Orders nº T-280/19 of Tribunal General de la Unión Europea, July 12, 2019

• Resolution Date: July 12, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-280/19

(Interim relief - State aid - Application for interim measures - No need to adopt the interim measures requested - Lack of jurisdiction - Inadmissibility)

In Case T-280/19 R,

Highgate Capital Management LLP, established in London (United Kingdom), represented by M. Struys and I. Van Damme, lawyers,

applicant,

v

European Commission, represented by K. Blanck, A. Bouchagiar and K.-P. Wojcik, acting as Agents,

defendant,

APPLICATION under Articles 278 and 279 TFEU for, first, suspension of the operation of a Commission decision rejecting a complaint relating to allegedly unlawful State aid granted to Eurobank Ergasias SA through the sale of Piraeus Bank Bulgaria (SA.53105) and, secondly, the grant of other interim measures,

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

Background to the dispute, procedure and forms of order sought

1 In connection with the restructuring of the banking sector in Greece, Piraeus Bank and Eurobank Ergasias SA (‘Eurobank’) received State aid through the Hellenic Financial Stability Fund (‘the HFSF’).

2 By its decisions of 26 and 29 November 2015 adopted in State aid control procedures SA.43363 and SA.43364, the European Commission considered that the aid granted by the Hellenic Republic was compatible with the internal market, in the light, inter alia, of the commitments given by the Hellenic Republic which were an integral part of the restructuring plans applicable to Piraeus Bank and to Eurobank respectively.

3 According to the restructuring plan for Eurobank, that bank was not, in principle, allowed to acquire stakes. According to the restructuring plan for Piraeus Bank, that bank was required to transfer foreign assets, including its Bulgarian subsidiary, Piraeus Bank Bulgaria AD. Those commitments were applicable until 31 December 2018.

4 In November 2017 Piraeus Bank launched a procedure for the sale of its Bulgarian subsidiary, Piraeus Bank Bulgaria.

5 The applicant, Highgate Capital Management LLP, participated, alongside other bidders, in that procedure and submitted an offer to purchase Piraeus Bank Bulgaria.

6 On 24 October 2018 Piraeus Bank accepted Eurobank’s offer as the best offer.

7 On 7 November 2018 Eurobank’s acquisition of Piraeus Bank Bulgaria was publicly announced.

8 The final closing of the sale was planned for the beginning of 2019, that sale being subject to approval by the Balgarska narodna banka (Bulgarian National Bank) and the Komisiya za zashtita na konkurentsiyata (Bulgarian competition authority).

9 On 13 December 2018 the applicant contacted the HFSF, claiming, inter alia, that its offer was better than Eurobank’s offer, without mentioning any potential State aid issues.

10 By letter of 20 December 2018, the applicant contacted the Commission. In that letter, it sets out the reasons why it considers that Piraeus Bank’s sale of Piraeus Bank Bulgaria to Eurobank is unlawful. The applicant claims that that sale is incompatible with the obligations arising from the restructuring plans for Piraeus Bank and Eurobank. In addition, it considers that the sale involves the grant of State aid in favour of Eurobank. In that regard, it claims, inter alia, that its offer was better than Eurobank’s accepted offer in several respects.

11 On 17 January 2019 the applicant again contacted the Commission by submitting a formal complaint in which it repeated the claims already made in its letter of 20 December 2018, this time using the complaint form.

12 On 23 January 2019 the applicant filed a complaint with the Bulgarian competition authority, requesting it not to agree to Eurobank’s acquisition of Piraeus Bank Bulgaria.

13 On 7 February 2019 the Commission informed the applicant that it had contacted the Greek authorities the day before to gather information in connection with its examination of the complaint of 17 January and that it would keep the applicant informed of the outcome of the procedure.

14 On 13 February 2019 the applicant filed a complaint with the Bulgarian National Bank requesting it not to approve the sale of Piraeus Bank Bulgaria to Eurobank.

15 It is apparent from the Commission’s observations that, on 22 February 2019, the Bulgarian National Bank put questions to the Commission concerning the commitments contained in the restructuring plans, including, in particular, the commitment, applicable to Eurobank, not to acquire stakes during a specified period expiring on 31 December 2018.

16 According to its assertions in the defence, on 8 March 2019 the Commission responded, inter alia, to the Bulgarian National Bank that, in accordance with its practice relating to the monitoring of State aid commitments, the final closing date of a sale is the relevant date to be taken into consideration when assessing the compatibility of the sales with the commitments given.

17 On 20 March 2019, in response to a question raised by a Member of the European Parliament concerning the proposed acquisition of Piraeus Bank Bulgaria by Eurobank, the Commissioner responsible for competition publicly stated:

‘To find aid to ailing banks compatible with the internal market, the Commission is, amongst other things, seeking a commitment from the bank and the Member State that the former will not make acquisitions during its restructuring period, thereby preventing the use of the aid received in mergers and acquisitions. However, once this “acquisition ban” commitment has expired, on 31 December 2018 in this case, the Commission has no longer any competence under State aid rules to intervene in acquisitions made by the bank.

Concerning Eurobank’s announced acquisition of Piraeus Bank Bulgaria, the closing date of the sale is expected to take place during the 1st quarter 2019. The Commission takes that closing date into account to conclude that the transaction no longer falls under Eurobank’s acquisition ban. The closing date is seen as the relevant date, since the binding offer or Share Purchase Agreement can contain conditions (such as regulatory approvals) that prevent the sale from closing in case they are not fulfilled.

The Commission is in regular contact with the Greek authorities and receives updates on the bank’s compliance with the Commitments through the appointed Monitoring Trustee. Besides, the Commission has received a complaint from an unsuccessful bidder for Piraeus Bank Bulgaria and deals with this complaint in line with its standard procedures.’

18 On 1 April 2019 the applicant received a letter from the Bulgarian National Bank rejecting its complaint.

19 On 8 April 2019 the applicant sent the Commission an email, expressing its disagreement with the statements made by the Commissioner responsible for competition in her response to a Member of the European Parliament on 20 March 2019.

20 By letter of 19 April 2019, taking the view that the Commission, despite the urgency, ‘[had been] dragging its feet’, the applicant formally requested it, in accordance with Article 265 TFEU, to issue a decision within two months of the date of that letter.

21 On the same day, the applicant sent a second letter to the Commission. In that letter, the applicant states that it had received ‘confirmation’ that the Bulgarian National Bank was referring, in its rejection of the applicant’s complaint, to the Commission’s approval. According to that letter, that approval amounts to a decision partially or wholly rejecting its complaint. The applicant claims, inter alia, that it was misled by the Commission in so far as that institution had again stated on 16 April 2019 that no decision had been made.

22 Still on the same day, the applicant requested the Commission to provide it with, inter alia, a copy of its letter to the Bulgarian National Bank of 8 March 2019.

23 By application lodged at the Court Registry on 30 April 2019 and notified to the Commission on 3 May 2019, the applicant claimed, in essence, that the Court should annul the decision rejecting its complaint (Case SA.53105 - Alleged aid granted to Eurobank Ergasias through the sale of Piraeus Bank Bulgaria) in so far...