Contents
Judgment of the General Court (Third Chamber, Extended Composition)13 December 2018note(State aid — Groundhandling services — Capital injections provided by SEA in favour of Sea Handling — Decision declaring the aid incompatible with the internal market and ordering its recovery — Concept of aid — Whether imputable to the State — Private investor test — Audi alteram partem rule — Rights of defence — Right to sound administration — Legitimate expectations)In Case T‑167/13,Comune di Milano (Italy), represented initially by S. Grassani and A. Franchi, and subsequently by S. Grassani, lawyers,vEuropean Commission, represented by G. Conte and D. Grespan, acting as Agents,THE GENERAL COURT (Third Chamber, Extended Composition),composed of M. van der Woude, President, V. Kreuschitz (Rapporteur), I.S. Forrester, N. Półtorak and E. Perillo, Judges,Registrar: J. Palacio González, Principal Administrator,having regard to the written procedure and further to the hearing on 28 February 2018,gives the following
JudgmentOnly the paragraphs of this judgment which the Court considers it appropriate to publish are reproduced here.
I.Background to the dispute
A.General context
1SEA SpA (‘SEA’) is the company that manages the Milan-Linate and Milan-Malpensa airports (Italy). Between 2002 and 2010 (‘the period at issue’), its capital was held almost exclusively by public authorities: 84.56% of the capital was held by the applicant, the Comune di Milano (Municipality of Milan, Italy), 14.56% by the Provincia di Milano (Province of Milan, Italy) and 0.88% by other public and private shareholders. In December 2011, F2i – Fondi Italiani per le infrastrutture SGR SpA (‘F2i’) acquired, on behalf of two funds managed by it, 44.31% of the capital of SEA, consisting of a share of the capital held by the applicant (29.75%) and all the capital held by the Provincia di Milano (14.56%).
2Until 1 June 2002, SEA itself provided the groundhandling services at Milan-Linate and Milan-Malpensa airports. Following the entry into force of Legislative Decree No 18 of 13 January 1999 (Gazzetta ufficiale della Repubblica italiana No 28 of 4 February 1999), intended to transpose into Italian law Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports (OJ 1996 L 272, p. 36), SEA, pursuant to the obligation laid down in Article 4(1) of that directive, proceeded to separate, in accounting and legal terms, the activities related to the provision of groundhandling services and its other activities. To that end, it established a new company, wholly controlled by it and named SEA Handling SpA (‘Sea Handling’). Sea Handling has provided groundhandling services to Milan-Linate and Milan-Malpensa airports since 1 June 2002.
B.Administrative procedure
3By letter of 13 July 2006, the Commission of the European Communities received a complaint concerning alleged aid measures granted to Sea Handling (‘the measures at issue’).
4By letter of 6 October 2006, the Commission asked the Italian authorities to provide clarifications relating to the complaint. After requesting and being granted an extension of the time limit for responding, the Italian authorities provided the clarifications requested by letter of 9 February 2007.
5By letter of 30 May 2007, the Commission informed the complainant that there was insufficient information to find there to have been a transfer of State resources for the purposes of Article 107(1) TFEU and that, therefore, in accordance with Article 20(2) 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), there were insufficient grounds for examining the measures at issue further. By letter of 24 July 2007, the complainant provided the Commission with additional information. The Commission subsequently decided to review the complaint.
6By letter of 3 March 2008, the Commission asked the Italian authorities to provide it with a copy of a trade union agreement concluded on 26 March 2002 (‘the trade union agreement of 26 March 2002’). By letter of 10 April 2008, the Italian authorities provided the requested document.
7By letter of 20 November 2008, the Italian authorities sent the Commission another trade union agreement concluded on 13 June 2008 (‘the trade union agreement of 13 June 2008’).
8By letter of 23 June 2010, the Commission notified the Italian authorities of its decision to initiate the formal investigation procedure provided for in Article 108(2) TFEU (‘the opening decision’) and asked the Italian authorities to provide it with certain information and data necessary to assess the compatibility of the measures at issue with the internal market. By the publication of the opening decision in the Official Journal of the European Union on 29 January 2011 (OJ 2011 C 29, p. 10), the Commission invited the interested parties to submit their comments on the measures at issue within one month of the date of publication.
9After requesting and being granted an extension of the time limit for responding, the Italian authorities submitted the applicant’s comments on the opening decision by letter of 20 September 2010.
10After requesting and being granted an extension of the time limit applicable to them, Sea Handling and SEA submitted their comments on the opening decision by letter of 21 March 2011.
11By letter of 7 April 2011, the Commission forwarded the comments of the interested third parties to the Italian authorities and invited them to submit their observations. After requesting and being granted an extension of the time limit applicable to them, the Italian authorities submitted their observations in response to the third parties’ comments and submitted new arguments in the form of a study carried out by a consultancy firm.
12By letter of 11 July 2011, the Commission asked the Italian authorities to provide it with the information that it had previously requested in the opening decision. After requesting, on two occasions, an extension of the time limit for responding but being granted such an extension only once, the Italian authorities submitted the information requested, by letter of 15 September 2011.
13By letter of 21 October 2011, the Italian authorities supplemented their previous observations.
14On 19 June and 23 November 2012, two meetings were held between Commission staff and the Italian authorities. After the first of those meetings, the Italian authorities submitted new arguments by letters of 2 and 10 July 2012.
C.Contested decision
15On 19 December 2012, the Commission adopted Decision (EU) 2015/1225 regarding injections of capital by SEA into SEA Handling (Case SA.21420 (C 14/10) (ex NN 25/10) (ex CP 175/06)), notified under document C(2012) 9448 (OJ 2015 L 201, p. 1, ‘the contested decision’).
16In the operative part of the contested decision, the Commission found, inter alia, that ‘the injections of capital made by SEA into … SEA Handling for each of the financial years in the period [from] 2002 [to] 2010, amounting to an estimated total of around EUR 359.644 million, not including recovery interest, constitue[d] State aid within the meaning of Article 107 [TFEU]’ (Article 1) and that ‘that State aid was granted contrary to Article 108(3) [TFEU] and [was] incompatible with the internal market’ (Article 2). It therefore ordered the ‘[Italian Republic] [to] recover the aid referred to in Article 1 from the beneficiary’ (Article 3(1)).
II.Procedure and forms of order sought by the parties
17By application lodged at the Court Registry on 18 March 2013, the applicant brought the present action.
18By separate document lodged at the Court Registry on 21 March 2013, the applicant brought an application for interim measures registered under case number T‑167/13 R. Following the applicant’s withdrawal of its application for interim measures, Case T‑167/13 R was removed from the register of the Court by order of 20 June 2013, Comune di Milano v Commission (T‑167/13 R, not published, EU:T:2013:331) and the costs were reserved.
19By document lodged at the Court Registry on 10 May 2013, F2i sought leave to intervene in the present proceedings in support of the form of order sought by the applicant. By order of 4 November 2014, Comune di Milano v Commission (T‑167/13, not published, EU:T:2014:936), the President of the Fourth Chamber of the Court dismissed that application to intervene.
20By separate document lodged at the Court Registry on 5 June 2013, the Commission raised a plea of inadmissibility under Article 114 of the Rules of Procedure of the General Court of 2 May 1991. The applicant lodged its observations on that plea on 22 July 2013. By order of the Court of 9 September 2014, the plea was joined to the substance and the costs were reserved.
21Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure of the General Court, the Judge-Rapporteur was assigned to the Third Chamber, to which the present case was therefore assigned.
22As a member of the Third Chamber was unable to sit, the President of the Court designated another judge to complete the Chamber.
23Acting on a proposal from the Third Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the present case and Cases T‑125/13, Italy v Commission and T‑152/13, Sea Handling v Commission, in which the annulment of the contested decision was also sought, to a chamber sitting in extended composition.
24Since a member of the Third Chamber was prevented from acting, as mentioned in paragraph 22 above, the President of the Court designated the Vice-President of the Court to complete the Third Chamber (Extended Composition).
25By order of the President of the Third Chamber (Extended Composition), of the Court of 21 April 2017, after hearing the main parties, Cases T‑125/13, T‑152/13 and T‑167/13 were joined for the purposes of the oral part of the procedure and of the decision which closes the proceedings, pursuant to Article 68 of the Rules of Procedure.
26Acting on a proposal from the Judge-Rapporteur, the Court (Third Chamber, Extended Composition) decided to open the oral part of the procedure.
27Pursuant to Article 19(2) of the Rules of Procedure, the President of the Third Chamber (Extended Composition) of the Court referred to the Chamber the decisions on the disjoinder of Cases T‑125/13, T‑152/13 and T‑167/13 for the purposes of the oral part of the procedure and of the decision which closes the proceedings and on the removal of Case T‑125/13 from the register of the Court.
28By order of 22 January 2018, Italy and Others v Commission (T‑125/13, T‑152/13 and T‑167/13, not published, EU:T:2018:35), the Court, first, disjoined Cases T‑125/13, T‑152/13 and T‑167/13 for the purposes of the oral part of the procedure and of the decision which closes the proceedings, pursuant to Article 68(3) of the Rules of Procedure, secondly, removed Case T‑125/13 from the register of the Court, thirdly, found that there was no longer any need to adjudicate on the action brought by Sea Handling in Case T‑152/13 and, fourthly, reserved the costs in Case T‑167/13.
