GC, 5th chamber, February 27, 2013, No T-387/11

THE GENERAL COURT (Fifth Chamber),

Background to the dispute

1 The applicant, Nitrogénmuvek Vegyipari Zrt, is a Hungarian undertaking which produces artificial fertilisers.

2 On 20 December 2008, the Hungarian Government approved two guarantees to back the loans to be granted to the applicant by the 100% state-owned Hungarian Development Bank Magyar Fejlesztési Bank Zrt. ('MFB').

3 On 26 January 2009, MFB granted two loans to the applicant, guaranteed by Hungary, namely an investment loan of EUR 52 million and a current facilities loan of HUF 10 billion (approximately EUR 36 million).

4 On 29 April 2009, after several exchanges of information, the European Commission opened the formal procedure for investigating State aid laid down in Article 108(2) TFEU.

5 On 3 and 17 August 2009, the Hungarian authorities submitted their observations on the Commission's decision to open the formal investigation procedure.

6 On 18 August 2009, the applicant also submitted its observations on that decision.

7 At the end of that investigation procedure, the Commission, after further exchanges with the Hungarian authorities, adopted Decision 2011-269-EU of 27 October 2010 on State aid C 14-09 (ex NN 17-09) granted by Hungary to the applicant (OJ 2011 L 118, p. 9; 'the contested decision').

8 Articles 1 to 4 of the contested decision provide as follows:

'Article 1

The EUR 52 million investment loan and the HUF 10 billion current facilities loan granted by Hungary to [the applicant] constitute State aid within the meaning of Article 107(1) TFEU.

Article 2

1. The State aid unlawfully granted by Hungary to [the applicant] in breach of Article 108(3) TFEU is partly compatible, partly incompatible with the internal market.

3. The unlawful State aid consisting in the difference between the effective remuneration of the measures and the subsidised interest rate under the Temporary Framework is incompatible with the internal market.

4. Hungary shall refrain from granting the State aid referred to in paragraph 3 with effect from the date of notification of this decision.

Article 3

1. Hungary shall recover the aid referred to in Article 2(3) from the beneficiary.

2. The sums to be recovered shall bear interest from the date on which they were put at the disposal of the beneficiary until the date on which they are actually recovered.

Article 4

1. Recovery of the aid referred to in Article 2(3) shall be immediate and effective.

2. Hungary shall ensure that this Decision is implemented within [four] months of its notification.'

Procedure and forms of order sought

9 By application lodged at the Registry of the General Court on 22 July 2011, the applicant brought this action.

10 On hearing the report of the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral procedure.

11 The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 15 November 2012.

12 The applicant claims that the Court should:

- annul the contested decision;

- order the Commission to pay the costs.

13 The Commission contends that the Court should:

- dismiss the application as unfounded;

- order the applicant to pay the costs.

Law

14 In support of its application for annulment of the contested decision, the applicant puts forward six pleas in law alleging, firstly, an error of law and of fact in the application of the private investor test, secondly, infringement of Article 107(1) TFEU and of Commission communications and an error in the qualification of the facts, thirdly, infringement of the obligation to state reasons, fourthly, infringement of the right to be heard and of the right to an impartial and even-handed procedure, fifthly, infringement of the principle of the protection of legitimate expectations and, sixthly, infringement of Article 107(3)(b) TFEU.

The first plea, alleging an error of law and of fact in the application of the private investor test

15 This plea is divided into two parts. The first alleges an error of law in the application of the private investor test. The second alleges manifest errors of assessment in failing to take into account or wrongly qualifying relevant facts.

The first part of the first plea, alleging an error of law in the application of the private investor test

16 The applicant points out that, in its observations of 18 August 2009, annexed to its application, it explained to the Commission that it considered that the measures at issue had been granted under market conditions and requested the Commission to take into account the private investor test. The applicant also maintains that the Commission failed to conduct a comprehensive and detailed analysis of the measures at issue, in accordance with the private investor test. The Commission limited itself to a fragmented review of selected aspects of the measures while not taking account of others. The Commission thus restricted its review of market conditions to the confines of its Communication on the revision of the method for setting the reference and discount rates (OJ 2008 C 14, p. 6; 'Reference rate communication') without commenting on the behaviour of a market economy operator placed in the conditions of the measures at issue.

17 As a preliminary point, according to case-law, in order to determine whether the measures at issue are in the nature of State aid, the Commission had to investigate whether the applicant could have obtained the same loans on the capital market (see, to that effect, Case C-142-87 Belgium v Commission [1990] ECR I-959, paragraph 26).

18 The Commission did indeed carry out such an investigation in the recitals under Title VIII.3 of the contested decision, entitled 'Advantage: Market conformity of the measures [at issue]'.

19 In those recitals, the Commission firstly assessed the financial health of the undertaking and the value of the collateral offered as a guarantee, in order to determine the level of guarantee for the purposes of the Reference rate communication (recitals 32 to 43 of the contested decision). The first paragraph of that communication states: 'Within the framework of the Community control of State aid, the Commission makes use of reference and discount rates. The reference and discount rates are applied as a proxy for the market rate and to measure the grant equivalent of aid ...'. The Commission then analysed, and rejected, the arguments submitted by Hungary purporting to demonstrate that the premiums provided for by the measures at issue were in conformity with the market (recitals 45 and 46 of the contested decision) and finally concluded that the applicant had obtained financing 'on better terms than on which it would have raised funds on the markets' (recital 52 of the contested decision).

