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Contents

In that regard, the Commission cites the judgment in BP Chemicals v Commission, paragraph 152 above, paragraph 179, in which the Court drew attention to the need to take into account the entirety of an operation to rescue an undertaking and annulled a Commission decision which had wrongly severed the various relevant transactions to inject capital. It follows that there is an obligation for the Commission, in particular in the context of assessing complex rescue and restructuring operations, to examine the extent to which acts which have taken place in the past, which could not have been carried out by a prudent investor, were a precondition for or facilitated a present course of action. In such cases, an isolated act at the end of a process could appear ‘prudent’ if it was taken out of its context, as the French Republic and FT are attempting to do in this case. The Commission adds that, in BP Chemicals v Commission, paragraph 152 above, the Court did not conclude that the third capital injection constituted aid.

Credit ratings and outlook/review status cannot be changed in a portfolio review and hence are not impacted by this announcement. For any credit ratings referenced in this publication, please see the ratings tab on the issuer/entity page on for the most updated credit rating action information and rating history. 280A concrete, unconditional and irrevocable commitment of public resources on the part of the French State would have required those declarations to set out explicitly either the exact sums to be invested, or the specific debts to be guaranteed, or, at the very least, a predefined financial framework, such as a credit line up to a certain amount, as well as the conditions for granting the proposed assistance. However, the declarations from July 2002 omit to adopt a position on those aspects while rejecting the possibility of a future increase in FT’s capital of a certain amount, even though, subsequently, the French State was to pursue precisely the latter option, firstly, in the return on investment; the 12% reality form of the shareholder loan proposal designed to provide FT with a EUR 9 billion credit line, and then by contributing up to the same amount, in proportion to its shareholding in FT, to the increase in the latter’s capital . 263It must be recalled that, in the present case, the parties disagree as to whether, in particular, the declarations from July 2002 – concerning which the Commission correctly established that they conferred an advantage on FT – involve a transfer of State resources. Whereas the French Republic and FT dispute the existence of a transfer of State resources, the Bouygues companies submit that each of those declarations involves a commitment of such resources, whether on the basis of a legally binding obligation on the part of the French State, or on account of a sufficiently real and immediate economic risk to it, which exposes it to a financial liability, in any form whatsoever, for FT’s debts vis‑à‑vis the Bouygues companies, its shareholders and its creditors.

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Moody’s assesses Bouygues’ exposure to environmental risks as low and to social risks as moderate, in line with our broader assessment for the construction and telecom sectors. Moody’s acknowledges Bouygues’ track record of conservative financial policies including very prudent liquidity management, and transparent financial disclosures, albeit tempered to some extent by its decision to fully fund the proposed acquisition of Equans with debt and cash. Taken as a whole, these factors may be deemed to actually endanger State resources (either by incurring the State’s responsibility vis-à-vis investors, or by increasing the cost of the State’s future transactions). The argument to the effect that the … declarations … from July 2002 are aid is therefore innovative, but probably not without foundation. ‘ … he Commission has studied the question whether, under domestic law, a private investor who has made the same declarations as the State would be obliged to keep his promises. In view of the fact that, in the present case, the investor is the State, the study of domestic law also included administrative law.

Consequently, whether considered in isolation or as a whole, those declarations clearly manifest a commitment on the part of the French State to provide FT with support and a guarantee . 129In the same way, the Commission cannot reasonably contend that Article 1 of the contested decision gives satisfaction to the Bouygues companies and that they do not have a vested and present interest in the outcome of this case on the ground that, even if their action were deemed to be well founded, their legal position would remain unchanged. The annulment of Article 1 of the contested decision on the basis of the pleas put forward by the Bouygues companies would have the effect of invalidating the finding of the existence of an aid measure incompatible with the common market only in so far as it refers to the declarations from July 2002 as forming an integral part of that measure instead of characterising them as separate aid measures satisfying, on their own, the conditions of Article 87 EC. As the Bouygues companies submit, such an annulment of Article 1 would be only partial and would allow the finding of the existence of the unlawful aid constituted by the shareholder loan to stand. However, such a partial annulment is liable to bring about a distinct change in the legal position of the Bouygues companies. Moody’s Investors Service, Inc., a wholly-owned credit rating agency subsidiary of Moody’s Corporation (“MCO”), hereby discloses that most issuers of debt securities and preferred stock rated by Moody’s Investors Service, Inc. have, prior to assignment of any credit rating, agreed to pay to Moody’s Investors Service, Inc. for credit ratings opinions and services rendered by it fees ranging from $1,000 to approximately $2,700,000.

