Contents
Judgment of the General Court (Eighth Chamber)12 November 2015note(State aid — Banking sector — Restructuring of HSH Nordbank — Decision declaring the aid compatible with the internal market on certain conditions — Action for annulment — Lack of individual concern — Minority shareholder of the aid beneficiary — Concept of a separate interest — Partial inadmissibility — Capital dilution)In Case T‑499/12HSH Investment Holdings Coinvest-C Sàrl, established in Luxembourg City (Luxembourg),HSH Investment Holdings FSO Sàrl, established in Luxembourg,represented by H.-J. Niemeyer, H. Ehlers and C. Kovács, lawyersvEuropean Commission, represented by L. Flynn, T. Maxian Rusche and R. Sauer, acting as Agents,THE GENERAL COURT (Eighth Chamber),composed of D. Gratsias, President, M. Kancheva and C. Wetter (Rapporteur), Judges,Registrar: K. Andová, Administratorhaving regard to the written procedure and further to the hearing on 22 April 2015,gives the following
Judgment
Background to the dispute
1HSH Nordbank AG was created on 2 June 2003 from the merger of Hamburgische Landesbank and Landesbank Schleswig-Holstein. Together with its subsidiaries (‘the HSH group’), it is the fifth largest Landesbank (German regional bank).
2Like many financial institutions, HSH Nordbank and the HSH group suffered the consequences of the crisis which started in 2007 (the so-called ‘subprime crisis’) and intensified in September 2008 with the bankruptcy of Lehman Brothers bank, with the result that HSH Nordbank applied for EUR 30 billion liquidity guarantees from the German Special Fund for Stabilising the Financial Markets (Sonderfonds Finanzmarktstabilisierung, ‘the special fund’).
3After the German Financial Services Regulator (Bundesanstalt für Finanzdienstleistungsaufsicht) issued the opinion that the grant of such a guarantee would make it difficult to comply with German legislation on capital requirements, the Federal Republic of Germany notified the Commission of the European Communities, on 30 April 2009, of the grant of two aid measures, namely, first, a EUR 3 billion recapitalisation (‘the recapitalisation’) through the issue of shares in HSH Nordbank, which were fully subscribed by a public-law institution, HSH Finanzfonds, established and controlled by the Länder of Hamburg and Schleswig-Holstein and owned by them in equal shares, and, secondly, a EUR 10 billion ‘second loss’ guarantee (‘the risk shield’), intended to shelter HSH Nordbank from losses which could affect its portfolio of impaired assets, thereby improving the bank’s capital ratios. The ‘first-loss’ tranche was covered by HSH Nordbank itself.
4By decision of 29 May 2009 in case N 264/09 (OJ 2009 C 179, p. 1), the Commission authorised the recapitalisation and the risk shield for a period of six months as rescue measures for the HSH group on the basis of Article 87(3)(b) EC, and asked the Federal Republic of Germany to submit a restructuring plan within three months.
5The two aforementioned Länder authorised the aid measures at issue for HSH Nordbank in May and June 2009. As a result of the recapitalisation, the special fund granted HSH Nordbank a proportion of the liquidity guarantees it had applied for, which amounted to EUR 17 billion (‘the liquidity guarantee’).
6On 1 September 2009, the Federal Republic of Germany submitted a restructuring plan for the HSH group to the Commission.
7On 22 October 2009, the Commission initiated the procedure provided for in Article 88(2) EC with regard to the recapitalisation and the risk shield. The interested parties were asked to present their observations within fifteen days of the publication of the Commission Decision in the Official Journal of the European Union, on 21 November 2009 (OJ 2009 C 281, p. 42). In that context, on 3 December 2009, the investment funds, including the applicants HSH Investment Holdings Coinvest-C Sàrl and HSH Investment Holdings FSO Sàrl, advised by the American company JC Flowers & Co. LLC, requested an extension of the deadline in order to submit their observations, which was granted. The Commission received those observations on 17 December 2009, after a meeting was held on 2 December 2009 between the Commission and all the interested parties, including JC Flowers & Co., representing, among others, the applicants.
8The investment funds advised by JC Flowers & Co., which together held 25.67% of the capital of HSH Nordbank prior to the recapitalisation, held only 9.19% of the capital after the recapitalisation, as they did not voluntarily participate in it.
9In order to take into account additional information on the restructuring model required in this case, which was provided in the period between October 2009 and June 2011, the Federal Republic of Germany submitted a modified restructuring plan on 11 July 2011.
10By Decision 2012/477/EU of 20 September 2011 on State aid granted by Germany to HSH Nordbank SA.29338 (C 29/09 (ex N 264/09)) (OJ 2012 L 225, p. 1, ‘the contested decision’), the Commission took the view that the recapitalisation, the risk shield and the liquidity guarantee constituted State aid caught by Article 107(1) TFEU, and that those measures were compatible with the internal market in so far as the Federal Republic of Germany honoured its commitments, which are set out in Annexes I and III of the contested decision, and met the conditions it had set, listed in Annex II of that decision.
11In accordance with paragraph 1.11 of Annex II of the contested decision, entitled ‘Lump-sum payment and capital increase’, HSH Finanzfonds and HSH Nordbank must amend the contract concluded on 2 June 2009 on the provision of a guarantee framework, or supplement it with further documentation ‘so as to ensure that HSH Finanzfonds ... has a claim against HSH [Nordbank] to a lump-sum payment with a nominal value of EUR 500 million’ (‘the lump-sum payment’). The lump-sum payment consists of the payment by HSH Nordbank of EUR 500 million to HSH Finanzfonds, which, as is apparent from the express wording of paragraph 1.11 of Annex II of the contested decision, HSH Finanzfonds is then required to allocate to HSH Nordbank by way of a ‘contribution in kind’. Paragraph 1.13 of that annex states that that EUR 500 million capital increase in favour of HSH Finanzfonds was to take place either ‘with no right of option for minority shareholders’ or, if it had to take place through a mixed capital increase by way of contribution in kind and cash, with a right of option for all shareholders regarding the cash portion, on the condition that HSH Finanzfonds did not participate in the capital increase by way of contribution in cash.
12According to paragraph 3 of that annex, entitled ‘Dividend ban’, ‘HSH [Nordbank] will not pay dividends in the period up to and including the financial year ending 31 December 2014’.
13Moreover, paragraph 4 of that annex, entitled ‘Protection of reserves’, provides that ‘in the period from 1 January 2015 until 31 December 2016, dividend payments may not exceed 50% of the annual surplus for the previous financial year’ and [may be made during that period] ‘only in so far as they do not jeopardise compliance with the Basel III provisions on the capital of credit institutions in the medium-term’.
Procedure and forms of order sought by the parties
14By application lodged at the Registry of the General Court on 13 November 2012, the applicants brought the present action.
15On 1 February 2013, the Commission lodged its defence.
16The applicants’ reply was lodged at the Registry of the General Court on 15 April 2013. The rejoinder was lodged at the Registry on 11 June 2013.
17Following a partial change in the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the Eighth Chamber, to which this case was thus reallocated.
18The applicants claim that the Court should:— annul the contested decision;— order the Commission to pay the costs.
19The Commission contends that the Court should:— dismiss the action as inadmissible;— in the alternative, reject the fifth plea in section B.I of the second part of the application and the complaints in section B.II of the second part of the application as inadmissible;— in the further alternative, dismiss the action as unfounded;— order the applicants to pay the costs.
20The Commission withdrew the other two heads of claim submitted in the yet further alternative, of which formal note was taken in the minutes of the hearing which was held on 22 April 2015.