20 The applicant is therefore incorrect in claiming that the Commission erred in law in failing to assess the conduct of a market economy operator with regard to the conditions of the measures at issue.

21 In addition, it follows from Article 44(1)(c) of the Rules of Procedure of the General Court that the essential facts and law on which an application is based must be apparent from the text of the application itself, even if only stated briefly, and that a reference in the application to such elements in an annex to the application is therefore not sufficient (judgment of 2 February 2012 in Case T-469-09 Greece v Commission, not published in the ECR, paragraph 47).

22 In this part of the first plea, the applicant merely refers to the annex to its application concerning the observations which it set out as a third party, in the formal investigation procedure, without specifying which items it intends to refer to, and does not explain what aspects the Commission should have taken into account.

23 The first part of the first plea must therefore be rejected.

The second part of the first plea, alleging manifest errors of assessment in failure to take account of, or wrongly qualifying, relevant facts

24 The applicant claims that the Commission committed manifest errors of assessment in failing to take into account, or otherwise in distorting facts which, had they been correctly analysed and described, would have led the Commission to conclude that the measures at issue met the private investor test.

25 According to case-law, in order to establish that the Commission committed a manifest error in assessing the facts such as to justify the annulment of the contested decision, the evidence adduced by the applicant must be sufficient to make the factual assessments used in the decision at issue implausible (Case T-380-94 AIUFFASS and AKT v Commission [1996] ECR II-2169, paragraph 59, and Case T-68-05 Aker Warnow Werft and Kvaerner v Commission [2009] ECR II-355, paragraph 42).

26 Firstly, the applicant complains that the Commission in the contested decision did not refer to the relations between it and OTP Bank Nyrt. ('OTP'), which existed before the grant of the loans at issue. In its observations during the administrative procedure, the applicant explained that the business dispute between it and OTP led to the suspension by OTP, in February 2008, of the overdraft facilities at the applicant's disposal and to the gradual termination of the relations between it and OTP during 2008. Moreover, the Hungarian Government, in its observations during the administrative procedure, explained that OTP gradually terminated its economic relations with the applicant during 2008. In that regard, the applicant points out, as it did during the administrative procedure, that, before 2008, it had an investment loan granted jointly by OTP and MFB.

27 Although the Commission must demonstrate in its decision that the measures at issue constitute State aid and that they are incompatible with the common market, it is not required to reply point by point to irrelevant arguments submitted during the administrative procedure (Case T-95-03 Asociación de Estaciones de Servicio de Madrid and Federación Catalana de Estaciones de Servicio v Commission [2006] ECR II-4739, paragraph 108, and Joined Cases T-239-04 and T-323-04 Italy v Commission [2007] ECR II-3265, paragraph 119).

28 In the present case, the applicant's argument that the Commission should have taken account of the termination of its economic relations with OTP is irrelevant. As the applicant itself explains, it is specifically because it could no longer obtain loans from OTP that it had to conclude new loan agreements with other financial institutions, like MFB. Thus, were the fact that OTP had decided not to continue to grant it loans to be taken into account, that would have been a factor which would have induced the financial institutions to act with circumspection towards the applicant, and not a factor which would have led the Commission to conclude that the measures at issue met the private investor test.

29 The Commission therefore was not obliged in the contested decision to take account of the financial relations which existed prior to the grant of the measures at issue between OTP and the applicant. This first argument must therefore be rejected.

30 Secondly, the applicant argues that in the contested decision the Commission should also have taken account of the fact that it had financial relations with MFB, prior to the grant of the loans at issue, because the opportunity to conclude a contract with a party with whom business is ongoing, constituted an objective business interest.

31 In this regard, the fact that a client is well-known to a bank does not automatically mean that it will receive more generous terms for new loans, because the bank may therefore also have a better knowledge of that client's weaknesses. A pre-existing financial relationship may therefore also lead the bank to apply a higher interest rate. In addition, without being contradicted by the applicant, the Commission explains that, because MFB does not offer standard banking services and thus cannot derive additional income from the daily operations of its customers, unlike a commercial bank, it has no interest in offering particularly attractive credit terms in order to retain a customer.

32 The Commission thus was not under any obligation to take account, in the contested decision, of the financial relations existing, prior to the grant of the measures at issue, between MFB and the applicant. That argument must therefore be rejected.

33 Thirdly, the applicant claims that the Commission made a manifest error of assessment by not taking into account that the measures at issue were 'highly collateralised' (recital 43 of the contested decision), particularly owing to the value of the collateral assets. On the basis of the guarantees it could offer, the applicant could have obtained the same interest rates from a commercial bank as those granted by MFB. Therefore it gained no advantage, as shown by the documents transmitted by the Hungarian authorities in respect of loans obtained before the grant of the loans at issue.

