CJEU, 9th chamber, April 29, 2021, No C-890/19 P

THE COURT (Ninth Chamber),

1 By its appeal, Fortischem a.s. seeks to have set aside the judgment of the General Court of the European Union of 24 September 2019, Fortischem v Commission (T‑121/15, EU:T:2019:684) (‘the judgment under appeal’), by which the General Court dismissed its action for the annulment of Articles 1 and 3 to 5 of Commission Decision (EU) 2015/1826 of 15 October 2014 on State aid SA.33797 – (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ (OJ 2015 L 269, p. 71) (‘the decision at issue’).

Legal context

2 Article 14 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), entitled ‘Recovery of aid’, states:

‘1. Where negative decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary (hereinafter referred to as a “recovery decision”). The Commission shall not require recovery of the aid if this would be contrary to a general principle of Community law.

2. The aid to be recovered pursuant to a recovery decision shall include interest at an appropriate rate fixed by the Commission. Interest shall be payable from the date on which the unlawful aid was at the disposal of the beneficiary until the date of its recovery.

3. Without prejudice to any order of the Court of Justice of the European Communities pursuant to Article [278 TFEU], recovery shall be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of the Commission’s decision. To this effect and in the event of a procedure before national courts, the Member States concerned shall take all necessary steps which are available in their respective legal systems, including provisional measures, without prejudice to Community law.’

Background to the dispute and the decision at issue

3 The background to the dispute is set out in paragraphs 1 to 20 of the judgment under appeal and, for the purposes of the present proceedings, can be summarised as follows.

4 Novácké chemické závody a.s. v konkurze (‘NCHZ’) was a chemical producer operating a chemical plant located in the Trenčín region (Slovakia). On 8 October 2009, having declared its inability to continue its operations and its insolvency, NCHZ became the subject of insolvency proceedings.

5 On 5 November 2009, the Slovak Republic adopted the zákon č. 493/2009 Z.z. o niektorých opatreniach týkajúcich sa strategických spoločností a o zmene a doplnení niektorých zákonov (Law No 493/2009 on certain measures regarding strategic companies and on the amendment of certain laws) (‘the Law on Strategic Companies’) which entered into force on 1 December 2009. That law, applicable to companies classified as ‘strategic’ companies which were the subject of insolvency proceedings, required the presence of an insolvency administrator whose role was to ensure that the strategic company continued to operate while those proceedings were ongoing and to prevent unjustified collective dismissals. On 2 December 2009, NCHZ was classified by the Slovak authorities as a ‘strategic company’ within the meaning of that legislation and enjoyed that status until the expiry of the legislation on 31 December 2010. It was the only company to be subject of the application of that law.

6 On 7 June 2011, the súd v Trenčíne (Trenčín Court, Slovakia), which conducted NCHZ’s insolvency proceedings, made an order requiring the insolvency administrator to sell NCHZ in accordance with the tender procedure organised by that court. On 29 December 2011, at the end of that procedure, that court made an order requiring the insolvency administrator to declare the successful tenderer Via Chem Slovakia a.s. (‘Via Chem’). After the conclusion of the contract for sale between that company and NCHZ on 16 January 2012 and the approval of the sale by the Protimonopolný úrad SR (Slovak competition authority), the sale was finalised on 31 July 2012.

7 On 1 August 2012, Via Chem sold NCHZ’s chemical division, with the exception of immovable assets, to the appellant. The immovable assets necessary for chemical production were made available to the appellant under a lease contract.

8 In the meantime, the Commission had received, on 13 October 2011, a complaint from AlzChem AG concerning unlawful aid which the Slovak Republic was alleged to have granted to NCHZ. After sending several requests for information to the Slovak authorities and having received the replies of those authorities, the Commission notified the Slovak Republic, on 2 July 2013, of its decision to initiate the formal investigation procedure, pursuant to Article 108(2) TFEU (OJ 2013 C 297, p. 85), as regards, inter alia, the authorisation by the State, as a result of the Law on Strategic Companies, to continue NCHZ’s operations from December 2009 to December 2010.

9 On 15 October 2014, the Commission adopted the decision at issue. In that decision, it took the view, inter alia, that granting NCHZ strategic company status constituted a selective advantage in favour of that company, was attributable to the State, led to the use of State resources and distorted competition in a market open to trade between Member States. It concluded that the measure constituted State aid within the meaning of Article 107(1) TFEU and that the aid was unlawful and incompatible with the internal market. After finding that the State aid amounted to EUR 4 783 424.10, the Commission considered that the aid had to be recovered from NCHZ and the recovery order should be extended to the appellant, since it had a connection of economic continuity with NCHZ.

10 The operative part of the decision at issue is worded as follows:

‘Article 1

The State aid of EUR 4 783 424.10 provided to NCHZ by declaring it a strategic company in line with the [Law on Strategic Companies], thereby sheltering it from the normal application of [insolvency] law, was unlawfully put into effect by [the Slovak Republic] in breach of Article 108(3) [TFEU] and is incompatible with the internal market.

…

Article 3

1. [The Slovak Republic] shall recover the incompatible aid referred to in Article 1 from NCHZ.

2. In view of the economic continuity between NCHZ and [Fortischem], the obligation to repay the aid should also be extended to [Fortischem].

3. The sums to be recovered shall bear interest from the date on which they were put at the disposal of NCHZ until their actual recovery.

4. Interest shall be calculated on a compound basis in accordance with Chapter V of [Regulation (EC) No 794/2004 and Regulation (EC) No 271/2008] amending Regulation (EC) No 794/2004.

Article 4

1. Recovery of the aid referred to in Article 1 shall be immediate and effective.

2. [The Slovak Republic] shall ensure that this Decision is implemented within four months following the date of notification of this Decision.