Law
Admissibility
21The applicants claim that they are entitled to bring the present action since the contested decision is of direct and individual concern to them, within the meaning of the fourth paragraph of Article 263 TFEU, in their capacity as HSH Nordbank shareholders. They submit that, the case-law confers on shareholders, be they sole shareholders or not, the right to bring an action before the European Union Courts. They add that they actively participated in the administrative procedure which led to the adoption of the contested decision.
22The Commission disputes the applicants’ arguments and contends, inter alia, albeit without having formally raised an objection of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court, that their action is inadmissible.
23First of all, it should be noted that, as is clear from the case-law, if an applicant has no interest in bringing proceedings, it is unnecessary to examine whether that applicant is directly and individually concerned for the purposes of the fourth paragraph of Article 263 TFEU (judgment of 18 December 2003, Olivieri v Commission and EMEA, T‑326/99, ECR, EU:T:2003:351, paragraph 66, and order of 15 May 2013, Post Invest Europe v Commission, T‑413/12, EU:T:2013:246, paragraph 17).
24An interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings. An action for annulment brought by a natural or legal person is thus admissible only in so far as that person has an interest in the annulment of the contested measure. An applicant’s interest in bringing proceedings presupposes that the annulment of the contested act is capable alone of having legal consequences, that the action is therefore appropriate, by its result, to obtain a benefit for the party which brought it and that that party can show an actual and current interest in the annulment of that act (judgment of 19 June 2009, Socratec v Commission, T‑269/03, EU:T:2009:211, paragraph 36, and order in Post Invest Europe v Commission, paragraph 23 above, EU:T:2013:246, paragraph 22).
25According to the case-law, it is the applicant that must prove that it has an interest in bringing proceedings (order of 31 July 1989, S. v Commission, C‑206/89 R, ECR, EU:C:1989:333, paragraph 8, and judgment of 14 April 2005, Sniace v Commission, T‑141/03, ECR, EU:T:2005:129, paragraph 31). In particular, the applicant must be able to demonstrate a personal interest in the annulment of the contested decision. That interest must be vested and present and is evaluated as at the date on which the action is brought (judgments in Sniace v Commission, EU:T:2005:129, paragraph 25, and of 20 September 2007, Salvat père & fils and Others v Commission, T‑136/05, ECR, EU:T:2007:295, paragraph 34).
26Where an action for annulment is brought by a non-privileged applicant against a measure that has not been addressed to it, the requirement that the binding legal effects of the contested measure must be capable of affecting the interests of the applicant by bringing about a distinct change in its legal position overlaps with the conditions laid down in the fourth paragraph of Article 263 TFEU (judgments of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, ECR, EU:C:2011:656, paragraph 38, and 16 October 2014, Alro v Commission, T‑517/12, ECR, EU:T:2014:890, paragraph 25).
27Consequently, in order to assess whether the contested decision is actionable by the applicants, the Court must examine whether that decision constitutes an act which has binding legal effects on them (see, to that effect, judgments in Deutsche Post and Germany v Commission, paragraph 26 above, EU:C:2011:656, paragraph 40, and Alro v Commission, paragraph 26 above, EU:T:2014:890, paragraph 26).
28Secondly, it should be noted that the procedure for reviewing State aid is, in view of its general scheme, a procedure initiated in respect of the Member State responsible for granting the aid (judgment of 24 March 2011, Freistaat Sachsen and Land Sachsen-Anhalt v Commission, T‑443/08 and T‑455/08, ECR, EU:T:2011:117, paragraph 50, and order of 19 February 2013, Provincie Groningen and Others v Commission, T‑15/12 and T‑16/12, EU:T:2013:74, paragraph 41).
29Therefore, where an action for annulment of a decision establishing the existence of State aid is brought not by the Member State concerned but by a natural or legal person, and it concerns individual aid as opposed to an aid scheme, that action is admissible only in so far the contested measure is of direct and individual concern to that person within the meaning of the fourth paragraph of Article 263 TFEU.
30According to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of those factors distinguishes them individually in the same way as the addressee of a decision (judgments of 15 July 1963 in Plaumann v Commission, 25/62, ECR, EU:C:1963:17, p. 197, and 17 July 2014, Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, T‑457/09, ECR, EU:T:2014:683, paragraph 80).
31Finally, it should be borne in mind that an applicant must show that it has an interest in bringing proceedings separate from that possessed by an undertaking which it partly controls and which is concerned by a European Union measure. Otherwise, in order to defend its interests in relation to that measure, its only remedy lies in the exercise of its rights as a member of the undertaking which itself has a right of action (judgment of 20 June 2000, Euromin v Council, T‑597/97, ECR, EU:T:2000:157, paragraph 50; order of 27 March 2012, European Goldfields v Commission, T‑261/11, EU:T:2012:157, paragraph 21; order in Post Invest Europe v Commission, paragraph 23 above, EU:T:2013:246, paragraph 24, and judgment in Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, paragraph 30 above, EU:T:2014:683, paragraph 112).
32In that regard, it should be noted that the mere fact that a Commission, decision declares aid to be compatible with the internal market and therefore, in principle, does not have an adverse effect on the beneficiary of the aid (see, to that effect, judgment in Freistaat Sachsen and Land Sachsen-Anhalt v Commission, paragraph 28 above, EU:T:2011:117, paragraph 52) does not dispense the European Union Courts from examining whether the Commission’s finding has binding legal effects such as to affect the interests of the beneficiary (see, to that effect, judgment in 30 January 2002, Nuove Industrie Molisane v Commission, T‑212/00, ECR, EU:T:2002:21, paragraph 38; judgment in Salvat père & fils and Others v Commission, paragraph 25 above, EU:T:2007:295, paragraph 36, and order in Provincie Groningen and Others v Commission, paragraph 28 above, EU:T:2013:74, paragraph 32).
33Moreover, in accordance with the case-law, such an applicant may be individually concerned as a result of its having been actively involved in the procedure leading to the adoption of the contested measure only in cases involving particular situations in which the applicant occupies a clearly circumscribed position as negotiator which is intimately linked to the actual subject matter of the decision, thus placing it in a factual situation which distinguishes it from all other persons (see, to that effect, order of 9 September 2013, Banco Bilbao Vizcaya Argentaria v Commission, T‑429/11, EU:T:2013:488, paragraph 26 and the case-law cited).
34It is in the light of those principles that it is necessary to determine whether and, if so, to what extent the action is admissible, bearing in mind that there is no doubt that the contested decision is of direct concern to the applicants, which, moreover, is not disputed by the parties.
35In the present case, it should be noted that in Article 1(1) of the contested decision, the Commission considers the recapitalisation, the risk shield and the liquidity guarantee to constitute State aid and, in Article 1(2), submits that those three aid measures are compatible with the internal market. Article 2 of that decision provides that the original restructuring plan submitted on 1 September 2009, as last modified by the communication of the Federal Republic of Germany of 11 July 2011, including the conditions set out in Annex II of that decision, is to be implemented by that Member State in accordance with the predefined timetable. As has been set out in paragraphs 11 to 13 above, according to that annex, the conditions which are to be met in order for the aid at issue to be compatible with the internal market include, on the one hand, the lump-sum payment and, on the other, the ban on, followed by the restriction of, dividend payments.
36The forms of order sought by applicants are in two parts. In the second part of the application, they seek the annulment of the contested decision in its entirety and raise five pleas in support of the forms of order sought. In the first part of the application, they seek the partial annulment of the contested decision in so far as, by that decision, the Commission imposed obligations on them as minority shareholders. They raise eight pleas in that regard.
37It is necessary to consider the admissibility of the action in so far as it seeks the annulment of the contested decision in its entirety.
