Case C‑224/12 P

European Commission

v

Kingdom of the Netherlands

and

ING Groep NV

‛Appeal — Financial sector — Serious disturbance in the economy of a Member State — State Aid to a banking group — Form — Capital injection as part of a restructuring plan — Decision — Whether the aid is compatible with the common market — Conditions — Amendment to the repayment terms of the aid — Private investor test’

Summary — Judgment of the Court (Second Chamber), 3 April 2014

1. State aid — Concept — Assessment according to the private investor test — Capital injection made by a Member State in favour of an undertaking in return for the acquisition of securities — Whether private investor test applicable to an amendment to the conditions for the redemption of the securities by the undertaking concerned

   (Art. 87(1) EC)

2. Appeals — Grounds — Incorrect assessment of the facts — Inadmissibility — Review by the Court of Justice 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.)

3. Actions for annulment — Subject-matter — Partial annulment — Condition — Severability of the contested provisions — Objective criterion — Condition not satisfied

   (Art. 263 TFEU)

4. Actions for annulment — Actionable measures — Concept — Measure purely confirmatory of an existing measure — Excluded — Conditions — Measure containing no new factors as compared with the existing measure — Condition not satisfied

   (Art. 263 TFEU)

5. Actions for annulment — Jurisdiction of the Courts of the European Union — Scope –Prohibition on ruling ultra petita

   (Art. 263 TFEU)

1.  In the field of State aid, the applicability of the private investor test to an intervention by a Member State in favour of an undertaking of which it is a shareholder depends, not on the way in which the advantage was conferred, but on the classification of the intervention as a decision adopted by a shareholder of the undertaking in question. Furthermore, that test is one of the factors which the Commission is required to take into account for the purposes of establishing the existence of aid and is therefore not an exception that applies only if a Member State so requests, where the constituent elements of State aid incompatible with the common market referred to in Article 87(1) EC have been found to be present.

   Consequently, where it appears that the private investor test may be applicable, the Commission is under a duty to ask the Member State concerned to provide it with all relevant information enabling it to determine whether the conditions governing the applicability and the application of that test are met.

   The application of those principles cannot be compromised merely because, in a specific case, what is at issue is the applicability of the private investor test to an amendment to the conditions for the redemption of securities issued by the undertaking concerned and acquired by a Member State in return for State aid.

   (see paras 30-34)

2.  See the text of the decision.

   (see paras 44-46, 77-82)

3.  See the text of the decision.

   (see paras 57-64)

4.  See the text of the decision.

   (see paras 69-73)

5.  See the text of the decision.

   (see paras 97, 98)

Case C‑224/12 P

European Commission

v

Kingdom of the Netherlands

and

ING Groep NV

‛Appeal — Financial sector — Serious disturbance in the economy of a Member State — State Aid to a banking group — Form — Capital injection as part of a restructuring plan — Decision — Whether the aid is compatible with the common market — Conditions — Amendment to the repayment terms of the aid — Private investor test’

Summary — Judgment of the Court (Second Chamber), 3 April 2014

1. State aid — Concept — Assessment according to the private investor test — Capital injection made by a Member State in favour of an undertaking in return for the acquisition of securities — Whether private investor test applicable to an amendment to the conditions for the redemption of the securities by the undertaking concerned

   (Art. 87(1) EC)

2. Appeals — Grounds — Incorrect assessment of the facts — Inadmissibility — Review by the Court of Justice 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.)

3. Actions for annulment — Subject-matter — Partial annulment — Condition — Severability of the contested provisions — Objective criterion — Condition not satisfied

   (Art. 263 TFEU)

4. Actions for annulment — Actionable measures — Concept — Measure purely confirmatory of an existing measure — Excluded — Conditions — Measure containing no new factors as compared with the existing measure — Condition not satisfied

   (Art. 263 TFEU)

5. Actions for annulment — Jurisdiction of the Courts of the European Union — Scope –Prohibition on ruling ultra petita

   (Art. 263 TFEU)

1.  In the field of State aid, the applicability of the private investor test to an intervention by a Member State in favour of an undertaking of which it is a shareholder depends, not on the way in which the advantage was conferred, but on the classification of the intervention as a decision adopted by a shareholder of the undertaking in question. Furthermore, that test is one of the factors which the Commission is required to take into account for the purposes of establishing the existence of aid and is therefore not an exception that applies only if a Member State so requests, where the constituent elements of State aid incompatible with the common market referred to in Article 87(1) EC have been found to be present.

   Consequently, where it appears that the private investor test may be applicable, the Commission is under a duty to ask the Member State concerned to provide it with all relevant information enabling it to determine whether the conditions governing the applicability and the application of that test are met.

   The application of those principles cannot be compromised merely because, in a specific case, what is at issue is the applicability of the private investor test to an amendment to the conditions for the redemption of securities issued by the undertaking concerned and acquired by a Member State in return for State aid.

   (see paras 30-34)

2.  See the text of the decision.

   (see paras 44-46, 77-82)

3.  See the text of the decision.

   (see paras 57-64)

4.  See the text of the decision.

   (see paras 69-73)

5.  See the text of the decision.

   (see paras 97, 98)