34 It is apparent from recital 39 of the contested decision that the Commission took account of an evaluation communicated by Hungary in the valuation of the collateral assets. In recital 40 of that decision, it is stated that, according to the most cautious evaluation, in view of the fact the collaterals have a value of '[over 70%] of the loans', the Commission considers that the two loans are 'highly collateralised'.

35 Essentially, the applicant criticises the Commission, firstly, for having given the rate as '70%', whereas the actual rate is far higher, and, secondly, for not having drawn the appropriate conclusions from the fact that the loans are 'highly collateralised'.

36 So far as the '70%' rate is concerned, it is apparent from the parties' pleadings that they agree on the exact rate. In this respect, the Commission explains that, although the indication of 'over 70%' was inserted into the non-confidential version of the contested decision, it was at the request of the Hungarian Government, in the interests of business confidentiality.

37 As regards the issue of whether the Commission drew the appropriate conclusions from the fact that the loans were 'highly collateralised', the fact that in any event the applicant held collaterals at such a level did not necessarily imply that a commercial bank would have granted it loans at comparable rates to those granted by MFB. The first reason for this is the applicant's poor financial shape, as was apparent from its 2008 financial statements, quoted in recital 34 of the contested decision, which stated that 'in the second half of [2008] the financial and economic crisis reached the company [and its] customers experienced financial difficulties and hence marketing of [its] products fell to a minimum level'. The second reason is the fact that it stopped production in October 2008, which is also mentioned in recital 34 of the contested decision.

38 Likewise, as to the applicant's argument that it could have obtained from a commercial bank the same interest rates as those granted by MFB, as the documents concerning the loans obtained prior to the grant of the measures at issue purport to show, the Commission could not make a comparison between the examples of loan agreements previously signed between various commercial banks and the applicant. This is because, as is apparent from recital 45 of the contested decision, those examples concerned lower amounts and current account credit lines, the interest rates applied were higher than those associated with the loans examined and, most importantly, all those loans had been granted before the 2008 economic crisis.

39 That argument relating to the influence of the 'highly collateralised' nature of the loans must therefore be rejected.

40 Fourthly, the applicant submits that the Commission made a manifest error of assessment in rejecting the 'BB' rating attributed to the applicant by MFB and replacing it with its own 'CCC' rating, thus infringing the provisions of the Reference rate communication which provides that '[r]atings do not need to be obtained from specific rating agencies [and that] national rating systems or rating systems used by banks to reflect default rates are equally acceptable'.

41 In this connection, the very wording of the extract from that communication, as cited by the applicant, shows that the Commission was not obliged to accept the rating attributed by MFB.

42 The Commission also explained, in recitals 36 and 37 of the contested decision, why it did not accept that rating.

43 In particular, it is apparent from those recitals that the Commission was not able to check the rating attributed by MFB, because the Hungarian authorities did not provide any information on the methodology used. The Commission therefore made its own assessment on the basis of known factors, in particular the fact that, at the time of the loan, the applicant had ceased production and was in urgent need of financing, in the absence of which it would be unable to resume production.

44 The applicant's argument concerning the rating attributed to it by the Commission must therefore be rejected.

45 Fifthly, the applicant considers that the Commission made a manifest error of assessment as regards the interest rates agreed for the measures at issue. The Commission should have taken into account (a) the rates which could be granted for similar loans, (b) the other elements of the measures at issue, such as the relationship between the applicant and MFB, and (c) the fact that the loans were secured more than 100% by the collateral assets and that MFB could appoint members to the executive board of the applicant, and that it had the right to veto certain key decisions in such a way as to reduce significantly its risks.

46 That argument is essentially merely a restatement of the first three arguments of this part of the first plea.

47 So far as concerns the comparison with other loans, as stated in paragraph 38 above the only loans to which the applicant refers cannot, in any event, be compared with the measures at issue. Likewise, the other elements, such as the termination of relations between the applicant and OTP, and relations existing between the applicant and MFB, are not relevant, as is apparent from paragraphs 28 to 32 above. Lastly, the same is true of the value of the collateral assets, as is apparent from paragraphs 34 to 39 above. The fact that MFB could appoint members to the executive board of the applicant and had a certain right of veto, thus allowing it, according to the applicant, to reduce its risks, is of no consequence because, in any event, it could not improve the applicant's bad financial position at the time of the grant of the loans at issue, when it had already ceased production.

48 Sixthly, the applicant argues that the Commission distorted the evidence of the stopping of production of fertilisers in October 2008, by referring to it as both a cause and a consequence of its alleged difficulties, even though many other operators in the fertiliser industry stopped that activity at that time; in its view, the Commission thereby committed a manifest error of assessment.

49 The Court notes that, as stated in recital 9 of the contested decision, on 18 December 2008 the Hungarian Government announced in a communication that, in order to ensure the continuation of fertiliser production in Hungary and for the sake of employment preservation, the State would 'rescue' the applicant by providing funds to resume production and cover operating costs.

50 Moreover, it is apparent from the applicant's 2008 financial statements, which it itself compiled and extracts of which are quoted in recital 34 of the contested decision, that it needed public money to resume operations. In the extracts from those statements which are quoted in that recital it is stated in particular that '[o]n 18 October 2008 the company stopped production for financial and economic reasons[, and that, i]n order to relaunch production, the owner of the company initiated talks with the Government [and lastly that, a]s a result, the Government issued the guarantee with the aim of secure Hungarian fertiliser supply'.

