Highgate Capital Management v Commission (Competition - No need to adopt the interim measures requested - Lack of jurisdiction - Order) [2019] EUECJ T-280/19

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

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

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

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,

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 as that complaint related to a breach of the restructuring commitments.

24 On 2 May 2019 the Commission sent the applicant a letter concerning its complaint.

25 In that letter, it is stated that the Commission’s Directorate-General (DG) for Competition has conducted a preliminary assessment of the complaint and adopted a preliminary view. According to that preliminary assessment, the sale of Piraeus Bank Bulgaria to Eurobank does not breach the commitments resulting from the restructuring plans applicable to Piraeus Bank and Eurobank. Likewise, that sale does not involve the grant of State aid in favour of Eurobank. Lastly, it is emphasised in that letter that no definitive position of the Commission is expressed therein, but only a preliminary view of the services of DG ‘Competition’, based on the information available and pending any additional comments from the applicant.

26 On 9 May 2019 the Bulgarian competition authority authorised Eurobank’s acquisition of Piraeus Bank Bulgaria. According to the applicant, it is apparent from that decision that State aid law is not relevant to the exercise of control and the assessment of concentrations between undertakings.

27 By a separate document, lodged at the Court Registry on 13 May 2019, the applicant brought the present application for interim measures, in which it claims that the President of the General Court should:

– ‘[order] the suspension of the operation of [the contested decision] rejecting [the applicant]’s complaint insofar as the restructuring commitments are concerned in Case SA.53105 — Alleged aid [granted] to [Eurobank] through [the] sale of Piraeus Bank Bulgaria’;

– ‘in the event that the contested decision is suspended, [order] the Commission to immediately inform the Hellenic Republic, the [HFSF], and the relevant authorities in Bulgaria that they cannot rely on the contested decision with regard to the acquisition by [Eurobank] and the sale by [Piraeus Bank] of [Piraeus Bank Bulgaria] and, should the relevant approvals already have been granted by the Hellenic Republic, [the] HFSF and/or the relevant authorities in Bulgaria, that they withdraw such approvals’; [and]

28 On 13 May 2019 the Administrativen sad Sofiya grad (Administrative Court of the City of Sofia, Bulgaria) dismissed the application for suspension of operation of the Bulgarian competition authority’s decision of 9 May 2019 authorising Eurobank’s acquisition of Piraeus Bank Bulgaria.

29 By letter of 13 May 2019, the applicant informed the HFSF that it had brought its action in the main proceedings. In that letter, the applicant claimed that, should the Court decide in its favour, the contract relating to the purchase of Piraeus Bank Bulgaria would be ‘null and void’, and drew the attention of the HFSF to the risk of approving a transaction that was contrary to EU law. By contrast, the applicant does not refer to the prohibition on implementation laid down in Article 108(3) TFEU.

30 On 14 May 2019 the Court Registry requested that the application for interim measures be put in order, inviting the applicant to identify the ‘contested decision’.

32 On 16 May 2019, following the request to put the application in order, the applicant produced a document in which it submits that, by the ‘contested decision’, the Commission rejected its complaint in so far as the criticisms relating to the restructuring commitments were at issue. The existence of the ‘contested decision’ is demonstrated by two items of evidence, namely the Commission’s letter to the Bulgarian National Bank of 8 March 2019 and the response given on 20 March 2019 by the Commissioner responsible for competition to the question put by a Member of the European Parliament.

33 By measures of organisation of procedure of 17 and 21 May 2019, the President of the General Court put a number of questions to the applicant for a written response, to which it responded on 20 and 23 May 2019 respectively.

34 In its observations on the application for interim measures, lodged at the Court Registry on 23 May 2019, the Commission contends that the President of the General Court should:

35 On 27 May 2019 the applicant submitted new items of evidence on which the Commission commented on 29 May 2019.

36 It can be seen from those items of evidence, inter alia, that, on 23 May 2019, the Commission rejected the applicant’s request for access to the letter to the Bulgarian National Bank of 8 March 2019.

37 On 29 May 2019 the applicant submitted new items of evidence on which the Commission did not comment.

38 By a measure of inquiry of 5 June 2019, the President of the General Court ordered the Commission to produce its letter to the Bulgarian National Bank of 8 March 2019.