29The parties presented oral argument and answered oral questions put to them by the Court at the hearing on 28 February 2018.
30The applicant claims that the Court should:– annul the contested decision;– in the alternative, annul Articles 3, 4 and 5 of the contested decision;– order the Commission to pay the costs.
31The Commission contends that the Court should:– dismiss the action;– order the applicant to pay the costs.
III.Law
A.Admissibility
32The Commission disputes the admissibility of the present action, contending that the contested decision is not of individual concern to the applicant and that the applicant fails to demonstrate a ‘specific and independent interest in bringing proceedings’.
33With regard, in the first place, to whether the contested decision is of individual concern to the applicant, it should be recalled that it follows from settled case-law that 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 just as in the case of the person addressed (judgments of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17, p. 96; of 28 January 1986, Cofaz and Others v Commission, 169/84, EU:C:1986:42, paragraph 22; and of 13 December 2005, Commission v Aktionsgemeinschaft Recht und Eigentum, C‑78/03 P, EU:C:2005:761, paragraph 33).
34It is also clear from case-law that the legal position of a body other than a Member State, which has legal personality and has adopted a measure classified as State aid in a final decision by the Commission (‘the provider of the aid’), may be individually concerned by that decision if the decision prevents it from exercising its own powers, which consist, in particular, in granting the aid at issue (see judgment of 17 July 2014, Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, T‑457/09, EU:T:2014:683, paragraph 83 and the case-law cited).
35In essence, the Commission considers that, although the measures at issue are imputable to the applicant, the latter cannot be regarded as the provider of the aid within the meaning of the case-law cited in paragraph 34 above.
36The applicant contests the Commission’s arguments, which it regards as being contradictory. According to the applicant, if, in the contested decision, the Commission considers that the measures at issue are imputable to the applicant, the latter should logically be regarded as the provider of the aid.
37It is clear from Article 1 of the contested decision that the Commission is of the view that ‘the injections of capital made by SEA into its subsidiary SEA Handing … constitute State aid within the meaning of Article 107 … TFEU’ and, therefore, that it is SEA which implemented the measures at issue.
38However, it is apparent from recitals 190 to 217 of the contested decision that the Commission was able to find that there was State aid within the meaning of Article 107(1) TFEU only on the basis of its assessment that the measures at issue, implemented by SEA, are imputable to the applicant and, therefore, to the Italian Republic.
39In accordance with settled case-law, imputability to the State, for the purposes of Article 107(1) TFEU, may not be inferred from the mere fact that those measures have been provided by a public undertaking controlled by the State. Even if the State is in a position to control a public undertaking and to exercise a decisive influence over its operations, actual exercise of that control in a particular case cannot be automatically presumed. It is also necessary to examine whether the public authorities must be regarded as having been involved, in one way or another, in the adoption of those measures. On that point, it cannot be required that it be demonstrated, on the basis of a precise inquiry, that the public authorities specifically incited the public undertaking to take the aid measures concerned. The imputability to the State of an aid measure taken by a public undertaking may be inferred from a set of indicators arising from the circumstances of the case and the context in which that measure was taken. Specifically, any indication, in the particular case, either, on the one hand, of the involvement by the public authorities in the adoption of a measure or the unlikelihood of their not being involved, having regard also to the compass of the measure, its content or the conditions which it contains, or, on the other hand, the absence of those authorities’ involvement in the adoption of that measure is relevant (see judgment of 17 September 2014, Commerz Nederland, C‑242/13, EU:C:2014:2224, paragraphs 31 to 33 and the case-law cited).
40In addition, it must be stated that if the Commission’s argument – namely that the ‘mere’ involvement of a local authority in the decisions of a company controlled by it cannot be sufficient to regard that body as being individually concerned by a decision ordering the recovery, as unlawful State aid, of an advantage granted by such a decision – had to be accepted, it would have been impossible for it to conclude that, in the present case, the measures at issue were imputable to the Italian State. It follows from the case-law cited in paragraph 39 above that such imputability to the State assumes that the involvement of the public authorities is established to such a point that it is akin to an instruction given by those authorities. It follows that, by considering that the measures at issue are imputable to the applicant as a public authority, the Commission necessarily confers on it a decisive role in the process of adopting those measures.
41In those circumstances, the applicant is right to criticise as inherently contradictory the Commission’s argument that, although the measures at issue are imputable to the applicant, the latter is not the provider of the aid. On the contrary, if the applicant is the public authority which was involved in the adoption of the measures at issue to such a point that they are imputable to it in accordance with the criteria set out in paragraph 39 above, it is the applicant which must regarded as the provider of the aid (see paragraph 34 above). In that context, it is irrelevant that those measures were implemented by SEA, since, even in the Commission’s view, that company was acting at the instigation of the applicant.
42The applicant submits that the contested decision has a significant impact on the powers conferred on it by the Italian Constitution; that submission is not contested by the Commission. As the local authority closest to the needs of its population, it falls to it to look after the interests and well-being of that population, inter alia by taking care to avoid serious repercussions in terms of employment resulting from Sea Handling’s insolvency and by guaranteeing the continuity of operations at the Milan-Linate and Milan-Malpensa airports as a crucial element of Milan’s economy.
43Thus, the contested decision is of individual concern to the applicant within the meaning of the case-law cited in paragraph 34 above, because it prevents it from freely exercising its powers, as conferred on it by the Italian Constitution, which consist, in the present case, in measures seeking to guarantee the financial stability of Sea Handling and, therefore, first, to protect jobs within that undertaking and, secondly, to ensure the continuity of airport operations at Milan-Linate and Milan-Malpensa.
44The Commission’s plea of inadmissibility must, therefore, be dismissed in so far as it seeks a finding that the contested decision is not of individual concern to the applicant.
45With regard, in the second place, to the Commission’s argument that the applicant fails to demonstrate a ‘specific and independent interest in bringing proceedings’, it follows from settled case-law that an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it. An applicant’s interest in bringing proceedings must be vested and current. It must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 55 to 57 and the case-law cited).
46However, at no point is it stated in the case-law that an interest in bringing proceedings must not only satisfy the conditions reproduced in paragraph 45 above but also be ‘specific and independent’, as the Commission nonetheless argues.
47In the present case, in response to a measure of organisation of procedure of the Court, the applicant observed that proceedings had been brought against it and SEA before the Tribunale di Milano (District Court, Milan, Italy) by a company operating in the groundhandling services sector. That company is claiming compensation for harm allegedly sustained (in the amount of approximately EUR 93 million) because of the measures adopted by SEA in favour of Sea Handling which form the subject matter of the contested decision. At the hearing, the applicant stated that those proceedings before the Tribunale di Milano (District Court, Milan) were ‘informally’ suspended pending the decision of the Court in the present case.
48It must be stated that the annulment of the contested decision in the present case would enable the applicant to defend itself before the Tribunale di Milano (District Court, Milan) by arguing that the measures at issue do not constitute State aid incompatible with the internal market, as the Commission found in that decision. Accordingly, that annulment is capable, in itself, of having significant legal consequences for the applicant’s defence before the Tribunale di Milano (District Court, Milan), such that the present action may, through its outcome, procure an advantage to it.
49Consequently, the Commission’s plea of inadmissibility must also be dismissed in so far as it disputes the existence of a ‘specific and independent interest in bringing proceedings’ on the part of the applicant.
B.Substance
1.Summary of the pleas for annulment
50In support of the action, the applicant relies on four pleas in law.
51The first plea in law alleges infringement of Article 107(1) TFEU in so far as the Commission wrongly found that there was a transfer of State resources and that the measures at issue were imputable to the Italian State.
52By the second plea in law, the applicant claims infringement of Article 107(1) TFEU in so far as the Commission misapplied the private investor test.
53The third plea in law alleges a failure to observe the conditions governing the compatibility of the measures at issue with the internal market, inter alia because the Commission infringed the Community Guidelines on State aid for rescuing and restructuring firms in difficulty (OJ 1999 C 288, p. 2, ‘the 1999 Guidelines’), the Community Guidelines on State aid for rescuing and restructuring firms in difficulty (OJ 2004 C 244, p. 2, ‘the 2004 Guidelines’) and the Community Guidelines on financing of airports and start-up aid to airlines departing from regional airports (OJ 2005 C 312, p. 1, ‘the Guidelines for the airport sector’).
54By the fourth plea in law, the applicant claims infringement of the principle of the right to be heard and of the rights of the defence, the principle of ‘sound administration’ and the principle of protection of legitimate expectations.
2.The first plea in law, alleging infringement of Article 107(1) TFEU because the criteria governing the transfer of State resources and the imputability of the measures at issue to the State were misapplied and infringement of the obligation to state reasons
(a)Scope of the plea
55By its first plea, the applicant submits that the Commission infringed Article 107(1) TFEU by considering, in essence, that the measures at issue were imputable to it and, therefore, State measures. In particular, the Commission did not meet the standard of proof required to show that SEA’s decisions to offset the losses suffered by Sea Handling were imputable to the applicant.
