Antitrust

S H E A R M A N & S T E R L I N G L L P | 1 2 3 decision could not affect their legal position. The General Court also held that the value of the creditors' claims was not affected by the EU State aid decision, but rather the decision to put BES into resolution. The creditors appealed to the Court of Justice, arguing that the annulment of the EU State aid decision would significantly increase the likelihood of success of the proceedings that had been brought before the Portuguese courts against the decision to put BES into resolution — because the lawfulness of that resolution depended in part on the lawfulness of the State aid used to support it. The creditors argued the two things are inextricably linked. The creditors added that this success could either result in the annulment of the decision to put BES into resolution or in their right to claim damages for the losses that had been incurred due to the unlawful resolution of BES. In previous cases, the Court of Justice held that a party retains a legal interest in the outcome of an action for annulment where that action may constitute the basis of an action for damages. 2 The Court of Justice has also held that an interest in bringing proceedings could arise from any action before the national courts in the context of which the possible annulment of the contested act before the EU Courts is capable of benefiting the applicant. 3 T H E C O U R T O F J U S T I C E F O U N D T H A T T H E G E N E R A L C O U R T W A S W R O N G T O C O N C L U D E T H A T T H E C R E D I T O R S H A D N O L E G A L S T A N D I N G On November 7, 2018, the Court of Justice found for the creditors of BES and set aside the General Court's decision to find their appeal inadmissible. Since the creditors had already brought an action before the Portuguese courts for the annulment of the decision to put BES into resolution, the annulment action could benefit the creditors — generating sufficient legal interest to maintain standing. It was not for the General Court to assess whether the creditors' claim before the national courts was well founded, as the EU courts do not have any legal basis to do that. The Court of Justice agreed that even though the appeal of the State aid decision before the Court of Justice and the appeal of the BES resolution in Portugal necessarily had different subject matters, these cases were inextricably linked because the State aid decision was granted in the context of the resolution of BES. 4 On this basis, the Court of Justice found that the General Court was wrong to conclude that the creditors had no legal standing to bring an appeal against the State aid decision. The case has now been returned back to the General Court. 1. Case C-544/17 P, BPC Lux 2 S. à r. l. v. Commission (EU:C:2018:880). 2. Case C-269/12 P, Cañas v. Commission (EU:C:2013:415), [17]. 3. Case C-33/14 P, Mory and Others v. Commission (EU:C:2015:609), [81]. 4. Case C-544/17 P, BPC Lux 2 S.àr.l. v. Commission (EU:C:2018:880), [55].

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