40 It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).

41 Article 156(4) of the Rules of Procedure provides that applications for interim measures must state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.

42 Accordingly, the judge hearing an application for interim relief may order suspension of operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main proceedings. Those conditions are cumulative, so that an application for interim measures must be dismissed if either of them is not satisfied. Where appropriate, the judge hearing an application for interim relief must also weigh up the interests at stake (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P‑R, EU:C:2016:142, paragraph 21 and the case-law cited).

43 In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre‑established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

44 Having regard to the material in the case file, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures without there being any need to hear oral argument from the parties beforehand.

45 The Commission disputes the admissibility of the application for interim measures, contending that the main action is inadmissible. In that regard, it argues, first, that the applicant is pursuing a procedural strategy to circumvent the system of legal remedies by seeking judicial protection even before the administration has definitively adopted a position. The present application for interim measures is based on a ‘purely artificial and unrealistic construction’. The applicant ‘imagines’ a Commission decision in order to be in a position, subsequently, to challenge that ‘fictitious and non-existing’ decision and to apply for interim measures. Secondly, the main action is inadmissible on the ground that the applicant has not demonstrated that it is an ‘interested party’ within the meaning of 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).

46 It is settled case-law that the admissibility of the main action must not, in principle, be examined in proceedings for interim measures (see order of 20 June 2014, Wilders v Parliament and Council, T‑410/14 R, not published, EU:T:2014:564, paragraph 19 and the case-law cited).

47 In the present case, it is not necessary to examine whether the application for interim measures is inadmissible on the ground that the main action is inadmissible, as the Commission contends. The application for interim measures is in any event inadmissible on other grounds.

48 As a preliminary point, it is necessary to clarify the content of what the applicant refers to as the ‘contested decision’.

49 In that regard, it should be borne in mind that the application for interim measures originally contained very little information serving to identify the measure in respect of which suspension of operation is sought by the applicant. Thus, the Court Registry had to request that the application for interim measures be put in order by inviting the applicant to identify the contested decision.

50 Following the request to put the application in order, it became possible to identify with sufficient certainty what, according to the applicant, constitutes the ‘contested decision’.

51 It follows that the applicant is referring to a Commission decision, which would have been adopted at the latest in March 2019 and by which the Commission rejected in part the applicant’s complaint of 17 January 2019 in so far as it had alleged a breach, through the sale of Piraeus Bank Bulgaria to Eurobank, of the commitments given in the restructuring plans.

52 According to the applicant, the existence of such a decision is demonstrated by the Commission’s letter to the Bulgarian National Bank of 8 March 2019 and by the statements made by the Commissioner responsible for competition on 20 March 2019 following a parliamentary question.

53 Assuming that the ‘contested decision’ exists, it is, a priori, to be classified as a decision under Article 4(2) of Regulation 2015/1589.

54 It should be noted that, under the second subparagraph of Article 12(1) of Regulation 2015/1589, the Commission must examine without undue delay any complaint submitted by any interested party regarding alleged unlawful aid. When it receives such a complaint, the Commission must initiate the preliminary examination stage under Article 108(3) TFEU (judgments of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 49, and of 16 December 2010, Athinaïki Techniki v Commission, C‑362/09 P, EU:C:2010:783, paragraph 23).

55 Under Article 15(1) of Regulation 2015/1589, that preliminary examination stage must be closed by a Commission decision. Under Article 4(2) to (4) of that regulation, that decision may, depending on the circumstances, find that the measure at issue does not constitute aid, indicate that the Commission raises no objections to that measure, or declare that it is necessary to initiate the formal investigation procedure (judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 50).

56 According to case-law, where the Commission finds, following examination of a complaint, that the investigation has revealed no grounds for concluding that there is State aid within the meaning of Article 107 TFEU, it refuses by implication to initiate the procedure provided for by Article 108(2) TFEU (see judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 51 and the case-law cited).

57 In the light of that regulatory context, it must be held, prima facie, that the ‘contested decision’, assuming it exists, corresponds to a decision within the meaning of Article 4 of Regulation 2015/1589, rejecting in part the applicant’s complaint in so far as it had alleged a breach, through the sale of Piraeus Bank Bulgaria to Eurobank, of the commitments given in the restructuring plans.

