C-482/99

OPINION OF MR JACOBS — CASE C-482/99

OPINION OF ADVOCATE GENERAL JACOBS delivered on 13 December 2001 1

1. In the present case France asks for the ('CDR'), described in the decision as a annulment of Commission Decision hive-off vehicle for non-performing assets 2000/513/EC of 8 September 1999 on aid of CL, to the French pleasure boat charter­ 2 granted by France to Stardust Marine ing firm Stardust Marine ('Stardust'). The ('the contested decision'). CL group operates in the banking sector. At the material time CL and its subsidiaries were owned and controlled by the French State. 3

95/547ÆEC of 26 July 1995, 4in which the 5. Stardust was set up in 1989. Its main Commission approved on certain con­ business was bareboat (crewless) charters ditions the State aid in question, provided of multi-owner yachts which it managed. It that the net cost to the State did not exceed benefited from the incentives created by the FRF 45 billion. CL's situation deteriorated 1986 'Pons' law authorising tax-exempt further and by a second decision of 26 Sep­ investments in the French overseas terri­ tember 1996 5the Commission approved tories and departments, where a large part FRF 4 billion of emergency aid. Finally, by of its fleet was located. The French auth­ 6 Decision 98/490/EC of 20 May 1998 the orities have provided the Commission with Commission approved additional restruc­ the following table about the evolution of 8 turing aid of a value between FRF 53 and Stardust's activity and results . 98 billion provided that France complied 7 with certain undertakings and conditions.

4 — OJ 1995 L 308, p. 92. 5 — OJ 1996 C 390, p. 7. 6 — OJ 1998 L 221, p. 28. 7 — A lively (albeit perhaps not entirely neutral) account of the events is given by K. Van Miert, Le Marché et le Pouvoir, Éditions Racine, Bruxelles, 2000, p. 81-98. 8 — At paragraph 93 of the decision, cited in note 1.

Trends of Stardust's activities and results (million FRF)

31.12.90 31.12.1991 31.12.1992 31.12.1993 30.6.1995 30.6.1996 30 . 6 . 1997 11 months 12 months 12 months 12 months 18 months 12 months 12 months

Turnover 10.4 25.9 53.2 117.5 291 . 7 178.4 134.9

Operative result 0.7 4.1 9.9 6.7 - 110.7 - 43.4 - 21 . 9

6. Stardust's expansion 9 appears not to later from CDR. The French authorities have been achieved through self financ­ have provided the Commission with the ing but as a result of financial assistance following table representing the evolution in various forms from the CL group and over time of the commitments of the CL group and CDR. 11

9 — Compare the turnover in 1990 and for the eighteen months ending on 30 June 1995. 11 — At paragraph 28 of the decision. The heading of that table 10 — The above table shows that from 1990 to 1992 profits in the English translation of the decision published in the were not large and from 1993 onwards Stardust made Official Journal of the European Communities is not losses. correct.

Evolution of the exposure of the CL group and of CDR in relation to Stardust (million FRF)

31 . 12 . 1993 31.12.1994 31.12.1995 31.12.1996 30.6.1997

Holding in Stardust 8 44 156 324 496

Percentage 27 % 52 % 83 % 99%

(1) Until the end of 1998, CDR was wholly owned by Credit Lyonnais. Source: French authorities

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7. The following chronology of events 10. In 1994 and the first half of 1995 (the emerges from the two tables and the firm's accounts were drawn up after 18 contested decision. months on 30 June 1995) the turnover again substantially increased and totalled FRF 291.7 million. The firm however recorded dramatic losses of FRF 361.2 million. According to the French auth­ orities those losses were due chiefly to:

8. Between 1989 and 1992 Stardust expanded rapidly. In 1992 it achieved a turnover of FRF 53.2 million and an operative result of FRF 9.9 million. The — fraud by the head of the firm; bank SBT-Batif ('SBT'), a subsidiary of Altus Finance ('Altus') which was itself a subsidiary of CL, was Stardust's sole banker. SBT granted not only direct loans to Stardust, but also financing to investors — poor commercial strategy and inappro­ wishing to acquire shares in the boats priate management; managed by Stardust or guarantees to those investors. That practice entailed the risk that, in the event of Stardust's insolvency, SBT (and thus the CL group) as the firm's creditor and the boats' owners' creditor or — one-off exceptional events such as the guarantor would lose twice. losses due to Stardust's involvement in the America's Cup, estimated by the French authorities at FRF 45 million;

to Stardust new loans of at least FRF 12. In the financial year 1995/96 Stardust's 90 million since its claims in that turnover was lower (FRF 178.4 million) category rose from FRF 320 to 410 and the firm again incurred considerable million (see the table at paragraph 6); losses of FRF 146.9 million. In the lan­ guage of the Commission decision, in July 1995 CDR blocked an interest-free current account of FRF 127.5 million owed by Stardust to CDR ('the advance on current account'), and on 26 June 1996 CDR subscribed a recapitalisation of Stardust of FRF 250.5 million ('the third recapitali­ — in October 1994 a recapitalisation of sation'). Stardust subscribed by the CL group through Altus took place which con­ sisted in incorporating into the firm's capital claims totalling FRF 37 million held by CL through SBT ('the first recapitalisation'); if I understand the decision and the tables correctly, the 13. In the financial year 1996/97 Stardust's CL group as the biggest creditor also turnover was FRF 134.9 million and it acquired control over Stardust through made net profits of FRF 24.3 million. On that conversion of debt into capital; 5 June 1997 an extraordinary shareholders' meeting approved the sale of 99% of the capital of Stardust to FG Marine for FRF 2 million. The same meeting approved a recapitalisation of FRF 89.5 million ('the fourth recapitalisation') which also took the form of the conversion of debt owed to CDR. As explained by the French auth­ — at the beginning of 1995 Stardust was orities, the amount of the last injection was transferred to CDR, the already men­ dictated by the negative value of Stardust, tioned hive-off vehicle for the non-per­ confirmed by the negative price offered by forming assets of Crédit Lyonnais; the purchaser, prior to the recapitalisation. moreover, the conseil d'adminstration (administrative board) of Stardust removed the head of the firm;

dust and had submitted a higher bid than 16. The Commission considered, second, FG Marine) complained to the Commission that the assistance in the form of financing about the recapitalisations of Stardust and and bank guarantees granted by the State to several anomalies concerning its sale. Fol­ Stardust through the CL group and then lowing an exchange of correspondence CDR contained 'elements of aid' since it with the authorities and various meetings, was not consistent with the normal actions on 8 September 1999 the Commission of a private investor operating under mar­ adopted the contested decision. ket economy conditions. The aid had taken the form of non-repayable financing in the form of a recapitalisation by CL, followed by an advance on current account and recapitalisations in the form of debt write­ offs by CDR after Stardust had been hived 14 off in 1995. The aid was unlawful as it had not been notified. It was also incom­ patible with the common market since the only possible exemption for such aid under Article 87(3)(c) was not applicable: it was not restructuring aid, but aid which was designed to permit and support the rapid 15. In the contested decision the Commis­ growth of an unprofitable firm. 15 The aid sion considered, first, that CDR sold Star­ amounted to a non-adjusted nominal total dust to FG Marine in circumstances which of FRF 496.2 million. The recapitalisations did not meet the conditions of transpar­ starting in October 1994 were however ency, openness and absence of discrimi­ merely conversions of debt into capital and nation required by the Commission in resulted from the aid granted previously. 12 order to rule out the possibility of aid. They did not increase CL's commitments to The Commission accepted however that Stardust. Since 1994 was the last year in elements determining the price of an under­ which CL's commitments to Stardust taking may include factors subject to con­ increased, the value of the aid had to be siderable uncertainty such as the guarantees 16 adjusted to October 1994. offered by a bidder, off balance-sheet risks of a bid or the value of intangibles such as goodwill. The fact that the complainant submitted a bid to CDR which was on the face of it higher than the successful bid for Stardust was therefore not in itself suffi­ cient evidence that the transaction involved aid to the buyer. In view of the off balance- sheet risks and the uncertainties relating to the market value of Stardust the Commis­ sion was unable to conclude that Stardust or FG Marine benefited from aid in the 13 form of the sale price.