56According to the applicant, for the purpose of demonstrating that the criterion of imputability to the State was met, it was necessary to prove the actual involvement of the State in the management of the companies which it controlled. Where the evidence is circumstantial, it must be based on ‘specific and relevant indications in the light of the circumstances of the case’. If, as in the present case, the measures relate to a period extending over several years, that is to say, the period at issue, proof cannot be produced in the form of ‘sparse indications gleaned during that period’. It is for the Commission to demonstrate the logic and coherence between the different measures adopted during the period at issue. The involvement of the State ought to have been proven in the light of the specific measures which constitute State aid. The burden of proof borne by the Commission is all the more significant given that, in May 2007, it had discontinued the preliminary examination because of a lack of evidence.
57In particular, the applicant submits that none of the indications contained in the contested decision, taken in isolation or jointly, could reasonably substantiate the imputability of the measures at issue to the Italian State. On the other hand, according to the applicant, the Commission did not duly assess the ‘counter-evidence’ which it had put forward in the course of the administrative procedure, namely the repeated refusal by SEA’s management to accede to the requests for access to information submitted by certain local councillors and defended by the chairperson of the local council. Those refusals show that the applicant does not play any major role whatsoever within SEA. Thus, the Commission also failed to fulfil its obligation to state reasons for its decision.
58The Commission disputes the applicant’s arguments.
59In that regard, it is necessary to analyse, first, the existence of a transfer of State resources, secondly, the applicant’s arguments that the Commission failed to fulfil its obligation to demonstrate the logic and coherence between the various indications which it considers prove the imputability to the Italian State of all the measures at issue and, thirdly, the arguments that the Commission failed to meet the standard of proof required to show that SEA’s decisions to offset the losses sustained by Sea Handling were imputable to the applicant.
(b)Transfer of State resources
60It is settled case-law that, for it to be possible to classify advantages as aid within the meaning of Article 107(1) TFEU, first, they must be granted directly or indirectly through State resources and, secondly, that grant must be attributable to the State (judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 24, and of 19 December 2013, Association Vent De Colère and Others, C‑262/12, EU:C:2013:851, paragraph 16). It is clear from the case-law that they are separate and cumulative conditions (see judgment of 5 April 2006, Deutsche Bahn v Commission, T‑351/02, EU:T:2006:104, paragraph 103 and the case-law cited).
61The concept of ‘intervention through State resources’ is intended to cover, in addition to advantages granted directly by the State, those granted through a public or private body appointed or established by that State to administer the aid (see judgment of 19 December 2013, Association Vent De Colère and Others, C‑262/12, EU:C:2013:851, paragraph 20 and the case-law cited). EU law cannot permit the rules on State aid to be circumvented merely through the creation of autonomous institutions charged with allocating aid (judgment of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 23).
62In addition, Article 107(1) TFEU covers all the financial means by which public authorities may actually support undertakings, irrespective of whether or not those means are permanent assets of the public sector. Therefore, even if the sums corresponding to the measure in question are not permanently held by the Treasury, the fact that they constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as State resources (see, to that effect, judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 37; of 19 December 2013, Association Vent De Colère and Others, C‑262/12, EU:C:2013:851, paragraph 21 and the case-law cited; and of 10 May 2016, Germany v Commission, T‑47/15, EU:T:2016:281, paragraph 83).
63With regard to the concept of ‘State resources’, the Commission, having referred to paragraph 37 of the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294) (recital 190 of the contested decision; see also paragraph 55 of the opening decision), took the view that, in the present case, ‘the resources used to cover the losses of Sea Handling were of public origin, because they came from SEA, 99.12% of whose capital was owned during the period [at issue] by [the applicant] and [by] the [Provincia di Milano]’ (recital 191 of the contested decision, the content of which corresponds to that of paragraph 56 of the opening decision). In that regard, recital 25 of the contested decision explains, in essence, that SEA is a company established under private law (a limited company), the capital of which was held, during the period at issue, almost exclusively by public authorities, namely 84.56% by the applicant, 14.56% by the Provincia di Milano and 0.88% by other public and private shareholders.
64The applicant does not put forward any specific argument to challenge that assessment by the Commission, which is not vitiated by any error.
65In the light of the principles of case-law mentioned in paragraphs 60 to 62 above, the Commission rightly observed that the shares in SEA, the body which provided all the contested capital injections, were almost entirely and directly held by the public authorities, namely by the applicant and the Provincia di Milano. As in the circumstances of the case which gave rise to the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294, paragraph 34), it follows that SEA is a ‘public undertaking’ within the meaning of Article 2(b) of Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (OJ 2006 L 318, p. 17), that is to say, ‘[an] undertaking over which the public authorities may exercise directly or indirectly a dominant influence by virtue of their ownership of it, their financial participation therein, or the rules which govern it’. It is clear from Article 2(b)(i) of Directive 2006/111 that ‘a dominant influence on the part of the public authorities shall be presumed when these authorities, directly or indirectly in relation to an undertaking … hold the major part of the undertaking’s subscribed capital’, which is the case here.
66In addition, in accordance with the accepted criteria in paragraphs 33 to 38 of the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294), in recitals 192 and 208 of the contested decision the Commission relied on additional elements of control, finding that, by the Italian authorities’ own admission, ‘[the applicant] exercised control over SEA, appointing the members of its board of directors and audit board’, the existence of which the applicant does not dispute. In addition, it follows from the applicant’s power to appoint, either directly or through its majority at the general meeting, the members of the board of directors and of the audit board of SEA, as well as from the fact that the shares in SEA were almost entirely held by the public authorities, that the funds granted by SEA to Sea Handling were constantly under the control of those authorities and were, therefore, at their disposal within the meaning of the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294).
67The Commission was, therefore, right to conclude, in the contested decision, that the injections of capital granted by SEA to Sea Handling were State resources within the meaning of Article 107(1) TFEU.
(c)Logic and coherence between the various indications
68With regard to examining all the measures at issue in order to assess the criterion of imputability to the State of the measures at issue, it should be recalled that recitals 211 to 216 of the contested decision essentially state the following:(211) … the measures to cover losses, implemented through increases in SEA Handling’s capital, were not ordinary management measures but exceptional measures. The extraordinary character of the measures is reflected both in economic terms, given the scale of the amounts in question (each absorption of losses was offset by means of a capital increase of several million euros), and in political terms, given the anticipated impact of the measures on the maintenance of employment.(212) In view of their exceptional nature, the measures were not adopted by SEA’s board of directors, exercising its own powers: in accordance with SEA’s constitution and the principles laid down in the [Italian] civil code they had to be expressly approved by the general meeting, at which [the applicant] is the majority shareholder. There is therefore no doubt that [the applicant] was fully informed of the measures and approved them, as shown in the minutes of the general meeting. Not only did the measures originate with it, as a result of its participation in the [trade union] agreement of 26 March 2002, but it was also informed of every measure to cover SEA Handling’s losses, which it systematically approved. Such exceptional measures are therefore necessarily imputable to the State.…(215) In the particular case, given the scale of the measures and of the other factors identified in this Decision and in the opening decision, the Commission considers that it has sufficient evidence to demonstrate the imputability of the measures in question to the Italian State, given the involvement of [the applicant] in the measures to cover SEA Handling’s losses, or the improbability of the public authorities not being involved.(216) Consequently, the Commission must reject the Italian authorities’ suggestion that the Commission should analyse each of the measures taken with regard to the capital of SEA Handling individually, in order to verify the existence of aid and, in particular, the imputability of any such aid to [the applicant]. The factors described in paragraphs 174-186, and the analysis of the measures from the perspective of a private investor, provide sufficient evidence that the coverage of losses through injections of capital can only be the result of a strategy and an involvement on the part of the public authorities during the entire period [at issue]. The Italian authorities have themselves stated that while the decisions to cover the losses were formally adopted on an annual basis, there was a multiannual strategy to cover losses over the period needed for restructuring (see paragraphs 225-232).’
69With regard to the application of the private investor test, under the heading ‘Multiannual loss coverage strategy’, the Commission inter alia reproduced, in recital 222 of the contested decision, the line of argument advanced by the Italian authorities and by SEA that, ‘while the decisions to cover the losses were formally taken on an annual basis, the multiannual strategy to absorb the losses over the period needed for restructuring could not have been discussed afresh every year, and the results could be evaluated only over a multiannual period’. In addition, in recital 223 of that decision, the Commission interpreted that line of argument as expressing the fact that ‘the decision to cover future losses was initially made in 2002 and then a second time in 2007, when, in view of the failure to reach the expected targets, the decision was taken to review the initial strategy calling for the coverage of losses, after which it was decided to proceed as originally planned’, and that, ‘essentially, [the Italian authorities and SEA] seem to present the measures in question as two injections of capital which were to be made in annual payments but which were decided in 2002 and 2007’.