Article 5

1. Within two months following notification of this Decision, [the Slovak Republic] shall submit the following information:

(a) the total amount (principal and recovery interests) to be recovered from the beneficiaries;

(b) a detailed description of the measures already taken or planned to be taken to comply with this Decision;

(c) documents demonstrating that the beneficiary has been ordered to repay the aid.

2. [The Slovak Republic] shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid referred to in Article 1 has been completed. It shall immediately submit, at the request of the Commission, information on the measures already taken and planned to be taken to comply with this Decision. It shall also provide detailed information concerning the amounts of aid and recovery interest already recovered from the beneficiaries.

Article 6

This Decision is addressed to the Slovak Republic.’

The procedure before the General Court and the judgment under appeal

11 By application lodged at the Registry of the General Court on 6 March 2015, the appellant brought an action for the annulment of Articles 1 and 3 to 5 the decision at issue.

12 By order of the President of the Ninth Chamber of the General Court of 22 September 2015, AlzChem was given leave to intervene in support of the form of order sought by the Commission.

13 In support of its action, the appellant relied on six pleas in law, the first of which, alleging infringement of Article 107(1) TFEU due to the absence, inter alia, of an economic advantage conferred on NCHZ, and the fourth alleging infringement of Article 107(1) and Article 108(2) TFEU and Article 14(1) of Regulation No 659/1999, owing to the extension to itself of the obligation to recover the alleged State aid.

14 In paragraphs 67 to 153 of the judgment under appeal, the General Court examined the first and second parts of the first plea together, which alleged (i) that there was no transfer of State resources and (ii) no economic advantage conferred on NCHZ. In that context, first of all, when examining of the conditions under which NCHZ’s continued operation was authorised, the General Court noted, in paragraph 77 of that judgment, that the fact that, in the context of the Law on Strategic Companies, the automatic continuation of NCHZ’s operations was coupled with a prohibition on collective redundancies gave rise to the risk of an increase in NCHZ’s debts, in particular with regard to public creditors, since, because of that prohibition, the operating costs could not be reduced by means of a reduction in staff. According to the General Court, in view of its financial situation, NCHZ could not simultaneously pay its suppliers in the context of the automatic continuation of its operations and also assume in full the social costs vis-à-vis the public creditors.

15 Next, in the context of the examination of the appellant’s claims that the situation would have been the same if NCHZ had been subject to the normal insolvency rules, the General Court found, in paragraph 121 of the judgment under appeal, that it was undeniable that, without the application of the Law on Strategic Companies to that company, first, the prohibition on collective redundancies would not have been imposed and, second, the continued operation of that company would have had to be decided by the relevant committee and would not have been automatic. It added, in paragraph 135 of that judgment, that, while the application of that law to NCHZ did not guarantee that the latter’s supplies would actually be made, it guaranteed that the staff would be retained as a result of the prohibition on collective redundancies, and reassured, inter alia, its customers and suppliers that it would continue to operate at least until the expiry of that law, irrespective of the amount of unpaid claims, including public claims.

16 In the same context, the General Court also examined the appellant’s claim that NCHZ did not benefit from any additional advantage in the context of maintaining its operations required by the Law on Strategic Companies. The General Court found, in particular, in paragraph 145 of the judgment under appeal, that NCHZ could not pay all its debts and that the debts owed to the two Slovak public entities responsible for social security and health insurance respectively, had increased, whereas, at the same time, that company retained the benefit of its employees for the purposes of continuing its operations. The General Court therefore held that the appellant’s argument that the prohibition on collective redundancies did not constitute an economic advantage for NCHZ could not succeed.

17 Lastly, in the section of the judgment under appeal setting out the conclusion following examination of the first and second parts of the first plea, the General Court stated, in paragraph 149 of that judgment, that, on account of the classification by the Slovak authorities of NCHZ as a ‘strategic company’, within the meaning of the Law on Strategic Companies, it had been required, first, to continue its operations, irrespective of any consideration of its economic situation and its capacity to honour its debts, in particular public debts and, second, to retain its staff due to the prohibition on collective redundancies, which allowed it to continue to operate with the assurance given to its customers and suppliers that its operations would continue until the end of 2010. The General Court therefore held, in paragraph 152 of that judgment, that the Commission had not erred in concluding that there was an economic advantage conferred on NCHZ involving State resources. That finding led the General Court to reject, in paragraph 153 of that judgment, the first and second parts of the first plea.

18 The fourth plea was examined in paragraphs 197 to 284 of the judgment under appeal. After summarising the arguments of the parties in paragraphs 198 to 203 of the judgment, the General Court stated, inter alia, in paragraph 212 of that judgment, which falls within a section entitled ‘Preliminary observations’, that it followed from the case-law that, although the fact that the price of the transfer of the company which is the beneficiary of State aid to a new purchaser is not the market price may lead to the extension, to that purchaser, of the obligation to recover that aid , the fact that the transfer price is consistent with market conditions may be insufficient to rule out, in itself, the existence of economic continuity between the aid beneficiary and the purchaser and does not prevent, in some circumstances, extension of the obligation to recover that aid, that extension being due to the existence of an effect of circumvention, with no need for the intention to circumvent to be present.

19 Continuing the analysis of the fourth plea, the General Court examined, in paragraphs 216 to 250 of the judgment under appeal, whether, as the appellant claimed, NCHZ’s assets had been sold at the market price. In that context, in paragraph 221 of that judgment, within the section entitled ‘The burden of proof’, the General Court examined the appellant’s argument that the burden of proving the economic advantage obtained by the purchaser of the assets of the aid beneficiary lies with the Commission. The General Court observed, in that regard, that, in so far as, in accordance with the case-law, one of the factors to be taken into consideration in order to assess whether there is economic continuity, such as a sale price at market price, is not sufficient in itself to rule out extending the obligation to recover the aid in question to an undertaking other than the initial beneficiary of the aid, the Commission does not necessarily have to prove that there is no such sale price in order to conclude that there was economic continuity and the lack of guarantee of such a sale price may be taken into account in the context of the overall assessment of the various elements examined, which the Commission must carry out.