38As a preliminary point, it should be noted, first, that the action is brought not by the beneficiary of the aid measures, but by two of the beneficiary’s minority shareholders. Secondly, by the contested decision, the Commission considers those measures to be compatible with the internal market, subject to certain conditions, including the lump-sum payment and the ban on, followed by the restriction of, dividend payments. Thirdly, the obligations arising from those conditions, in the light of the wording of the operative part of the contested decision and of Annex II thereof, are incumbent on the Federal Republic of Germany as addressee of that decision and on HSH Nordbank and HSH Finanzfonds as legal persons upon whom the conditions at issue are imposed.
39First, it is necessary to ascertain whether, in the light of the substance of the contested decision, the applicants may, as minority shareholders, claim an interest in bringing proceedings separate from that possessed by HSH Nordbank itself, in accordance with the case-law referred to in paragraph 31 above.
40It must be stated at the outset that, as regards Article 1 of the contested decision, by which the Commission considered the aid measures at issue to be compatible with the internal market, the applicants’ interest is coextensive with that of HSH Nordbank.
41First, it should be noted that without the recapitalisation, risk shield and liquidity guarantee as rescue measures, HSH Nordbank would most probably have gone bankrupt and its minority shareholders, whose shareholding would have had to be sold below cost price, or even wiped out, as part of the liquidation procedure, would have lost their investment in the capital of HSH Nordbank. It is sufficient, in order to support that assertion, to refer to the accounting data in table 1 in the contested decision, which shows that HSH Nordbank made a loss of EUR 3195 million in 2008 (according to that year’s activity report, its remaining capital was just over EUR 2 billion) and of EUR 838 million in 2009. The cumulative deficit of HSH Nordbank on 31 December 2009 was EUR 1851 million.
42Next, despite the fact that the applicants did not participate in the recapitalisation, even though they could legally have done so (see recitals 255 and 256 of the contested decision), they nevertheless benefited from the rescue in question without initially suffering any consequences other than the dilution of their shareholding as a result of that recapitalisation. Thus, the applicants’ interest, namely, in receiving the State aid at issue to secure the future of the undertaking, clearly coincides, in this case, with the interest of that undertaking.
43Finally, if the aid measures at issue had been considered to be incompatible with the internal market, the Federal Republic of Germany would have been compelled to recover the aid from HSH Nordbank, which would have had an impact on the applicants’ financial situation proportionate to their shareholding in the capital of HSH Nordbank.
44It must therefore be held that, in so far as their action relates to Article 1 of the contested decision, the applicants have not shown that they have an interest in bringing proceedings separate from that of HSH Nordbank, assuming that HSH Nordbank itself had an interest in challenging that measure. Therefore, they cannot be considered to be individually concerned for the purposes of the fourth paragraph of Article 263 TFEU.
45Secondly, it is necessary to examine whether the applicants fulfil, as they claim to, that criterion by virtue of their involvement in the administrative procedure. In that regard, it should be noted that, although it is true that the applicants, like all of the investment funds advised by JC Flowers & Co., were involved in the administrative procedure, they were not consulted as negotiators, within the meaning of the case-law cited in paragraph 33 above, or as direct beneficiaries of the aid, but merely as interested parties. Consequently, in the present case, the applicants’ involvement in that procedure is not sufficient to support their being regarded as individually concerned for the purposes of the fourth paragraph of Article 263 TFEU.
46Therefore, the applicants have not established that they had an interest in seeking the annulment of Article 1 of the contested decision, and the second part of the action, by which they seek the annulment of that decision in its entirety, is thus inadmissible.
47Moreover, it is also necessary to consider the admissibility of first part of the action, seeking the partial annulment of the contested decision, in so far as, by that decision, the Commission had imposed obligations on the applicants as minority shareholders.
48As noted in paragraph 38 above, the wording of the operative part and of Annex II of the contested decision is not directed at the applicants. Only the beneficiary of the aid measures at issue, HSH Nordbank, and the majority shareholder in HSH Nordbank, HSH Finanzfonds, are named therein, as legal persons, along with the Member State concerned. The admissibility of the action in so far as it seeks the annulment of the conditions imposed on HSH Nordbank, namely, as put forward by the applicants, first, the lump-sum payment, second the ban on dividend payments and third, the restriction of dividend payments, therefore presupposes that the applicants are able to establish an interest in bringing proceedings separate from that of HSH Nordbank, which implies that those conditions have legal binding effects on them.
49In order to determine whether or not such an interest exists, it is necessary to apply the criteria set out in the judgment in Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, paragraph 30 above (EU:T:2014:683).
50In that judgment, the General Court held that the applicant, a minority shareholder in an undertaking receiving State aid considered to be compatible with the common market under Article 87(3)(c) EC, was in part entitled to challenge the legality of the Commission decision in so far as the Commission had imposed on the shareholders the requirement to sell the undertaking to an independent third party, which, as noted by the General Court, implied that they had to ‘waive, within strict deadlines, their property rights’ in that undertaking (judgment in Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, paragraph 30 above, EU:T:2014:683, paragraph 116).
51It pointed out, on the other hand, ‘that the non-policy-related rights of an owner of a German limited company [were] limited, on the one hand, to distribution of the company’s profits and, on the other hand, to receiving any surplus in the event of the undertaking’s liquidation’, since status as an owner does not confer rights ‘in the assets of the undertaking’ (judgment in Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, paragraph 30 above, EU:T:2014:683, paragraph 118).
52Given that HSH Nordbank is a German limited company, the principles laid down by the General Court and referred to in paragraphs 50 and 51 above are applicable in the present case.
53It should be pointed out that the lump-sum payment was established pursuant to Article 2 of the contested decision, according to which ‘Germany shall ensure that the original restructuring plan ... is implemented in full, including the commitments set out in Annexes I and III and the conditions set out in Annex II, and in accordance with the timetable laid down therein’.
54Moreover, it is clear from paragraph 1.11 of Annex II of the contested decision in conjunction with paragraph 1.13 of Annex II of the contested decision, set out in paragraph 11 above, that the lump-sum payment is, in fact, a complex operation which is not limited only to the payment component in the strict sense. There are three components to the operation.
55First, HSH Nordbank makes a payment of EUR 500 million to HSH Finanzfonds, constituting a reduction in the assets of the first establishment and an increase in the assets of the second establishment. Secondly, that amount is used at the same time by HSH Finanzfonds to acquire new shares in HSH Nordbank, thus increasing its shareholding in that undertaking. Thirdly, that capital increase for the sole benefit of HSH Finanzfonds automatically reduces the stake held by the other shareholders, including the applicants.
56As regards the first component, it should be pointed out that, as indicated in paragraph 51 above, the judgment in Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, paragraph 30 above (EU:T:2014:683, paragraph 118), expressly establishes that ‘under German law, status as an owner does not confer rights in the assets of the undertaking’. More specifically, matters concerning the reduction of one of the asset items on the balance sheet relate to the commercial activity of the undertaking concerned and to the sale or liquidation of its assets. That undertaking is thus in a position to put forward any argument to challenge the measures adopted by the Commission that regard (see, to that effect, judgment in Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, paragraph 30 above, EU:T:2014:683, paragraph 117). The conditions relating to the reduction of a German limited company’s total balance sheet assets cannot, therefore, affect any of the rights of that company’s shareholders (see, to that effect, judgment in Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, paragraph 30 above, EU:T:2014:683, paragraph 118). It follows from the foregoing that, as regards the payment in the strict sense, the applicants cannot claim an interest in bringing proceedings separate from that of HSH Nordbank.