The capital increases of FRF 44.3 million injected into Stardust Marine in October 1994 by Altus Finance and FRF 112 million injected by CDR in April 1995, the advance (1) the Commission misinterpreted the on current account of FRF 127.5 million concept of 'aid granted by a Member granted by CDR from July 1995 to June State or through State resources' in 1996, the recapitalisations of FRF 250.5 Article 87(1) EC; million in June 1996 and of FRF 89 million in June 1997 by CDR constitute State aid within the meaning of Article 87(1) of the Treaty. The aid, amounting to a discounted value at 31 October 1994 of FRF 450.4 million, cannot be declared compatible (2) in finding that the assistance by SBT with the common market under and Altus to Stardust was granted in Article 87(2) and (3) of the Treaty... circumstances which would not have been acceptable to a private investor operating under normal market econ­ omy conditions, the Commission com­ mitted a manifest error of assessment;

Article 2

(3) the decision contains internal contra­ dictions, in particular as regards the grantor of the aid; France shall require Stardust to repay to the State or to CDR the sum of FRF 450.4 million corresponding to the State aid content of the measures in question, dis­ counted to 31 October 1994. The amount to be repaid shall bear interest from that (4) the decision infringes the principle of date...' legal certainty in that it conflicts with

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ing of the Court's case-law. Third, the 26. Under the chronology set out above Commission's wide interpretation of the four groups of measures may be distin­ concept of 'State resources' infringes guished: Article 295 EC in that it discriminates against public undertakings, and in par­ ticular against public banks. Fourth, the measures granted by SBT and Altus were not imputable to the State, since SBT and — the loans and guarantees granted by Altus took their decisions in total indepen­ SBT and Altus to Stardust and its dence from CL and a fortiori from the clients before October 1994; French State. Finally, and in any event, the Commission failed to give reasons for its view that the measures in favour of Star­ dust were granted through State resources. — the first recapitalisation granted by Altus in October 1994;

— the second, third, and fourth recap­ 24. The Commission replies in essence that italisation of April 1995, June 1996 CL, SBT and Altus are public undertakings and June 1997 and the advance on controlled by the State, that measures taken current account of July 1995 granted by such undertakings are always imputable by CDR; to the State and that their funds are by definition State resources.

— the sale of Stardust to FG Marine in June 1997.

27 . The contested decision clearly The measures in issue acknowledges that the sale of Stardust in 1997 did not contain aid to Stardust or its 21 buyer. The decision is however incon­ sistent as to which of the other three groups of measures contains aid, referring at times to measures prior to October 1994 and at other times to measures subsequent to that 25. In order to assess whether measures date. Thus Article 1 of the operative part within the meaning of Article 87(1) are states that the capital increases injected into involved, it is necessary first to identify the measures which the contested decision actually regards as aid. 21 — At paragraph 116.

28. The French Government submits that the funds used by SBT and Altus were not 'State resources'. In its view, resources of public undertakings are not automatically State resources. In the present case, SBT and Altus never received any specific public funds and financed the measures in favour of Stardust exclusively through their own resources and deposits of their clients. CL 31. Both parties are moreover aware that received State aid only on 30 June 1994 according to the Court's case-law, and in and thus at a time when the measures at issue had already been granted. 23 — Commission Directive 80/723/EEC of 25 June 1980 on the transparency of financial relations between Member States and public undertakings, as well as on financial trans­ 22 — See, for example, paragraphs 27, 38, 50, 53, 55, 58, 95, parency with certain undertakings, OJ 1980 L 195, p. 35, 100 to 103 and the heading of Section V(ii) of the as most recently amended by Commission Directive contested decision. 2000/52/EC of 26 July 2000, OJ 2000 L 193, p. 75.