20 Following the examination carried out in paragraphs 216 to 250 of the judgment under appeal, the General Court noted, in paragraph 251 of the judgment, that, as the Commission had found in recitals 144 to 146 and 168 of the decision at issue, it could not be regarded as certain that the two successive sales of NCHZ’s assets were made at the market price. After examining the appellant’s arguments relating to the scope and economic logic of the transaction transferring NCHZ’s assets, it found, in paragraph 258 of the judgment, that the Commission’s findings in the decision at issue did not appear to be vitiated by error and justified the conclusion that the scope of the transaction, in the sense of the subject matter of the transfer, supported a finding that there was economic continuity between NCHZ and the appellant and, in paragraph 265 of the judgment, that the Commission had been entitled to conclude, without committing any error, that the economic logic of the transaction was an indication of such continuity.

21 Therefore, the General Court held, in paragraph 282 of the judgment under appeal, that the Commission had not erred in finding, in the first place, that both the scope of the transaction, in the sense of the subject matter of the transfer, and its economic logic could constitute evidence of the existence of economic continuity between NCHZ and the appellant and, in the second place, that it could not be regarded as certain that the two successive sales of NCHZ’s assets had been made at market price. It added, in paragraph 283 of the judgment that, in that context, in the light of the fact that, in accordance with the case-law, first, even where the transfer price was in line with the market price, that was only a single factor in the analysis of whether there was economic continuity and, secondly, the payment of a price consistent with market conditions could not suffice to offset the competitive advantage linked to the receipt of unlawful aid, it had to be held that, on account of the circumstances of the present case, the Commission had been fully entitled to uphold the extension to the appellant of the obligation to recover the aid in question, irrespective of any finding of an intention to circumvent recovery. The General Court thus rejected the fourth plea in law.

22 Having also rejected the other pleas put forward by the appellant, the General Court dismissed the action and ordered the appellant to bear its own costs and to pay those incurred by the Commission.

Forms of order sought by the parties before the Court of Justice

23 Fortischem submits that the Court of Justice should:

– set aside the judgment under appeal;

– annul Articles 1 and 3 to 5 of the decision at issue;

– order the Commission to pay the costs;

24 The Commission and AlzChem contend that the Court of Justice should dismiss the appeal and order Fortischem to pay the costs.

The appeal

25 In support of its appeal, the appellant raises seven grounds of appeal alleging (i) an error of law committed by the General Court in that it held that the decision ordering the recovery of the aid referred to in the decision at issue could be extended to itself, even though it had paid market price for the assets of the aid beneficiary, (ii) an error of law in the allocation of the burden of proof, (iii) an error of law and a distortion of the facts in that the General Court had failed to have regard to several presumptions indicating that NCHZ’s assets had been paid for at market price, (iv) an error of law in the interpretation of the assessment criteria regarding the scope and economic logic of the transaction, (v) an error of law in that the General Court considered that the Commission could conclude that there was economic continuity on the basis solely of the criteria of the scope and economic logic of the transaction, (vi) an error of law in that the General Court considered that the prohibition of collective redundancies constituted an advantage for NCHZ, and (vii) an error of law in that the General Court substituted its own assessment for that of the Commission in the decision at issue.

26 It is necessary to examine, first of all, the sixth and seventh pleas, which challenge the General Court’s conclusion that NCHZ benefited from State aid, and then the third, second, fourth, fifth and first pleas, relating to the recovery of that aid from the appellant.

The sixth ground of appeal, alleging an error of law in that the General Court held that the prohibition on collective redundancies constituted an advantage for NCHZ

Arguments of the parties

27 By its sixth ground of appeal, the appellant submits that the General Court erred in finding, in paragraphs 77, 121, 135 and 145 of the judgment under appeal, that the prohibition on collective redundancies represented an advantage for NCHZ. According to the appellant, that prohibition actually represented a disadvantage as a result of the increased costs to which the appellant was exposed. That prohibition is thus irrelevant to NCHZ’s operations and could not have effects for third parties. It follows, according to the appellant, that the General Court erred in law and made an erroneous qualification of the facts, by proceeding on the basis of a misinterpretation of the Law on Strategic Companies. As a result of that error, the General Court failed to reduce the amount of the State aid referred to in the decision at issue, by an amount corresponding to the increase in the costs to which NCHZ was exposed.

28 According to the appellant, in the absence of a prohibition on collective redundancies imposed by the Law on Strategic Companies, NCHZ would have made some of its staff redundant earlier and would thus have improved its cost structure and, consequently, its competitiveness. However, whilst accepting that the operational costs of that company increased as a result of the prohibition on collective redundancies, in paragraphs 145 and 149 of the judgment under appeal the General Court found, illogically, that that prohibition was an economic advantage for it. That finding by the General Court rested on the incorrect premiss that, in order to continue its operations, NCHZ was obliged to retain the level of employment that existed before its insolvency. In its reply, the appellant states that paragraph 89 of that judgment confirms that the General Court based its decision on that false premiss. The appellant states that, in reality, the employment positions that NCHZ was obliged to retain under the Law on Strategic Companies had no impact on its actual production level, and could not have provided any assurance to its customers or suppliers.

29 The appellant adds that, in the grounds of the judgment under appeal challenged by the sixth ground of appeal, the General Court failed to consider the arguments that it had put forward before it and relied not on specific facts, but purely on impressions. In particular, the General Court’s finding, in paragraph 145 of that judgment, that the prohibition on collective redundancies entailed, for NCHZ’s public creditors, an additional burden by comparison with that which would have resulted from the application of the normal insolvency rules, is based on a manifestly incorrect interpretation of the facts. The contributions paid by NCHZ to the Sociálna poisťovňa a.s. (social insurance company, Slovakia) and the Všeobecná zdravotná poisťovňa a.s. (health insurance company, Slovakia) represent only about 25% of that undertaking’s wage costs.