57As regards the second component, the operative part of the contested decision provides for an option whereby the EUR 500 million can be used either exclusively as a contribution in kind to HSH Nordbank in favour of HSH Finanzfonds or as a contribution in kind combined with a cash contribution from the minority shareholders. However, according to paragraph 1.13 of Annex II of that decision, HSH Finanzfonds and HSH Nordbank ‘may choose the form of the capital increase which will guarantee speedier implementation and entry in the commercial register’. It is clear from those provisions, taken together, that, by the contested decision, the Commission has permitted the undertaking receiving the aid and its majority shareholder to limit minority shareholders’ property rights, if necessary, by banning them from acquiring new shares, which is not in keeping with the normal functioning of a limited company. The alternative selected in practice is, indeed, to exclude minority shareholders, including the applicants. It must therefore be held that even a potential ban of that nature adversely affects the applicants’ property rights (judgment in Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, paragraph 30 above, EU:T:2014:683, paragraph 116) in so far as it might create an obstacle to the exercise of those rights, since the minority shareholders are prohibited from retaining their relative shareholding in the capital of HSH Nordbank. That ban also proportionately restricts the shareholder’s rights of ownership, since his decision-making capacity is reduced not by market forces but as a result of the effect of the contested decision which, in this respect, therefore has legal effects on the minority shareholders, including the applicants (see, to that effect, judgment in Alro v Commission, paragraph 26 above, EU:T:2014:890, paragraph 26).
58As regards the third component, it should be noted that allocating a portion of HSH Nordbank’s cash to its recapitalisation for the sole benefit of HSH Finanzfonds adversely affects the applicants’ rights as shareholders, not only, as pointed out in paragraph 57 above, by reason of their reduced influence in HSH Nordbank’s decision-making bodies, but also because of the fact that, in relation to a fixed amount of money (the share of the profits which may be distributed as dividends), their remuneration will be reduced on account of the decrease in the nominal value of each share.
59Overall, it must be held that the applicants have established that they have an interest in bringing proceedings separate from that of HSH Nordbank as regards the second and third components referred to in paragraphs 57 and 58 above (see, to that effect, judgment in Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, paragraph 30 above, EU:T:2014:683, paragraph 120), and that the lump-sum payment is neutral for the undertaking, given that the disbursement of EUR 500 million cash was simultaneously offset by the EUR 500 million increase in share capital.
60The action is therefore admissible since the applicants are directly and individually concerned by the contested decision in so far as one of the conditions set by the Commission is to increase HSH Nordbank’s capital for the sole benefit of HSH Finanzfonds.
61Moreover, as regards the ban on dividend payments until 31 December 2014 and the restriction of any dividend payments made under the conditions set out in paragraph 13 above between 1 January 2015 and 31 December 2016, it should be pointed out that those measures certainly relate to the distribution of the undertaking’s profits within the meaning of the case-law cited in paragraph 51 above. Nevertheless, that necessary condition is not sufficient, since the applicants’ interest in bringing proceedings must be specific to them, that is to say, they must, as minority shareholders, have had an interest in bringing proceedings separate from that of HSH Nordbank.
62First, it should be noted, on that point, that an undertaking may have an interest in paying dividends in order to retain its shareholders and reward them for their investment and may, therefore, be affected by a measure which prohibits, and then restricts, dividend payments, and is consequently entitled to challenge such a measure. Secondly, the absence of dividend payments benefits the undertaking as it strengthens its capital base, which was the Commission’s objective as regards HSH Nordbank. The shareholder’s interest is very much secondary. As a general rule, the interest of a shareholder in the short term is to secure, as soon as possible, a return on his investment and, thus, a dividend payment. In the medium and long term, the shareholder wishes to see the undertaking grow so that, for example, he may realise a capital gain when his shares are sold, and, in times of crisis, where the undertaking’s growth objective proves impossible to achieve, he wishes to see it survive or recover.
63In the present case, the interests of minority and majority shareholders and the interest of the undertaking appear to converge. It is clear from the documents before the Court that the common interest of that undertaking and all its shareholders was to increase the undertaking’s capital ratio so that it could improve its rating and attract new investors in order to enable the rescue of HSH Nordbank. The applicants cannot be held to have an interest of their own as regards the ban on, followed by the restriction of, dividend payments. Therefore, they are not individually concerned by the contested decision on that point.
64In addition, as rightly pointed out by the Commission, the applicants do not put forward any substantiated plea in law or any clear argument in support of their claim that the ban and the restriction should be annulled.
65It follows that the action, except in so far as it seeks the annulment of the condition relating to the increase in HSH Nordbank’s capital for the sole benefit of HSH Finanzfonds, which the applicants have demonstrated is of direct and individual concern to them within the meaning of Article 263 TFEU, is inadmissible. First, the applicants are not individually concerned by the contested decision and secondly, moreover, as regards the condition relating to the ban on, followed by the restriction of, dividend payments, the application does not contain the particulars required under Article 44(1)(c) of the Rules of Procedure of the General Court of 2 May 1991.
Substance
The general pleas in the first part of the application
66Of the eight pleas which are raised by the applicants in the first part of their action and which may be considered as admissible, it is necessary, initially, to consider those which can be classed as ‘general’ pleas, but in the light of the conclusion drawn in paragraph 65 above, that is, only in so far as they relate to the lump-sum payment.
–Infringement of the obligation to state reasons
67First, it is necessary to address the second plea, by which the applicants complain that the Commission infringed the obligation to state reasons laid down in the second paragraph of Article 296 TFEU by failing to explain on what basis the applicants should be deemed to be beneficiaries of indirect State aid and failing to state the reasons why the enterprise value of HSH Nordbank had been incorrectly determined.
68It is necessary to state briefly, at the outset, on what basis the applicants could be classed as indirect beneficiaries of State aid. In the present case, HSH Nordbank’s minority shareholders, through that legal person of which they are shareholders, benefited from the aid measures from which HSH Nordbank benefited directly and specifically, in particular the recapitalisation measure, even though it did not participate in that recapitalisation, unlike HSH Nordbank’s majority shareholders. The Commission took the view (see, in particular, recitals 245 and 275 of the contested decision) that the measure in question would constitute such indirect aid in the absence of the conditions set in Annex II of the contested decision, subject to which direct aid (which was the only subject of the formal investigation procedure) would be rendered compatible with the internal market.
69It should be noted that the first part of the present plea, alleging that the Commission failed to explain on what basis the applicants should be deemed to be beneficiaries of indirect State aid, has no factual basis. Contrary to what the applicants claim, the Commission stated, in recitals 247 to 262 of the contested decision, why the measure would constitute such indirect aid in the absence of a new system of burden sharing among shareholders and why it considered it necessary to rebut the objections of the Federal Republic of Germany and the third parties.
70Accordingly, it is stated, in recital 247 of the contested decision, that ‘the origin of the advantage indirectly conferred on the minority shareholders was the renunciation by the public-sector owners of that additional shareholding in HSH [Nordbank] which they would have received if the price of the new shares had been determined correctly’ and that there was ‘a causal link between the aid granted through state resources to HSH [Nordbank] and the advantage to the minority shareholders’. In recital 248 of the contested decision, the Commission states, contrary to what is stated in the above-mentioned objections, that the advantage obtained by the minority shareholders is, in fact, imputable to the State because, when the shareholders’ meeting took the decision on the recapitalisation, the number of shares and the share price, the ‘public-sector owners were present as shareholders, and acted in their function as public bodies’.
71Recitals 249 to 253 of the contested decision are focused on demonstrating that the insufficient capital dilution following the recapitalisation would constitute aid if it was not addressed.
72The Commission also considered that the comparison with one of its previous decisions concerning burden sharing among shareholders was irrelevant (recital 254 of the contested decision) and stated that, since the minority shareholders’ financial contributions were made before the aid measures, and in particular, before the recapitalisation, they could not affect the legality of the corrections which had to be made to those measures (recitals 255 and 256 of the contested decision).
73The Commission thus concluded, in recital 262 of the contested decision, that there was a ‘potential benefit received by the minority shareholders’ and therefore a ‘need for adequate burden sharing’. Therefore, it clearly follows that the first part of the plea alleging failure to state reasons is unfounded.