70It is clear from recitals 225 to 232 of the contested decision that, in order to conclude that the measures at issue are imputable to the Italian authorities, the Commission carried out an overall analysis of all those measures, finding that the different injections of capital were interlinked and that, in the view of the Italian authorities themselves, they formed part of a single, long-term strategy. In those recitals, reference is systematically made to those ‘measures’ in the plural and as corollaries to the trade union agreement of 26 March 2002 (see, inter alia, recitals 211 and 212 of the contested decision). According to the Commission, in the light of their exceptional nature, none of those measures was adopted ‘by SEA’s board of directors exercising its own powers [but were] expressly approved by the general meeting’ of SEA’s shareholders, with full knowledge of the facts, and with the participation and approval of the applicant, its majority shareholder. Furthermore, referring to (i) the facts establishing, in its view, that Sea Handling was a firm in difficulty within the meaning of the 1999 and 2004 Guidelines (recitals 174 to 186 of the contested decision) and to (ii) its considerations set out as part of its assessment of the private investor test (recitals 222, 223 and 225 to 232 of the contested decision), the Commission expressly rejected the Italian authorities’ argument that, to that end, the Commission was required to analyse each of those measures individually, since they are the result of ‘a strategy and an involvement on the part of the public authorities during the entire period under investigation’ (recital 216 of the contested decision). The Italian authorities themselves acknowledged that there was a ‘multiannual strategy to absorb the losses over the period needed for restructuring’ (recital 222 of the contested decision), and that the measures forming part of that strategy were ‘closely interlinked’ and ‘pursued the same objective, namely to offset the losses of SEA Handling in order to ensure [its] survival and restore its profitability’ (recital 231 of the contested decision).
71In that regard, it should be observed, as the Commission has done, that the Court of Justice has already held that since State interventions take various forms and have to be assessed in relation to their effects, it cannot be excluded that several consecutive measures of State intervention must, for the purposes of Article 107(1) TFEU, be regarded as a single intervention. That could be the case in particular where consecutive interventions, especially having regard to their chronology, their purpose and the circumstances of the undertaking at the time of those interventions, are so closely linked to each other that they are inseparable from one another (see, with regard to the ‘transfer of State resources’ criterion, judgments of 19 March 2013, Bouygues and Bouygues Télécom v Commission and Others and Commission v France and Others, C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraphs 103 and 104, and of 4 June 2015, Commission v MOL, C‑15/14 P, EU:C:2015:362, paragraph 97; see also, with regard to the application of the private investor test, judgments of 15 September 1998, BP Chemicals v Commission, T‑11/95, EU:T:1998:199, paragraphs 171 and 179, and of 15 January 2015, France v Commission, T‑1/12, EU:T:2015:17, paragraphs 33 and 34).
72In the present case, it must be observed that the applicant not only asserts, without providing any explanation, that the Commission has failed to demonstrate the logic and coherence between the evidence which it has put forward in order to impute all the measures adopted during the period at issue to the Italian State, but also contradicts the observations made by the Italian authorities and SEA during the administrative procedure in that regard, as reproduced in recital 222 of the contested decision. It follows from those observations, which have not been disproved by the applicant, that SEA’s investment decisions relating to Sea Handling were based on a multiannual strategy to absorb the losses over the period needed for restructuring. In addition, the repetitive, coherent and uniform nature of that approach over an eight-year period indicates that those decisions and the applicant’s approval were in fact based on a strategic choice made beforehand and dating back to 2002.
73It follows from the foregoing that the Commission could rightly take the view that the consecutive injections of capital, such as those granted by SEA to Sea Handling annually during the period at issue, were – having regard to their chronology, their purpose and the similar circumstances of the recipient undertaking, the substantial losses of which regularly exceeded one third of its capital – so closely linked to each other that, for the purposes of applying the criteria relating to the transfer of State resources and imputability, they were inseparable from one another within the meaning of the case-law cited in paragraph 71 above.
74Accordingly, the Court must dismiss the applicant’s arguments that the Commission failed to fulfil its obligation to show the logic and coherence between the various indications which justify them being taken into account as a whole in order to prove that all the measures adopted during the period at issue could be imputed to the Italian State.
(d)Imputability of the measures at issue
75Since the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294), it has been settled case-law that the imputability of a measure to the State cannot be inferred from the mere fact that the measure at issue was taken by a public undertaking. Even if the State is in a position to control a public undertaking and to exercise a dominant influence over its operations, actual exercise of that control in a particular case cannot be automatically presumed. A public undertaking may act with more or less independence, according to the degree of autonomy left to it by the State. Therefore, the mere fact that a public undertaking is under State control is not sufficient for measures taken by that undertaking to be imputed to the State. It is also necessary to examine whether the public authorities must be regarded as having been involved, in one way or another, in the adoption of those measures. On that point, it cannot be demanded that it be demonstrated, on the basis of a precise inquiry, that the public authorities specifically incited the public undertaking to take the aid measures in question. In the first place, having regard to the fact that relations between the State and public undertakings are close, there is a real risk that State aid may be granted through those undertakings in a non-transparent way and in breach of the rules on State aid laid down by the Treaty. In the second place, it will, as a general rule, be very difficult for a third party, precisely because of the privileged relations existing between the State and a public undertaking, to demonstrate in a particular case that aid measures taken by such an undertaking were in fact adopted on the instructions of the public authorities. For those reasons, it must be accepted that the imputability to the State of an aid measure taken by a public undertaking may be inferred from a set of indicators arising from the circumstances of the case and the context in which that measure was taken. In addition, in its judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294), the Court of Justice clarified that any other indicator showing, in the particular case, an involvement by the public authorities in the adoption of a measure or the unlikelihood of their not being involved, having regard also to the compass of the measure, its content or the conditions which it contains, might, in certain circumstances, be relevant in concluding that a measure taken by a public undertaking is imputable to the State (see, to that effect, judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraphs 51 to 56, and of 17 September 2014, Commerz Nederland, C‑242/13, EU:C:2014:2224, paragraphs 31 to 34; of 10 November 2011, Elliniki Nafpigokataskevastiki and Others v Commission, T‑384/08, not published, EU:T:2011:650, paragraphs 50 to 54; and of 28 January 2016, Slovenia v Commission, T‑507/12, not published, EU:T:2016:35, paragraphs 65 to 69).
76It is established that, in recitals 192 to 216 of the contested decision, taking into account the relevant and accepted criteria in the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294), the Commission relied on a set of indicators arising from the circumstances of the case and the context in which the measures at issue were taken, in order to conclude that those measures were imputable to the applicant and, therefore, to the Italian State. In the light of the case-law cited above, it is necessary to assess whether those indications are sufficiently probative, both individually and taken as a whole, to justify that conclusion.
(1)The probative value of the main evidence (trade union agreements)
77It is necessary to assess, first of all, the main indicators of imputability which the Commission examined in recitals 195 to 200 of the contested decision, read in conjunction with paragraphs 43 to 48 and 62 to 66 of the opening decision (recital 197 of the contested decision) – namely, in particular, the trade union agreements of 26 March and 4 April 2002 – to conclude that the applicant was ‘involved’ in the adoption of the measures at issue. In accordance with the Commission’s assessment, it is not in dispute that the applicant participated in the negotiation of the trade union agreement of 26 March 2002 and signed it, even though it claims that that signature was that of a representative who was not authorised to make budget commitments on its part. It is likewise established that that trade union agreement provides for a clear and precise obligation on SEA, inter alia, to ensure that, for a minimum period of five years, ‘costs/revenues and the general economic framework [of Sea Handling] remained balanced’, ‘by maintaining [its] management capacities and improving significantly [its] abilities to operate on the national and international markets’. The Commission rightly concluded from the foregoing that, in accordance with that obligation, SEA was required to cover any losses of Sea Handling liable to affect the continuation of its economic activity, which is confirmed by the even more precise wording of the trade union agreement of 4 April 2002, in which, admittedly, the applicant did not directly participate. Under that latter agreement, which expressly refers to the trade union agreement of 26 March 2002, inter alia, ‘SEA … undertakes … to bear the coverage of losses in order to balance the finances and assets of SEA Handling’. Furthermore, once again under that agreement, those commitments are guaranteed ‘by the agreement signed by [the applicant], among other things in its capacity as the absolute majority shareholder [of SEA], by the contributions made, by the financial resources not subject to legal limitations transferable by SEA … to SEA Handling …, and by the solidity of the assets and finance of SEA’ (recital 196 of the contested decision). Moreover, the trade union agreement of 19 June 2003, to which the applicant is likewise not a direct co-contracting party, reiterates the content of the trade union agreement of 4 April 2002, stating, inter alia, that ‘the economic balance of SEA Handling was essentially to be maintained by means of concerted action focusing on its costs and revenues’, and ‘confirms the obligation entered into on 26 March 2002 regarding the provision of the necessary social and financial guarantees and the safeguarding of the jobs of SEA Handling employees’.
78It follows that, under the trade union agreement of 26 March 2002, there was on an obligation on SEA, as confirmed by the trade union agreement of 4 April 2002, to cover any future losses of Sea Handling, at least for a period of five years. The applicant cannot call that finding into question by arguing that those documents were political and trade union-related in character and vague and general in nature. In addition, in the light of the successive injections of capital made by SEA into Sea Handling during the period at issue in order to offset the latter’s losses, it is established that, in its capacity as the sole shareholder of Sea Handling, SEA in fact interpreted those agreements as providing for such an obligation (see paragraph 92 below). Even though the minimum duration of the commitment provided for in the trade union agreement of 26 March 2002 is five years only, it must be observed that SEA continued to implement it until 2010.
79Thus, the Commission was justified in concluding from the foregoing that that obligation to cover Sea Handling’s losses, under the trade union agreement of 26 March 2002, formed the contractual basis for the subsequent recapitalisation measures. It was therefore likewise entitled to state, in recitals 198 and 200 of the contested decision, in essence, that ‘the steps taken by the Italian authorities, particularly at the meeting of 26 March 2002, guided the decisions taken by SEA with regard to its subsidiary SEA Handling’, and that the trade union agreement of 26 March 2002 had a decisive influence to that end, as confirmed by the trade union agreements of 4 April 2002 and of 19 June 2003, without it being necessary for representatives of the applicant to participate in person in the signature of the latter trade union agreements.