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33. It seems that the Court has not yet expressly decided that question. Commis- 25 sion v France concerned aid financed by the operating surplus accumulated by the French Caisse Nationale du Crédit Agri­ 26 cole. Van der Kooy concerned prefer­ ential tariffs granted to glasshouse growers by a gas-supplying firm partially owned by 27 — See in particular paragraphs 13 and 14 of Case 290/83, cited in note 25. 28 — See for further details my Opinion in PreussenElektra, cited in note 24, paragraphs 122 to 126 and 168 to 171. 24 — Case C-379/98 PreussenElektra [2001) ECR I-2099, 29 —Case C-303/88 Italy v Commission [1991] ECR I-1433; paragraph 58 of the judgment with further references. It will be noted that at paragraph 59 of the judgment the Case C-305/89 Italy v Commission [1991] ECR I-1603. Court uses the somewhat imprecise term 'transfer' of State 30 — See paragraph 10 of Case C-303/88 and paragraphs 12 and resources. That term fails however to encompass State aid 15 of Case C-305/89, both cases cited in the previous note. granted for example in the form of a State guarantee or a 31 — See paragraph 14 of Case C-303/88 and paragraph 16 of waiver of revenue (see the case-law discussed below at paragraphs 39 and 40). Case C-305/89. 32 — Case C-200/97 |1998] ECR I-7907; Case C-295/97 [1999] 25 — Case 290/83 [1985] ECR 439. ECR I-3735. 26 — Joined Cases 67/85, 68/85 and 70/85 Van der Kooy and 33 — See paragraphs 38, 41 and 43 of the judgment in Ecotrade, Others v Commission [1988] ECR 219. cited in the previous note.

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35. The French Government criticises that judgment. In its view it relies on too extensive an interpretation of the concept of State resources and infringes Article 295 EC in that it discriminates against public 'The Commission does not normally have undertakings, and in particular against any reason to consider that, where Crédit public banks. If all measures granted by a Lyonnais granted financing, it automati­ public undertaking in favour of another cally constitutes aid... The Commission undertaking were to be viewed as measures describes such measures as State aid only granted through State resources, it would when it can be established... on the basis of specific facts, that the measures seen in their context fail to comply with the market 37 34 — See my Opinion in PreussenElektra, cited in note 24, economy investor principle.' paragraphs 172 to 177. 35 — Case T-358/94 Air France v Commission [1996] ECR II-2109. 36 — Paragraphs 66 to 67 of the judgment. 37 — At paragraph 37.

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37. In my view the resources of public the funds used for a measure are financed undertakings such as SBT and Altus con­ through compulsory contributions (e.g. stitute State resources within the meaning parafiscal charges) and then distributed of Article 87(1) of the Treaty, and the according to State legislation they must be French Government's concerns about the regarded as State resources even if they are consequences of this view can be met. collected and administered by institutions distinct from (but none the less controlled 40 by) the public authorities.

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42. In Ladbroke the Court has expressly but also aid granted by public or private endorsed that interpretation of the concept bodies designated or established by the of State resources: State. Through their influence on the behaviour of public undertakings the Member States may seek ends other than 44 commercial ones.

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of public undertakings which are in fact directly or indirectly a dominant influence charged with allocating aid. within the meaning of the definition con­ tained in Article 2(1)(b) of the Transpar­ ency Directive. The question to what extent the acts of the undertakings can be attributed to the authorities will be con­ sidered below.

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of the main reasons why Member States degree of uncertainty for the State and the must, in accordance with the Transparency public undertaking involved in borderline Directive, ensure that financial relations cases is a necessary corollary of the effec­ between public authorities and public tiveness of the control of State aid granted 51 undertakings are transparent. through public undertakings.