74Moreover, it is clear from the examination of the contested decision that the second part of that plea should not be upheld either. As mentioned in paragraph 71 above, the matter of the value of HSH Nordbank and, accordingly, the unit price of the shares comprising its capital is addressed in recitals 249 to 253 of that decision. It is stated in those recitals that the analysis provided by the Federal Republic of Germany and the public-sector shareholders of HSH Nordbank, based on the valuation report produced by a respected audit firm (‘the Valuation Report’), had several shortcomings (recital 250 of the contested decision), namely, that the valuation was based on a business plan that did not take into account the need to ‘meet regulatory capital requirements’ (recital 251 of the contested decision) or, therefore, the need for HSH Nordbank to undergo substantial restructuring.
75The Commission notes, in particular, that the assumption in that business plan that there would be a normalisation of the markets as of 2011 could not ‘be considered conservative’ (same recital). It also states (recital 252 of the contested decision) that the Federal Republic of Germany and the public-sector shareholders of HSH Nordbank did not take into account the concerns expressed by the authors of the Valuation Report themselves, in particular the fact that the downgrading of HSH Nordbank’s rating from A to BBB+ with negative outlook ‘was not reflected in the funding planning on which the valuation was based and consequently was not taken into account in the calculation of the indicative value’ of that undertaking. Moreover, according to the Commission, the return to an A rating in 2013 was based on an incorrect assumption. The Commission adds, in the same recital, that that report specifically highlighted the need to undertake the restructuring which would inevitably be required as part of the State aid investigation procedure. Finally, it concludes that the enterprise value was calculated incorrectly in the Valuation Report, as it was taken for granted that the risk shield would be implemented (recital 253 of the contested decision), whereas the specific purpose of the formal investigation procedure is to determine whether the measures at issue constitute State aid and, if so, whether, and under what conditions, they are compatible with the internal market.
76It follows from the foregoing that the second part of the second plea must be dismissed as unfounded and, therefore, that plea must be rejected in its entirety.
77Secondly, the Court considers it appropriate to examine another plea alleging infringement of essential procedural requirements, namely the existence of a procedural defect, arising from the unlawful termination of the formal investigation procedure.
–Infringement of Article 7(1) of Regulation (EC) No 659/1999 and of the principle of legal certainty arising from the unlawful termination of formal investigation procedure.
78The applicants submit that the Commission infringed Article 7(1) 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) and the principle of legal certainty by terminating the formal investigation procedure unlawfully, without having adopted any of the decisions set out in Article 7(1) to terminate the procedure in question concerning the potentially incompatible aid received by the minority shareholders. They claim that, although it is permissible for the Commission to leave the formal investigation procedure open, it should none the less, in accordance with the principle of legal certainty, identify the measures in respect of which that procedure has been terminated, which was not the case as regards the indirect aid in question.
79As a preliminary point, it should be noted that Article 7(1) of Regulation No 659/1999 refers to Article 7(2) to (5) of that regulation, which provides for four types of decisions: a decision finding that the measure at issue does not constitute aid (paragraph 2), a decision finding that, where appropriate, following modification by the Member State concerned, the aid at issue is compatible with the internal market (‘a positive decision’, as defined in paragraph 3), a decision whereby the Commission attaches to a positive decision conditions subject to which the aid may be considered compatible with the internal market and lays down obligations to enable compliance with the decision to be monitored (‘a conditional decision’, provided for in paragraph 4) and, finally, a decision whereby the Commission finds that the aid is not compatible with the internal market (‘a negative decision’, referred to in paragraph 5). The applicants are fully entitled to assert that the formal investigation procedure must be closed by one of those four types of decision.
80However, they are wrong to claim that that did not occur in the case of the indirect aid which may have been granted to the minority shareholders and, in particular, that the operative part of the contested decision is silent on that point. It is common ground that the latter is a conditional decision, within the meaning of Article 7(4) of Regulation No 659/1999, since the State aid granted to HSH Nordbank is considered to be compatible with the internal market only on the condition that corrections are made with regard to burden sharing among shareholders in order to enhance the contribution of minority shareholders. It was thus unnecessary for the Commission to determine whether indirect State aid was granted to the minority shareholders, since the lump-sum payment was adopted precisely in order to prevent the measure from constituting indirect State aid.
81Therefore, the Commission did not infringe Article 7(1) of Regulation No 659/1999 or the principle of legal certainty by not taking a position, in the operative part of the contested decision, on whether the minority shareholders, including the applicants, had received indirect aid, since the conditions set out in paragraphs 11 to 13 above were stipulated in order to prevent such a situation arising. That reasoning does not contradict in any way that illustrated in paragraph 73 and section 5 of the decision initiating the formal investigation procedure, mentioned in paragraph 7 above, in so far as that procedure was intended merely to enable the Commission to verify whether that indirect aid might exist, which, according to the Commission, would have been the case in the absence of the conditions set in the contested decision.
82It follows that the present plea must be dismissed as unfounded.
–The pleas alleging, first, that no discreet aid was granted to the minority shareholders, second, an error of assessment of the facts when examining whether the minority shareholders obtained an advantage and, finally, failure to take into account prior payments by the applicants in the context of burden sharing
83The first, third and fourth pleas should be examined together in so far as all three relate to the assessment of the validity of the Commission’s position on the possible existence of indirect aid in favour of the minority shareholders, including the applicants. The examination of those pleas which constitute the substantive counterpart to the plea relating to the failure to state reasons made it possible to establish that the Commission had stated to the required legal standard the reasons relating to all those matters. It is the validity of the Commission’s position in that regard which is in question at this stage.
84First, as regards the complaint that the alleged indirect aid does not constitute discreet aid, the applicants rely on the case-law arising from the judgments of 13 June 2002, Netherlands v Commission (C‑382/99, ECR, EU:C:2002:363, paragraph 62 et seq.) and 20 November 2003, GEMO (C‑126/01, ECR, EU:C:2003:622, paragraph 28 et seq.) in order to argue that indirect aid can exist only where the financial advantage is transferred from the initial beneficiary (HSH Nordbank in the present case) to other beneficiaries (the minority shareholders in this particular case). The applicants submit that that case-law is inapplicable in this case, since the financial advantage which they, along with the other minority shareholders, obtained is ‘merely the financial reflection of the support granted to HSH Nordbank’.
85There have been two objections to that complaint, which together support the finding that it should be rejected. First, as was set out in the context of the examination of the plea relating to the failure to state reasons, the Commission did not intend to demonstrate that indirect aid existed as such, but that such aid would be found to exist if remedial measures were not taken in respect of the aid granted to HSH Nordbank. The main premiss of the applicants’ reasoning is therefore inaccurate. Secondly, assuming that the Commission intended to demonstrate the existence of aid as such granted to the minority shareholders, it should be noted that the case-law cited by the applicants cannot preclude the possibility of a partial transfer of the advantage given to the initial beneficiary.
86The first complaint must therefore be rejected.
87Secondly, as regards the claim that the Commission committed an error of assessment in finding that the minority shareholders obtained an advantage, the applicants’ claim that the Valuation Report, contrary to what the Commission contends, was based on recognised methods. In particular, they dispute that it was necessary, in this case, to use a ‘conservative valuation’ and they submit that the Commission’s position of principle is vitiated by a manifest error of assessment. They note that it falls to the Court, even in the case of complex economic assessments, to review the evidence relied on and establish whether it is reliable and consistent as well as whether it is capable of substantiating the conclusions which the Commission draws from it. The applicants submit that the Valuation Report provides an objective and, therefore, neutral enterprise value; they maintain that uncertain future valuations cannot be taken into account in a way that adversely affects the interests of one party unilaterally, which would have been the case if the forecast had been more conservative.