30 The Commission and AlzChem contend that the sixth ground of appeal is based on a misreading of the judgment under appeal and must be rejected. As regards the appellant’s argument based on paragraph 89 of that judgment, the Commission contends that this is an inadmissible new plea, since it was put forward for the first time in the reply.

Findings of the Court

31 It should be noted that paragraphs 77, 121, 135 and 145 of the judgment under appeal form part of the grounds set out by the General Court for rejecting the first and second parts of the first plea, alleging the absence of a transfer of State resources and of an economic advantage conferred on NCHZ respectively.

32 In that regard, it should be recalled, as the General Court did in paragraph 72 of the judgment under appeal, that the application to an undertaking of rules derogating from the normal insolvency rules must be regarded as giving rise to the grant of State aid, where it is established that the undertaking has been permitted to continue trading in circumstances in which it would not have been permitted to do so if the normal insolvency rules had been applied, or has enjoyed one or more advantages, such as, inter alia, a de facto waiver of public debts wholly or in part, which could not have been claimed by another insolvent undertaking under the application of the normal insolvency rules (judgment of 17 June 1999, Piaggio, C‑295/97, EU:C:1999:313, paragraph 43).

33 In paragraphs 149 to 153 of the judgment under appeal, the General Court set out the conclusions that it drew from its examination of the various arguments put forward by the appellant in the context of the first and second parts of the first plea.

34 In that context, it held, in paragraph 149 of the judgment under appeal, that the classification of NCHZ as a ‘strategic company’, within the meaning of the Law on Strategic Companies, led, first, to the continuation of that undertaking’s operations, irrespective of any consideration of its economic situation and its capacity to honour its debts, in particular public debts, and, second, to the retention of its staff, because of the barrier to collective redundancies, which enabled that undertaking to continue to operate with an assurance provided to its customers and suppliers that its operations would continued until the end of 2010.

35 In paragraph 150 of the judgment under appeal, the General Court considered that in circumstances corresponding to normal market conditions NCHZ could not have obtained the same advantage as that made available to it through State resources. According to the General Court, the situation would not have been the same if that company had been subject to the normal insolvency rules and no additional burden had been imposed on the public creditors.

36 On the basis of those findings, the General Court found, in paragraph 152 of the judgment under appeal, that the Commission had not erred in concluding that there was an economic advantage conferred on NCHZ, through State resources, as a result of the classification of that company as a ‘strategic company’ within the meaning of the Law on Strategic Companies.

37 In so doing, the General Court correctly applied the case-law cited in paragraph 32 of the present judgment to the facts of the case as it had established them.

38 The appellant’s arguments do not justify a different conclusion.

39 The appellant’s argument that the General Court wrongly considered that, in order to be able to continue operating, NCHZ was required to maintain the same ‘level of employment’, namely the same number of employees as before its declaration of insolvency, is based on a misreading of the judgment under appeal and must therefore be rejected, without it being necessary to rule on its admissibility. Such a finding by the General Court does not appear in any of the paragraphs of that judgment referred to by the appellant.

40 In particular, in paragraph 89 of the judgment under appeal, the General Court merely indicated that the continuing operation of NCHZ would have been rendered at the very least difficult or even impossible if the measures taken by the insolvency administrator of that company had involved a significant reduction of its personnel. It does not follow from that observation that the General Court considered that NCHZ needed to retain the same number of employees as before its insolvency in order to achieve the same level of production.

41 As regards the General Court’s alleged failure to take into account the argument that the fact that an undertaking is prohibited from any reduction in its staff constitutes a disadvantage and not an advantage, it must be noted that the General Court took that argument into account, but rejected it on the ground that, when NCHZ was prohibited from making any redundancies, it was already insolvent.

42 Although, for an undertaking which is not in a situation of suspension of payments, the fact of not being able to dismiss part of its staff in order to reduce operating costs constitutes a disadvantage, that is not the case for an undertaking which has been declared insolvent, such as NCHZ.

43 In paragraphs 77 and 145 of the judgment under appeal, the General Court stated that the continuation of NCHZ’s operations without any reduction in its staff necessarily increased that company’s debt to the public creditors, in particular vis-à-vis the social insurance company and the health insurance company. Since NCHZ was already, at the time of its declaration of insolvency, incapable of settling all of its debts, the increase of those debts with those public creditors amounted, in reality, to an effective waiver, at least in part, of those creditors’ claims, as the General Court noted, in essence, in paragraph 145 of that judgment.

44 On the basis of those considerations, the General Court was fully entitled, without erring in law, to reject the appellant’s argument that the prohibition on collective redundancies did not constitute an economic advantage for NCHZ.

45 Having regard to the foregoing, the sixth ground of appeal must be rejected.

The seventh ground of appeal, alleging an error of law in that the General Court substituted its own assessment for that of the Commission in the decision at issue

Arguments of the parties

46 By its seventh ground of appeal, the appellant submits that, in the context of examining its arguments relating to the existence of an economic advantage for NCHZ arising from the prohibition on collective redundancies, the General Court erred in law by substituting its own reasoning for that of the Commission in the decision at issue. Paragraphs 135, 145 and 149 of the judgment under appeal contain new reasons to show that the alleged possibility for that company of retaining the same level of staff while not paying social security and health insurance contributions constituted in itself an advantage. The same is true of the finding, in paragraph 149 of that judgment, that the possibility for NCHZ of retaining all of its staff allowed it to continue its operations with the assurance given to its customers and suppliers that its operations would continue until the end of 2010. Those considerations are not linked to any assessment that is found in the decision at issue. In reality, according the appellant, the General Court, by its own reasoning, filled a gap in the statement of reasons for the decision at issue.