48. If continuous control of the activities of 50. The funds used by SBT and Altus to public undertakings on the basis of the finance the measures in favour of Stardust Transparency Directive is necessary and were accordingly State resources within the 55 justified, it is a fortiori necessary for aid meaning of Article 87(1) of the Treaty. measures granted through the funds of public undertakings to be notified to the Commission.

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and Altus took their decisions in total attributable to the conduct of the Member independence from CL and a fortiori from State concerned. the French State. In its decisions about aid granted to CL the Commission itself emphasised the absence of control by CL over its subsidiaries and in particular over Altus as one of the main reasons for the 57 financial difficulties of CL.

54. That case-law may be explained as follows. The wording of Article 87(1) of the Treaty seems to distinguish between aid granted by a Member State and aid granted through State resources. However, it is now clearly established that 'aid granted by a 52. The Commission submits, first, that the Member State' must also be granted French State was omnipresent in CL, SBT through State resources. The second alter­ and Altus: it directly and indirectly con­ native in Article 87(1) of the Treaty (aid trolled the capital, the voting rights and the granted through State resources) thus appointments of the chairmen and serves only to preclude circumvention of members of their respective administrative the State aid rules through decentralised or boards (conseils d'administration). In the 'privatised' distribution of aid. That means Commission's view that type of potential however that where aid is granted under control suffices to establish the imputability the second alternative 'through State of a measure to the State. The Commission resources' the measure must be the result refers also to the definition of public of action of the Member State concerned. undertakings in the Transparency Direc­ That is confirmed by the title of the 58 tive. Furthermore, the French Govern­ relevant section 'Aids granted by States' ment should not be allowed to rely on its which suggests that in all cases the measure own consistent failure to control the CL must be ultimately imputable to public group or to maintain that measures worth authorities. FRF 450 million were too insignificant to attract the attention of CL's administrative board.

day business decisions of a publicly owned 57. For the purposes of the State aid rules, brewery taken without any interference by in what circumstances is a given measure of the public authorities should be considered a public undertaking attributable to the as falling outside the scope of the State aid State? rules. In that regard it is significant that the Transparency Directive seeks to facilitate the control of aid which is granted 'by' public authorities 'through the intermedi­ ary' of public undertakings or financial institutions (Article 1(1)(b)) and that it distinguishes clearly between public auth­ orities and public undertakings (Ar­ ticle 2(1)). 58. In Commission v France the Court held that a solidarity grant offered by the Caisse Nationale du Crédit Agricole to farmers was 'decided and financed by a public body', its implementation was 'subject to the approval of the public authorities', the detailed rules for its grant corresponded to 'those for ordinary aid' and it was 'put forward by the Government as forming part of a body of measures in favour of farmers which were all notified to the 61 56. It is true that for other purposes the Commission'. Court interprets the notion of the State more broadly. For example where the question is whether a directive has direct effect and can be invoked against the State — directives imposing obligations normally only on the States to which they are addressed — 'the State' is interpreted very broadly and all public authorities and even public undertakings may be regarded as falling under that concept. But that 59. In Van der Kooy the Court found, first, approach cannot be automatically trans­ that the State held 50% of the shares and posed to the State aid provisions of the appointed half of the supervisory board of Treaty. The concept of the State has to be Gasunie, second, the Netherlands Govern­ understood in the sense most appropriate ment was empowered to approve the tariffs to the provisions in question and to their applied by Gasunie and could thus block objectives; the Court rightly follows a any tariff which did not suit it and, third, functional approach, basing its interpre­ the Netherlands Government had on two tation on the scheme and objective of the occasions successfully exercised its provisions within which the concept fea­ influence over Gasunie in order to seek an tures. 60 amendment of its tariffs. Those factors 'considered as a whole' demonstrated that

62. There seems to be some tension between those cases. In Commission v France the Court established in concreto that the particular measure at issue had been the result of action of the State. In Van der Kooy the Court inferred from the circumstances taken as a whole that the 61 . In Air France the Court of First concrete measure in issue must have been Instance found that the measure which the result of State involvement. In the two was formally carried out by a limited Italian cases the Court established merely company governed by private law was in that ENI and IRI operated in general under reality carried out 'at the decisive insti­ the control of the State. In Air France the gation of its majority shareholder' the Court of First Instance focused on the Caisse des Depots et Consignations. The public or private nature of the Caisse and Caisse itself was established by law, it was did not examine whether it took its placed under the supervision and guarantee decisions — in the actual case or even in of the legislature, its task was the adminis­ general — under the decisive influence of the public authorities.