51 That is why, having regard to the extent of the applicant's financial problems, OTP terminated its economic relations with the applicant so that, as the applicant itself explains (see paragraph 26 above), it then asked for support directly from the Hungarian authorities.

52 Consequently, regardless of the economic situation in Hungary in the second half of 2008, it is apparent both from the communication of the Hungarian Government and from the 2008 financial statements drafted by the applicant itself, that that latter could not have resumed its operations without the intervention of the Hungarian authorities. The argument alleging a distortion of the facts so far as concerns the halting of the production of fertilisers by the applicant in October 2008 must therefore be rejected.

53 Seventhly, the applicant considers that the Commission made a manifest error of assessment, in particular, by failing to take into account the fact that the loans in question were granted at the time Hungary accepted the IMF's support plan to remedy the serious disruption of the Hungarian economy. Foreign banks with branches in Hungary maintained their financing activities despite economic and financial uncertainties.

54 With regard to this, it is sufficient to note that the applicant does not show, or even claim, that, during the financial crisis, foreign banks granted new loans at the same rates as before that crisis. The seventh argument must therefore be rejected.

55 Therefore, since none of the arguments put forward by the applicant constitute evidence, within the meaning of the case-law cited in paragraph 25 above, demonstrating that the Commission committed manifest errors of assessment, the second part of the first plea in law must also be rejected.

56 It follows that the first plea in law must be rejected as unfounded.

The second plea in law, alleging infringement of Article 107(1) TFEU and of a Commission Notice and Communication and errors in the qualification of the facts

57 The plea is divided into three parts. The first concerns the question of the imputability of the measures at issue to the State. The second concerns the question of the economic advantage conferred on the applicant. The third concerns questions of distortion of competition and effect on trade between Member States.

The first part of the second plea, concerning the question of imputability of the measures at issue to the State

58 The applicant maintains that the Commission wrongly applied the imputability test and made manifest errors of assessment in the legal qualification of the facts. MFB is a bank operating on the Hungarian market on commercial terms. That bank concluded the agreements at issue just as a private financial institution would have done and the measures concerned therefore satisfy the private investor test. By attempting to create a presumption that MFB actions are attributable to the State, the Commission is reversing the burden of proof.

59 It is not necessary to show that in the particular case the public authorities actually induced the public undertaking to take the aid measures in question on foot of a specific instruction. In the first place, because the relationship between the State and public undertakings is close, there is a real risk that State aid may be granted through the intermediary of those undertakings in a non-transparent way and in breach of the rules on State aid laid down by the Treaty (Case C-482-99 France v Commission [2002] ECR I-4397, paragraph 53).

60 Moreover, as a general rule, it will be very difficult for a third party to demonstrate in a particular case that aid measures taken by such an undertaking were in fact adopted on the instructions of the public authorities, precisely because of the privileged relations existing between the State and a public undertaking (France v Commission, paragraph 54).

61 For those reasons, the imputability to the State of an aid measure taken by a public undertaking may be inferred from a set of indications arising from the circumstances of the case and the context in which that measure was taken. In that respect, the Court of Justice has already taken into consideration the fact that the body in question could not take the contested decision without taking account of the requirements of the public authorities, or the fact that, apart from factors of an institutional nature linking the public undertakings to the State, those undertakings, through which the aid had been granted, had to take account of directives issued by an interministerial committee (France v Commission, paragraph 55).

62 According to the Court of Justice, other indicators might, in certain circumstances, be relevant in concluding that an aid measure taken by a public undertaking is imputable to the State. These include its integration into the structures of the public administration, the nature of its activities and the exercise of those activities on the market in normal conditions of competition with private operators, the legal status of the undertaking (in the sense of its being subject to public law or ordinary company law), the intensity of the supervision exercised by the public authorities over the management of the undertaking, or any other indicator showing, in the particular case, an involvement by the public authorities in the adoption of a measure or the unlikelihood of their not being involved, having regard also to the scope of the measure, its content or the conditions which it contains (France v Commission, paragraph 56).

63 In the present case, firstly, as to the nature of the activities of MFB, the law which set up that bank provides that it is to pursue certain public policy objectives and that, in particular, its core function is to promote economic development and to contribute effectively to the implementation of the State's economic and development policy (recital 25 of the contested decision). Furthermore, it is apparent from MFB's 2008 annual report, adduced in an annex by the Commission, that its activities are aimed at financing, at preferential interest rates, the development of undertakings and municipal authorities and the development of residential areas considered as a priority from the perspective of investment in the national economy. Thus, as the Commission rightly contends, the activities of MFB are not those carried out by a commercial bank in normal market conditions, but those of a public development bank operating at preferential rates and pursuing public policy objectives.

64 Secondly, as to the legal status of MFB, as is apparent from recital 25 of the contested decision, the specific law governing its activities provides that part of the prudential rules pertaining to commercial banks is not applied to that institution and also that its shares are not subject to trading. In addition, as is apparent from recital 26 of the contested decision, MFB's share capital is 100% owned by the State. MFB also has a different legal status from that of any commercial bank.

