This follows a judgment handed down by the Court of Justice of the European Union (Case C-124/10 P) in June 2012 upholding the annulment of the Commission's initial decision (see IP/03/1737). The Court confirmed that the Commission should have checked whether a prudent private investor would have acted in the same way as the French authorities. As a result, the Commission has reopened the inquiry and extended its scope in order to cover this aspect. Opening an inquiry does not in any way prejudge the final outcome, it simply gives interested parties the opportunity to submit their observations.
It is now for the Commission to reopen and carry out its inquiry into this matter with a view to reaching a decision in accordance with the criteria set out by the EU Courts. The Commission will check the economic reasoning and the expected profitability at the time of reclassifying the provisions in the light of what a private investor would have done with the same company under similar circumstances. This means extending the scope of the inquiry to allow the French authorities or any interested third parties to submit their observations on the question of whether the non-payment of tax could in fact represent an investment, and, if so, whether a prudent private investor would have made a comparable investment.
European Commission, IP/13/391