88Moreover, according to the applicants:— At the time of the valuation, it was realistic to assume that there would be a normalisation of the general economic conditions as of 2011;— the taking into consideration of restructuring measures other than those already undergone by HSH Nordbank would not have been objectively justified and would have had no bearing on the outcome, since the shareholdings and portfolios used to determine the value of the undertaking were assessed on the basis of their market value, and the Commission’s assumption that the value of the undertaking would be reduced would not materialise unless the undertaking were sold at less than its market value;— it was also objectively justified not to take into consideration the downgrading of HSH Nordbank by a ratings agency, since that downgrade has no bearing on the assessment of the value of the undertaking;— the taking into account of the risk shield was objectively justified;— the reduction in the issue price of ordinary shares during the recapitalisation was not objectively justified.
89The basis for the applicants’ arguments should be recalled here. As is clear from paragraph 32 of the defence, during the recapitalisation, the issue price of new shares was set at EUR 19 per share, based on the Valuation Report, according to which the value of the undertaking was established in a range between EUR 2.01 billion and EUR 2.94 billion, or EUR 19.1 to EUR 27.8 per share. Therefore, the price set is very slightly below the lower end of the range given in the Valuation Report. However, the Commission held that even the figure of EUR 19 per share was ‘considerably too high’ (recital 253 of the contested decision and paragraph 32 of the defence).
90For the reasons set out in paragraphs 87 and 88 above, the applicants submit that the assessment of the enterprise value of HSH Nordbank and therefore the unit price of the shares comprising its capital are consistent with the law.
91It is necessary to rule on each of the five arguments set out in paragraph 88 above, bearing in mind that the facts as such are not in dispute.
92First, as regards the incorrect assumption that there would be a normalisation of the market as of 2011, it should be noted at the outset that the Commission is fully entitled to point out, as in paragraph 38 of its defence, that it is not bound by the standards which are applied by audit firms when they produce their reports. Secondly, contrary to what is claimed by the applicants, those standards are intended to prevent and minimise risks and therefore to err on the side of caution, which the Commission rightly noted in the contested decision. Finally, that assumption could be classed as imprudent when setting the share price since, on the one hand, it is clear from the Valuation Report that the expected growth rates for 2009 and 2010 reflected a collapse (2009) followed by a modest recovery (2010), which did not justify the conclusion that there would be a return to economic growth in 2011 and, on the other hand, that report does not contain any claims or arguments in support of that particular assumption, since it merely indicates that such a forecast was made in the business plan. The applicants’ first argument must therefore be rejected.
93Secondly, as regards the fact that the restructuring and compensatory measures were not taken into consideration for the purpose of calculating the issue price of the new shares, it should be held that it was for the German authorities, when adopting the aid measure in the form of recapitalisation, to anticipate what the outcome of the Commission’s investigation under the State aid legislation would be. Although it is true that certain restructuring measures were proposed in the Valuation Report, this was to enable HSH Nordbank to comply only with German legislation, particularly with regard to the expected intervention of the special fund. Moreover, the Commission was fully entitled to point out in recital 252 of the contested decision that the Valuation Report itself referred to the need to expect additional restructuring and compensatory measures, yet did not draw from that the appropriate inferences in the determination of the unit price of HSH Nordbank shares.
94Therefore, the minority shareholders of HSH Nordbank, including the applicants, cannot rely on that report, a fortiori to argue that they could not anticipate the application of rules of law which were well known to them and should have been taken into consideration by the prudent and alert economic operators that it fell to them to be when faced with measures which were likely to affect their interests (see, to that effect, judgments of 21 July 2011, Alcoa Trasformazioni v Commission, C‑194/09 P, ECR, EU:C:2011:497, paragraph 71, and 16 October 2014, Eurallumina v Commission, T‑308/11, EU:T:2014:894, paragraph 59).
95The applicants also wrongly claim that the taking into account of the restructuring and compensatory measures could not affect the determination of the enterprise value of HSH Nordbank unless it were sold at below its market price. As the Commission correctly contends, the study upon which the applicants rely, which appears in Annex A 3 to the application, is based on the premiss that the seller has the option not to sell, which is, by definition, precluded by the modified restructuring plan submitted by the Federal Republic of Germany since that there was a requirement under that plan to sell certain portfolios and business areas within a specified time limit. Similarly, it cannot be argued that HSH Nordbank’s cessation of new business activities did not affect the valuation of the undertaking, since that cessation automatically resulted in the steady decline of stock on the basis of the maturity dates of the assets in the portfolios concerned by those activities. The applicants’ claim that such a cessation has no effect would have been relevant only if the return on those assets were sufficient to cover their own funding costs or the costs of replacing those activities with other, even newer and sufficiently profitable activities. The applicants have not established that such conditions were fulfilled. The applicants’ second argument must therefore also be rejected.
96Thirdly, as regards the fact that the applicants did not take into consideration the downgrading of HSH Nordbank by a ratings agency, the applicants’ claim that such a downgrade could not have any bearing on the determination of HSH Nordbank’s enterprise value must be dismissed as incorrect. It should be noted, on the contrary, that the very purpose, and often the effect, of ratings is to reflect as accurately as possible the value of an undertaking and the constant changes in that value.
97However, it may be objectively justified, from an economic point of view, not to take into account a ratings downgrade if the undertaking concerned has evidence which invalidates that downgrade, for example, ratings from other agencies contradicting the downgrade. That applies in the present case, since the applicants refer to the two agencies which maintained the A rating. It follows from the facts set out in recital 31 of the contested decision that the first agency downgraded HSH Nordbank’s rating in May 2009, while the other two agencies did not do so until a year later, in May and July 2010. All those ratings were available to the Commission, since the recapitalisation and the risk shield measures were put in place in May and June 2009 and the formal investigation procedure was initiated on 22 October 2009. The Commission justifies its assessment on the basis that a mere ratings downgrade is sufficient, in general, to raise the cost of credit for the undertaking concerned. It stated at the hearing that, during the subprime crisis, the few remaining investors were very alert to ratings downgrades, even if just one agency issued a warning. According to the Commission, the first bearish position taken was therefore, from that point of view, particularly significant.
98Although its importance should not be understated, that argument should, nonetheless, be dismissed. The relative market confidence in the sustainability of the undertaking, at least until May 2012, arose from the fact that several agencies (in this case, two of the three ‘big’ agencies) maintained their ratings of that undertaking. Therefore, the Commission is wrong to rely on the downgrade from an ‘A’ rating to a ‘BBB+’ rating in support of its argument that HSH Nordbank’s enterprise value had been overstated.
99It is necessary to consider the applicants’ other arguments before determining the effect of that incorrect analysis on the legality of the contested decision.
100Fourthly, as regards the assumption that the risk shield would be adopted and implemented, although the Commission had to decide whether it constituted State aid, and if so, whether that aid was compatible with the internal market, the applicants are not justified in claiming that that measure could have been taken into account ex ante to determine the economic value of the undertaking, even though ‘the details of the risk shield, such as the costs, the amount and the duration, were already known’ to HSH Nordbank. The fact that the content of those measures was known and that that undertaking informed its interlocutors thereof in order to reassure them of its economic viability does not imply in any way that the Commission would regard those measures as State aid compatible with the internal market, albeit subject to compliance with certain conditions, as turned out to be the case. In other words, even if the measures in question could be considered as a guarantee of HSH Nordbank’s economic survival, there would, nonetheless, be no relevant legal basis for including them among the parameters for determining the undertaking’s economic value before the legality of those measures is recognised under EU law. If the opposite premiss were accepted, the procedure applicable in matters relating to State aid would be rendered meaningless and be deprived of its rationale.
