as such, the mere fact that he or she may be considered to be concerned within the meaning of Article 108(2) TFEU cannot suffice to render the action admissible. The applicant must then demonstrate that he or she has a particular status within the meaning of the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17), according to which persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (see in particular, to that effect, judgment of 2 September 2021, Ja zum Nürburgring v Commission, C‑647/19 P, EU:C:2021:666, paragraph 32 and the case-law cited). On the evolution of the case-law on the admissibility of actions by third parties against a decision not to raise objections, see, in particular, Nehl, H.P., ‘Direct Actions and Judicial Review before the Union Courts’, State Aid Law of the European Union, Oxford, 2016, p. 419.

23 In the context of their fifth plea in law at first instance.

24 In the interest of completeness, I would make clear that the concept of ‘interested party’ defined in Article 1(h) of Regulation 2015/1589 reproduces the concept of ‘parties concerned’, within the meaning of Article 108(2) TFEU, as may be seen from the Court’s case-law (see, to that effect, judgment of 2 September 2021, Ja zum Nürburgring v Commission, C‑647/19 P, EU:C:2021:666, paragraph 56 and the case-law cited). According to the case-law prior to the entry into force of Council Regulation (EC) No 659/99 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1) (the legislation that preceded Regulation 2015/1589), the ‘parties concerned’ within the meaning of Article 93(2) EEC (now Article 108(2) TFEU), who might thus, in accordance with the fourth paragraph of Article 173 EEC (now the fourth paragraph of Article 263 TFEU), bring an action for annulment as being directly and individually concerned, were those persons, undertakings or associations whose interests might be affected by the grant of aid, that is to say, in particular, undertakings competing with the beneficiaries of that aid and trade associations (see, in particular, judgments of 14 November 1984, Intermills v Commission (323/82, EU:C:1984:345, paragraph 16), and of 2 April 1998, Commission v Sytraval and Brink’s France (C‑367/95 P, EU:C:1998:154, paragraph 41)).

25 See, to that effect, judgments of 14 November 1984, Intermills v Commission (323/82, EU:C:1984:345, paragraph 16), and Commission v Kronoply and Kronotex, paragraph 63.

26 See in particular, to that effect, judgments of 9 July 2009, 3F (C‑319/07 P, EU:C:2009:435; ‘the judgment in 3F’; paragraph 33), and in Commission v Kronoply and Kronotex, paragraph 65.

27 That provision refers ‘in particular’ to the categories of persons mentioned, namely the beneficiary of the aid at issue, competing undertakings and trade associations.

28 In that case, the applicant was a trade union for workers which negotiated the terms and conditions on which labour was provided to undertakings and which claimed that the aid measures intended, in essence, to favour seafarers employed on vessels registered in the Danish International Shipping Register were likely to affect its competitive position in relation to other seafarers’ unions whose members were the beneficiaries of those measures.

29 In that case, the applicants were undertakings which bought the same raw material as the beneficiary of the aid, namely industrial wood, and who claimed that the aid granted to the beneficiary was likely to affect their competitive position on the market for industrial wood.

30 Judgment in 3F, paragraph 33.

31 Judgment in 3F, paragraph 59. It is, moreover, not clear whether the Court was referring in that passage to the ‘competitive position’ in the sense indicated by the Commission, that is to say, a genuine competitor on the internal market within the meaning of Article 107(1) TFEU.

32 Judgment in Commission v Kronoply and Kronotex, paragraphs 65 to 71.

33 C‑647/19 P, EU:C:2021:666.

34 See Opinion of Advocate General Pitruzzella in Ja zum Nürburgring v Commission (C‑647/19 P, EU:C:2021:347, points 30 and 31, and the case-law cited).

35 See judgment of 2 September 2021, Ja zum Nürburgring v Commission (C‑647/19 P, EU:C:2021:666, paragraph 57 and the case-law cited). Nor does it seem to me that, as the Commission claims, the Court’s finding on that point is based on the fact that, in that case, the applicants could be considered to be potential competitors of the beneficiary of the aid at issue. It is true that, in that judgment, the Court of Justice observed, as had the General Court in the judgment at issue, that the applicant was an association whose objective (in the public interest) was incompatible with that of the beneficiary of the aid (namely to maximise profits). To my mind, the Court did not intend to base its assessment on a situation of potential competition but rather to justify the fact that the grant of the aid to the beneficiary in question might ‘affect the interests’ (not necessarily economic interests, when it comes to an association which pursues a public interest) of the applicant and its members (paragraphs 66 and 67 of that judgment). In any event, in paragraph 57 of that judgment (which follows point 30 of the Opinion of Advocate General Pitruzzella in Ja zum Nürburgring v Commission, C‑647/19 P, EU:C:2021:347), the Court held that an undertaking that is not a competitor of the beneficiary of the aid at issue can be categorised as having the status of ‘interested party’ and that that means demonstrating that that aid is likely to have a specific effect on its situation, without clarifying that concept of ‘specific effect’. Likewise, in point 31 of his Opinion, the Advocate General clearly states that ‘the status of “interested party” does not necessarily presuppose the existence of a competitive relationship’ and that the General Court had not erred in law when it categorised the appellant as an ‘interested party’ although it had also found that the appellant ‘was not at all active in the markets affected by the measures in question’.

36 Indeed, it is that circumstance which renders useful the information and arguments that that party might possibly provide in the course of the formal examination procedure.

37 Which includes therefore not only State support measures in the strict sense, but also all the relevant factors for declaring the aid compatible.

38 See, to that effect, judgment of 2 September 2021, Ja zum Nürburgring v Commission (C‑647/19 P, EU:C:2021:666, paragraph 57).