80In addition, it must be assessed whether the Commission was justified in taking the view that the mere proven active participation of the applicant in the conclusion of the trade union agreement of 26 March 2002 was sufficient to demonstrate that it was also involved in the grant of the subsequent recapitalisation measures at issue. In that regard, it should be recalled that, in order to show such involvement on the part of the public authorities in the grant of aid, the Commission is not required to establish positive proof of their involvement in the adoption of the measure but need merely demonstrate the unlikelihood of those authorities not being involved (judgment of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraph 56), in the light of the real risk of an infringement of the Treaty rules on State aid through public undertakings or undertakings controlled by public authorities (judgment of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraphs 53 and 57). That risk of infringement and the need to ensure the effectiveness of the rules on State aid were further emphasised by the Court of Justice in its judgment of 17 September 2014, Commerz Nederland (C‑242/13, EU:C:2014:2224, paragraphs 34 and 36).
81As the Commission rightly observed, the applicant’s active participation in the negotiation and conclusion of the trade union agreement of 26 March 2002 is key evidence of the Italian authorities’ involvement in the grant of the measures at issue. In addition to the fact that the terms of that agreement create a clear and precise obligation on SEA to cover the losses of Sea Handling, at least for a period of five years (see paragraph 78 above), it is established that, by having signed that agreement as a co-contracting party, the applicant’s administrative body formally gave its approval, including in its capacity as SEA’s majority shareholder, not only to the establishment of that obligation but also to its subsequent observance and implementation by SEA. That assessment is confirmed by the wording of the trade union agreement of 4 April 2002, which explicitly refers to and is based on the trade union agreement of 26 March 2002, by mentioning, inter alia, the fact that that agreement was ‘signed by [the applicant], among other things in its capacity as the absolute majority shareholder [of SEA]’.
82In those circumstances, the applicant cannot legitimately claim that it confined itself to acting as a mediator, that its participation in the trade union agreement of 26 March 2002 was exclusively political and social – and, therefore, non-economic – in nature and that its status as majority shareholder of SEA was purely incidental and secondary in that context. Its argument that the applicant’s lack of economic involvement is confirmed, first, by the fact that the signature on that agreement was that of Mr M., the deputy mayor responsible for personnel, labour and resources with specific delegated powers in the areas of personnel, organisational matters, statistical services, oversight in the fields of labour and employment, procurement and commissary services, and not that of the deputy major responsible for the budget, management supervision and privatisations or the deputy mayor responsible for transport and mobility, and, secondly, by the lack of an expenditure item in its budget also lacks probative force. Such a line of argument cannot be upheld, since this would otherwise allow the public authorities involved in the grant of aid to circumvent the application of the prohibition under Article 107(1) TFEU by measures relating to their internal organisation or accounting, particularly since such measures can also influence how they participate in public or private undertakings. It is precisely on account of that risk of circumvention and of the interest in an effective implementation of the rules on State aid that the Court of Justice held that if, when granting aid, a director acted improperly, within the meaning of the relevant national legislation, and in a manner inconsistent with the presumed will of the public authority concerned, that fact did not, of itself, exclude the involvement of that public authority (see, to that effect, judgment of 17 September 2014, Commerz Nederland, C‑242/13, EU:C:2014:2224, paragraphs 36 to 38). Such reasoning must be applied particularly in circumstances where, as in the present case, a director acts properly, within the meaning of the relevant national provisions, and with the approval of the public authority on behalf of which he or she is meant to enter into commitments in respect of third parties. In that regard, it is important to note that the applicant has not claimed that the actions of its representative during the negotiation and conclusion of the trade union agreement of 26 March 2002 were improper or contrary to its will.
83It follows that the trade union agreement of 26 March 2002, read in the light of the wording of the trade union agreement of 4 April 2002, is, in itself, a decisive indication in demonstrating the applicant’s involvement in the decision to grant the recapitalisation measures at issue to Sea Handling. Contrary to the applicant’s claim, that evidence of imputability can be added, decisively, to the organic ties and relationship of control which existed between the applicant and SEA, including the fact that the applicant was by far the majority shareholder of SEA and thus held the majority of voting rights and appointed the members of its board of directors, which created in itself a risk or a certain likelihood of interference in SEA’s strategic financial decisions. It also follows from the foregoing that, far from distorting that evidence, the Commission assessed it correctly and provided a sufficient statement of reasons for that assessment in recitals 195 to 200 of the contested decision, read in conjunction with paragraphs 43 to 48 and 62 to 66 of the opening decision, to enable the applicant to challenge that assessment and to allow the Court to review its substantive legality (see, to that effect, judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraph 77).
(2)The probative value of the supplementary evidence
84Furthermore, the supplementary evidence upon which the Commission relied in the contested decision to conclude that the measures at issue are imputable to the Italian State reinforces the well-founded nature of that conclusion.
85Thus, first, it is true that the exact content of the minutes of the meetings of the board of directors of Sea Handling, and not of SEA, of 31 May and 13 June 2008 (recital 201 of the contested decision), which is in dispute between the parties, has only weak probative value. However, since there is agreement, on the basis of the trade union agreement of 26 March 2002, between the applicant, SEA and the trade unions on the coverage of Sea Handling’s losses in future years (see paragraphs 78 to 83 above), and in view of the organic ties and relationship of control existing between the applicant and SEA, the Commission’s interpretation that the Italian words ‘è condiviso dall’azionista di maggioranza’, contained in the minutes of the latter of the abovementioned meetings, mean that the commercial development plan for Sea Handling for the period from 2007 met with the ‘agreement of the majority shareholder’, namely the applicant, is coherent and credible. In any event, as the Commission contends, it appears unlikely that SEA would present a strategic commercial development plan of vital importance to its subsidiary without having first sought to obtain the approval of its majority shareholder. Furthermore, that finding also tends to confirm the Commission’s assessment that the applicant continued to be involved in the strategic decisions relating to Sea Handling even during the period after 2007.
86Secondly, the argument put forward by the applicant seeking to minimise the significance of the fact – allegedly purely a one-off event, but not contested by the applicant as such – that the mayor of Milan had called for and secured the resignation of the chairman of SEA’s board of directors in 2006 (recital 203 of the contested decision) must also be rejected. In that regard, the applicant’s only argument, namely that it is perfectly normal for the major shareholder to have the power to relieve the chairman of the board of directors of his duties, is unconvincing since, in the present case, such an event tends nevertheless to demonstrate proactive interference on the part of the applicant in the management of SEA and is, therefore, a relevant indicator of imputability alongside other indicators.
87Thirdly, the same is true of the blank letters of resignation which members of SEA’s board of directors submitted to the applicant’s mayor (recital 206 of the contested decision), a fact which the applicant – wrongly – claims is mentioned only in newspaper articles and not proven by the Commission. It is clear from a combined reading of recitals 63, 98 and 206 of the contested decision that SEA had admitted that those letters existed, whilst disputing their relevance.
88Fourthly, contrary to the applicant’s claim, in the light of the foregoing considerations, recital 210 of the contested decision convincingly sets out that the measures at issue came under the heading of ‘important decisions’ or that ‘the measures to cover SEA Handling’s losses were at least an integral part of the SEA group’s strategy’. In particular, neither the significance of the different annual injections of capital, which were essential in the light of Article 2446 of the Italian Civil Code and ensured its economic survival during the period at issue, nor the relevance of that characterisation for the purposes of assessing the criterion of imputability can be qualified.
(3)The probative value of the alleged counter-evidence
89It must be observed that the alleged pieces of ‘counter-evidence’ relied on by the applicant are incapable, both individually and taken as a whole, of calling into question the probative value of the body of evidence of imputability assessed above.
90Thus, first, in accordance with the statements made in recital 209 of the contested decision and the arguments put forward by the Commission in its pleadings, SEA’s refusal on grounds of confidentiality to grant a member of the applicant’s municipal council access to certain documents, including the SEA group’s commercial development plan for the period from 2005 to 2009, was based on Articles 2422 and 2429 of the Italian Civil Code and was not in response to a request from the applicant itself, in its capacity as majority shareholder. The member of the municipal council who made that request for access, was, at the time, the manager of opposition business. In addition, that request was made to the applicant’s department responsible for budgetary affairs, management supervision and privatisation and not to SEA directly. The applicant’s director in charge of the privatisation programming and implementation sector subsequently merely forwarded the request to SEA without endorsing it.
91Secondly, the correspondence between the applicant and SEA following that refusal of access, namely the letters of 7, 9, 15, 20 and 27 September and of 5 and 6 October 2005, does indeed concern the steps taken further to the abovementioned request for access made by a member of the municipal council. It is clear from that correspondence, inter alia, that the chairperson of the applicant’s municipal council opposed SEA’s refusal of access on the ground that that refusal was contrary to the relevant legislation under municipal law and made clear to SEA the chairperson’s intention to challenge the refusal before the regional administrative court. However, even assuming that that difference of opinion between (i) the municipal authority, in the present case the chairperson of the municipal council, and (ii) SEA can be regarded as evidence tending to support SEA’s independent and autonomous management of its economic activity, it must be observed that this is a one-off consideration which, on its own, cannot call in question the body of evidence pointing to the existence of a decisive influence by the applicant over strategic questions in general and, in particular, over that of the annual coverage of Sea Handling’s losses, which essentially corresponds to the reasons set out in recital 209 of the contested decision.
