Fortischem a.s. v European Commission.

• Jurisdiction: European Union
• Celex Number: 62015TJ0121
• ECLI: ECLI:EU:T:2019:684
• Court: General Court (European Union)
• Docket Number: T-121/15
• Date: 24 September 2019
• Procedure Type: Recurso de anulación - infundado

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

24 September 2019 ( *1 )

(State aid — Chemical industry — Decision declaring the aid incompatible with the internal market — Concept of State aid — State resources — Advantage — Recovery — Economic continuity — Principle of sound administration — Obligation to state reasons)

In Case T‑121/15,

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

applicant,

v

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

defendant,

supported by

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 and V. Dolka, lawyers,

intervener,

ACTION under Article 263 TFEU seeking annulment of Articles 1 and 3 to 5 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 10 April 2019,

gives the following

Judgment

I. Background to the dispute

1 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.

2 On 8 October 2009, NCHZ, which then belonged to Disor Holdings Ltd, having declared its inability to continue its operations and its insolvency, became the subject of insolvency proceedings.

3 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 law, 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 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’ within the meaning of that legislation and enjoyed that status until the expiry of the legislation on 31 December 2010 (‘the first insolvency period’). NCHZ was the only company subject to the application of that law, which required the insolvency administrator to continue the company’s operation and prevent unjustified collective dismissals.

4 On 28 December 2009, the ‘relevant committee’, within the meaning of Article 82 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 relevant committee’) was formed. That committee consisted, under that law, of the creditors’ committee, representing unsecured creditors with unsecured claims against the insolvent company when the insolvency proceedings were opened, having registered their claims as ‘pre-insolvency claims’ (the creditor’s committee’), the secured creditors, that is to say, creditors with claims secured by collateral, and the súd v Trenčíne (Trenčín Court, Slovakia).

5 On 29 December 2009, the first administrator was replaced for personal reasons by a new administrator (‘the administrator’).

6 On 17 June 2010, the súd v Trenčíne (Trenčín Court) ordered the administrator to sell NCHZ as a going concern in accordance with the procedural steps it had prepared. Following the announcement of the tender procedure on 12 August 2010 (‘the 2010 tender procedure’), the relevant committee, on 24 November 2010, rejected the only tender received. On 3 December 2010, the súd v Trenčíne (Trenčín Court) ordered the administrator to prepare a detailed analysis of NCHZ’s economic situation. Based on the outcome of that analysis, the administrator was either to accept or reject the sole tender submitted. The analysis was prepared on 8 December 2010 and the administrator announced that the tender would be rejected.

7 After 31 December 2010, NCHZ became subject to the application of the Law on Insolvency (‘the second insolvency period). At the joint meeting of 26 January 2011 of the creditors belonging to the creditors’ committee and the secured creditors, the administrator informed them that the operating costs generated by NCHZ’s operations were higher than the operating income. He also provided them with a copy of his economic analysis of 23 December 2010, which was supplemented by a management presentation. The abovementioned creditors decided that NCHZ’s operations were to be continued (‘the decision of 26 January 2011’). Following the approval of that decision by decision of the súd v Trenčíne (Trenčín Court) of 17 February 2011, the administrator continued NCHZ’s operations.

8 On 7 June 2011, the súd v Trenčíne (Trenčín Court) issued an order requiring the administrator to sell NCHZ in accordance with the tender procedure organised by that court (‘the 2011 tender procedure’). Following the announcement of the tender procedure on 12 July 2011 (‘the 2011 tender procedure’), two tenders were received on 29 November 2011.

9 On 13 October 2011, the European Commission received a complaint from AlzChem AG alleging that the Slovak Republic had granted unlawful aid to NCHZ. AlzChem is a company whose registered office is in Germany and which operates in several fine chemicals markets in a number of EU Member States, including the Slovak Republic. That complaint was supplemented on 14 June 2012.

10 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.

11 On 7 December 2011, the administrator informed the súd v Trenčíne (Trenčín Court) of the outcome of the 2011 tender procedure and the creditors’ vote in the relevant committee. On 14 December 2011, the súd v Trenčíne (Trenčín Court) asked the administrator to evaluate a further tender. On 15 December 2011, the administrator drew up an analysis stating that since the tender covered only some of NCHZ’s assets, it was not in the best interests of the creditors. On 29 December 2011, the súd v Trenčíne (Trenčín Court) issued an order requiring the administrator to declare Via Chem Slovakia a.s. the successful tenderer. After conclusion of the purchase contract between that company and NCHZ on 16 January 2012, the sale was approved by the Protimonopolný úrad SR (Slovak competition authority) on 19 July 2012 and finalised on 31 July 2012.

12 On 1 August 2012, Via Chem Slovakia sold the chemical division of NCHZ, with the exception of the immovable assets (buildings and land), to the applicant, Fortischem a.s., which operates in the chemical production sector. The applicant is owned by Energochemica SE and, as it stated at the hearing in reply to a question raised by the Court, was founded in May 2012. The immovable assets necessary for chemical production were made available to the applicant under a lease contract.

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

14 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, first, 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, secondly, the decision of 26 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 2011 tender procedure pursuant to which NCHZ was sold was unconditional and stated that there were strong indications that there had been no break in economic continuity between NCHZ and the new entity.

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

16 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 put further questions to the Slovak authorities, to which they replied on 14 and 30 May 2014.

II. The contested decision

17 On 15 October 2014, the Commission adopted Decision (EU) 2015/1826 on the State aid SA.33797 —...