In the France Télécom judgment of March 19, 2013, the Grand Chamber of the European Court of Justice (ECJ) addressed the sensitive question of the circumstances in which government declarations and announcements of support for an undertaking or a sector can be qualified as State aids.
In 2002, at a time when France Télécom was experiencing financial difficulties, the French government, its majority shareholder, came to its assistance by making public declarations of support which were initially vague but then became more concrete. On December 4, 2002, the French government announced a nine billion euro shareholder loan, giving the impression that it had already been made, which guaranteed the success of two bond issues of December 11 and 12, 2002. However, the corresponding offer only reached France Télécom later and was not accepted by it as it had in the meantime obtained more advantageous means of refinancing. Although the declarations undeniably represented an advantage for France Télécom (they restored the confidence of the financial markets and improved its debt-refinancing capacity), in the end no State resources were used to support France Télécom, which led the General Court of the European Union to conclude in its May 21, 2010 judgment that no State aids had been granted.
However, the ECJ reversed that earlier judgment, making an overall analysis of the French government’s various declarations and measures, and qualified them as State aids. Using an economic approach based on the effects, the ECJ held that the State’s resources do not actually need to have been committed for the advantage conferred to be qualified as State aid. Committing the State’s resources only requires a “potential additional burden” or a “sufficiently real economic risk”. Here, it was the shareholder loan offer which on its own created a potential additional burden. The dissociation of the advantage on the one hand and the resulting commitment of State resources on the other raises further issues when determining how much should be recovered and it is regrettable that the ECJ’s Grand Chamber did not answer them.