92Thirdly, the applicant relies on a letter of 4 November 2003 which SEA sent to the applicant’s deputy mayor responsible for transport and mobility in response to the latter’s letter of 23 September 2003 forwarding a request from municipal councillor Mr O – according to the Commission, a member of the opposition Communist Refoundation Party – regarding a ‘consultation with SEA employees’. On that matter, the Commission was right to take the view that that correspondence is not relevant ‘counter-evidence’ of imputability solely on the ground that, in the introductory part of that letter, SEA states that ‘the legitimate control by the shareholder over the companies in which it holds a stake [was] already exercised through the appointment of the members of the board of directors and of the audit board, with the result that other forms of control [fell] outside those rules’. In that letter, SEA rejects the idea of such a consultation with employees on the ground that the trade union agreement of 19 June 2003 made no provision for it as a condition for its legal validity, which rather confirms the existence of obligations arising ipso facto from that agreement, including the obligation to cover Sea Handling’s losses.
93Fourthly, the fact that, at the municipal council meeting of 16 June 2003, the applicant’s deputy mayor responsible for transport and mobility informed the municipal councillors that SEA had refused his request to provide him with ‘necessary information’ about a trade union negotiation is not of such significance that, in the light of all the indicators assessed, it can call into question the finding of imputability reached by the Commission.
94Therefore, both individually and taken as a whole, the ‘counter-evidence’ relied on by the applicant is not sufficient to call into question the probative value of the indicators of imputability examined in paragraph 77 et seq. above. It must, therefore, be concluded that the Commission has met the burden of proving the imputability of the measures at issue to the Italian State by relying on a body of firm, accurate and consistent evidence.
95In so far as the applicant argues that the statement of reasons provided in that regard is insufficient, it also follows from the foregoing that the Commission necessarily, if only implicitly, rejected the probative value of that ‘counter-evidence’ by providing an adequate and sufficient statement of reasons in that regard in recital 209 of the contested decision. That statement of reasons enables the applicant and the Court to understand the Commission’s reasoning vis-à-vis the imputability of the measures at issue to the Italian State, including with regard to the probative value which the Commission attached to the ‘counter-evidence’, and, therefore, allows the Court to give a ruling on its substantive legality for the purposes of a judicial review (see, to that effect, judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraph 77).
96It follows that the first plea in law must be rejected.
3.The second plea in law, alleging infringement of Article 107(1) TFEU because the private investor test was misapplied
97In the contested decision, the Commission found that a private investor would not have acted in the same way as SEA in order to guarantee the return to profitability of its subsidiary Sea Handling. The Commission essentially found as follows: first, the ‘multiannual strategy for the coverage of losses’ did not correspond to ‘the conduct of a prudent private investor’ (recital 225 of the contested decision), since such an investor does ‘not enter blindly into a [legally binding] multiannual commitment’ but would have reassessed the strategy at a later date depending on the results of the recovery attempts before each new capital investment (recital 226 of the contested decision); secondly, despite its importance, the commercial development plans of SEA and Sea Handling made no mention of that decision to cover losses over several years and did not present an analysis of alternative scenarios which a normally diligent private investor would have required in a similar situation but instead focused solely on the issue of restructuring, and, in any event, such an investor would not have taken such an investment decision without having at least a preliminary estimate of the amount of the capital to be invested or an in-depth audit (recitals 228, 229, 268, 289 and 296 of the contested decision); thirdly, such an investor ‘would have evaluated the risk that, from the first injection of capital, the measures might constitute illegal and incompatible State aid, and would therefore have studied the impact which the possible recovery of such aid would have on the profitability of its investment’ (recital 232 of the contested decision); fourthly, such an investor ‘would not have carried out the 2002 capital injections without a sufficiently detailed business plan based on sound, reliable hypotheses, which precisely described the measures needed to restore the profitability of the company, analysed the various possible scenarios, and demonstrated that the investment would generate a return that satisfied the investor (taking account of the intrinsic risk) in terms of dividends, increased share value or other advantages’ (recital 236 of the contested decision); fifthly, such an investor would not have been satisfied by a prospect of a return to profitability at the end of a restructuring period of nearly 10 years without having in advance a ‘projection showing that the expected return from the strategy of medium- and long-term coverage – in terms of dividends, increased share value, avoidance of damage to image etc. – would exceed the capital injected to offset such losses’ rather than proceeding with ‘disinvestment from [Sea] Handling’ or ‘try[ing] to reduce the restructuring period in order to return to profitability in a reasonable time and to minimise losses’ (recitals 290, 294 and 309 of the contested decision); and, sixthly, in ‘the absence of any evaluation of the damage to SEA’s image [associated with the transfer of groundhandling services to a third-party provider], or of its potential liability, or of the prospects of an indirect long-term return [to profitability]’, a prudent investor would have refrained from investing such a significant sum as that forming the subject matter of the recovery order (recitals 292 and 293 of the contested decision).
98The applicant submits that the considerations set out in the contested decision regarding the application of the private investor test are unfounded and that the Commission has not met the burden of proof borne by it in that regard. It is necessary to piece together the various stages of SEA’s conduct in order to assess its economical rationality in the light of the private investor test, as interpreted by case-law.
99According to the applicant, SEA’s decision to proceed with the disinvestment of the activities associated with groundhandling services by entrusting them to a new company entirely controlled by it was intended, first, to comply with the obligations under EU law and, secondly, to take advantage of the development opportunities offered by the liberalisation of the sector required by Directive 96/67. However, Sea Handling initially had to face a particularly delicate economic situation. In order to deal with that situation, SEA launched a programme to reorganise the groundhandling sector based on three pillars: first, the identification of a strategic partner; secondly, the gradual reduction of staff costs; and thirdly, the reorganisation of that sector from a strictly economic perspective by implementing the Sea Handling business plan for the period from 2003 to 2007. By implementing those measures, SEA hoped that its groundhandling services would return to profitability within a three-year period or, at the latest, before 2007. The results obtained in the course of 2003 and 2004 showed that SEA’s actions were sound.
100However, according to the applicant, various events beyond SEA’s control occurred and slowed down the achievement of the reorganisation objective. The economic assessments made during the period at issue did nevertheless show that SEA’s strategy was economically rational because it allowed Sea Handling to be reorganised. The economic study of 1 June 2011, entitled ‘SEA Handling – Application of the Market-Economy Private Investor Test’ (‘the economic study relied on by the applicant’), confirms that assessment.
101The Commission disputes the applicant’s arguments.
102The conditions which a measure must meet in order to be treated as ‘aid’, within the meaning of Article 107 TFEU, are not met if the recipient undertaking could, in circumstances which correspond to normal market conditions, obtain the same advantage as that which has been made available to it through State resources. That assessment is made by applying, in principle, the private investor in a market economy test (see, to that effect, judgments of 5 June 2012, Commission v EDF and Others, C‑124/10 P, EU:C:2012:318, paragraph 78; of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 70; and of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraph 91).
103The private investor test is thus applied in order to determine whether, because of its effects, the advantage granted, in whatever form, through State resources to an undertaking distorts or threatens to distort competition and affects trade between Member States (judgment of 5 June 2012, Commission v EDF and Others, C‑124/10 P, EU:C:2012:318, paragraph 89; see also judgment of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraph 92 and the case-law cited). More specifically, it is necessary to assess whether, in similar circumstances, a private investor operating in normal conditions of a market economy of a comparable size to that of the bodies operating in the public sector could have been prompted to make the capital contributions in question. In particular, the relevant question is whether a private investor would have entered into the transactions in question on the same terms (see, to that effect, judgment of 6 March 2003, Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission, T‑228/99 and T‑233/99, EU:T:2003:57, paragraph 245 and the case-law cited).
104In order to examine whether or not the Member State or the public body concerned has adopted the conduct of a prudent private operator operating in a market economy, it is necessary to place oneself in the context of the period during which the measures at issue were taken in order to assess the economic rationality of the conduct of the Member State or of the public body, and thus to refrain from any assessment based on a later situation. The comparison between the conduct of public and private operators must thus be made in relation to the attitude which, at the time of the operation in question, a private operator would have had in similar circumstances having regard to the available information and foreseeable developments at the time, which are the only relevant factors for the purposes of applying the private investor test. Consequently, the retrospective finding of the actual profitability of the operation performed by the Member State or the public body concerned or subsequent justifications of the course of action actually chosen cannot suffice for that purpose and are irrelevant. That is especially so where, as in the present case, the Commission is seeking to determine whether there has been State aid in relation to measures which were not notified to it and which, at the time when the Commission carries out its examination, have already been implemented by the public body concerned (see, to that effect, judgments of 5 June 2012, Commission v EDF and Others, C‑124/10 P, EU:C:2012:318, paragraphs 85, 104 and 105; of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraphs 139 and 140; and of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraphs 93 and 94 and the case-law cited).