65 Thirdly, MFB is subject to intense supervision by the public authorities. It is stated in recital 27 of the contested decision that '[t]he State's ownership rights in MFB are exercised by the competent minister, [that] MFB reports annually to the competent minister about its operations [and] the auditor is also appointed by the competent minister[, and that, lastly, t]he members and the Chairperson of the management and supervisory boards, as well as the Chief Executive Officer, are appointed and revoked by the competent minister'.

66 Those three indicia show that the Commission was correct to find that the measures at issue, granted by MFB, were directly imputable to the Hungarian State.

67 Furthermore, as is apparent from recitals 9 and 10 of the contested decision, the Hungarian Government stated, in its communication of 18 December 2008, that in order to ensure the continuation of fertiliser production in Hungary and for the sake of employment preservation, the State would 'rescue' the applicant by providing it with funds to resume production and cover operating costs. Two days later, the Government approved the measures at issue granted by MFB. That statement, followed by the grant of the measures at issue, guaranteed at 100% by the State two days later, clearly confirm the imputability of those measures to the Hungarian Government.

68 The applicant's argument alleging that the measures at issue were incorrectly imputed to the Hungarian State must therefore be rejected.

The second part of the second plea, concerning the question of the economic advantage conferred on the applicant

69 The applicant takes the view that the Commission erroneously concluded, in recitals 32 to 50 of the contested decision, the existence of an economic advantage for the purposes of Article 107(1) TFEU, thereby infringing the Communication and the Notice which it was required to apply. Thus, in failing to have regard to the Communication and the Notice which it itself adopted, the Commission infringed general principles of law, such as equal treatment or the protection of legitimate expectations.

- Notice on guarantees

70 The applicant submits that, in the contested decision, the Commission should not have failed to apply the Commission Notice on the application of Articles 87 and 88 of the EC Treaty to State aid in the form of guarantees (OJ 2008 C 155, p. 10; 'the Notice on guarantees'), and particularly point 3.2 of that notice, according to which, in the case of an individual State guarantee, the fulfilment of certain conditions is sufficient to rule out the presence of State aid. The applicant also states that the Commission had carried out an initial assessment of the measures at issue on the basis of that notice during the procedure to open the proceedings.

71 In that regard, the Commission held, in recital 29 of the contested decision, that 'MFB's behaviour [was] imputable to the State', in particular because, as is apparent from recital 25 of the contested decision, MFB was a State-owned specialised financial institution, intended to 'promote economic development and to contribute effectively to the implementation of the State's economic and development policy' and because the Hungarian State, as appears from recital 27 of the contested decision, 'exercised [its ownership rights] by the competent minister'.

72 Furthermore, as already stated, the Commission was correct in finding that the measures at issue were imputable to the Hungarian State (see paragraph 66 above). The Commission was therefore also correct, in recital 30 of the contested decision, in finding that it was 'appropriate to subsume the loans and the guarantees at issue under two measures to be assessed as straightforward loans from the State'.

73 In this regard, the applicant itself states in its application that 'with regard to the guarantees which are part of the [measures at issue], the Hungarian Government ... should be considered as one entity with [the] MFB'.

74 In the present case, the Commission, as it explains in the defence, therefore had to establish whether a private investor would have granted loans in the situation of the Hungarian authorities, rather than establish whether a private investor would have granted loans in the situation of MFB as a result of the guarantees provided by the State. The guarantees thus cannot be regarded as supplementary guarantees, as the State does not dispose of such guarantees.

75 The Commission was therefore correct not to apply the Notice on guarantees.

76 Furthermore, the fact that, in the decision opening the proceedings, the Commission assessed the measures at issue in the light of that notice cannot call into question that finding.

77 It is normal that the Commission should have made an independent prior assessment of the two guarantees in the opening decision because, at that stage, as it explains in the defence, it was not in a position to establish whether the grant of those two guarantees was attributable to Hungary. The final decision may contain certain differences from the opening decision, without their necessarily vitiating the final decision (judgment of the Court of First Instance of 4 March 2009 in Case T-424-05 Italy v Commission, not published in the ECR, paragraph 69).

- Reference rate communication

78 The applicant maintains that the Commission only partially applied the Reference rate communication. The Commission erred in the legal qualification of the facts, in particular by not taking into account the near collapse of the financial system of Hungary at the end of 2008. The Commission also erred in determining the reference margin.

79 The argument that the Commission should have taken into account the near collapse of the financial system of Hungary is irrelevant, given that, in any event, such a near collapse, in principle, results in an increase rather than a decrease of interest rates. Indeed, the applicant explains in its application that, because of Hungary's economic situation, the national bank increased its interest rate by 3% on 22 October 2008.

80 The applicant criticises the Commission for having increased the base rate by 400 basis points in the determination of the Reference margin.

81 In that regard, firstly, the applicant, noting that the Commission, in recital 48 of the contested decision, found that it fell into the lowest category of the reference rate 'grid' and that the measures at issue were 'highly collateralised', refers to the arguments it made in the context of the first plea, concerning the influence of the actual level of collateral on the other elements, to call in question the Commission's assessment.