39 It is true that, since the Court’s case-law has thus far not clarified this point, it would be possible in my view to confirm the Commission’s interpretation that, in essence, as the objective pursued by the rules on State aid (and which justifies the Commission’s competence in that field) is to preserve competition, and as the status of ‘interested party’ is merely a particular expression of the criterion of direct and individual concern laid down in Article 263 TFEU, only an impact linked with competition is relevant for the purposes of assessing an applicant’s standing to bring proceedings. However, to my mind that interpretation would entail an excessively restrictive application of the conditions for the admissibility of actions against a decision not to raise objections. It seems to me, moreover, that to link the concept of adverse effect introduced by the case-law and transposed in Article 1(h) of Regulation 2015/1589 to the existence of an effect on the situation of the applicant linked to competition would de facto entail proof of an adverse effect on competition within the meaning of Article 107(1) TFEU (even if this concerns a different market from that affected by the presumed State aid), which, regardless of its complexity, might go beyond what is necessary (and sufficient) for the purposes of the examination of the admissibility of an action and might, to a certain degree, prejudge the assessment of its merits (at least as far as the effects of the presumed aid on the market are concerned).

40 T‑777/19, EU:T:2021:588, under appeal.

41 See judgment of 15 September 2021, CAPA and Others v Commission (T‑777/19, EU:T:2021:588, paragraph 53).

42 See judgment of 15 September 2021, CAPA and Others v Commission (T‑777/19, EU:T:2021:588, paragraphs 97 and 101). According to the Court, the effects on which the applicants relied were inherent, first, in the decisions by the national authorities to locate those projects in the areas concerned as part of their policy to exploit energy resources and, second, in the rules governing maritime public space and the technical measures applicable to those projects.

43 Case C‑742/21, CAPA and Others v Commission, which has been assigned to me as Advocate General.

44 Furthermore, the fact of taking account of the situations considered in the decision at issue in the examination of the compatibility of aid for the purpose of assessing the admissibility of an action against that decision makes it possible, in my view, to avoid enlarging the circle of persons affected so as to introduce an ‘actio popularis’.

45 The judgment under appeal, paragraph 63.

46 The judgment under appeal, paragraphs 60 to 62.

47 The judgment under appeal, paragraphs 40 and 41.

48 See the judgment under appeal, paragraph 40.

49 In that regard, the respondents’ interpretation that they were affected only by the part of the decision at issue that concerned the restructuring plan must in my view be rejected. In that decision, the Commission did not take any separate decision concerning the restructuring plan, but ruled only on the compatibility of the aid at issue, as notified by the Italian authorities, in the light of all the elements of those measures, including the restructuring plan and the burden-sharing measures contained in that plan.

50 See also, in that regard, judgment of 19 July 2016, Kotnik and Others (C‑526/14, EU:C:2016:570, paragraph 42).

51 In fact, the formulation of the decision at issue (in particular paragraphs 101 to 110) leads me to consider that the Commission, at the very least, considered that the burden-sharing measures were very important, if not decisive, for the purposes of declaring the aid at issue to be compatible. One may indeed enquire whether a possible determination of the effect of those burden-sharing measures on the compatibility of the aid notified to the Commission is not part of the assessment (on the substance) of the compatibility of the aid, rather than of the necessarily more superficial assessment of the admissibility of the action.

52 It is immaterial, in that regard, that the decision at issue was not a ‘conditional decision’, within the meaning of Article 9(4) of Regulation 2015/1589, and that it did not formally impose the commitments in question and make them binding.

53 See, in particular, paragraphs 37 and 39 of the judgment under appeal.

54 T‑321/13, not published, EU:T:2014:175.

55 T‑812/14 RENV, not published, EU:T:2019:885.

56 Furthermore, neither that judgment nor that order have been appealed.

57 I recall that, in the present case, the Commission, in its appeal, has not reiterated its argument alleging that the applicants at first instance have no interest in bringing an action.

58 In any event, it seems to me that the situation that was the subject of that order is fundamentally different from the present case, in that the applicants at first instance, the holders of subordinated bonds of a bank, complained that those bonds had been expropriated in the context of the nationalisation of that bank, implemented by the Kingdom of the Netherlands in parallel with the notification of two State aid measures in favour of the same bank. In that case, the Court, on the basis of very concise reasoning, considered that the Commission, when examining the compatibility of the aid at issue, had taken account of the expropriation solely as an element of context and not as a condition of the compatibility of those measures (see order of 26 March 2014, Adorisio and Others v Commission, T‑321/13, not published, EU:T:2014:175, paragraph 25). Furthermore, although, as the Commission claims, the Court also took note of the applicants’ lack of standing to bring proceedings on the ground of the absence of a competitive relationship with the beneficiaries of the aid at issue (see order of 26 March 2014, Adorisio and Others v Commission, T‑321/13, not published, EU:T:2014:175, paragraphs 44 to 48), it did so in the context of examining an argument put forward by those applicants that claimed that some of them were also competitors of the beneficiaries of the aid (see order of 26 March 2014, Adorisio and Others v Commission, T‑321/13, not published, EU:T:2014:175, paragraph 37).

59 More precisely, the resolution procedure in question entailed the creation of a temporary credit institution (‘the Bridge Bank’) to which the sound business activities of the bank were transferred, leaving the losses relating to the transferred assets and liabilities to a ‘Bad Bank’ and, in the context of the commitments given to the Commission by the national authorities, it was provided, in particular, that none of the assets of holders of subordinated debt could be transferred to the Bridge Bank (see judgment of 19 December 2019, BPC Lux 2 and Others v Commission, T‑812/14 RENV, not published, EU:T:2019:885, paragraphs 7 to 14).