58 For the purposes of examining the admissibility of the application for interim measures, regard should be had to the settled case-law according to which it is necessary to ascertain, when deciding whether to grant interim measures, whether the applicant has established an interest in obtaining the measures requested (see order of 17 December 1996, Moccia Irme v Commission, T‑164/96 R, EU:T:1996:205, paragraph 26 and the case-law cited).

59 As is apparent from the very wording of Articles 278 and 279 TFEU, suspension of operation may be granted if ‘circumstances so require’ and other interim measures may be prescribed if they are ‘necessary’.

60 Interim measures which would not serve to prevent the serious and irreparable harm feared by the applicant cannot be regarded as ‘necessary’ or as being required by the circumstances (see, to that effect, order of 27 February 2002, Reisebank v Commission, C‑477/01 P(R), EU:C:2002:126, paragraph 23).

61 As is apparent from the application for interim measures, the applicant seeks, in essence, to prevent implementation of the transfer of Piraeus Bank Bulgaria to Eurobank, in order to retain the possibility of acquiring that bank itself.

62 The alleged harm which the applicant seeks to prevent lies in the difficulty, or even practical impossibility, of restoring the status quo ante should the transfer of Piraeus Bank Bulgaria to Eurobank be implemented.

63 It must therefore be examined whether the various heads of claim are appropriate to achieve the aim pursued by the applicant through the application for interim measures, namely to prevent implementation of Eurobank’s acquisition of Piraeus Bank Bulgaria.

64 By the first head of claim, the applicant seeks suspension of the ‘contested decision’.

65 However, the mere interim suspension of the ‘contested decision’ would not enable the applicant to achieve its aim, namely to prevent implementation of the transfer of Piraeus Bank Bulgaria to Eurobank.

66 Suspension of the ‘contested decision’, namely a decision not to initiate the formal investigation stage, would not necessarily require the Commission to initiate the formal investigation stage.

67 Such suspension would still less entail the finding that Eurobank’s acquisition of Piraeus Bank Bulgaria breaches the provisions of the restructuring plans for Piraeus Bank and Eurobank and constitutes unlawful State aid.

68 Lastly, suspension of the ‘contested decision’ also would not require suspension of the sale of Piraeus Bank Bulgaria to Eurobank, which the applicant seeks to block.

69 In any event, the applicant itself acknowledges, as can be seen from paragraph 80 of the application for interim measures, that the mere suspension of the ‘contested decision’ is not sufficient to achieve the aim pursued through the application for interim measures.

70 That is why the applicant supplements the request for suspension of operation with requests for additional interim measures.

71 By the second head of claim, which refers to ‘the [case in which] the contested decision is suspended’, the applicant claims that the Court should order the Commission to ‘immediately inform the Hellenic Republic, the [HFSF] and the relevant authorities in Bulgaria that they cannot rely on the contested decision’ with regard to Eurobank’s acquisition of Piraeus Bank Bulgaria.

72 However, the applicant does not explain how such an order against the Commission would be appropriate to achieve the aim it pursues.

73 First, the applicant fails to establish the extent to which the existence of the ‘contested decision’ would be relevant for the approvals at national level of Eurobank’s acquisition of Piraeus Bank Bulgaria. In that regard, it should be noted that, according to the applicant itself, it is apparent from the decision of the Bulgarian competition authority of 9 May 2019 that State aid law was not relevant to that authority’s assessment.

74 Secondly, even assuming that the Commission has adopted a decision with the content claimed by the applicant and that the national authorities to which the applicant refers are relying on that decision, it does not follow that those authorities could not, leaving aside the existence of the ‘contested decision’, come to the same conclusions in the assessment of Eurobank’s acquisition of Piraeus Bank Bulgaria.

75 It follows that the interim measures requested under the first and second heads of claim, even taken together, cannot in any event serve to prevent the serious and irreparable harm alleged by the applicant.

76 In those circumstances, the applicant has not demonstrated that it has established an interest in obtaining the measures requested for the purposes of the case-law recalled in paragraphs 58 to 60 above.

77 By its third head of claim, which refers to ‘[the case in which] the relevant approvals [have already] been granted by the Hellenic Republic, [the] HFSF and/or the relevant authorities in Bulgaria’, the applicant claims that the Court should order ‘that they withdraw such approvals’.