62 — Cited in note 26, paragraphs 36 to 38 of the judgment. 63 — See paragraph 12 of the judgment in Case C-303/88 and paragraph 14 of the judgment in Case C-305/89, both cited 64 — See Air France, cited in note 35, paragraphs 58 to 62 of the in note 29. judgment.

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— evidence that the measure was taken at 65. On the one hand, a given financing the instigation of the State; measure should not be attributable to the State whenever a commercial undertaking in which the State has a shareholding acts 65 on the markets. It is not sufficient there­ fore that the body distributing the aid is a public undertaking within the meaning of — the scale and nature of the measure Article 2(1)(b) of the Transparency Direc­ (here there might be some overlap with tive. The fact that the public authorities the private investor/creditor test which may exercise directly or indirectly a domi­ I will discuss below); nant influence does not prove that they actually exercised that influence in a given case. 66 — See the Opinion of Advocate General Mancini in Com- mission v France, cited in note 25, at p. 443. 67 — See Van der Kooy, cited in note 26, paragraph 37 of the judgment and the Opinion of Advocate General Lenz in 65 — See the Opinion of Advocate General Slynn in Van der Case C-44/93 Namur-Les Assurances du Crédit [1994] Kooy, cited in note 26, at p. 250. ECR I-3829, paragraph 44.

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— the degree of control which the State from an inquiry of a committee of the enjoys over the public undertaking in French Parliament cited by the Commission question; and that Altus was an 'atypical subsidiary' engaging in unorthodox and risky financial operations, that it was deliberately kept outside the system of internal control of the CL group and that the only hierarchical link between CL and Altus was a weekly meeting between the chairman of CL and — a general practice of using the under­ the director of Altus. taking in question for ends other than commercial ones or of influencing its decisions.

69. In the present case it is common ground that CL's financial problems of an unprece­ 68 dented scale can largely be explained by the lack of effective supervision of CL and 71. Second, Stardust itself was an under­ its subsidiaries by the French State. As taking of a relatively modest size and the regards the supervision of CL itself there loans and guarantees granted to Stardust was according to Decision 98/490 a 'seri­ and to its clients were in comparison with ous lack of corporate governance', 'irre­ the totality of the loans and guarantees sponsibility of the decisions taken by the granted by CL or its subsidiaries also of a bank's... management', 'a lack of trans­ modest size. There is therefore no reason to parency in management and in the com­ believe (and also no evidence) that the pany's accounts' and a general 'lack of administrative board of CL or the manage­ 69 ment of CL or a representative of the public internal and external controls'. As regards the subsidiaries of CL it follows authorities knew about those loans and guarantees. There is even less reason to believe that before October 1994 the 68 — See above at paragraph 4. French State or CL tried to influence SBT's 69 — See Commission Decision 98/490, cited in note 6, p. 65. or Altus' decisions on Stardust.

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77. In my view such a failure cannot constitute State aid, which requires positive intervention by the State. There is 74. The Commission objects, first, that the admittedly a risk that badly controlled concept of aid is an objective concept and public banks might engage in unsound that Article 87(1) of the Treaty does not commercial practices and an indirect risk distinguish between State measures by that in the event of financial difficulties the reference to their causes or aims but defines Member State concerned might wish to them in relation to their effects. grant State aid to those banks. I consider

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however that the former risk is not directly contains a sufficient statement of reasons of concern to the State aid rules and that and that it complies with the requirements the latter, even if it may entail distortions of of the Court's case-law. competition in the banking sector, is not relevant in the present case which is about distortions of competition in the pleasure boat chartering sector.