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154The Bouygues companies dispute FT’s argument that the declarations since July 2002 cannot be characterised as State aid on the ground that they do not involve any commitment of State resources. Furthermore, even if those declarations were only political, non‑binding, imprecise and conditional in character, which is clearly contradicted by recitals 209 and 210 of that decision, they may nevertheless involve a commitment of State resources within the meaning of Article 87 EC. 148The French Republic and FT add that the interpretation of the declarations from July 2002 falls solely within the scope of French administrative law and not of French civil, commercial or criminal law. In any event, owing to their imprecise and conditional character, those declarations cannot be characterised as a contractual or unilateral commitment, if only in the form of a letter of intent, promise to perform a natural obligation or enforceable promise. 134As regards the plea of inadmissibility raised by FT in Case T‑456/04 against an alleged application by AFORS for annulment of Article 1 of the contested decision, it is sufficient to note, firstly, that, in the originating application, AFORS did not formally claim that that article should be annulled and, secondly, that, in the reply, it confirmed that its action concerned only Article 2 of that decision. 114Article 2 of the contested decision, which finds that the aid declared incompatible with the common market in Article 1 does not have to be recovered, can be annulled in isolation, without that involving an alteration of the scope of Article 1 or of the reasoning which forms its essential basis (see, to that effect Case C‑540/03 Parliament v Council ECR I‑5769, paragraphs 27 and 28, and the case‑law cited).

In so doing, both in the contested decision and during the proceedings, the Commission did not clearly and definitively adopt a position on the question whether the declarations from July 2002 were inherently capable of involving a transfer of State resources, where appropriate, depending on the circumstances, under the relevant national law. 185However, the series of principal events, as described in recitals 36 to 56 of the contested decision, clearly shows the French Republic’s declared intention to support FT in order to prevent any further downgrading of its credit rating. In that regard, the financial markets did not question whether or not the declarations from July 2002 were binding and whether or not they embodied an irrevocable commitment.

112Thus, in the view of the Commission, Articles 1 and 2 of the contested decision constitute severable elements for the purposes of a partial annulment. 93By document lodged at the Court Registry on 14 May 2008, FT requested, in accordance with Article 50 of the Rules of Procedure, that certain information contained in the application, in the reply and in certain annexes to the application lodged in Case T‑444/04 be accorded confidential treatment vis-à-vis the other parties in Cases T‑425/04, T‑450/04 and T‑456/04, and produced non-confidential versions of those pleadings. 87By documents lodged at the Court Registry on 25 and 29 March 2005, FT and the French Republic sought leave to intervene in Case T‑456/04 in support of the forms of order sought by the Commission.

111It must be observed, first of all, that, in Cases T‑425/04 and T‑444/04, the Commission disputes the legal interest of the French Republic and FT in bringing proceedings against the contested decision in its entirety, without distinguishing, in that regard, between Article 1 and Article 2 of that decision. In Case T‑450/04, on the other hand, the Commission does make such a distinction in that it calls in question only the legal interest of the Bouygues companies in bringing proceedings against Article 1 of the contested decision, but not that in bringing proceedings against Article 2 of that decision. 110Finally, as regards the action brought by AFORS in Case T‑456/04, FT contends that any application for annulment of Article 1 of the contested decision is inadmissible. The Commission does not, however, have sufficient evidence in the present case to establish irrefutably the existence of aid on the basis of this innovative argument. On the other hand, it does consider that it can establish the existence of aid elements by following a more traditional approach, taking as a basis the December measures which were the subject-matter of the notification. 35Secondly, the Commission found, in essence, that, on the date of the declaration of 12 July 2002, any further downgrade of the rating of FT’s debt would have led to the loss of its investment-grade rating and that the rating agencies S & P and Moody’s were about to downgrade that rating to junk-bond level .