105In that regard, it has been clarified in the case-law, first, that, where the Commission was determining whether the conditions governing applicability and application of the private investor test were met, it could not refuse to examine relevant information provided by the Member State concerned unless the evidence produced had been established after the adoption of the decision to make the investment in question and, secondly, that information relating to events which fell within the period prior to the date of adoption of a State measure and which was available on that date might prove to be relevant to the extent that that information might shed light on the question of whether that measure constituted an advantage, for the purposes of Article 107(1) TFEU (see, to that effect, judgments of 1 October 2015, Electrabel and Dunamenti Erőmű v Commission, C‑357/14 P, EU:C:2015:642, paragraphs 103 to 105, and of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraph 96 and the case-law cited).
106In accordance with the principles on the burden of proof in relation to State aid, the Commission must provide proof of such aid. In that regard, it is required to conduct a diligent and impartial examination of the measures at issue, so that it has at its disposal, when adopting a final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible. With regard to the standard of proof required, the nature of the evidence the Commission must adduce depends, to a large extent, on the nature of the State measure at issue (see, to that effect, judgments of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraphs 63 and 66, and of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraph 95 and the case-law cited).
107Furthermore, the Commission is required to make a complex economic assessment when it examines whether particular measures can be described as State aid because the public authorities did not act in the same way as a private investor. However, in the context of the review conducted by the European Union Courts on complex economic assessments made by the Commission in the field of State aid, it is not for those Courts to substitute their own economic assessment for that of the Commission (see judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraphs 74 and 75 and the case-law cited; judgments of 21 March 2013, Commission v Buczek Automotive, C‑405/11 P, not published, EU:C:2013:186, paragraphs 48 and 49; of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 91; and of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraphs 62 and 63), and they must confine their review to verifying whether the Commission complied with the relevant rules governing procedure and the statement of reasons, whether the facts have been accurately stated and whether there has been any manifest error of assessment of those facts or a misuse of powers (see judgments of 15 January 2015, France v Commission, T‑1/12, EU:T:2015:17, paragraph 35 and the case-law cited, and of 16 March 2016, Frucona Košice v Commission, T‑103/14, EU:T:2016:152, paragraphs 144 to 146 and the case-law cited).
108In order to establish that the Commission committed a manifest error in assessing the facts such as justify the annulment of the contested decision, the evidence adduced by the applicants must be sufficient to make the factual assessments used in the decision in question implausible (see judgment of 9 December 2015, Greece and Ellinikos Chrysos v Commission, T‑233/11 and T‑262/11, EU:T:2015:948, paragraph 82 and the case-law cited).
109The European Union Courts must not only establish whether the evidence relied on is factually accurate, reliable and consistent, but also review whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 76 and the case-law cited; judgments of 21 March 2013, Commission v Buczek Automotive, C‑405/11 P, not published, EU:C:2013:186, paragraph 50; of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 91; and of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 64).
110The Court has further clarified that, when applying the private creditor test, the Commission had to carry out an overall assessment, taking into account all relevant evidence in the case enabling it to determine whether the recipient undertaking would manifestly not have obtained comparable facilities from a private creditor. In that regard, all information liable to have a significant influence on the decision-making process of a normally prudent and diligent private creditor, who is in a situation as close as possible to that of the public creditor and is seeking to recover sums due to it by a debtor experiencing difficulty in making the payments, must be regarded as being relevant. Moreover, for the purposes of applying the private creditor test, the only relevant evidence is the information which was available, and the developments which were foreseeable, at the time when the decision was taken (see judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraphs 59 to 61 and the case-law cited). The Commission is not obliged to examine information if the evidence produced has been established after the adoption of the decision to make the investment in question, and that evidence does not relieve the Member State concerned from its task of carrying out an appropriate prior evaluation of the profitability of its investment before making that investment (see, to that effect, judgment of 23 November 2017, SACE and Sace BT v Commission, C‑472/15 P, not published, EU:C:2017:885, paragraph 107 and the case-law cited).
111It is in the light of those criteria established in the case-law that it must be examined whether the Commission was entitled to find that a private investor in SEA’s situation in 2002 would have committed to a similar course of action in order to guarantee the economic survival of its subsidiary Sea Handling and to enable it to return to profitability.
112In that regard, it must be observed that the Italian authorities have indeed endeavoured to demonstrate their compliance with the private investor test by providing a lengthy and repetitive presentation of their complex strategy for the long-term restructuring of Sea Handling within the SEA group, supported by various commercial development and restructuring plans, by the economic study relied on by the applicant, and by investments offering, in their view, a long-term prospect of profitability within the meaning of the judgment of 21 March 1991, Italy v Commission (C‑303/88, EU:C:1991:136, paragraphs 21 and 22). To that end, they pointed to the need to protect the SEA group’s image, in particular by guaranteeing the quality of the services provided, the need to maximise its overall result and the likelihood of deriving significant indirect profit from hiving off the groundhandling services sector and disposing of it on better economic terms.
113However, it should be observed, as the Commission has noted, that the Italian authorities clearly failed to submit, during the administrative procedure, first, forecasts or estimated figures of Sea Handling’s capital requirements, from the perspective of an investor in the situation existing in 2002, at the very least for the first five-year period, and potential profits which an investor could reasonably expect in the form of a ‘return on investment’ which could be compared with the expenditure occasioned by the recapitalisation measures at issue. Secondly, they failed to demonstrate the lack of economic rationality of any alternative solutions, such as the liquidation or the (full or partial) outsourcing of the groundhandling sector – the costs and potential advantages of which they did not assess sufficiently – supported by specific figures and calculations. It necessarily follows from the foregoing that the Italian authorities, SEA and Sea Handling also failed to carry out and to submit to the Commission a comparison of the ‘cost-benefit’ ratios presented by each of the different alternative scenarios for the conduct of a private investor.
114Thus, first, the economic study relied on by the applicant, whilst taking as a basis the business plan for the period from 2003 to 2007 (that is to say, ‘the 2003-2007 business plan’), simply provides a brief account of potential alternative scenarios, including the liquidation of Sea Handling, and states that such an approach would have generated ‘significant exit costs’, without attempting to quantify those costs or to compare them with the costs incurred as a result of the recapitalisation measures at issue, despite the fact that it is stated in that document that a prudent private investor would have made such a comparison. Those concise and contradictory statements in the economic study relied on by the applicant demonstrate that, in 2002, SEA and the Italian authorities did not examine any economically rational option other than that of the unconditional recapitalisation of Sea Handling within the SEA group, as chosen by SEA, initially, for a period of five years, which would then be continued even after 2007. Moreover, as the Commission rightly observed in recital 308 of the contested decision, that study is the only real analysis by a third-party ‘economic expert’ requested by the Italian authorities, but it was drawn up after the adoption of the measures at issue. However, the date on which the economic rationality of a measure must be assessed in the light of the private investor test is the date of its adoption (see, to that effect, judgments of 5 June 2012, Commission v EDF and Others, C‑124/10 P, EU:C:2012:318, paragraphs 85, 104 and 105; of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraphs 139 and 140; and of 25 June 2015, SACE and Sace BT v Commission, T‑305/13, EU:T:2015:435, paragraphs 93 and 94 the case-law cited). The economic study relied on by the applicant cannot, therefore, provide them with ‘retroactive’ justification on the basis of the improvement in Sea Handling’s economic situation observed in 2011. The Italian authorities, including the applicant, did not contest during the administrative procedure (recital 308, in fine, of the contested decision) or in the course of proceedings that, in 2002, or, at the very least, before the alleged 2007 end date, they conducted an audit of Sea Handling’s financial position (recitals 268 and 289 of the contested decision) or requested that a similar economic analysis be conducted, this time a prospective analysis, to examine the economic rationality of their conduct.
115Secondly, that assessment is confirmed by the commercial development and restructuring plans of SEA and Sea Handling, namely the ‘2002-2006 Consolidated Business Plan’, the ‘2003-2007 Business Plan’, the ‘2007-2012 Strategic Plan’, the ‘2009-2016 Strategic Plan’ and the ‘2011-2013 Business Plan’ (recitals 269 to 296 of the contested decision). As the Commission observed, in essence, in recitals 226, 229 and 290 of the contested decision, without being challenged in that regard by the applicant, those different plans make no mention of SEA’s recapitalisation strategy, even though it would have been essential to the success of the planned restructuring of Sea Handling by guaranteeing, on a temporary basis, its economic survival, but instead focus solely on the restructuring intended to ensure its return to profitability. As summarised in recital 290 of the contested decision, by failing to take account of the recapitalisation measures at issue, those plans also failed to provide a medium-term or long-term estimate or forecast of their total costs (ultimately reaching a total recapitalisation level of approximately EUR 360 million) or of their potential earnings, if necessary in terms of dividends, the retention or increase in the share value or the avoidance of brand damage.
116Similarly, it is clear from recitals 292 and 293 of the contested decision that the Italian authorities and SEA failed to quantify the alleged damage associated with the loss of image which SEA might have suffered in the event of the transfer of groundhandling services to a third-party provider who does not guarantee the same level of quality, even though SEA ‘acknowledged that such a loss could easily have been confirmed by a market study’. They simply produced a calculation of the outsourcing costs, the validity of which the Commission questioned in recitals 257 to 259 of the contested decision.
