On Tuesday 16 January, in case T-747/15, the General Court of the EU upheld the Commission’s 2015 decision ordering France to recover €1.37 billion in the context of state aid granted to EDF (Électricité de France) in 1997.
In this case the first Commission decision goes back to 2003 when it observed that the French State had waived a tax claim valued at €888.89 million, corresponding to the corporation tax due from EDF. The latter benefitted from this measure in 1997 with the reclassification as capital of the tax-exempt accounting provisions, which constituted illegal state aid (see EUROPE 8607). This follows two decisions in 2009 by the General Court (see EUROPE 10041) and then in 2012 by the European Court of Justice (see EUROPE 19627), annulling this decision because the Commission has failed to take into account the fact that a private investor had taken the place of the French state. The European Commission therefore decided to reopen the case in 2013 (see EUROPE 10839).
In a new decision adopted in July 2015 (see EUROPE 11364), the Commission concluded that the tax waiver granted to EDF could not be defined as an investment based on economic reasons because the profits expected from this kind of investment were too low. It therefore once again demanded the recovery of this aid increased by the interest due, to the tune of €1.37 billion, an amount the EDF repaid to the French state on 23 October 2015, although it took the matter to the General Court to get the decision quashed.
In its ruling, the General Court believes the Commission had been right that the private investor test was not applicable given that neither the EDF or French state had provided the evidence to establish unequivocally that the French state had taken prior to or after granting of the aid in question, the decision to proceed to an investment in the EDF company and that it had assessed as a private investor would have done, the profitability of the investment that the granting of this aid would have procured.
The General Court concluded that the Commission had carried out an assessment of all the different elements provided by EDF and France in an effort to decide whether the private investor criteria should apply and that no legal error had been committed. The decision of the French electricity company for submitting another appeal at this stage has not as yet been disclosed. (Original version in French by Marion Fontana)