82 As set out above (see paragraphs 34 to 39 above) the Commission did not commit any error as regards this issue.

83 Secondly, according to the applicant, given that, in the light of the Reference rate communication, the base interest rate should be increased by at least 400 basis points in the case of debtors who do not have a credit history, a contrario, the base interest rate need not necessarily be increased by 400 basis points in the case of a debtor, such as the applicant, who has a credit history. Consequently, the Commission did not take the applicant's credit history into account.

84 In the present case, the Commission was not required to apply any a contario reasoning. Although the Reference rate communication provides for such an increase in the case of debtors without a credit history, nothing indicates that in the case of debtors, like the applicant, with a credit history, the base rate could not be increased in the same way.

- Rating granted by MFB

85 The applicant disputes the rejection, by the Commission, in recital 36 of the contested decision, of the rating granted to it by MFB and argues that the Commission did not give objective reasons for that rejection.

86 In this regard it is sufficient to refer to paragraphs 42 and 43 above. In recitals 36 and 37 of the contested decision, the Commission, without being contradicted by the applicant, explained why it was not able to accept the rating granted by MFB, which explanation included the fact that the Hungarian authorities had not provided any information on the methodology and underlying information used by MFB to establish the financial health of the applicant.

87 Therefore, the Commission was fully entitled not to use the rating granted by MFB.

The third part of the second plea, concerning questions of distortion of competition and effect on trade between Member States

88 The applicant argues that the Commission merely stated, in recital 54 of the contested decision, that the measures at issue were likely to distort competition and to have an effect on trade between Member States without proving such likelihood.

89 The Court notes that, for the purpose of categorising a national measure as State aid, it is not necessary to establish that the aid has a real effect on trade between Member States and that competition is actually being distorted, but only to examine whether that aid is liable to affect such trade and distort competition. In particular, when aid granted by a Member State strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade, the latter must be regarded as affected by the aid (see judgment of 10 September 2009 in Case T-75-03 Banco Comercial dos Açores v Commission, not published in the ECR, paragraph 86 and the case-law cited).

90 In the present case, firstly, concerning the issue of the impact on trade, recital 6 of the contested decision states that the applicant is Hungary's main fertiliser producer and the main supplier of the Hungarian market and, secondly, the next recital states that, in 2008, 26% of its turnover was realised on exports (principally to European Union markets).

91 Moreover, concerning the distortion of competition, in recital 49 of the contested decision the Commission stated that, on 26 January 2009, the total effective financing cost of the first loan was 4.362% whereas the relevant reference rate applicable on that date was 8.99%. Likewise, in the next recital, the Commission stated that, at the same date, the total effective financing cost of the second loan was 12.44% whereas the relevant reference rate applicable was 14.01%. In a footnote to the contested decision, the Commission set out the method of calculation used to make those comparisons.

92 The applicant does not dispute any of these figures.

93 Therefore, the Commission correctly concluded, in recital 52 of the contested decision, that the applicant had obtained financing on better terms than those on which it would have raised funds on the markets and that the measures at issue thus conferred an advantage upon it and, in recital 54 of the contested decision, that the measures at issue were likely to distort competition by providing the applicant with an advantage in relation to competitors, since there was extensive trade between Member States in fertilisers.

94 The applicant's argument concerning the question of distortion of competition and effect on trade between Member States must consequently be rejected.

95 The second plea must therefore be rejected as unfounded.

The third plea, alleging infringement of the obligation to state reasons

96 As a preliminary point, the applicant claims that, in the circumstances of the present case, the obligation to state reasons was enhanced as a result of the change of position by the Commission which, in the contested decision as opposed to the decision opening the proceedings, disregarded the Community guidelines on State aid for rescuing and restructuring firms in difficulty (OJ 2004 C 244, p. 2; 'the Guidelines'), and the Notice on guarantees.

97 In this regard it should be remembered that the final decision may contain differences from the opening decision (see paragraph 77 above). The Commission was therefore entitled to disregard, in the contested decision, the Guidelines and the Notice on guarantees, and it was not under any enhanced obligation to state reasons.

98 Furthermore, the reference to the judgment in Case T-206-99 Métropole télévision v Commission [2001] ECR II-1057, made by the applicant in support of its argument that in the present case there was an enhanced obligation to state reasons, is irrelevant, because that judgment concerned a change of position by the Commission in the field of competition law, between two final positions and not, as in the present case, between an opening decision and a final decision.

99 This plea is divided into three parts. The first alleges infringement by the Commission of the obligation to state reasons for maintaining its position regarding the applicant's alleged difficulties while declaring the guidelines inapplicable. The second alleges infringement of the obligation to state reasons with regard to the assessment of the undertaking under the Reference rate communication. The third alleges infringement of the obligation to state reasons concerning distortion of competition and the effect on trade between Member States.

The first part of the third plea, alleging infringement by the Commission of the obligation to state reasons for maintaining its position regarding the applicant's alleged difficulties while declaring the Guidelines inapplicable

100 The applicant complains that the Commission did not give adequate reasons for stating that the applicant did not meet the description of an 'undertaking in difficulty' and was excluded from the benefit of the Guidelines, while alleging, as it had done in the decision opening the proceedings, that it was in bad financial shape.

