Brussels, 05/06/2012 (Agence Europe) - With its ruling in Case C-124/10P, the EU Court of Justice confirmed, on Tuesday 5 June, the annulment by the General Court of the Commission decision declaring that a tax measure taken by France in favour of Electricité de France (EDF) constitutes state aid. It declared that, by waiving a tax claim corresponding to the corporation tax due from EDF, the French state had given EDF an advantage over rival companies. According to the General Court, the Commission committed an error in law by refusing - due to the fiscal nature of the measure - to examine whether the French state had acted as a private investor. Further to the Court's ruling, EDF will not have to reimburse more than €1.2 billion to the state, as the Commission had asked. EDF has already repaid that sum to the French state.
In its ruling of December 2009 (see EUROPE 10041), the General Court had concluded that the Commission was not entitled, simply because the measure taken was fiscal in nature, to refuse to examine whether the French state had acted as a “private investor in a market economy”. The Commission challenged this judgment, arguing that: - the fiscal nature of the measure (the waiving of a tax claim valued at €888.89 million, corresponding to the corporation tax due from EDF, in the context of balance sheet restructuring and increase in the capital of EDF, a public enterprise) does not allow application of private investor criteria, as such a measure is not within the reach of a private investor; - and as the concept of aid is objective, the General Court was wrong to take into account the aims pursued by the French state. The Court should therefore examine whether the French state, which is both EDF's fiscal creditor and its sole shareholder, can rely on the private investor test where it makes a capital injection in that undertaking by waiving a tax claim or whether that test must be ruled out - as the Commission ruled out in the present case - in view of the fiscal nature of the claim and the fact that, in waiving the claim, the state is exercising its prerogatives as a public authority.
In its ruling, the Court notes that the General Court's judgment is “not vitiated by any error of law” considering that the private investor criteria can be applicable even in the case when fiscal means are employed. It therefore rejects the Commission's appeal. The Court finds that: “The role of the state as shareholder of an undertaking, on the one hand, and the role of the state acting as a public authority, on the other, must be distinguished and that the applicability of the private investor test ultimately depends on the state having conferred, in its capacity as shareholder and not in its capacity as public authority, an economic advantage on an undertaking belonging to it”. If a member state invokes the applicability of the private investor test, it must establish objective and verifiable evidence that the measure was implemented by the state acting as a shareholder and that, through that measure, it plans to make an investment in the public company. If such evidence if produced, it will be up to the Commission to make a global assessment taking into account all evidence enabling it to determine whether the member state took the measure in question in its capacity as shareholder or as a public authority. The General Court therefore was right to hold that the objective pursued by the French state could be taken into account for the purposes of determining whether the state had indeed acted in its capacity as shareholder. (FG/transl.jl)