Judgments nº T-284/15 of Tribunal General de la Unión Europea, December 13, 2018

• Resolution Date: December 13, 2018
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-284/15

(State aid - Chemical industry - Decision to continue the operation of an undertaking during insolvency proceedings - Decision finding no State aid - Action for annulment - Individual concern - Admissibility - Concept of State aid - Advantage - Private creditor test - Whether attributable to the State - Duty to state reasons)

In Case T-284/15,

AlzChem AG, established in Trostberg (Germany), represented initially by P. Alexiadis, Solicitor, A. Borsos and I. Georgiopoulos, lawyers, and subsequently by P. Alexiadis, A. Borsos, E. Kazili, P. Oravec et K. Csach, lawyers,

applicant,

v

European Commission, represented by G. Conte and L. Armati, acting as Agents,

defendant,

supported by

Slovak Republic, represented by B. Ricziová, acting as Agent,

and by

Fortischem a.s., established in Nováky (Slovakia), represented by C. Arhold, P. Hodál and M. Staroň, lawyers,

interveners,

APPLICATION pursuant to Article 263 TFEU seeking the annulment of Article 2 of Commission Decision (EU) 2015/1826 of 15 October 2014 on the State aid SA.33797 - (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ (OJ 2015 L 269, p. 71),

THE GENERAL COURT (Sixth Chamber),

composed of G. Berardis, President, S. Papasavvas and O. Spineanu-Matei (Rapporteur), Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 11 April 2018,

gives the following

Judgment

1. Background to the dispute

   1 The applicant, AlzChem AG, is a company whose registered office is in Germany and which is active in several fine chemicals markets in a number of European Union Member States, including the Slovak Republic.

   2 Novácké chemické závody, a.s. v konkurze (‘NCHZ’), was a privately owned chemical producer with three divisions. It operated a chemical plant located in the Trenčín region (Slovakia). The company’s main activities were the production of calcium carbide and technical gases, polyvinyl chloride (PVC) and its by-products, and an increasing share of low tonnage heavy chemicals and fine chemicals.

   3 On 8 October 2009, NCHZ, having declared its inability to continue its operations and its insolvency, became the subject of insolvency proceedings.

   4 On 5 November 2009, the Slovak Republic adopted the zákon č. 493/2009 Z.z. o niektorých opatreniach týkajúcich sa strategických spoločností a o zmene a doplnení niektorých zákonov (Law No 493/2009 on certain measures regarding strategic companies and on the amendment of certain laws, ‘the Law on Strategic Companies’). That legislation, which entered into force on 1 December 2009, gave the State a right of pre-emption enabling it to purchase strategic companies which were the subject of insolvency proceedings and required the presence of an insolvency administrator (‘the administrator’) to ensure the continued operation of the strategic company while those proceedings were ongoing. On 2 December 2009, NCHZ was classified by the Slovak authorities as a strategic company under that legislation and enjoyed that status until the expiry of the legislation on 31 December 2010. NCHZ was the only company subject to the application of the legislation (‘the first insolvency period’).

   5 After 31 December 2010, NCHZ became subject to the application of the zákon č. 7/2005 Z.z. o konkurze a reštrukturalizácii a o zmene a doplneni niektorých zákonov (Law No 7/2005 on insolvency and restructuring and the amendments to certain laws, ‘the law on insolvency’) (‘the second insolvency period’). At the joint meeting of 26 January 2011 between the unsecured creditors, gathered under the committee of creditors (‘the creditors’ committee’), and the secured creditors concerned (‘the meeting of 26 January 2011’), the administrator then informed them that the operating costs generated by NCHZ’s operations were higher than the operating income. The administrator also informed the creditors of its economic analysis dated 23 December 2010 (‘the economic analysis’) which was supplemented by a management presentation. The aforementioned creditors then decided that NCHZ’s operations were to be continued (‘the decision of 26 January 2011’). That decision having been approved by decision of the súd v Trenčíne, (Regional Court, Trenčín, Slovak Republic), on 17 February 2011 (‘the decision of the súd v Trenčíne (Regional Court of Trenčin)’ or ‘the decision of 17 February 2011’), the administrator continued those operations. In the present case, in accordance with the law on insolvency, the creditors’ committee, the secured creditors, and the súd v Trenčíne (Regional Court of Trenčín) comprised the relevant committee (‘the relevant committee’).