71 — See in that sense Case C-156/98, cited in the previous note, paragraphs 96 to 98 with further references to the 70 — Case C-156/98 [20001 ECR I-6857. case-law.

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82. In the contested decision the Commis­ to Stardust before October 1994 were sion states that CL was the body 'through imputable to the French State. Moreover which the aid was granted'. In the none of the circumstances mentioned in the corresponding footnote the Commission decision suggests that that might have been adds that '[a]ccording to the case-law on the case. State aid, the resources of a public under­ taking like Crédit Lyonnais are State resources within the meaning of Article 87 of the Treaty.' The Commission states also that the 'support provided went beyond the normal prudence required of a banker and constitutes aid because the public resources 85. The contested decision therefore also used to that end by Crédit Lyonnais con­ infringes Article 253 of the Treaty. stituted State resources within the meaning 73 of Article 87 of the Treaty' and that 'the resources granted by Crédit Lyonnais, a public undertaking, through its subsidiaries SBT and Altus are State resources within the meaning of Article 87(1) of the 74 Treaty'. The Commission refers finally to the 'constant assistance granted to Stardust by the State through the Crédit In the alternative: the second plea invoking Lyonnais group'. 75 an erroneous application of the private investor principle

86. Since I consider that the decision should be annulled on the basis of the first 83. I consider that those statements explain plea I will address the issues raised by the why the Commission considered that the second plea only in the alternative and only resources of SBT and Altus were State briefly. resources.

take into account several relevant aspects 89. It is settled case-law that in order to such as the perspectives of the market for determine whether measures such as the pleasure boat charters or the fraudulent ones at issue constitute aid for the purposes behaviour of the head of Stardust. of Article 87(1) of the Treaty, it is necess­ ary to consider whether in similar circum­ stances a private investor of a comparable size might have provided capital of such an 76 amount or in other words whether the recipient undertaking received an economic advantage which it would not have 77 88. The Commission submits in essence obtained under normal circumstances. It that it assessed the financing in the context is also established that the comparison in which it was granted before 1995 and must be made in relation to the attitude that the three elements which it took into which a private investor would have had account were sufficient to support its con­ under normal market conditions at the time clusion that a private investor operating of the grant of the loans and guarantees in under identical conditions would not have question, having regard to the information granted such financing to Stardust. Those available and developments foreseeable at 78 elements were that that time.

— SBT and Altus granted financing not only to Stardust, but also to investors wishing to acquire shares in boats managed by Stardust which exposed 90. In the contested decision the Commis­ them not only to Stardust but also to its sion explicitly mentions on several occa­ clients; sions the principle that the measures in issue must be analysed in the context in 79 which they were granted and not ex post. Throughout the decision there is however no analysis of the context of the years (1990 to 1994) when the loans and guar­ antees were actually granted. In reality the — SBT and Altus took risks in the form of Commission infers from the fact that at the loans and guarantees more than twice end of 1994 the exposure of SBT and Altus the amount of the balance sheet total; reached double the balance sheet of Star-

94. The contested decision would therefore in any event have to be annulled because the Commission misapplied the private 92. In my view the Commission misapplied investor principle. the private investor principle in that it failed to examine the loans and guarantees granted by Stardust in the context of the time in which they were granted despite the fact that it possessed detailed information about the periods in question.

95. Since I conclude that the French Gov­ ernment's first and second pleas are well founded, it is not necessary to examine the other pleas, which arise only in the further alternative. 93. I must confess that I also have doubts as regards the three elements taken into account by the Commission. First, as 80 — Joined Cases C-329/93, C-62/95 and C-63/95 Germany and Others v Commission [1996] ECR I-5151, paragraph regards the fact that SBT and Altus were 36 of the judgment.

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Conclusion

96. For the above reasons I consider that