Judgment_paragraph 2 · European Commission v Frucona Košice a.s (C-300/16 P)

2The background to the dispute is set out in paragraphs 1 to 34 of the judgment under appeal, as follows:‘The change in [Frucona Košice]’s situation and the arrangement procedure1 ... Frucona Košice a.s. ... is a company incorporated under Slovak law which was active in, inter alia, the production of spirits and spirit-based beverages.2 Between November 2002 and November 2003, [Frucona Košice] benefited from several deferrals of payment of tax debts made up of excise duties for which it was liable. Those payment deferrals were granted to it after financial guarantees had been provided to its local tax office, namely the Košice IV office (“the local tax office”).3 On 25 February 2004, as a result of the financial difficulties facing it, [Frucona Košice] was unable to pay the excise duties for which it was liable in respect of January 2004. Following a legislative change from 1 January 2004, [Frucona Košice] could no longer obtain a deferral of the payment of those excise duties.4 Consequently, [Frucona Košice]’s licence to produce and process alcohol and spirits was revoked. Since then, it has restricted its activity to distributing, under the trade mark Frucona, spirits purchased from O.H., a company which, pursuant to an agreement with [Frucona Košice], produced those alcoholic beverages under licence in the latter’s spirit distilleries.5 [Frucona Košice] also found itself in a position of indebtedness within the terms of the zákon č. 328/1991 Zb. o konkurze a vyrovnaní (Slovak Law No 328/1991 on bankruptcy and arrangements with creditors).6 On 8 March 2004, [Frucona Košice] filed an application for the initiation of an arrangement procedure before the Krajský súd v Košiciach (Košice Regional Court) (Slovakia), proposing to its creditors to pay each of them 35% of the amount of the sum that it owed to them (“the proposed arrangement”). The applicant’s total debt amounted to approximately 644.6 million Slovak koruna (SKK) [(approximately EUR 21.4 million)], approximately SKK 640.8 million [(approximately EUR 21.3 million)] of which represented a tax debt.7 By decision of 29 April 2004, the Krajský súd v Košiciach [(Regional Court, Košice)] authorised the arrangement procedure.8 On 9 July 2004, [Frucona Košice]’s creditors, including the local tax office, accepted the proposed arrangement at an arrangement hearing. In the course of that arrangement procedure, the local tax office acted as a separate creditor, a status which it enjoyed as a result of the guarantees provided to it at the time of the deferrals of payment of the excise duties owed by [Frucona Košice] (see paragraph 2 above).9 Prior to 9 July 2004, [Frucona Košice] states that it submitted to the local tax office, inter alia, an audit report drafted by an independent auditing company (“the E report”), which was designed to enable that office to assess the respective advantages of the arrangement and bankruptcy.10 On 21 June 2004, the Slovak tax authorities carried out an on-the-spot inspection at [Frucona Košice]’s premises. During that inspection, the latter’s financial situation as at 17 June 2004 was determined.11 By decision of 14 July 2004, the Krajský súd v Košiciach [(Regional Court, Košice)] confirmed the arrangement. In accordance with that arrangement, 35% of the claim of the Slovak tax authorities was to be repaid, that is to say, an anticipated payment of approximately SKK 224.3 million [(approximately EUR 7.45 million)].12 By letter of 20 October 2004, the local tax office indicated to [Frucona Košice], inter alia, that the arrangement conditions, according to which a part of the tax debt did not have to be repaid, constituted indirect State aid, which was subject to the approval of the Commission of the European Communities.13 On 17 December 2004, [Frucona Košice], inter alia, paid to the local tax office a sum of SKK 224.3 million [(approximately EUR 7.45 million)], corresponding to 35% of its total tax debt. By decision of 30 December 2004, the Krajský súd v Košiciach [(Regional Court, Košice)] declared the arrangement procedure to be terminated. On 18 August 2006, the Krajský súd v Košiciach [(Regional Court, Košice)] reduced the amount to be paid to the local tax office to SKK 224.1 million [(approximately EUR 7.44 million)].Administrative procedure14 On 15 October 2004, a complaint was lodged with the Commission concerning alleged unlawful State aid granted to [Frucona Košice].15 By letter of 4 January 2005, the Slovak Republic informed the Commission, following the latter’s request for information, that [Frucona Košice] may have been granted unlawful aid and asked it to approve that aid as rescue aid to a company in difficulties.16 After receiving additional information, the Commission, by letter of 5 July 2005, notified the Slovak Republic of its decision to initiate the formal investigation procedure provided for in Article 88(2) EC with regard to the measure in question. That decision was published in the Official Journal of the European Union (OJ 2005 C 233, p. 47).17 By letter of 10 October 2005, the Slovak Republic submitted its observations on the measure in question to the Commission. Likewise, by letter of 24 October 2005, [Frucona Košice] sent its comments on the measure in question to the Commission. Those comments were forwarded to the Slovak Republic to allow it to respond, which it did by letter of 16 December 2005.Initial decision18 On 7 June 2006, the Commission adopted Decision 2007/254/EC on State aid C 25/2005 (ex NN 21/2005) implemented by the Slovak Republic for Frucona Košice (OJ 2007 L 112, p. 14; “the initial decision”). The operative part of that decision provided, in Article 1, that the State aid which the Slovak Republic had implemented for [Frucona Košice], amounting to SKK 416515990 [(approximately EUR 13900 00)], was incompatible with the common market and ordered, in Article 2, the recovery of that aid.Proceedings before the General Court and the Court of Justice19 On 12 January 2007, [Frucona Košice] brought an action before the General Court seeking