Recent CJEU and GC views on the "economic advantage" element in State aid cases (C-559/12 and T-150/12)

In two recent cases, the Court of Justice of the EU (CJEU) and the General Court (GC) have reassessed the element of "economic advantage" required in the prohibition of State aid in Art 107(1) TFEU in connection with State guarantees in France and Greece. The element of advantage has ranked rather high in the list of issues recently submitted to public consultation by the European Commission as part of the forthcoming new Notice on the concept of State aid. Hence, it seems interesting to have a look at these cases.

Firstly, in its Judgment of 3 April 2014 in case
C-559/12 France v Commission (La Poste), the CJEU assessed the Commission's previous findings regarding the existence of an unlimited guarantee granted by the French State to its postal operator (La Poste) as part of its status as an establishment of an industrial and commercial character (établissement public à caractère industriel et commercial, ‘EPIC’)--which entails a number of legal consequences, including the inapplicability of insolvency and bankruptcy procedures under ordinary law--and which ultimately constituted State aid within the meaning of Article 107(1) TFEU. The Commission's assessment had been endorsed by the GC (see comment here). The CJEU concurs with the substantive assessment of both the Commission and the GC in an interesting reasoning (and after having addressed a number of issues concerning the burden of proof that, in the end, remain largely marginal in view of the consolidation of a presumption of advantage in the case of unlimited State guarantees):
94 [...] it must be borne in mind that the concept of aid embraces [...] measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, therefore, without being subsidies in the strict sense of the word, are similar in character and have the same effect [...] Also, State measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions, are regarded as aid [...].
95 Since State measures take diverse forms and must be analysed in terms of their effects, it cannot be ruled out that advantages given in the form of a State guarantee can entail an additional burden on the State
96 As the Court has already held, a borrower who has subscribed to a loan guaranteed by the public authorities of a Member State normally obtains an advantage inasmuch as the financial cost that it bears is less than that which it would have borne if it had had to obtain that same financing and that same guarantee at market prices
97 From that point of view, moreover, the Commission Notice on the application of Articles 
[107 and 108 TFEU] to State aid in the form of guarantees specifically provides[...]
that an unlimited State guarantee in favour of an undertaking whose legal form rules out bankruptcy or other insolvency procedures grants an immediate advantage to that undertaking and constitutes State aid, in that it is granted without the recipient thereof paying the appropriate fee for taking the risk supported by the State and also allows better financial terms for a loan to be obtained than those normally available on the financial markets.
98 It is apparent,
a simple presumption exists that the grant of an implied and unlimited State guarantee in favour of an undertaking which is not subject to the ordinary compulsory administration and winding-up procedures results in an improvement in its financial position through a reduction of charges which would normally encumber its budget.
99 Consequently, in the context of the procedure relating to existing schemes of aid, to prove the advantage obtained by such a guarantee to the recipient undertaking,
it is sufficient for the Commission to establish the mere existence of that guarantee, without having to show the actual effects produced by it from the time that it is granted (C-559/12 at paras 94 to 99, emphasis added).
Secondly, in its Judgment of 9 April 2014 in case T-150/12 Greece v Commission (aid to cereal production), the GC has also assessed a Greek guarantee scheme to cereal producers and has upheld the Commission's view whereby the conditions attached to such guarantee--i.e. initially, the acceptance of crops as collateral (although the existence of the guarantee rights and the conditions for their execution were not automatic) and later the potential charge of a 2% premium (again, which charge was not automatic)--did not dissipate the existence of an economic advantage for the beneficiaries of the guarantee scheme. The reasoning of the GC (in French) in paras 82 to 97 is interesting to grasp the unconditionality required of any measures intended to eliminate the (presumed) advantage that State guarantee schemes provide.
In my view, both Judgments are in line with the content of the Commission's Draft Notice on the concept of State aid (and, in particular, paras 111 to 117) and it seems now clear that unlimited State guarantees or State guarantees without actual (automatic) conditions (such as collateral and premia to be paid by the beneficiaries) will be ruled as being against Art 107(1) TFEU as a result of the iuris et de iure presumption of their conferral of an advantage.