47 The Commission and AlzChem contend that all the considerations of the General Court disputed by the appellant have their basis in the decision at issue, with the result that the seventh ground of appeal must be rejected as unfounded.

Findings of the Court

48 According to the case-law of the Court of Justice, although, in an action for annulment, the General Court may be led to interpret the reasoning of the contested measure differently from its author, or even, in certain circumstances, to reject the latter’s formal statement of reasons, it cannot substitute its own reasoning for that of the author of the contested act (judgments of 27 January 2000, DIR International Film and Others v Commission, C‑164/98 P, EU:C:2000:48, paragraphs 38 and 42, and of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraphs 141 and 142).

49 However, in the present case, contrary to the appellant’s claims, it is not apparent from the judgment under appeal that the General Court relied on reasoning different from that used by the Commission in the decision at issue in order to find that NCHZ benefited, as a result of its classification as a ‘strategic company’, from an advantage constituting State aid.

50 The General Court merely confirmed the Commission’s assessment, summarised in paragraphs 44 to 48 of the judgment under appeal, that the application to NCHZ of the Law on Strategic Companies and the prohibition on collective redundancies that it involved had the effect of conferring on that company a selective advantage constituting State aid. In paragraphs 135, 145 and 149 of that judgment, to which the appellant refers in its submission, the General Court confined itself to responding to arguments raised before it by the appellant, without setting out reasons different from those set out in the decision at issue.

51 Consequently, the seventh ground of appeal must be rejected.

The third ground of appeal, alleging an error of law and distortion of the facts in that the General Court ignored a number of presumptions indicating that NCHZ’s assets had been purchased at market price

Arguments of the parties

52 By its third ground of appeal, the appellant claims that, both during the procedure before the Commission and during the proceedings before the General Court, it demonstrated the accuracy of several facts from which it could be assumed that the price which it paid for NCHZ’s assets corresponded to the market price. However, as a result of an error of law, the General Court did not accept the validity of those presumptions and, moreover, distorted the facts underlying those presumptions.

53 In particular, the appellant submits that, in the judgment of 29 April 2004, Germany v Commission (C‑277/00, EU:C:2004:238, paragraphs 93 and 94), the Court of Justice established a presumption that assets sold in the context of insolvency proceedings conducted by a personally liable insolvency administrator, acting under the supervision of an insolvency court and solely in the interest of the creditors, were sold at market price. However, in paragraphs 224 and 225 of the judgment under appeal, the General Court, as a result of an error of law, refused to accept the existence of that presumption.

54 The appellant adds that neither the brief and abstract doubts expressed in the decision at issue as to whether the procedure for the sale of NCHZ’s assets was unconditional nor the General Court’s speculation, set out in paragraph 231 of the judgment under appeal, allow the presumption of sale at market price to be rebutted. It submits that, before the General Court, it demonstrated that the possibility, for the interested parties which participated in the procedure for the sale of NCHZ’s assets, of entering into certain commitments relating to the investments to be made and the maintenance of a given level of production, in return for the right to match the bid of the highest bidder who did not choose to make those commitments, was of no practical use and no tenderer made use of that possibility.

55 The Commission was also wrong to consider, in the decision at issue, that the option of purchasing certain of NCHZ’s assets separately could have led to a higher total sale price being achieved. The administrator and the insolvency court concluded, following an in-depth analysis, that an overall sale of all NCHZ’s assets was likely to lead to a higher sale price and was the best economic option for the creditors. However, as is apparent from paragraph 236 of the judgment under appeal, they evaluated unsolicited offers for individual assets or for groups of assets, but concluded that those bids could not lead to a better economic outcome for the creditors.

56 Lastly, the appellant submits that the price that it paid to Via Chem for the purchase of NCHZ’s assets corresponded to the market price, since that purchase was concluded between two independent market economy operators. Both the Commission and the General Court, in paragraphs 248 to 250 of the judgment under appeal did not accept that presumption, on the sole ground that Via Chem sold NCHZ’s assets to the appellant without organising a tender procedure.

57 The Commission and AlzChem contend that several of the appellant’s arguments seek to obtain from the Court a new assessment of the facts and must therefore be rejected as inadmissible. In any event, they submit that the third ground of appeal is unfounded and must be rejected.

Findings of the Court

58 It must be recalled, as a preliminary point and as the General Court did in paragraph 207 of the judgment under appeal, that, according to the case-law of the Court of Justice, illegal aid must be recovered from the company which carries on the economic activity of the undertaking which initially benefited from the aid where it is established that that company retains the actual competitive advantageassociated with the benefit of that aid (judgment of 7 March 2018, SNCF Mobilités v Commission, C‑127/16 P, EU:C:2018:165, paragraph 106 and the case-law cited).

59 It is apparent from that same case-law that economic continuity between companies who are parties to a transfer of assets is assessed in the light of the subject matter of the transfer (assets and liabilities, maintenance of the workforce, bundled assets), the transfer price, the identity of the shareholders or owners of the acquiring undertaking and the original undertaking, the moment when the transfer takes place (after the commencement of the investigation, opening of the procedure or the final decision) and also the economic logic of the transaction (judgment of 7 March 2018, SNCF Mobilités v Commission, C‑127/16 P, EU:C:2018:165, paragraph 108 and the case-law cited).

60 The Court has repeatedly held that, where an undertaking that has benefited from unlawful State aid is bought at the market price, that is to say at the highest price which a private investor acting under normal competitive conditions was ready to pay for that company in the situation it was in, in particular after having enjoyed State aid, the aid element was assessed at the market price and included in the purchase price. In such circumstances, the buyer cannot be regarded as having benefited from an advantage in relation to other market operators (judgment of 1 October 2015, Electrabel and Dunamenti Erőmű v Commission, C‑357/14 P, EU:C:2015:642, paragraph 112 and the case-law cited).