101The assertion that the Commission could not simultaneously refuse to permit the risk shield being taken into account and require that the anticipated restructuring and compensatory measures be taken into consideration must be regarded as irrelevant. It should be pointed out here that those measures, such as the sale of portfolios or cessation of certain business activities would, in any event, have been required by the markets and the banks, once a consensus on the survival of the undertaking was reached, to increase the latter’s profitability. In that context, as the Commission rightly noted in the rejoinder, the purpose of the Valuation Report was to determine the value of HSH Nordbank without aid, in order to set, on that basis, the issue price of the shares specifically intended to fund the aid measures. It was therefore natural that, in order to determine the value of the undertaking, HSH Nordbank took into account the constraints relating to the procedures which should be foreseen by a prudent and alert economic operator. That does not apply to the aid measures to which the contested decision relates, which do not correspond to part of the undertaking’s market value, but constitute extraordinary facilities aimed at preventing the bankruptcy of that undertaking and enabling its recovery over time. It is therefore clear from the case-law that, in accordance with the Commission communication entitled ‘The application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis’ (OJ 2008 C 270, p. 8), the grant of a State guarantee must be regarded as an emergency measure and must, accordingly, necessarily be temporary, and such a guarantee must also be accompanied by restructuring or liquidation measures in relation to the beneficiary (judgment of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, ECR, EU:C:2015:151, paragraph 70). Moreover, there was no basis for claiming that the Commission would consider those measures to be lawful, that is, that it would consider them either not to constitute State aid or to constitute State aid compatible with the internal market. In addition, that aid was recognised as compatible only on certain conditions, and the applicants, moreover, dispute those conditions. It should thus be stated again that, although it was logical and useful for HSH Nordbank to have informed its commercial partners and the banks of the financial position it would be in once the risk shield was granted, that risk shield could not be taken into account to determine the value of the new shares issued as part of the recapitalisation without automatically overstating that value.
102The applicants’ fourth argument cannot therefore be accepted.
103Fifthly, and finally, as regards the unjustified reduction in the issue price of the new shares, the applicants go so far as to claim that that price was still, in fact, too low, on the basis that the average price per share given in the Valuation Report is EUR 23.50. Since that argument is to be regarded, effectively, as a conclusion to the four previous arguments, it should be held that, in the light of all the reasons stated by the Commission, with the exception of that relating to the rating downgrade by just one of three largest agencies, the Commission took into account all the relevant facts and did not make a manifest error of assessment in considering that the value of EUR 19 per share was too high and should be compensated by a new system of burden sharing among the shareholders.
104The applicants’ second complaint must, therefore, also be rejected.
105Thirdly, as regards the plea alleging failure to take into account prior payments made by the applicants in the context of burden sharing, it must be rejected as ineffective. The only matter at issue in the present dispute is the contested decision (which rules out of consideration in its entirety the conduct of HSH Nordbank’s shareholders before HSH Nordbank decided to seek the assistance of the German authorities in the form of rescue measures), not, moreover, in so far as it finds that the measures at issue constitute State aid, but in so far as it imposes on HSH Nordbank’s minority shareholders a number of conditions relating to a new system of burden sharing among shareholders to render the aid in question compatible with the internal market. The involvement of the applicants, and indeed all the other shareholders, prior to the recapitalisation cannot, therefore, have a bearing on the assessment of the legality of those conditions. For the sake of completeness, it should be stated, as the Commission does, that although the capital increase was decided in 2008, HSH Nordbank’s shareholders assumed that there would be a return on their investment. They maintained that HSH Nordbank had emerged unscathed from the financial crisis, and had therefore informed the Commission that they had acted in conformity with the market economy investor principle, which the Commission had accepted (see recital 25 of the contested decision). Therefore, even if that plea were considered effective, it should be dismissed as unfounded.
–Infringement of the principle of proportionality as regards the new system of burden sharing
106By the seventh plea in the first part of their application, the applicants claim that the principle of proportionality was infringed in so far as, first, the Commission failed to check whether that principle was being observed under the new system of burden sharing put in place as a result of the contested decision and, secondly, it did, in fact, infringe that principle by imposing on them the lump-sum payment.
107It should be noted, at the outset, that the first part of that plea has no factual basis.
108Accordingly, the Commission observes, before explaining the imposition of conditions on the minority shareholders, that ‘the modified restructuring plan contains additional measures which considerably improve burden sharing by the minority shareholders’ (recital 258 of the contested decision), that ‘the additional measures on remuneration of the risk shield imposed by the Commission ... will increase the degree of burden sharing’ (recital 259 of the contested decision), and that ‘burden sharing by minority shareholders will be further improved by the restriction on remuneration of capital instruments’ (recital 260 of the contested decision). It also notes that, nevertheless, as regards the objective of ‘burden sharing by the minority shareholders’ (recital 261 of the contested decision), the aid measures at issue should be deemed incompatible with the internal market unless new measures can be put in place to improve burden sharing by the minority shareholders. In recital 262 of the contested decision, the Commission expressly states that ‘in order to be proportional, the dividend ban [must] be limited’. In recital 263 of the contested decision, the Commission, by its own account, seeks ‘adequate own contribution and burden sharing’ which implicitly, but necessarily, reflects the fact that the Commission took into consideration the principle of proportionality when it adopted the contested decision. It is therefore inaccurate to claim that it failed to consider whether that principle had been observed.
109The second part of the plea must also be dismissed for the following reasons.
110The Commission contended, both in its written submissions and at the hearing, that the applicants were not justified in challenging measures which, by their nature, placed them in a more favourable situation than that in which they would have been if the aid had not been authorised. However, since it has been established that the applicants have an interest in bringing proceedings, as set out in paragraphs 56 to 60 above, the examination of the legality of the conditions imposed by the Commission — and, in particular, the examination of whether those conditions are in line with the principle of proportionality — must be carried out by the EU Courts on the basis of, first, the pleas raised by the applicants and held to be admissible and effective and, secondly, the pleas involving matters of public policy.
111As to the substance of the case, it appears that the Commission did observe that principle in this case, contrary to what the applicants evasively claim. The Commission did not fail either to quantify the extent to which the minority shareholders had not been sufficiently involved in the burden sharing, or to determine the cost to the shareholders of the lump-sum payment in shares.
112In that regard, as rightly stated in the defence, it should be noted that the quantification of the insufficiency of the burden sharing by minority shareholders is clear from reading recital 40 in conjunction with recital 253 of the contested decision, namely that it is the difference between the unit price of EUR 19 per share established in this case and the price corrected by the Commission (EUR 9.1, that is EUR 13.6, by having deducted the profit from the risk shield, minus EUR 4.5 in the light of the considerations set out in recital 40 of the contested decision relating to the reduction of the issue price of the new shares by a discounted 10% dividend payment for the period 2009-2012). Recital 196 of the contested decision provides the applicants with the necessary details as regards the value of the lump-sum payment in shares.
113There is therefore no doubt that the Commission observed the principle of proportionality.
The specific pleas in the first part of the application
114It is necessary, next, to consider the pleas which can be classed as ‘specific’ pleas, but again, only in so far as they may relate to the lump-sum payment.
115In that regard, the sixth plea, alleging that the Commission infringed Article 7(4) of Regulation No 659/1999 and the Communication on the treatment of impaired assets in the Community banking sector (OJ 2009 C 72, p. 1) by attaching to the contested decision conditions and obligations which were unrelated to the restructuring of HSH Nordbank, but which constituted a covert conditional authorisation of indirect State aid, is, in reality, directed exclusively against the lump-sum payment. A number of observations should be made in that regard.
116The lump-sum payment is addressed in recitals 245 to 259 of the contested decision, under the heading ‘Burden sharing by minority shareholders’. In those recitals, the Commission refers to the considerations set out in the decision initiating the formal investigation procedure (recital 245 of the contested decision) and then rebuts the arguments put forward by the Federal Republic of Germany and the other interested parties, including the minority shareholders (namely, the Schleswig-Holstein association of savings banks and the undertakings advised by JC Flowers & Co., including the applicants).