101 The Court has consistently held that the scope of the obligation to state reasons must be appropriate to the measure concerned and the context in which the measure was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure so as to enable the European Union judicature to review the legality of the measure and allow the persons concerned to ascertain the reasons for the measure, so that they can defend their rights and ascertain whether or not the decision is well founded. It is not necessary for the statement of reasons to go into all the relevant facts and points of law, since the question as to whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed having regard, not only to its wording, but also to its context and to all the legal rules governing the matter in question (see judgment of 30 November 2011 in Case T-238-09 Sniace v Commission, not published in the ECR, paragraph 37, and the case-law cited).

102 When applied to decisions finding that measures constitute State aid, this principle requires that the reasons for which the Commission considers that the aid measure in question falls within the scope of Article 107(1) TFEU should be indicated (Case T-16-96 Cityflyer Express v Commission [1998] ECR II-757, paragraph 66).

103 In the light of that case-law, it cannot be said that, in the present case, the Commission failed to provide, in the contested decision, adequate reasons in response to the applicant's arguments.

104 As to the non-application of the Guidelines, in recitals 33 and 65 of the contested decision, the Commission gave detailed reasons as to why it had ruled them out.

105 Concerning the alleged inconsistency between the finding of the applicant's difficulties and the non-application by the Commission of the Guidelines in the contested decision, the Commission explained, in recitals 32 and 33 of the contested decision, the reasons why the applicant could not be considered to be an undertaking in difficulty within the meaning of those guidelines. In recital 65 of the contested decision, the Commission even stated why the applicant, even had it been eligible to receive aid under those guidelines, could not have obtained rescue aid or restructuring aid.

106 The applicant therefore cannot complain that the Commission failed to give adequate reasons in the contested decision for its view that the applicant, even though it was in bad financial shape, could not benefit from the Guidelines.

The second part of the third plea, alleging infringement of the obligation to state reasons with regard to the assessment of the undertaking under the Reference rate communication

107 According to the applicant, the contested decision does not reveal how the Commission arrived at the 'CCC' rating in recital 37 of the contested decision, or how it calculated the applicable reference rate in the present case.

108 The Court finds that, so far as concerns the applicant's rating, the Commission gave adequate reasons, in recitals 34 to 37 of the contested decision, as to why it had reached the conclusion that the applicant could be considered to be in bad financial shape and should thus receive the 'CCC' rating.

109 So far as concerns the reference rates applicable to the measures at issue, adequate reasons are provided in recitals 49 and 50 of the contested decision.

110 Furthermore, the applicant also argues that, if the method of calculation applied by the Reference rate communication is based on the study by a firm of auditors, the Commission should have stated this in the contested decision.

111 In this regard, unlike the case which gave rise to the judgment in Joined Cases T-102-07 and T-120-07 Freistaat Sachsen and Others v Commission [2010] ECR II-585, paragraph 221, to which the applicant refers, the Commission does not claim that it relied on the study mentioned above in the present case. Moreover, whereas that judgment was issued pursuant to the old 1997 Commission Notice on the method for setting the reference and discount rates (OJ 1997 C 273, p. 3), the new Notice states that it intends not to use the methods recommended in that study.

112 Thus, the applicant cannot complain that the Commission failed to give adequate reasons for the assessment which it made with respect to it in the contested decision.

The third part of the third plea, alleging infringement of the obligation to state reasons concerning distortion of competition and the effect on trade between Member States

113 The applicant maintains that the Commission did not provide adequate reasoning to support its finding as to the existence of a possible distortion of competition and of a possible effect on trade between Member States.

114 The Court finds that the applicant cannot complain that the Commission did not provide adequate reasoning to support this finding, in so far as the Commission demonstrated, in recitals 6 and 7 of the contested decision, why it had found that the measures at issue were liable to have an effect on trade between Member States, and, in recitals 49, 50 and 52 to 54 of that decision, to distort competition.

115 The third plea must therefore be rejected as unfounded.

The fourth plea, alleging infringement of the right to be heard and of the right to an impartial and neutral procedure

116 According to the applicant, the Commission examined data supplied during the administrative procedure selectively and refused to consider the arguments put forward by the applicant. Moreover, the Commission should have asked the applicant to submit additional comments when it decided that it no longer considered the applicant to be an undertaking in difficulty.

117 The Commission, in the statement of reasons for a decision, is not required to discuss all the issues of fact and law raised by interested parties during the administrative procedure (Case C-360-92 P Publishers Association v Commission [1995] ECR I-23, paragraph 39, and Joined Cases T-371-94 and T-394-94 British Airways and Others v Commission [1998] ECR II-2405, paragraph 94).

118 Moreover, as it has already been mentioned (see paragraphs 77 and 97 above), in so far as the Commission was not bound, in its final position, by the findings which it had made in the opening decision, it was not obliged to gather supplementary information from the applicant if it did not think it was useful. It is settled case-law that the procedure for reviewing State aid is, in view of its general scheme, a procedure initiated in respect of the Member State responsible, in the light of its Community obligations, for granting the aid (see Case T-198-01 Technische Glaswerke Ilmenau v Commission [2004] ECR II-2717, paragraph 191, and the case-law cited). In that procedure, interested parties other than the Member State responsible for granting the aid cannot themselves claim a right to debate the issues with the Commission in the same way as that Member State (see Technische Glaswerke Ilmenau v Commission, paragraph 192 and the case-law cited).