   6 On 13 October 2011, the European Commission received a complaint alleging that the Slovak Republic had granted unlawful aid to NCHZ. That complaint was supplemented on 14 June 2012.

   7 The Commission forwarded the complaint to the Slovak authorities on 17 October 2011 together with a request for information. On 22 March and 21 June 2012, the Commission sent the Slovak authorities further requests for information. The Slovak authorities responded to all of those requests.

   8 On 31 July 2012, NCHZ was bought by Via Chem Slovakia a.s., which sold on the chemical division of NCHZ, with the exception of immovable assets, to Fortischem a.s. on 1 August 2012.

   9 On 24 January 2013, a meeting was held between the Commission and the complainant, at the request of the complainant, which submitted additional information by emails of 8 and 22 March 2013.

   10 By letter dated 2 July 2013, the Commission notified the Slovak authorities of its decision to initiate the formal investigation procedure under Article 108(2) of the TFEU (OJ 2013 C 297, p. 85), as regards, on the one hand, the authorisation of the State, as a result of the law on strategic companies, to continue NCHZ’s operations from December 2009 to December 2010 and, on the other, the creditors’ decision of January 2011 to continue NCHZ’s operations after the expiry of the law on strategic companies. The Commission also expressed doubts as to whether the tender procedure by which NCHZ was sold was unconditional and took the view that there were strong indications that there had been no break in the financial continuity between NCHZ and the new entity.

   11 Following the decision of 2 July 2013, the Commission received comments from the Slovak authorities as well as the complainant and another interested party. The comments from those interested parties, together with further questions, were sent to the Slovak authorities, which submitted their comments on 14 January 2014.

   12 On 7 October 2013 and 17 February 2014, meetings were held between the Commission and the Slovak authorities, at the request of the Slovak authorities. On 20 March 2014, the Commission sent an additional request for clarification to one of the interested third parties, which replied on 6 May 2014. On 2 May 2014, the Commission sent further questions to the Slovak authorities, to which they replied on 14 and 30 May 2014.

2. Contested decision

   13 On 15 October 2014, the Commission adopted Decision (EU) 2015/1826 concerning State aid SA.33797 (2013/C) (ex 2013/NN) (ex 2011/CP) implemented by Slovakia for NCHZ (OJ 2015 L 269, p. 71) (‘the contested decision’).

   14 The Commission took the view that granting NCHZ strategic company status (‘the first measure’) constituted a selective advantage in favour of that company, was attributable to the State, led to the use of State resources and distorted competition in a market open to trade between Member States. The Commission concluded that the measure constituted State aid within the meaning of Article 107(1) TFEU, and that the aid was unlawful and incompatible with the internal market (recitals 110 and 114 to 124 of the contested decision). After having taken the view that the State aid amounted to EUR 4 783 424.10, it took the view that the aid had to be recovered from NCHZ and that Fortischem should also be covered by the recovery order since there was an economic continuity with NCHZ (recitals 101 and 174 of the contested decision).

   15 By contrast, the Commission found that the continued operation of NCHZ pursuant to the decision by the creditors on 26 January 2011 (‘the second measure’) did not constitute State aid within the meaning of Article 107(1) TFEU since at least two cumulative conditions for the existence of State aid, namely that the measure at issue is attributable to the State and that there is an economic advantage, were not satisfied (recital 113 of the contested decision).

   16 The operative part of the contested decision is worded as follows:

   ‘Article 2

   The decision to allow continued operation of NCHZ after the expiry of the Act on the basis of the decision of the creditors’ committee did not constitute State aid within the meaning of Article 107(1) [TFEU].

   …

   Article 6

   This Decision is addressed to the [Slovak Republic].’

3. Procedure

   17 By application lodged at the Registry of the General Court on 1 June 2015, the applicant brought the present action.

   18 By document lodged at the Court Registry on 6 October 2015, the Slovak Republic applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

   19 On 13 October 2015, the present case was allocated to a new Judge-Rapporteur sitting in the Ninth Chamber.

   20 By document lodged at the Court Registry on 22 October 2015, Fortischem applied for leave to intervene in the proceedings in support of the form of order sought by the Commission.

   21 By orders of 16 February 2016, the President of the Ninth Chamber of the General Court granted the Slovak Republic and Fortischem leave to intervene. The decision on the merits of the requests for confidential treatment submitted by the applicant, vis-à-vis the interveners, concerning certain information contained in the application, the defence, the reply together with an annex thereto, and in the rejoinder...