Orders nº T-280/19 of Tribunal General de la Unión Europea, March 23, 2020

• Resolution Date: March 23, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-280/19

(Action for annulment - State aid - Complaint - Measure not open to challenge - Inadmissibility)

In Case T-280/19,

Highgate Capital Management LLP, established in London (United Kingdom), represented by M. Struys, lawyer,

applicant,

v

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

defendant,

APPLICATION under Article 263 TFEU for annulment of the Commission’s decision rejecting a complaint relating to unlawful State aid granted to Eurobank Ergasias SA through the acquisition of Piraeus Bank Bulgaria (SA.53105), allegedly contained in the letter of 8 March 2019 from the Commission’s Directorate-General for Competition and in the public statement of 20 March 2019 of the Commissioner responsible for competition,

THE GENERAL COURT (Ninth Chamber),

composed of M.J. Costeira (Rapporteur), President, D. Gratsias and B. Berke, Judges,

Registrar: E. Coulon,

makes the following

Order

Background to the dispute

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

2 By its decisions of 26 and 29 November 2015, adopted in State aid control procedures SA.43363 and SA.43364, the European Commission took the view that the aid granted by the Hellenic Republic was compatible with the internal market, in the light of, inter alia, the commitments given by the Hellenic Republic which formed 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 acquisition of Piraeus Bank by Eurobank was planned for the beginning of 2019, that acquisition being subject to approval by the Balgarska narodna banka (Bulgarian National Bank) and the Komisiya za zashtita na konkurentsiyata (Bulgarian competition authority).

9 On 17 January 2019, the applicant lodged a complaint with the Commission pursuant to Article 24 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 248, p. 9) (‘the complaint of 17 January 2019’). In that complaint, the applicant set out, in essence, two reasons why it took the view that the acquisition of Piraeus Bank Bulgaria by Eurobank was unlawful. In the first place, it claimed, that acquisition is incompatible with the commitments arising from the restructuring plans for Piraeus Bank and Eurobank. In the second place, it claimed, that acquisition involves the grant, by the Hellenic Republic, of State aid in favour of Eurobank.

10 By letter of 8 March 2019 (‘the letter of 8 March 2019’), the Commission’s Directorate-General (DG) for Competition replied to a letter from the Bulgarian National Bank of 19 February 2019 concerning the acquisition of Piraeus Bank Bulgaria by Eurobank. In its letter, the Commission replied that, in accordance with its practice relating to the monitoring of State aid commitments, the final closing date of an acquisition was the relevant date to be taken into consideration when assessing the compatibility of that acquisition with commitments given. In addition, the Commission claimed that, in so far as the commitments arising from the restructuring plans for Piraeus Bank and Eurobank ended on 31 December 2018 and the final closing date of the acquisition of Piraeus Bank Bulgaria was planned for the first quarter of 2019, there were no further applicable State aid commitments at that date which prevented Eurobank from acquiring Piraeus Bank Bulgaria.

11 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 made the following public statement (‘the public statement of 20 March 2019’):

‘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 of 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...