78 In that regard, it must be stated that the wording of the third head of claim is unclear.

79 In so far as the Commission is the only defendant indicated by the applicant, the application would, prima facie, have to be understood as meaning that the President of the General Court should order the Commission to issue directions to the national authorities mentioned, and that the President of the General Court would not be required to issue instructions directly to the national authorities.

80 In so far as the third head of claim is set out in the same indent as the second head of claim, it would, prima facie, have to be understood, like the second head of claim, as supplementing the request for suspension of operation set out in the first head of claim.

81 Even assuming that the measures requested in the third head of claim might, had the relevant approvals already been granted, enable the applicant to achieve its aim, it is not certain that the content of the request for directions to be issued, namely ordering the Commission to direct ‘the Hellenic Republic, [the] HFSF and/or the relevant authorities in Bulgaria’ to ‘withdraw such approvals’, is stated with sufficient precision for such a request to be admissible and for such directions to be enforceable.

82 It is similarly uncertain, in the light of Article 13(1) of Regulation 2015/1589, whether the Commission may issue directions to the Republic of Bulgaria, since that country is not a priori to be regarded as the ‘Member State concerned’. Nor, moreover, is it certain that the Commission may issue directions without even giving the Member State concerned the opportunity to submit its comments.

83 In any event, it should be borne in mind that, in general, the judge hearing an application for interim relief is not supposed to assume the role of the defendant institution in the exercise of its powers (see, to that effect, order of 5 December 2001, Reisebank v Commission, T‑216/01 R, EU:T:2001:277, paragraph 52 and the case-law cited).

84 In the present case, the issuing of directions such as those requested by the applicant would involve significant interference in the exercise of the Commission’s powers in the field of State aid, particularly in the light of Article 13(1) of Regulation 2015/1589.

85 Without it being necessary to examine whether, in general, the division of powers between the various institutions that the drafters of the Treaties intended might permit the President of the General Court to interfere in the Commission’s powers in this way, it must be held that such interference in the Commission’s prerogatives is, in any event, conceivable only where there is an overriding need to guarantee the right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (see, by analogy, order of 4 May 2018, Czarnecki v Parliament, T‑230/18 R, not published, EU:T:2018:262, paragraph 33).

86 However, that is not the case here. The applicant has failed to demonstrate that only the directions requested were capable of ensuring its effective judicial protection.

87 In that regard, it should be borne in mind that, in general, judicial review of compliance with the European Union legal order is ensured, as can be seen from Article 19(1) TEU, by the Courts of the European Union and the courts and tribunals of the Member States (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 90 and the case-law cited).

88 To that end, the FEU Treaty has established, by Articles 263 and 277, on the one hand, and Article 267, on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts, and has entrusted such review to the Courts of the European Union (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 92 and the case-law cited).

89 As regards the role of the national courts and tribunals, it should be borne in mind that those courts and tribunals, in collaboration with the Courts of the European Union, fulfil a duty entrusted to them both of ensuring that in the interpretation and application of the Treaties the law is observed (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 99 and the case-law cited).

90 It is therefore for the Member States to establish a system of legal remedies and procedures which ensure respect for the fundamental right to effective judicial protection (see judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 100 and the case-law cited).

91 As regards, in particular, the field of State aid, it should be borne in mind that Article 108(3) TFEU establishes a prior control of plans to grant new aid (see judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 25 and the case-law cited).

92 The aim of that system of prior control is therefore that only compatible aid may be implemented. In order to achieve that aim, the implementation of planned aid is to be deferred until the doubt as to its compatibility is resolved by the Commission’s final decision (see judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 26 and the case-law cited).

93 The implementation of that system of control is a matter for both the Commission and the national courts, their respective roles being complementary but separate (see judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 27 and the case-law cited).

94 Whilst assessment of the compatibility of aid measures with the internal market falls within the exclusive competence of the Commission, subject to review by the Courts of the European Union, it is for the national courts to ensure the safeguarding, until the final decision of the Commission, of the rights of individuals faced with a possible breach by State authorities of the prohibition laid down by Article 108(3) TFEU (see judgment of 21 November 2013, Deutsche Lufthansa, C‑284/12, EU:C:2013:755, paragraph 28 and the case-law cited).