117According to the Commission, the shares held by the minority shareholders which did not participate in the recapitalisation were not sufficiently diluted, that is, their unit price was too high, on account of the absence of adequate burden sharing in the context of the rescue of HSH Nordbank, enabling the aid measures to be considered compatible with the internal market. The Commission also took the view that the indirect advantage which would have arisen, for the minority shareholders, from the absence of the conditions set out in the contested decision could itself be considered State aid in so far as, if the share price had been determined correctly, the public-sector shareholders (the Länder of Hamburg and Schleswig-Holstein) would have received an additional shareholding in the capital of HSH Nordbank which they had renounced (recitals 247 and 248 of the contested decision).
118The Commission also rejects the arguments of the Federal Republic of Germany and the minority shareholders regarding the relevance of the initial assessment of the share price and the number of shares. According to those parties, the parameters in question, established on the basis of the Valuation Report, were relevant, whereas the Commission contends that the omission of a number of aspects from that report resulted in the share price being overvalued at the time of the recapitalisation (recitals 249 and 250 of the contested decision). More specifically, the Commission disagrees with two of the assumptions used in the Valuation Report as a basis for determining the unit price of the shares (recitals 251 and 252 of the contested decision), namely, that there would be a normalisation of the markets as of 2011 and that HSH Nordbank would regain its A rating from the ratings agencies (having been downgraded in 2009 to a rating of BBB+ with negative outlook), which it considers to be unreasonably optimistic.
119The Commission concludes that a correction, by way of the lump-sum payment, is needed in order to achieve the desired level of dilution of the minority shareholders’ stakes in HSH Nordbank (recital 259 of the contested decision).
120The applicants claim, in the context of their sixth plea, that in so far as the lump-sum payment is obligatory for the minority shareholders, which include the applicants, it cannot constitute a contribution by HSH Nordbank to the recovery of the part of the aid regarded as incompatible, as it stands, with the internal market in recital 209 of the contested decision. They submit that the measures adopted do not involve any payment flows in return to the provider of the aid.
121The Commission rightly points out that HSH Finanzfonds ‘has a dual role ... as shareholder of ... HSH Nordbank, on the one hand, and as provider of aid[,] on the other’. In that context, within the framework of the lump-sum payment, EUR 500 million was paid to HSH Finanzfonds by HSH Nordbank and simultaneously deducted from the latter’s assets. That amount was paid in shares and the capital was increased proportionately. The fact remains that the assets of HSH Finanzfonds increased by EUR 500 million following that transaction and that, since the same amount was deducted from the assets of HSH Nordbank (before being used to recapitalise HSH Nordbank), the shareholders all saw a drop in the per-share value of their stakes in that share capital.
122Although it is true that, accordingly, the Commission ensured that the capital invested by the minority shareholders, including the applicants, covered part of the losses, in order to enable the implementation of a new system of burden sharing among the minority shareholders and the majority shareholder HSH Finanzfonds, the applicants are not justified in claiming that the new burden sharing system was unjustified, as held in paragraph 113 above. In addition, contrary to the applicants’ claims, the lump-sum payment produces effects on all the shareholders, not just one specific category of shareholders, even though the fact that the majority shareholder which, as such, therefore also contributes to the redistribution of the EUR 500 million in terms of the value of the shares which it already held, is also a beneficiary of the new shares issued, may create the impression of unequal treatment. However, that is merely a distorted perception of the lump-sum payment, since HSH Finanzfonds received the new shares not in its capacity as shareholder, but solely in its capacity as provider of aid penalised by the overvaluation of the undertaking. As the Commission is fully entitled to point out, in order to achieve that rebalancing, it would have been possible to rely on a new body governed by public law which would not have been a shareholder, but merely a recipient of the funds, and there would then have been an equal distribution of the costs among all the shareholders in favour of the provider of aid represented by that body.
123It must therefore be held that, even if the lump-sum payment results, in economic terms, in a reduction of the value of the minority shareholders’ stake in the share capital of HSH Nordbank, it is, nevertheless, well founded in law in so far as it requires those minority shareholders to make an effort proportionate to that made by the public-sector shareholders during the recapitalisation, with the result that the minority shareholders do not benefit indirectly from aid and that the measures at issue may be declared compatible with the internal market.
124The sixth plea in the first part of the application must therefore be rejected.
125In the context of the eighth plea in the first part of the application, the applicants refer to three Commission decisions.
126In that regard, it should be noted that, according to settled case-law, the Commission’s previous decision-making practice cannot affect the validity of a subsequent case, which can be assessed only in the light of the objective rules of the Treaty (judgments of 20 May 2010, Todaro Nunziatina & C., C‑138/09, ECR, EU:C:2010:291, paragraph 21, and Eurallumina v Commission, paragraph 94 above, EU:T:2014:894, paragraph 80).
127For the sake of completeness, it is appropriate to set out the following considerations.
128As regards the comparison with the Commission decision of 7 May 2009, the applicants argue that the Generali group, which had not participated in the capital increase, was not required to contribute to the costs, ‘beyond the suspension of any dividend payments for two financial years’. It must be concluded that the first comparison thus relates, in fact, only to whether the lump-sum payment was well founded. Since it was established in the examination of the sixth plea that the lump-sum payment was well founded, such a comparison is self-defeating.
129The second comparison is made according to the same implicit assumption, the applicants claiming that, in that case, where some shareholders had not participated in the capital increase, the Commission’s press release ‘[did] not disclose whether [those] shareholders [had] contributed to burden sharing simply by means of a dividend ban or by having to bear additional costs’.
130In the context of the third comparison, the applicants note that the Commission took the view that, in the case which gave rise to the Commission decision of 9 December 2011 on State aid SA.31883 (ex N 516/10), ‘the Bavarian savings banks would bear an additional cost given that they would no longer receive annual remuneration for their silent participations and that they [would have] to waive the entitlement to dividends because of the dividend ban’ and submit that the costs ‘are not comparable to costs which the minority shareholders of HSH Nordbank are required to bear as a result of the lump-sum payment and of the restriction of dividend payments’.
131Here again, it is not, as such, the unlawfulness of the ban on, and the subsequent restriction of, dividend payments which is challenged, given that, in any event, such a challenge is inadmissible in the present case, as has already been held in paragraph 65 above, but the unlawfulness of imposing those conditions in addition to the burden represented by the lump-sum payment. Therefore, for the same reasons as those relating to the first comparison, the second and third comparisons cannot succeed. In any event, the applicants have not shown that the imposition of those conditions is vitiated by any manifest error of assessment, or that it infringes the principle of proportionality, since that principle has, in this case, been observed, as is clear from the conclusion in paragraph 113 above.
132Consequently, the eighth plea in the first part of the application must be rejected.
133Overall, the applicants have not established that the lump-sum payment, the sole aim of which, as the Commission was fully entitled to point out, was to make the State aid compatible with the internal market, constituted a condition which was disproportionate or contrary to the principle of equal treatment.
134Therefore, the action should be dismissed as being in part inadmissible and in part unfounded.
Costs
135Since the Commission contends that the applicants should be ordered to pay the costs, and the applicants have been unsuccessful, they must be ordered to pay the costs, pursuant to Article 134(1) of the Rules of Procedure.
Operative part
On those grounds,THE GENERAL COURT (Eighth Chamber)hereby:
1.Dismisses the appeal;
2.Orders HSH Investment Holdings Coinvest-C Sàrl and HSH Investment Holdings FSO Sàrl to pay the costs.
Delivered in open court in Luxembourg on 12 November 2015.
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