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As part of its start-up acceleration programme, TF1 is partnering with Workflowers, which will provide content producers with a tool to measure and manage the carbon footprint of TV programmes. Bouygues Telecom’s boxes include sustainable development specifications, thereby extending their lifespan and facilitating repairs and end-of-life recycling. The redesign of the 4K TV Bbox in 2021 complied with CSR commitments such as reducing the carbon footprint and electricity consumption and increasing the use of recycled plastic. At Bouygues Construction, 2,200 had followed the module only three months after its launch; 85% of Bouygues Immobilier employees have taken the first two modules of an internal MOOC on the theme of low carbon; and Colas organised a climate awareness day across all its entities on 8 April 2021.

Decision

You agree that any disputes relating to this agreement or your use of the Information, whether in contract, tort, statute or otherwise, shall be governed by the laws of the State of New York and shall be subject to the exclusive jurisdiction of the courts of the State of New York located in the City and County of New York, Borough of Manhattan. You agree to read and be bound by the more detailed disclosures regarding Moody’s ratings and the limitations of Moody’s liability included in the Information. The Sustainability Tool is used by Bouygues internally to report and manage performance across five high-priority sustainability issues. The Tool has the ability to collect a great breadth of data at a granular level, beyond baseline waste and carbon reporting. Non EU rated and non EU endorsed ratings may be referenced above to the extent necessary, if they are part of the same analytical unit.

In the view of the Commission, the statement of reasons for the contested decision suffers neither from inconsistency nor from insufficiency, since the Bouygues companies are confusing review of the duty to state reasons with examination of the question of any manifest error. The explanatory note further recognises that the State guarantee may result, in particular, from a ‘ministerial letter or any other basis’ and that guarantees which may have been granted without a valid legal basis may nevertheless ‘create rights for their beneficiaries’. Since the Commission admits that the declarations from July 2002 involve a financial risk and that they were sufficiently clear, precise and firm to embody a credible commitment on the part of the French State, it should have found that an implicit guarantee constituting State aid existed. 164Furthermore, in the view of the Bouygues companies, each of the declarations from July 2002 has the force of a commitment, both in French law and in Anglo-Saxon law. They point out that, in French law, the existence of a commitment entered into by an administrative authority is to be assessed in the light, not of its form, but of its intrinsic characteristics.

33In Section 3 ‘Chronological description of the facts and financial situation of ’ of the contested decision, the Commission in essence made the findings set out below. 5According to the half-yearly accounts published on 12 September 2002, FT’s turnover showed an increase of 10% compared with the same period in 2001, earnings before amortisation (‘EBITDA’) amounting to EUR 6.87 billion, that is, an increase of 13.3% in historical data and 9.8% in pro forma data, and earnings of EUR 3.18 billion, up 15% in pro forma data. Earnings after interest (EUR 1.75 billion) but before taxes, minority shareholdings and interests, exclusive of extraordinary items, were EUR 718 million against EUR 271 million as at 30 June 2001. At the same time, FT confirmed that its consolidated own funds became negative as at 30 June 2002 to the amount of EUR 440 million. 5.In Community proceedings concerning State aid, the assessment of facts and evidence falls within the Court’s complete discretion. 4.Only advantages granted directly or indirectly through State resources are held to be aid within the meaning of Article 87 EC.