61 In the present case, it must be recalled that, as is apparent from paragraphs 8 and 11 of the judgment under appeal, all NCHZ’s assets were sold to Via Chem, in the context of a tender procedure conducted by the insolvency administrator, under the supervision of the insolvency court. It is apparent from paragraph 12 of that judgment that on the day after that sale was finalised, Via Chem sold to the appellant the chemical division of NCHZ, with the exception of the immovable assets, which were made available to the appellant under a lease contract.

62 In the decision at issue, the Commission considered that there was economic continuity between NCHZ and the appellant, with the result that the order for recovery of the aid had to be extended to the latter. The appellant disputed that finding by the fourth plea of its action.

63 After examining, in paragraphs 204 to 280 of the judgment under appeal, the various arguments put forward by the appellant in the context of that plea, the General Court found, in paragraph 282 of that judgment, that the Commission had not erred in finding, in the first place, that both the scope of the transaction, namely the subject matter of the transfer, and its economic logic could constitute evidence of the existence of economic continuity between NCHZ and the appellant and, in the second place, that it could not be regarded as certain that the two successive sales of NCHZ’s assets had been made at market price. It added, in paragraph 283 of the judgment, that, in that context, in the light of the fact that, in accordance with the case-law, first, even supposing that the transfer price was in line with the market price, it only constituted a single factor in the analysis of the existence of potential economic continuity and, secondly, the payment of a price consistent with market conditions cannot suffice to offset the competitive advantage linked to the receipt of unlawful aid, it had to be held that, on account of the circumstances of the present case, the Commission had been fully entitled to conclude that the obligation to recover the aid in question should be extended to the appellant, irrespective of any finding of an intention to circumvent recovery.

64 It is those findings of the General Court which are challenged by the third ground of appeal, which is divided, in essence, into two parts. By the first part of the third ground of appeal, the appellant alleges that the General Court erred in law in that it allegedly disregarded a presumption established by the Court of Justice in the judgment of 29 April 2004, Germany v Commission (C‑277/00, EU:C:2004:238). According to that presumption, as interpreted by the appellant, if assets have been sold in the context of insolvency proceedings conducted by a personally liable insolvency administrator, acting under the supervision of an insolvency court and solely in the interests of the creditors, those assets should be considered as having been sold at market price.

65 Contrary to the appellant’s submission, it is not apparent from the judgment of 29 April 2004, Germany v Commission (C‑277/00, EU:C:2004:238, paragraphs 93 and 94), that the Court of Justice intended to establish a presumption of general application. The considerations set out in paragraph 93 of that judgment concern the specific context of the case which gave rise to that judgment and do not reveal the existence of any presumption of general application.

66 In addition, it is apparent from paragraph 92 of the judgment of 29 April 2004, Germany v Commission (C‑277/00, EU:C:2004:238), that, in the case giving rise to that judgment, it was common ground that the sale of the assets of the beneficiary of the aid at issue to another undertaking had been effected at the market price. The General Court did not therefore err in law when it stated, in paragraph 224 of the judgment under appeal, that the appellant interpreted broadly the judgment of 29 April 2004, Germany v Commission (C‑277/00, EU:C:2004:238).

67 Consequently, the first part of the third ground of appeal must be rejected as unfounded.

68 By the second part of the third ground of appeal, the appellant contests, in essence, the considerations which led the General Court to conclude, in paragraph 246 of the judgment under appeal, that the Commission had rightly considered that there was no guarantee that the sale price paid by Via Chem was the market price for NCHZ’s assets.

69 It should be borne in mind that it follows from the second subparagraph of Article 256(1) TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. Therefore, the appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (judgment of 8 March 2016, Greece v Commission, C‑431/14 P, EU:C:2016:145, paragraphs 30 and 31 and the case-law cited).

70 Where an appellant alleges distortion of the evidence by the General Court, he or she must, under Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in his or her view, led to such distortion. In addition, according to the Court of Justice’s settled case-law, that distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment of 8 March 2016, Greece v Commission, C‑431/14 P, EU:C:2016:145, paragraph 32 and the case-law cited).

71 In the present case, as the Commission and AlzChem essentially submit, the arguments put forward by the appellant in the second part of the third ground of appeal concern, in essence, the question of whether the conditions of the call for tenders that led to the sale of NCHZ’s assets to Via Chem were such as to ensure that the sale price that was obtained would be the market price. The assessments by the General Court on that issue are factual and cannot therefore be called into question at the appeal stage, unless the facts and evidence have been distorted by the General Court.

72 Although the appellant has referred to a distortion of the facts by the General Court, it has not indicated either those facts that it alleges the General Court distorted or how precisely they were distorted.

73 Consequently, in accordance with the case-law cited in paragraphs 69 and 70 above, the second part of the third ground of appeal must be rejected as inadmissible.

74 In the light of the foregoing, the third ground of appeal must be rejected.

The second ground of appeal, alleging an error of law in the allocation of the burden of proof

Arguments of the parties

75 By its second ground of appeal, the appellant submits that the General Court erred in law in holding, in paragraph 221 of the judgment under appeal, that the Commission did not bear the burden of proving that the purchase price of the assets of the aid beneficiary was lower than the market price. According to the appellant, the factual circumstances of the case that gave rise to the judgment of 7 March 2018, SNCF Mobilités v Commission (C‑127/16 P, EU:C:2018:165), cited in paragraphs 205 to 209 of the judgment under appeal, were completely different from those of the present case, in which an open, transparent and non-discriminatory call for tenders was organised under the responsibility of a personally liable insolvency administrator who was under the supervision of the insolvency court, and a positive sale price was achieved.