117Thirdly, with regard more specifically to the amounts of capital injections required from the perspective of a prudent private investor in the situation existing in 2002, it must be observed that the applicant has not provided further clarifications in the course of the proceedings. Other than the recapitalisation decision adopted in the form of the trade union agreement of 26 March 2002, there is no information, not even a prospective estimate, of the amounts which, at that stage, SEA and the Italian authorities had, if necessary, planned to invest in Sea Handling during the initial five-year period. The economic study relied on by the applicant confirms, rather, that, in 2002, such a projection was not made until 2005, that is to say, the time of the return to profitability initially envisaged in the ‘2003-2007 Business Plan’. By contrast, the applicant merely raises vague and general considerations linked to a global restructuring strategy and to the alleged need to reorganise Sea Handling within the SEA group in order to enable its return to profitability. The need to draw up a specific plan with a realistic estimate of the return on investment of the successive recapitalisations was all the greater on account of the multiannual nature of the commitments provided for in the trade union agreement of 26 March 2002. The Commission was, therefore, right to find that the 2002 recapitalisation decision had been taken unconditionally and independently of specific forecasts of any need for capital by Sea Handling over a given period and that it was contingent merely on losses and on the annual need to cover those losses in the future, regardless of their volume or the method, duration or precise objective of Sea Handling’s restructuring. In addition, once again after the end date in 2006/2007 – triggered by the ‘de-hubbing’ decision taken by Alitalia – SEA and Sea Handling failed to specify whether, and to what extent, continuation of the recapitalisation strategy could actually allow Sea Handling to be sold at a given point on better terms, the image of the SEA group as a whole to be protected or, at the very least for a transitional period, better guarantees to be offered in terms of the provision of those services by maintaining vertical integration.
118Fourthly, the applicant stated that, in addition to large-scale restructuring interventions, the commercial development and restructuring plans at issue also considered the question of recapitalisation. Thus, it simply alleged, in essence, that the restructuring question was subject, over the years and in line with major changes to circumstances, to substantial and allegedly unforeseeable amendments, without however putting forward a similar argument in relation to the recapitalisation measures, the scope of which was necessarily dependent on the scale of the annual losses sustained by Sea Handling.
119In those circumstances, the applicant’s argument, which is concerned merely with the issue of restructuring and the alleged errors and omissions committed by the Commission in that context, cannot demonstrate the existence of manifest errors in the Commission’s assessment of the failure to comply with the private investor test vis-à-vis the recapitalisation measures at issue, which were based on a decision in principle taken in 2002, or call in question the validity of the Commission’s view that SEA could have adopted and implemented a more rigorous or shorter restructuring plan in order to keep Sea Handling’s losses to a minimum level (recitals 247, 290, 294 and 309 of the contested decision).
120In the light of the foregoing considerations, the Commission was entitled to make the findings reproduced in paragraph 97 above without committing a manifest error of assessment.
121That conclusion cannot be called into question by any of the arguments put forward by the applicant.
122In the first place, with regard to the lack of other solutions, including the transfer of the groundhandling services division, it is clear from recitals 248 to 255 of the contested decision that the Commission rejected SEA’s objections as essentially lacking detail and credibility and as, in part, irrelevant. First, it rejected the claim that third-party operators are interested only in certain more profitable services, which, aside from the fact that two attempts at a partial sale had failed, is not supported ‘by any specific evidence, while a number of operators [were] authorised to offer their services in Italy and in particular at Malpensa and Linate airports’ (recitals 248 to 250 of the contested decision). Secondly, as regards the capacity of third-party operators, the Commission questioned the relevance and credibility, inter alia, ‘[of the] somewhat vague statements concerning the allegedly negative economic situation of other providers active at the Milan airports or the level of the resources they actually use at those airports’, and of ‘the claim that no operator had the necessary resources’, even though, ‘according to SEA, 84 providers [were] authorised to operate at Linate and Malpensa’. In addition, it also pointed to the lack of concrete evidence ‘that an outside operator would not be able to satisfy the quality requirements judged essential for SEA’s commercial model to function correctly’ (recitals 251, 252 and 254 of the contested decision). Lastly, the Commission criticised SEA for having failed to demonstrate that it was not ‘feasible to outsource parts of the activities, rather than all of them’ (recitals 253 and 254 of the contested decision).
123The applicant makes only vague and unsubstantiated claims in opposition to that detailed analysis. It simply states, without giving any details, that there were no operators capable of providing a comprehensive set of groundhandling services and that the services which the groundhandling operators at the Milan airports were able to provide were of poor reliability and quality. It thus merely repeats the arguments already put forward during the administrative procedure which the Commission was entitled to reject in the contested decision.
124In the second place, with regard to the inappropriateness of outsourcing the services offered by Sea Handling, the following is apparent from the summary of the Italian authorities’ arguments reproduced in recital 81 of the contested decision:‘Besides the probability of deriving indirect material profit from the coverage of SEA Handling’s losses, there were other considerations to be taken into account, including: (a) the possibility of obtaining indirect economic advantages from commercial relations with the subsidiary; (b) the difficulties of outsourcing in the national context of reference, given the economic obligations undertaken and the commitments made to the public authorities; (c) the protection of the image of the group; and (d) the fulfilment of obligations towards the State deriving from the agreement and from the law.’
125Similarly, in the course of the administrative procedure, SEA claimed, as set out in the summary provided in recital 115 of the contested decision, that ‘the spin-off of ground handling activities led to an increase in its costs, due to the obligation on it with regard to the management of emergencies and unforeseen events’, and that it was of the view that, ‘by way of illustration, the savings it obtained from economies of scale deriving from its ability [to] use the marginal cost of SEA Handling personnel for continued service, rather than incurring the cost of setting up and maintaining a specialised group, amounted to EUR 10.7 million in 2003 and EUR 8.7 million in 2010’.
126It is apparent from recitals 256 to 260 of the contested decision that the Commission questioned the validity of the calculations of the outsourcing costs presented by SEA on the ground that those costs were based on an ‘arbitrary’ multiplying factor and an ‘unrealistic’ calculation of the number of full-time equivalent (FTE) staff units. In that context, it pointed to the absence of a more realistic estimate based on a calculation of the actual cost usually billed by Sea Handling to SEA for its services and of the number of FTEs actually covered on average over the course of a year. Furthermore, the Commission criticised SEA for having failed to compare the alleged costs of outsourcing to those associated with the recapitalisation measures at issue (coverage of losses), ‘which could have been avoided by outsourcing some or all of the ground handling activities to a more competitive operator’.
127In its written submissions before the Court, the applicant simply repeated, in essence, the arguments already put forward by the Italian authorities in the course of the administrative procedure, as reproduced in recital 81 of the contested decision (see paragraph 124 above), without however raising specific arguments capable of calling in question the assessment made by the Commission in the contested decision. In particular, it should be recalled that the Italian authorities, SEA and Sea Handling have never stated what the costs and hypothetical earnings of outsourcing, and therefore of the provision of groundhandling services by a third-party operator, would have been, nor submitted a comparison of such a cost-benefit calculation with the costs and earnings associated both with the recapitalisation measures at issue and with retaining the solution of the vertical integration of Sea Handling within the SEA group.
128In addition, as stated in recital 293 of the contested decision, which is not disputed by the applicant as such, the Italian authorities and SEA failed to state during the administrative procedure, backed by specific figures, the scope of the alleged damage to the image of the SEA group if the groundhandling services were outsourced such that the level of quality required would not be guaranteed or controlled by SEA (recital 292 of the contested decision; see paragraph 116 above).
129In the third place, with regard to the argument that the effects of SEA’s business decisions can be evaluated only in the long term, with the result that SEA could not abandon its decision without having waited the necessary time to evaluate the result of that decision, it is sufficient to state that the relevant question in the light of the private investor test is not whether SEA ought to have abandoned certain decisions before learning their long-term effects, but whether it had produced estimates of the costs and benefits at the time of its decision to increase the capital in its subsidiary Sea Handling, which was clearly not the case here (see paragraphs 112 to 116 above). Similarly, the results achieved by Sea Handling, as positive as they might be from 2008 onwards, which follow the investment decision of 2002, can neither be taken into account for the purposes of examining compliance with the private investor test (see paragraphs 104 and 110 above) nor compensate for the lack of an ex ante assessment of the costs and benefits of the strategy chosen by SEA.
130In the fourth place, the fact that the strategy for restructuring Sea Handling did not include the financial stability of SEA and that the latter offered dividends is not sufficient to show that the injections of capital made were consistent with the strategy of a private investor and is, therefore, of no consequence.
131In the fifth and final place, the economic study relied on by the applicant does not demonstrate that the injections of capital satisfied the private investor test. As stated in paragraph 114 above, that study simply provides a brief account of potential alternative scenarios, including the liquidation of Sea Handling, and claims that such an approach would have generated ‘significant exit costs’ without even attempting to quantify those costs or to compare them with the costs incurred as a result of the measures at issue, despite the fact that it is stated in that document that a prudent private investor would have made such a comparison.
132Accordingly, the applicant has failed to show that the Commission committed a manifest error of assessment by rejecting the argument that the private investor test had been satisfied in the present case. The second plea in law must, therefore, be rejected.…
IV.Costs
212Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, including those relating to the interlocutory proceedings, in accordance with the form of order sought by the Commission.
Operative part
On those grounds,THE GENERAL COURT (Third Chamber, Extended Composition)hereby:
1.Dismisses the action;
2.Orders the Comune di Milano to pay the costs, including those relating to the interlocutory proceedings.
Delivered in open court in Luxembourg on 13 December 2018.
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