Case T‑423/14

Larko Geniki Metalleftiki kai Metallourgiki AE

v

European Commission

(State aid — Aid implemented by Greece — Decision declaring the aid incompatible with the internal market — Concept of State aid — Advantage — Private investor test — Amount of aid to be recovered — Commission Notice on State aid in the form of guarantees)

Summary — Judgment of the General Court (Sixth Chamber), 1 February 2018

1. Acts of the institutions — Statement of reasons — Obligation — Scope

   (Art. 296, second para., TFEU)

2. Actions for annulment — Grounds — Lack of or inadequate statement of reasons — Separate ground from the one concerning substantive legality

   (Art. 263 TFEU)

3. State aid — Definition — Grant of an advantage to the beneficiaries — State guarantee — Burden of proving an advantage on the Commission — Assessment having regard to all the relevant factors

   (Art. 107(1) TFEU)

4. 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 of the Member State to provide objective and verifiable evidence showing the economic character of its activity

   (Art. 107(1) TFEU)

5. State aid — Definition — Legal nature — Interpretation on the basis of objective factors — Judicial review — Scope

   (Art. 107(1) TFEU)

6. State aid — Definition — Guarantees provided by bodies governed by public law to an undertaking in difficulty — Financial difficulties — Criteria for assessment — Existence of negative equity and considerable decrease in turnover

   (Art. 107(1) TFEU; Commission communication 2004/C 244/02, point 11)

7. State aid — Definition — Private investor test — Capital contribution — Capital contributions of private and public investors made at the same time — Criteria for assessment

   (Art. 107(1) TFEU)

8. State aid — Definition — State intervention mitigating the burdens normally included in the budget of an undertaking — Included

   (Art. 107(1) TFEU)

9. State aid — Definition — Aid from State resources — Guarantee given by the State — Included — State resources not mobilised immediately and certainly — Irrelevant

   (Art. 107(1) TFEU)

10. State aid — Prohibition — Exceptions — Scope — Restrictive interpretation — Economic disadvantages caused directly by natural disasters or exceptional occurrences

    (Art. 107(1) and 2(b) TFEU)

11. State aid — Prohibition — Exceptions — Discretion of the Commission — Adoption by the Commission of guidelines governing the compatibility of aid with the internal market — Consequences — Self-limitation of its discretion

    (Art. 107(3) TFEU)

12. State aid — Recovery of unlawful aid — Restoration of the prior situation — Calculation of the amount to be recovered — Aid in the form of a guarantee

    (Art. 108(2) TFEU)

13. State aid — Recovery of unlawful aid — Calculation of the amount to be recovered — Aid granted in the form of an individual guarantee — Determination of the aid element where the guarantee has no market price — Undertaking in an extremely tricky position — Calculation on the basis of exceptional circumstances — Lawfulness

    (Art. 108(2), first para., TFEU; Council Regulation No 659/1999, Art. 14(1); Commission communication 2004/C 244/02, point 4.1, third para., point (a))

1.  See the text of the decision.

   (see para. 26)

2.  See the text of the decision.

   (see para. 43)

3.  See the text of the decision.

   (see paras 50-55)

4.  If a Member State relies on the private investor test during the administrative procedure, it must, where there is doubt, establish unequivocally and on the basis of objective and verifiable evidence that the measure implemented falls to be ascribed to the State acting as shareholder. That evidence must show clearly that, before or at the same time as conferring the economic advantage, the Member State concerned took the decision to make an investment, by means of the measure actually implemented, in the public undertaking. In that regard, it may be necessary to produce evidence showing that the decision is based on economic evaluations comparable to those which, in the circumstances, a rational private investor in a situation as close as possible to that of the Member State would have had carried out, before making the investment, in order to determine its future profitability.

   By contrast, for the purposes of showing that, before or at the same time as conferring the advantage, the Member State took that decision as a shareholder, it is not enough to rely on economic evaluations made after the advantage was conferred, on a retrospective finding that the investment made by the Member State concerned was actually profitable, or on subsequent justifications of the course of action actually chosen. In order to examine whether or not the State has adopted the conduct of a prudent investor operating in a market economy, it is necessary to place oneself in the context of the period during which the financial support measures were taken in order to assess the economic rationality of the State's conduct, and thus to refrain from any assessment based on a later situation. That is especially so where the Commission is seeking to determine whether there has been State aid in relation to a measure which was not notified to it and which, at the time when the Commission carries out its examination, has already been implemented by the public body concerned.

   (see paras 56, 57, 83, 86)

5.  See the text of the decision.

   (see paras 58-61)

6.  The existence of negative equity may be regarded as an important sign that an undertaking is in a difficult financial situation. The same applies to the significant decrease in turnover and the significant losses accumulated by the company concerned, circumstances, moreover, that are mentioned in point 11 of the Community guidelines on State aid for rescuing and restructuring firms in difficulty.

   (see para. 79)

7.  See the text of the decision.

   (see para. 119)

8.  See the text of the decision.

   (see paras 142, 151)

9.  See the text of the decision.

   (see para. 149)

10.  See the text of the decision.

    (see para. 156)

11.  See the text of the decision.

    (see paras 166, 167)

12.  See the text of the decision.

    (see paras 180, 182, 189)

13.  In State aid cases, when an undertaking finds itself in an extremely tricky position, particularly because of the steady decrease in its turnover and the existence of negative equity, which gives the impression that all of the company’s capital is lost, the Commission cannot be criticised for concluding that (i) there were exceptional circumstances within the meaning of point 4.1, third subparagraph, point (a) of the Community guidelines on State aid for rescuing and restructuring firms in difficulty, such that it would be impossible for the undertaking concerned to repay the entirety of the loan from its own resources, and (ii) the amount of the State aid granted to that company in the form of State guarantees was equal to the full amount of the guaranteed loans.

    (see paras 193, 194)