Case T‑747/15
Électricité de France (EDF)
v
European Commission
(State aid — Aid granted by the French authorities to EDF — Reclassification, as a capital contribution, of accounting provisions created free of tax for the renewal of the high-voltage transmission network — Decision declaring the aid to be incompatible with the internal market — Authority of res judicata — Private investor test)
Summary — Judgment of the General Court (Third Chamber), 16 January 2018
Judicial proceedings — Res judicata — Scope
State aid — Meaning — 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. 4(3) TEU; Art. 107(1) TFEU)
State aid — Administrative procedure — Obligations of the Commission — Diligent and impartial examination — Limits — Obligation to take a view on each of the documents transmitted by the Member State concerned — Lack
(Art. 108(2) TFEU)
State aid — Commission decision — Assessment of the legality by reference to the information available at the time of adoption of the decision
(Art. 108(2) TFEU)
Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid
(Arts 108 (2) TFEU and 296, second para., TFEU)
State aid — Existing aid and new aid — Determination of the nature of aid — Commission’s previous practice — Irrelevance
(Arts 107 TFEU and 108 TFEU)
State aid — Meaning — Assessment according to the criterion of the private investor — State shareholder of an undertaking — State acting as a public authority — Distinction as regards application of the private investor criterion
(Art. 107(1) TFEU)
State aid — Existing aid and new aid — Aid introduced before liberalisation of a market initially closed to competition — Classification of existing aid
(Art. 107(1) TFEU; Council Regulation No 659/1999, Art. 1(b)(v))
State aid — Examination by the Commission — Administrative procedure — Obligation of the Commission to give notice to the interested parties to submit their comments — Right of the aid beneficiary to be sufficiently associated with the proceedings
(Art. 108(2) TFEU; Council Regulation No 659/1999, Art. 6)
See the text of the decision.
(see paras 96, 97, 107)
See the text of the decision.
(see paras 136, 141, 194, 222-225)
See the text of the decision.
(see paras 137-139, 148)
See the text of the decision.
(see para. 140)
See the text of the decision.
(see paras 150, 151, 355)
The concept of State aid must be applied to an objective situation, which means that, in order to be classified as aid, a measure must be capable of affecting trade between the Member States and distorting or threatening to distort competition, matters which fall to be appraised on the date on which the Commission takes its decision, the sole test being whether a State measure confers an advantage on one or more particular undertakings. Accordingly, the Commission’s decision-making practice in the area cannot be a decisive factor.
(see para. 238)
The private creditor test, or the private investor test, is not an exception which applies only if a Member State so requests, when all the constituent elements of State aid incompatible with the common market, as laid down in Article 107 (1) TFEU, exist. In fact, that test, where applicable, is among the factors which the Commission is required to take into account for the purposes of establishing whether such aid exists. Consequently, where it appears that the private creditor test might be applicable, it is incumbent on the Commission to examine that possibility, irrespective of any request to that effect from the Member State concerned; and, accordingly, nothing prevents the recipient of the aid from arguing the applicability of the test.
In either of the latter two cases where the Member State does not invoke the private investor test, it is necessary, in order to determine whether the test is applicable, to take as a starting point the economic nature of the Member State’s action, not how that Member State, subjectively speaking, thought it was acting or which alternative courses of action it considered before adopting the measure in question.
Moreover, in order to assess whether the same measure would have been adopted under normal market conditions by a private investor in a situation as similar as possible to that of the State in question, only the benefits and obligations linked to the situation of the State as shareholder — to the exclusion of those linked to its situation as a public authority — are to be taken into account.
(see paras 240-242, 245)
In accordance with Article 1(b) (v) of Regulation No 659/1999 laying down detailed rules for the application of Article [108 TFEU], the date on which an activity is liberalised by EU law must therefore be taken into consideration for the sole purpose of ensuring that, after that date, a measure which did not constitute aid before the liberalisation by EU law should not be classified, subsequently, as existing aid. However, the fact that a date for liberalisation has been fixed in a directive such as that in issue in this case is not sufficient to prevent a measure from being classified as new aid if, by reference to market developments, it can be proven that the measure was adopted on a market that was already open, wholly or partly, to competition before the date set for the liberalisation of the activity in question by EU law.
(see para. 369)
See the text of the decision.
(see paras 389-392)