annulment of the initial decision.20 By judgment of 7 December 2010 in Frucona Košice v Commission [(T‑11/07, EU:T:2010:498)], the General Court dismissed that action as unfounded.21 On appeal by [Frucona Košice] pursuant to Article 56 of the Statute of the Court of Justice of the European Union, the Court of Justice, by judgment of 24 January 2013 in Frucona Košice v Commission [(C‑73/11 P, EU:C:2013:32)], set aside the judgment [of 7 December 2010 in Frucona Košice v Commission (T‑11/07, EU:T:2010:498)]. In the context of the assessment of the substance of the dispute at first instance, the Court of Justice held that, by failing to take into account, in the assessment of the private creditor test, the duration of the bankruptcy procedure, the Commission had committed a manifest error of assessment or, in so far as it had taken that factor into consideration, had failed to state to the requisite legal standard the reasons for the initial decision. Lastly, the Court of Justice referred the case back to the General Court for it to give judgment on the pleas raised before it on which it had not ruled.22 Following the judgment [of 24 January 2013, Frucona Košice v Commission, (C‑73/11 P, EU:C:2013:32)], and in order to remedy the shortcomings identified by the Court of Justice, on 16 October 2013, the Commission adopted the [decision at issue]. Article 1 thereof states that the initial decision “is repealed”.23 Subsequently, by [order of 21 March 2014, Frucona Košice v Commission (T‑11/07 RENV, EU:T:2014:173)], the General Court ... found that there was no longer any need to rule on the action for annulment of the initial decision.The [decision at issue]...25 In the [decision at issue], the Commission took the view, in particular, that it was necessary to examine the question, whether, in essence by accepting the proposed arrangement and therefore the remission of 65% of its claim, the local tax office had behaved towards the applicant like a private creditor in a market economy. The Commission stated in that regard that the position of that office as [Frucona Košice]’s creditor was unusually strong in so far as that office was in a legally and economically more advantageous position than [Frucona Košice]’s private creditors. The local tax office held more than 99% of all claims registered and was a separate creditor whose claims could be satisfied at any time during the bankruptcy procedure from the sale of the secured assets (recital 80 of the [decision at issue]).26 In the first place, as regards the private creditor test, the Commission noted, in particular, that the applicability of that test depended on the Member State concerned having conferred, other than in its capacity as public authority, an economic advantage on an undertaking, and that, if a Member State relied on that test during the administrative procedure, it must, where there is doubt, establish unequivocally and on the basis of objective and verifiable evidence that the measure implemented fell to be ascribed to the State acting as a private market operator. It made reference in that regard to the judgment of 5 June 2012, in Commission v EDF [(C‑124/10 P, EU:C:2012:318)], paragraphs 81 to 85) (recital 82 of the [decision at issue]).27 In recital 83 of the [decision at issue], the Commission observed as follows:“In brief, the Slovak Republic submits that, in its view, the measure constitutes State aid. It acknowledged that, at the time of the arrangement, the question of State aid was simply not considered and requested that the disputed measure be treated as rescue aid. It therefore appears that the requirements of the case-law referred to above have not been complied with in this case and the disputed measure constitutes State aid within the meaning of Article 107(1) ... TFEU.”28 In the second place, having noted, in recital 84 of the [decision at issue], that “it is [Frucona Košice] who argued that the measure [was] free of aid and submits the documents described above, in particular reports from two auditors”, the Commission determined whether the Slovak Republic had behaved, in relation to [Frucona Košice], like a private creditor.29 To that end, the Commission, first, compared, with regard to the evidence submitted by [Frucona Košice], the arrangement procedure and the bankruptcy procedure (recitals 88 to 119 of the [decision at issue]), secondly, compared the arrangement procedure and the tax execution procedure (recitals 120 to 127 of the [decision at issue]) and, thirdly, assessed the other evidence produced by the Slovak authorities and [Frucona Košice] (recitals 128 to 138 of the [decision at issue]). In essence, the Commission considered that both the bankruptcy procedure and the tax execution procedure were, from the point of view of the local tax authorities, more advantageous alternatives compared to the proposed arrangement (recitals 119, 124 and 127 of the [decision at issue]).30 The Commission concluded, in recital 139 of the [decision at issue], that the private creditor test was not satisfied and that the Slovak Republic had conferred on the applicant an advantage that it would not have been able to obtain in market conditions. In recital 140 of that decision, the Commission concluded that the debt write-off agreed to by the local tax office under the arrangement constituted State aid within the meaning of Article 107(1) TFEU. Lastly, in recital 182 of that decision, the Commission concluded that that State aid was not compatible with the internal market.31 The operative part of the [decision at issue] comprises five articles.32 Article 1 of the [decision at issue] states that “[the initial] decision is repealed” (see paragraph 22 above).33 According to Article 2 of the [decision at issue], the State aid which the Slovak Republic implemented in favour of [Frucona Košice], totalling SKK 416515990 [(approximately EUR 13900000)], is incompatible with the internal market.34 In Article 3 of the [decision at issue], the Commission orders the Slovak Republic to recover the aid in question unlawfully made available to [Frucona Košice], together with default interest....’