The Action

327In the light of the annulment of Article 1 of the contested decision, on the basis of the pleas which the French Republic and FT put forward in Cases T‑425/04 and T‑444/04, their claims, that of the Bouygues companies in Case T‑450/04 and that of AFORS in Case T‑456/04 for annulment of Article 2 of that decision, which finds that there is no need to recover the aid referred to in Article 1, have lost their purpose. 319Moreover, the Bouygues companies do not put forward any argument which would give grounds for believing that, as a result of the alleged inconsistency of reasoning, they were unable to challenge the validity of the Commission’s approach before the Court, or that the latter is unable to discharge its duty of review of legality in that regard. 299As to whether the dispatch of the shareholder loan contract signed by ERAP to FT on 20 December 2002 involved a transfer of State resources, it must be held that, in so far as the Commission did not establish satisfactorily in the contested decision an advantage deriving from the contractual offer as such , it is not, a fortiori, possible for the Court to find the existence of any transfer of State resources linked to that advantage. 287Fourthly, in so far as the Commission itself refers to the judgment of 28 March 2000 of the French Court of Cassation , it must be noted that that judgment recognised the effectiveness erga omnes and binding and enforceable character in favour of any interested person of a unilateral declaration on the part of the buyer of an undertaking in difficulty, made in the course of administration proceedings and in the form of a judgment laying down a disposal plan. That is due, in particular, to the fact that the binding and enforceable character recognised by that judgment is based on an express provision of the French Commercial Code governing administration proceedings, under which ‘the judgment which lays down the plan shall render its provisions effective against all parties’. 267It must therefore be examined whether the Commission was justified, on the one hand, in rejecting the existence of a transfer of State resources linked to the declarations from July 2002 as such and, on the other hand, in acknowledging that that criterion was nevertheless satisfied by the shareholder loan proposal of December 2002.

A legal interest in bringing proceedings covers only actions brought by natural or legal persons and not those brought by institutions or Member States. Because of the possibility of human or mechanical error as well as other factors, however, all information contained herein is provided “AS IS” without warranty of any kind. MOODY’S adopts all necessary measures so that the information it uses in assigning a credit rating is of sufficient quality and from sources MOODY’S considers to be reliable including, when appropriate, independent third-party sources. However, MOODY’S is not an auditor and cannot in every instance independently verify or validate information received in the rating process or in preparing its Publications. 11 best ways to invest $1,000 323Finally, it must be observed that the Bouygues companies’ arguments summarised in paragraphs 177 to 181 above are really intended to challenge the validity of the Commission’s refusal to characterise the declarations from July 2002 as State aid and not an alleged failure to state the reasons on which the contested decision is based, within the meaning of Article 253 EC. 311In those circumstances, the second part of the second plea and the third plea raised by the French Republic and FT, in so far as that part and that plea criticise the application of the concept of aid and, in particular, the application of the criteria of advantage and transfer of State resources within the meaning of Article 87 EC, must be upheld.

In that sense, the French authorities’ decision to act upfront of FT’s recapitalisation by granting a credit line constituted a concretisation of their declarations . 60Relying inter alia on the report of 28 April 2004, which referred to an abnormal and not negligible increase in the value of FT’s shares (by between 37.8% and 43.8%) and bonds (by between 3.2% and 9.7%) following the declaration of 12 July 2002, on S & P’s press release of the same date and on the Deutsche Bank report of 22 July 2002 , the Commission concluded that ‘the market regarded these declarations as a credible strategy of commitment by the State to support FT’ . 59In recital 219 of the contested decision, the Commission nevertheless concluded that it could not ‘establish irrefutably the existence of aid on this basis’. It did, ‘on the other hand’, consider ‘that it demonstrate the presence of aid elements in a more conventional manner taking as a basis the December 2002 measures which were the subject of the notification’. In that respect, it was sufficient ‘to establish that the prior declarations had a real impact on the perception of the markets in December , without having to characterise these … declarations as being in themselves State aid’. For another, the existence of an advantage for in December is also evident as soon as one takes account of the impact on the markets of the prior declarations and measures.