76 The Commission and AlzChem contend that the second ground of appeal must be rejected as unfounded.

Findings of the Court

77 It should be noted that, in paragraph 221 of the judgment under appeal, the General Court responded to the appellant’s argument, summarised in paragraph 219 of that judgment, that the burden of proof as to the economic advantage obtained by the purchaser of the assets of the aid beneficiary lies with the Commission and that it is not sufficient for the Commission to express doubts.

78 The General Court observed in that regard that, in so far as, in accordance with the case-law, just one of the factors to be taken into consideration in order to assess whether there was economic continuity is not sufficient, in itself, to rule out extending the obligation to recover the aid in question to an undertaking other than the initial aid beneficiary, such as a sale price at market price, the Commission does not necessarily have to prove that there was no such sale price in order to conclude that there was economic continuity and the lack of guarantee of such a sale price may be taken into account in the Commission’s overall assessment of the various factors under examination.

79 Contrary to the appellant’s submissions, that finding by the General Court follows logically from the case-law referred to in paragraphs 58 and 59 of this judgment. It is apparent from that case-law that the transfer price is only one of the factors to be taken into consideration in assessing the existence of economic continuity.

80 That finding cannot be called into question by the argument, put forward by the appellant in its reply, that the factual circumstances of the judgment of 7 March 2018, SNCF Mobilités v Commission (C‑127/16 P, EU:C:2018:165), were different from those of the present case. Paragraphs 106 and 108 of that judgment, cited by the General Court in paragraphs 207 and 208 of the judgment under appeal, set out general considerations and do not relate to the specific circumstances of the case which gave rise to that judgment.

81 It follows that the second ground of appeal must be rejected as unfounded.

The fourth ground of appeal, alleging an error of law in the interpretation of the assessment criteria relating to the scope and economic logic of the transaction

Arguments of the parties

82 By its fourth ground of appeal, the appellant claims that the General Court erred in law in finding, in paragraphs 264 and 265 of the judgment under appeal, that the criterion of the ‘economic logic of the transaction’, used in the case-law in order to find economic continuity between the aid beneficiary and another undertaking, is satisfied where an undertaking which has acquired the aid beneficiary’s assets does not succeed in demonstrating that it will use them in future in a manner different from the way in which the aid beneficiary has used them.

83 The appellant observes, in that regard, that, as it argued before the General Court, that criterion is intended solely to identify attempts to circumvent the recovery of State aid, in particular in the case of an intra-group transaction. According to the appellant, the interpretation of that criterion adopted by the General Court would discriminate against a purchaser active in another economic sector that is incapable of demonstrating that it will integrate the assets of the aid beneficiary into its own operations.

84 According to the appellant, those considerations also apply to the criterion of the ‘scope of the operation’.  That is a negative criterion, which suggests that there is no circumvention where only separate assets have been sold. It is doubtful whether that criterion could be useful for identifying an attempt at circumvention in the event of a sale en bloc of the assets. In any event, the General Court erred in law in finding, in paragraph 258 of the judgment under appeal, that, in the present case, the subject matter of the transfer ‘suggests that there was economic continuity’.

85 The Commission and AlzChem contend that the fourth ground of appeal is unfounded and must be rejected.

Findings of the Court

86 According to the case-law of the Court cited in paragraph 59 of this judgment, the criterion of the ‘economic logic of the transaction’ is one of the criteria used in assessing whether there is economic continuity between the companies that are party to a transfer of assets which could justify the recovery of unlawful aid from the company that acquired the aid beneficiary’s assets and pursues its economic activity.

87 On the other hand, contrary to the appellant’s submissions, it does not follow from that case-law that that criterion is used solely for identifying attempts to circumvent recovery of the aid at issue.

88 The General Court did not therefore misconstrue the meaning of that criterion or err in law in finding, in paragraphs 264 and 265 of the judgment under appeal, that the fact that the appellant used the assets it had acquired in the same way as NCHZ, without changing its commercial strategy, leads to the conclusion that the economic logic of the purchase transaction by the appellant was, for the appellant, a continuation of the business previously operated by NCHZ, which constituted an indication of economic continuity between NCHZ and the appellant.

89 The appellant’s argument relating to the criterion of the ‘scope of the transaction’ also cannot succeed. As in the case of the criterion of the ‘economic logic of the transaction’, the appellant’s argument that the criterion of the ‘scope of the transaction’ serves only to identify attempts to circumvent the recovery of the aid in question finds no support in the Court’s case-law.

90 The General Court cannot therefore be criticised for having erred in law in stating, in paragraph 258 of the judgment under appeal, that the scope of the transaction for the acquisition of NCHZ’s assets by the appellant, in the sense of the subject matter of the transfer, suggested that there was economic continuity between NCHZ and the appellant.

91 It is common ground that the appellant acquired all NCHZ’s assets, with the exception of the immovable assets necessary for chemical production, which it nevertheless leased, as the General Court noted in paragraph 258 of the judgment under appeal. It was thus a complete transfer of NCHZ to the appellant which indicates that there was economic continuity between those two undertakings.

92 In the light of the foregoing considerations, the fourth ground of appeal must be rejected as unfounded.

The fifth ground of appeal, alleging an error of law in that the General Court held that the Commission was entitled to conclude that there was economic continuity solely on the basis of the criteria of the scope and economic logic of the transaction

Arguments of the parties

93 By its fifth ground of appeal, the appellant submits that the General Court erred in law, in paragraph 282 of the judgment under appeal, in finding that the economic continuity between NCHZ and the appellant could be established solely on the basis of the criteria of the scope and economic logic of the transaction, and that the Commission’s mere doubts as to whether the former’s assets had been purchased by the latter at market price was sufficient to justify that conclusion. In paragraph 283 of that judgment, the General Court held that even supposing the transfer price was in line with the market price, it would be possible to conclude that there was economic continuity solely on the basis of the criteria of the scope and economic logic of the transaction.

94 The Commission and AlzChem contend that the fifth ground of appeal is based on a misreading of the judgment under appeal and the relevant case-law on the subject, and must be rejected as unfounded.