95 In that regard, and since there is no EU legislation on the subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the detailed procedural rules governing actions at law intended to safeguard the rights which individuals derive from EU law, provided, first, that those rules are not less favourable than those governing rights which originate in domestic law (principle of equivalence) and, secondly, that they do not render impossible or excessively difficult in practice the exercise of rights conferred by the European Union legal order (principle of effectiveness) (see judgment of 5 October 2006, Transalpine Ölleitung in Österreich, C‑368/04, EU:C:2006:644, paragraph 45 and the case-law cited).

96 Depending on the legal remedies provided for under domestic law, a national court may thus be seised of an application for interim relief such as the suspension of the measures at issue, in order to safeguard the interests of individuals and, in particular, to protect parties affected by the distortion of competition caused by the grant of the unlawful aid (see judgment of 5 October 2006, Transalpine Ölleitung in Österreich, C‑368/04, EU:C:2006:644, paragraph 46 and the case-law cited).

97 It follows that, a priori, the Greek courts are, in principle, best placed to enable the applicant to rely on the prohibition on implementation laid down in Article 108(3) TFEU with regard to Eurobank’s acquisition of Piraeus Bank Bulgaria and thereby prevent the alleged harm.

98 However, the applicant has brought proceedings before the Bulgarian courts, not the Greek courts.

99 When questioned on this point, the applicant, while accepting that the prohibition on implementation laid down in Article 108(3) TFEU should be applied in the present case, submits that it is not guaranteed any effective interim judicial protection in Greece.

100 First, the applicant claims that, in the absence of a decision taken by the HFSF, it would not be entitled to submit an application for interim relief before the Greek courts.

101 However, in that regard, it should be emphasised that the applicant has formulated the third head of claim only in the event that ‘the relevant approvals already have been granted by … [the] HFSF’.

102 If that were the case, namely that the HFSF had given its approval to Eurobank’s acquisition of Piraeus Bank Bulgaria, the obstacle to submitting an application for interim relief before the Greek courts alleged by the applicant, namely the absence of a decision taken by the HFSF, would not exist.

103 Secondly, the applicant claims that the Greek courts would in any event have to refer a question to the Court of Justice for a preliminary ruling on the validity of the ‘contested decision’ in order to be able to grant interim measures.

104 In that regard, it is sufficient to note that the applicant itself does not submit that the Commission took a decision in respect of its claim, in its complaint of 17 January 2019, that there was State aid in favour of Eurobank on the ground that the applicant’s offer to acquire Piraeus Bank Bulgaria had been better than Eurobank’s accepted offer.

105 In the absence of a Commission decision according to which Eurobank’s acquisition of Piraeus Bank Bulgaria does not constitute State aid in favour of Eurobank, the Greek courts are not required to make a request for a preliminary ruling on the validity of the ‘contested decision’ in order to be able to grant interim measures.

106 It follows from the foregoing that the applicant has not been able to demonstrate the existence of circumstances according to which the grant of the directions requested in the third head of claim is justified by the overriding need to guarantee its right to an effective remedy.

107 In those circumstances, the President of the General Court does not have jurisdiction, in the circumstances of the present case, to order the Commission to direct ‘the Hellenic Republic, [the] HFSF and/or the relevant authorities in Bulgaria [to] withdraw [their] approvals’.

108 It follows from all the foregoing that the application for interim measures must be dismissed as inadmissible, in part because the applicant has not demonstrated that it has established an interest in obtaining the measures requested and in part because of the lack of jurisdiction of the President of the General Court, without it being necessary to rule on the admissibility of the main action, urgency or the condition relating to a prima facie case.

109 Pursuant to Article 158(5) of the Rules of Procedure, the costs must be reserved.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Highgate Capital Management v Commission (Competition - No need to adopt the interim measures requested - Lack of jurisdiction - Order) [2019] EUECJ T-280/19_CO (12 July 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/T28019_CO.html Cite as: [2019] EUECJ T-280/19_CO, ECLI:EU:T:2019:545, EU:T:2019:545

Court of Justice of the European Communities (including Court of First Instance Decisions)