119 The fourth plea in law must therefore be rejected.

The fifth plea, alleging infringement of the principle of protection of legitimate expectations

120 According to the applicant, the Commission infringed the principle of the protection of legitimate expectations by using, in the contested decision, new reasoning in order to maintain its initial conclusions, having received comprehensive data which disproved its initial assessment of the alleged difficulties of the applicant.

121 Although the case-law establishes that the right to rely on the principle of the protection of legitimate expectations extends to any person in a situation where the European Union authority has, by giving precise assurances, caused him to entertain expectations which are justified (see Case C-369-09 P ISD Polska and Others [2011] ECR I-2011, paragraph 123, and the case-law cited), an opening decision, in which the Commission merely carries out a provisional assessment of the measures at issue, cannot give rise to legitimate expectations (see, by analogy, Joined Cases T-346-99 to T-348-99 Diputación Foral de Álava and Others v Commission [2002] ECR II-4259, paragraph 44, and judgment of 25 March 2009 in Case T-332-06 Alcoa Trasformazioni v Commission, not published in the ECR, paragraph 61).

122 Because, therefore, the applicant cannot found his legitimate expectations on a provisional decision, the fifth plea must be rejected as unfounded.

The sixth plea, alleging infringement of Article 107(3)(b) TFEU

The first part of the sixth plea, alleging incorrect application of the Temporary Framework

123 According to the applicant, the Commission, by finding that the applicant was in financial difficulty for the purposes of the calculation of the reference margin, misinterpreted the provisions at point 4.2.2.c) of its Communication on the Temporary Community framework for State aid measures to support access to finance in the current financial and economic crisis (OJ 2009 C 16, p. 1), that framework having been amended by a communication published in the Official Journal in 2009 (OJ 2009 C 303, p. 6) ('the Temporary Framework'), according to which an undertaking is not considered to be in difficulty if it is not covered by the Guidelines.

124 Point 4.2.2. of the Temporary Framework seeks to specify the cumulative conditions which must be met in order for aid to be declared compatible under that framework. However, as the Commission states at point 73 of the contested decision, without being challenged by the applicant on this issue, the measures at issue do not fulfil certain conditions set by that provision. The reference to that provision is therefore irrelevant.

The second part of the sixth plea, alleging inconsistent application of Article 107(3)(b) TFEU

125 The applicant maintains that the reasoning and the conclusions of the Commission in the contested decision contradict its practice. In other individual decisions, the Commission has applied the concept of difficulty in accordance with the Guidelines, and has in some cases accepted the ratings provided by the national authorities, the financial institutions and the undertakings concerned.

126 In this regard, when assessing the measures at issue, the Commission must examine all the relevant features of the measures and their context (Case T-196-04 Ryanair v Commission [2008] ECR II-3643, paragraph 59). Thus, the legal basis of a given decision cannot be called into question on account of a change from the Commission's earlier decision-making practice (see, to that effect, Case T-445-05 Associazione italiana del risparmio gestito and Fineco Asset Management v Commission [2009] ECR II-289, paragraph 145). Furthermore, the Court has already stated that the legality of a Commission decision that aid does not meet the conditions for the application of that derogation must be assessed solely in the context of Article 107(3)(c) TFEU, and not in the light of an alleged earlier practice (judgment of 21 July 2011 in Case C-459-10 P Freistaat Sachsen and Land Sachsen-Anhalt v Commission, not published in the ECR, paragraph 38).

127 In addition, in Commission Decision C(2009) 10225 final, of 15 December 2009, in Case N 670-2009 mentioned by the applicant, the facts were different because, in that case, the ratings were issued by several national banks and an international bank, whereas the Hungarian authorities produced only one rating issued by a public development bank, which itself dispensed the measures at issue.

128 The sixth plea must therefore be rejected as unfounded.

129 Lastly, the applicant also requests that all the correspondence exchanged between the Commission and the Hungarian authorities and the non-confidential versions of the comments received by the Commission from its competitors during the administrative procedure be made available to it.

130 It is settled case-law that the party requesting production of documents must provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings (judgment of 19 April 2012 in Case T-49-09 Evropaïki Dynamiki v Commission, not published in the ECR, paragraph 83).

131 The applicant does not show how the production of that correspondence and the comments of its competitors could provide new information for the purposes of the analysis of this application.

132 Furthermore, the General Court considers the information in the file to be sufficient and moreover it does not appear, in the light of the foregoing, that the production of the documents referred to by the applicant could be useful in assessing the validity of the contested decision.

133 The applicant's request that the Commission make available to it all the correspondence which the Commission exchanged with the Hungarian authorities and the comments which it received from the applicant's competitors during the administrative procedure must therefore be rejected.

Costs

134 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

Here by:

1. Dismisses the action;

2. Orders Nitrogénmuvek Vegyipari Zrt. to pay the costs.