Findings of the Court

95 It should be noted that paragraphs 282 and 283 of the judgment under appeal, challenged by the fifth ground of appeal, are within the section of the judgment which, according to the title above paragraph 281 of that judgment, concerns ‘the Commission’s overall assessment concerning existence of economic continuity between NCHZ and the [appellant]’.

96 As is apparent from the judgment under appeal, in order to find that there was economic continuity between NCHZ and the appellant, the Commission did not confine itself, in the decision at issue, to examining solely the criteria of the scope and economic logic of the transaction transferring NCHZ’s assets to the appellant, but also analysed other criteria, namely the sale price, the possible intention of evading the recovery decision, any links between the initial owner and the new owner, and the time of the sale.

97 In paragraphs 216 to 280 of the judgment under appeal, the General Court reviewed the Commission’s assessments relating to all of those criteria. Following that examination, and in its unappealable assessment of the facts of the case, the General Court confirmed, in paragraph 282 of that judgment, that the Commission was entitled to reach the conclusion that, first, the scope of the transaction transferring NCHZ’s assets to Via Chem, then to the appellant, and the economic logic of that transaction could constitute evidence of the existence of economic continuity between NCHZ and the appellant and, second, that it could not be regarded as certain that the two successive sales had been made at market price.

98 It is also apparent from the judgment under appeal that the General Court confirmed the Commission’s assessment that, in essence, none of the criteria analysed made it possible definitively to rule out the existence of economic continuity between NCHZ and the appellant.

99 Consequently, the General Court did not err in law in holding that the Commission was entitled to find, in the context of an overall assessment, that there was economic continuity between NCHZ and the appellant, which justified the extension to the appellant of the obligation to recover the aid paid to NCHZ which was the subject of the decision at issue.

100 It is apparent from the case-law cited in paragraphs 58 and 59 above that the extension of the obligation to recover unlawful aid depends on whether the company which carries on the activities of the beneficiary of that aid retains the actual benefit of that aid, which is the case if there is economic continuity between that beneficiary and that company. The criterion of the economic logic of the transaction is expressly referred to in that case-law, whereas the criterion of the scope of the transaction corresponds to that of the subject matter of the transfer. As the General Court held, in essence, those two criteria suggested clearly that there was economic continuity between NCHZ and the appellant.

101 As regards the criterion relating to the sale price, it is clear from paragraph 282 of the judgment under appeal that the General Court, in its assessment of the facts, which is not subject to appeal, considered, in essence, that it had not been established that, in the present case, that price was in line with the market price, with the result that the case-law cited in paragraph 60 of this judgment could not, in any event, apply.

102 In those circumstances, the finding in paragraph 283 of the judgment under appeal that, in essence, even if the appellant’s purchase price for NCHZ’s assets was in line with the market price, that factor would not have sufficed to rule out the existence of economic continuity between NCHZ and the appellant, was made by the General Court for the sake of completeness.

103 In the light of the findings made in paragraphs 99 to 101 above, the finding made in paragraph 283 of the judgment under appeal cannot, even if it were vitiated by errors, lead to the setting aside of that judgment. The appellant’s argument directed against it must therefore be rejected as ineffective. (see, by analogy, judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 57 and the case-law cited).

104 It follows from the foregoing considerations that the fifth ground of appeal must be rejected.

The first ground of appeal, alleging that the General Court erred in law in holding that the decision to recover the aid covered by the decision at issue could be extended to the appellant, even though it had purchased the aid beneficiary’s assets at market price

Arguments of the parties

105 By its first ground of appeal, the appellant submits that the General Court infringed Article 14(1) of Regulation No 659/1999 by holding, as is apparent from paragraph 212 of the judgment under appeal, that, where the assets of the aid beneficiary were purchased by a competitor, it is not necessary to show that the purchase price was lower than the market price.

106 The Commission and AlzChem contend that the first ground of appeal must be rejected.

Findings of the Court

107 Paragraph 212 of the judgment under appeal, referred to in first ground of appeal, forms part of the preliminary observations made by the General Court before analysing the various arguments put forward by the appellant in the context of the fourth plea in its action. The General Court stated in that paragraph, inter alia, that the fact that the transfer price of the assets of the beneficiary of the unlawful aid to another undertaking is consistent with market conditions may be insufficient to rule out, in itself, the existence of economic continuity between the aid beneficiary and the purchaser of the assets and does not prevent, in some circumstances, extension, to the purchaser, of the obligation to recover that aid.

108 The consideration set out in paragraph 212 of the judgment under appeal is thus linked to the finding set out in paragraph 283 of that judgment, recalled in paragraph 102 above. That finding is merely the application, to the facts of the present case, of the consideration of a general nature set out in paragraph 212 of the judgment under appeal.

109 It is apparent from paragraphs 97 and 101 of this judgment that the General Court found that it had not been demonstrated that the sale of NCHZ’s assets first to Via Chem, and then to the appellant, was made at market price.

110 Accordingly, for the same reasons as those set out in paragraph 103 of this judgment, it must be concluded that, even if paragraph 283 of the judgment under appeal, applying the considerations in the case-law of a general nature set out in paragraph 212 of that judgment, were vitiated by an error of law, that error cannot justify setting aside that judgment, with the result that the first ground of appeal must be rejected as ineffective.

111 Since all the grounds of appeal must be rejected, the appeal must be dismissed.

Costs

112 In accordance with the Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs.

113 In accordance with Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

114 Since the appellant has been unsuccessful and the Commission and AlzChem have applied for costs, the appellant must, in addition to bearing its own costs, pay those incurred by the Commission and by AlzChem.

On those grounds, the Court (Ninth Chamber) hereby:

1. Dismisses the appeal.

2. Orders Fortischem a.s. to bear its own costs and to pay those incurred by the European Commission and by AlzChem AG.