On theatre and whisky: GC pushes further in the protection of reputed trademarks

In its Judgment of 6 July 2012 in Case T-60/10 Jackson International Trading Co. Kurt D. Brühl GbmH & Co. KG v OHIM - Royal Shakespeare, the General Court  (Royal Shakespeare), the General Court analyses to what extent the  reputation of the Royal Shakespeare Company in the organisation of theater productions in the United Kingdom granted a right to request the cancellation of the trade mark 'Royal Shakespeare' as a Community trade mark in respect of alcoholic beverages (including beer and Scotch Whisky) and non-alcoholic beverages (mineral water, fruit juices, etc).

In the Royal Shakespeare Judgment, the GC conducts a rather detailed analysis of the elements that are necessary for the prior repute of a trade mark to grant a cancellation request of a similar trade mark under articles 5(3) and 8(5) of Regulation No 207/2009. The GC structures the analysis around the delimitation of the relevant public for the analysis of the reputation of the earlier trade mark and the scope of that reputation, and finds that an 'exceptional' reputation in a specific type of services within one class of the Nice Agreement is sufficient to trigger protection, regardless of how different they are from the other products or services for which the similar mark is used (which analysis is reserved for the issue of the likelihood of unfair advantage in the use of the trade mark).

The GC also stresses and clarifies the requirements to be met in order to determine that there is a risk of undue advantage in the use of a trade mark similar or identical to that with ('exceptional') reputation:
47 [...] article 8(5) of Regulation No 207/2009 covers three separate and alternative types of risk, namely that the use without due cause of the mark applied for will take unfair advantage of the distinctive character or the repute of the earlier mark, or that it will be detrimental to the distinctive character of the earlier mark, or that it will be detrimental to the repute of the earlier mark.
48 The unfair advantage taken of the distinctive character or the repute of the earlier trade mark consists in the fact that the image of the mark with a reputation or the characteristics which it projects will be transferred to the goods covered by the mark applied for, with the result that the marketing of those goods can be made easier by that association with the earlier mark with a reputation.
49 It should, however, be emphasised that in none of those cases is it necessary that there be a likelihood of confusion between the marks at issue; it is only necessary that the relevant public is able to establish a link between them, without having necessarily to confuse them [...]
56 [...] The advantage arising from the use by a third party of a sign similar to a mark with a reputation is an advantage taken unfairly by that third party of the distinctive character or the repute of the mark where that party seeks by that use to ride on the coat-tails of the mark with a reputation in order to benefit from the power of attraction, the reputation and the prestige of that mark and to exploit, without paying any financial compensation, the marketing effort expended by the proprietor of the mark in order to create and maintain the mark’s image
Following this standard refresher of the applicable law, the GC conducts the analysis under the specific circumstances of the case, and finds that the possibility that the public establishes a relatively weak link between the concerned trade marks suffices to grant protection:
59 With regard to the goods and services in the present case, those of the applicant do not appear to be directly and immediately linked to the intervener’s theatre productions. However, despite the differences in the nature of those goods and services, there is, none the less, a certain proximity and link between them. In that regard, it has already been acknowledged in case-law that there is a certain similarity between entertainment services and beer due to their complementarity (see Judgment of 4 November 2008 in Case T161/07 Group Lottuss v OHIM – Ugly (Coyote Ugly), not published in the ECR, paragraphs 31 to 37). It is common practice, in theatres, for bar and catering services to be offered either side of and in the interval of a performance. (emphasis added)
60 Moreover, irrespective of the above, in view of the established reputation of the earlier trade mark, the relevant public, namely the public at large in the United Kingdom, would be able to make a link with the intervener when seeing a beer with the contested trade mark in a supermarket or in a bar.
61 In the present case, the applicant would benefit from the power of attraction, the reputation and the prestige of the earlier trade mark for its own goods, such as beer and other beverages, and for its services. In the beverages market, those goods would attract the consumer’s attention thanks to the association with the intervener and its earlier trade mark, which would give the applicant a commercial advantage over its competitors’ goods. That economic advantage would consist of exploiting the effort expended by the intervener in order to establish the reputation and the image of its earlier trade mark, without paying any compensation in exchange. That equates to an unfair advantage taken by the applicant of the repute of the earlier trade mark within the meaning of Article 8(5) of Regulation No 207/2009.
Therefore, the GC Judgment in the Royal Shakespeare case can be seen as a broadening of the scope of protection or (‘exceptionally’) reputed trade marks under EU law through a reduced standard of risk of association by consumers.