Official Journal of the European Union

C 421/11

(Case C-242/13) (<span class="super">1</span>)

((Reference for a preliminary ruling - Competition - State aid - Article 107(1) TFEU - Definition of aid - Guarantees provided by a public undertaking to a bank to facilitate lending to third party creditors - Guarantees deliberately provided by the director of that public undertaking in disregard of that undertaking’s statutes - Presumption of opposition by the public body that owns that undertaking - Whether the guarantees may be imputed to the State))

2014/C 421/14

Language of the case: Dutch

Referring court

Parties to the main proceedings

Appellant: Commerz Nederland NV

Respondent: Havenbedrijf Rotterdam NV

Operative part of the judgment

On a proper construction of Article 107(1) TFEU, for the purposes of determining whether or not the guarantees provided by a public undertaking are imputable to the public authority controlling that undertaking, the following are relevant, together with the body of evidence arising from the circumstances of the case in the main proceedings and from the context in which they took place: on the one hand, that the sole director of the company providing those guarantees acted improperly, deliberately kept the provision of those guarantees secret and disregarded the undertaking’s statutes and, on the other, that that public authority would have opposed the provision of the guarantees, had it been informed of it. In a situation such as that at issue in the main proceedings, those circumstances could, in themselves, exclude such imputability only if it may be inferred that the guarantees at issue were provided without the involvement of that same public authority.

(<span class="note">1</span>) OJ C 207, 20.7.2013.