“Our decision to affirm Bouygues’ existing rating reflects the financial flexibility that the group has built in its rating category and some benefits to its business profile from the acquisition of Equans, but the debt and cash funding of the acquisition will depress its financial profile and leave the rating weakly positioned in its category,” said Marie Fischer-Sabatie, a Senior Vice President at Moody’s and lead analyst for Bouygues. The Global Scale Credit Rating on this Credit Rating Announcement was issued by one of Moody’s affiliates outside the UK and is endorsed by Moody’s Investors Service Limited, One Canada Square, Canary Wharf, London E14 5FA under the law applicable to credit rating agencies in the UK. Further information on the UK endorsement status and on the Moody’s office that issued the credit rating is available on

26On 30 May 2003, the Commission published an invitation to tender for a contract for ‘the provision of services to assist in assessing the compliance of the financial assistance granted by the French State to FT with the principle of the private investor in a market economy and if necessary to analyse FT’s recovery plan’. On 24 September 2003, that contract was awarded to a consultant, which delivered its economic report on 28 April 2004 (‘the report of 28 April 2004’). In addition, in order to categorise a measure as State aid, the Commission is required to establish on the basis of objective factors that all the cumulative conditions of the concept of aid within the meaning of Article 87 EC, including the existence of an advantage, are satisfied, 60 gbp to jpy exchange rates taking account of the economic effects of the measure in question. MJKK or MSFJ hereby disclose that most issuers of debt securities and preferred stock rated by MJKK or MSFJ have, prior to assignment of any credit rating, agreed to pay to MJKK or MSFJ for credit ratings opinions and services rendered by it fees ranging from JPY125,000 to approximately JPY250,000,000. 301It must however be examined whether, on the basis of its overall approach , the Commission was nevertheless entitled to assess the declarations from July 2002 in conjunction with the announcement of the shareholder loan proposal and the dispatch of the shareholder loan contract in order to conclude that the criterion of transfer of State resources was satisfied in this case.

Company Corporate Actions

Moody’s could downgrade Bouygues’ rating if, on a Moody’s-adjusted basis, its FFO/debt declined toward 25% for a prolonged period or if Bouygues failed to further improve its operating margin and its FCF generation, and to reach positive FCF for the group after the integration of Equans; such a scenario could unfold in case of integration challenges or weaker than expected operating performance at Bouygues’ existing businesses. Unless you have entered into an express written contract with to the contrary and/or agreed to the Terms of Use at or ratings.moodys.com, you agree that you have no right to use the Information in a commercial or public setting and no right to copy it, save it, print it, sell it, or publish or distribute any portion of it in any form. Bouygues S.A.’s A3 rating is underpinned by the company’s large scale and position as one of Europe’s leading and most diversified construction group; its broadly conservative financial policy; and its strong liquidity. Bouygues Telecom is a French global telecommunications operator with 20M customers and a high-performance network covering 99% of the population.

The French State participated in that operation to the amount of EUR 9 billion in proportion to its share in FT’s capital. 13On 20 December 2002, the Entreprise de recherches et d’activités pétrolières sent FT an initialled and signed draft shareholder loan contract. 3As at 30 June 2002, FT’s net debt reached EUR 69.69 billion, including EUR 48.9 billion of bond debt falling due for repayment during the period from 2003 to 2005. That bond debt mainly stemmed from the acquisitions made by FT from 1999 onwards aimed at developing its activity in the mobile telephony sector, such as the takeover of the British operator Orange and the acquisition of part of the capital of the German operator Mobilcom. PARIS – French conglomerate Bouygues will look at all options, including legal action, to ensure it has the right to work with China’s Huawei in the rollout of 5G mobile networks in France, its Chief Executive Martin Bouygues told reporters on Thursday.

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