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Commission v Sytraval (State aid) [1998] EUECJ C-367/95P (02 April 1998)
URL: http://www.bailii.org/eu/cases/EUECJ/1998/C36795P.html
Cite as:
EU:C:1998:154,
[1998] ECR I-1719,
[1998] EUECJ C-367/95P,
ECLI:EU:C:1998:154
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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.
JUDGMENT OF THE COURT
2 April 1998 (1)
(Appeal - State aid - Complaint by a competitor - Commission's obligations
concerning the investigation of a complaint and the provision of reasons for
rejecting it)
In Case C-367/95 P,
Commission of the European Communities, represented by Jean-Louis Dewost,
Director-General of its Legal Service, Jean-Paul Keppenne and Michel Nolin, of
its Legal Service, acting as Agents, with an address for service in Luxembourg at
the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre,
Kirchberg,
appellant,
supported by
French Republic, represented by Catherine de Salins, Deputy Director in the Legal
Affairs Directorate of the Ministry of Foreign Affairs, and Jean-Marc Belorgey,
chargé de mission in the same directorate, acting as Agents,
intervener in the proceedings at first instance,
and
Federal Republic of Germany, represented by Ernst Röder, Ministerialrat in the
Federal Ministry of Economic Affairs, and Bernd Kloke, Regierungsrat in that
Ministry, acting as Agents,
Kingdom of Spain, represented by Gloria Calvo Díaz, Abogado del Estado, acting
as Agent,
Kingdom of the Netherlands, represented by Marc Fierstra, Assistant Legal Adviser
in the Ministry of Foreign Affairs, acting as Agent,
interveners,
APPEAL against the judgment of the Court of First Instance of the European
Communities (Fourth Chamber, Extended Composition) of 28 September 1995 in
Case T-95/94 Sytraval and Brink's France v Commission [1995] ECR II-2651,
seeking to have that judgment set aside,
the other parties to the proceedings being:
Chambre Syndicale Nationale des Entreprises de Transport de Fonds et Valeurs
(Sytraval) and Brink's France SARL,
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, C. Gulmann (Rapporteur),
H. Ragnemalm, M. Wathelet (Presidents of Chambers), G.F. Mancini,
J.C. Moitinho de Almeida, P.J.G. Kapteyn, J.L. Murray, D.A.O. Edward,
J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevón, Judges,
Advocate General: C.O. Lenz,
Registrar: R. Grass,
having regard to the report of the Judge-Rapporteur,
after hearing the Opinion of the Advocate General at the sitting on 27 May 1997,
gives the following
Judgment
- By application lodged at the Registry of the Court of Justice on 28 November 1995,
the Commission of the European Communities brought an appeal pursuant to
Article 49 of the EC Statute of the Court of Justice against the judgment of
28 September 1995 in Case T-95/94 Sytraval and Brink's France v Commission
[1995] ECR II-2651 ('the contested judgment'), in which the Court of First
Instance annulled the Commission's decision of 31 December 1993 ('the contested
decision') rejecting the request of the Chambre Syndicale Nationale des
Entreprises de Transport de Fonds et Valeurs (Sytraval) and of Brink's France
SARL for a declaration that the French Republic had infringed Articles 92 and 93
of the EC Treaty by granting aid to Sécuripost SA ('Sécuripost').
- The French Republic, which intervened in the proceedings at first instance in
support of the form of order sought by the Commission, has lodged a reply. The
Chambre Syndicale Nationale des Entreprises de Transport de Fonds et Valeurs
(Sytraval) and Brink's France SARL ('the complainants') have not submitted any
observations to the Court.
- By three applications lodged at the Registry of the Court of Justice on 24 January,
22 February and 26 February 1996, the Federal Republic of Germany, the
Kingdom of Spain and the Kingdom of the Netherlands sought leave to intervene
in support of the form of order sought by the Commission. Those applications
were granted by three orders of the Court of 5 March 1996.
Facts and procedure before the Court of First Instance
- The contested judgment states that, until 1987, the French post office ('the post
office') undertook, through its internal departments, the transportation of its own
moneys and valuables. In 1986 the post office decided to carry on certain of its
activities through the intermediary of commercial companies. On 16 December
1986 the Société Holding des Filiales de la Poste ('Sofipost'), controlled as to 99%
by the French Republic, was accordingly set up. On 16 April 1987 Sofipost formed
Sécuripost SA ('Sécuripost'), which it controls as to 99.92%. The object of that
company is the secure transportation of moneys, the provision of caretaking and
protection services, and surveillance. The post office seconded over 220 officials
to Sécuripost.
- By agreement under private law dated 28 September 1987, the post office entrusted
Sécuripost with the performance of the activities falling within the spheres referred
to above, which it had previously carried on itself. Thereafter, Sécuripost was to
widen its customer base and its range of activities. On 30 September 1987 a
framework agreement was concluded between the Minister of Posts and
Telecommunications and Sécuripost. Between 1987 and 1989 Sofipost granted two
loans to Sécuripost, in the sums of FF 5 000 000 and FF 15 000 000, and increased
the latter's capital.
- On 4 September 1989 various French undertakings and associations of
undertakings, including the complainants, submitted to the Commission two
requests for the initiation of a proceeding, one made pursuant to Articles 85, 86
and 90 of the EEC Treaty, and the other pursuant to Articles 92 and 93 of that
Treaty. The present case concerns only the second of those requests.
- Acting on that complaint, the Commission sought an explanation from the French
Government by letter of 14 March 1990. The French Government replied by letter
of 3 May 1990.
- On 28 June 1991 the Commission informed the complainants that their complaint
raised 'a number of important points of principle calling, in this instance, for an
in-depth examination by the relevant Commission departments'. On 9 October
1991 the Commission again informed the complainants that the matter raised by
them appeared 'particularly complex, necessitating extensive technical analysis of
the ample documentation produced both by the complainants and by the French
authorities ...'.
- On 5 February 1992 the Commission adopted a decision in which it stated that it
could not be said that there had been a grant of State aid within the meaning of
Article 92 of the Treaty. It found, in particular, that, on the basis of the evidence
at its disposal, the operation which had led to the formation of Sécuripost was
comparable to a reorganisation carried out by an undertaking which has decided
to set up a subsidiary to manage one of its activities separately.
- On 13 April 1992 the complainants brought an action under Article 173 of the EC
Treaty for annulment of that decision. However, on 22 June 1992 the Commission
withdrew its decision of 5 February 1992 and that action therefore became devoid
of purpose.
- On 24 July 1992 the complainants supplemented the complaint which they had
made to the Commission. On 21 January 1993 the Commission informed them that
it had entered the measures taken by the French Government with regard to
Sécuripost in the register of unnotified aids.
- On 26 March 1993 the French Government authorised Sofipost to transfer
Sécuripost's property to the private sector. On 22 April 1993 the complainants
again supplemented their complaint. On 5 May 1993 the Commission informed
them that it had decided to divide the inquiry into the matter into two parts,
dealing respectively with the situation before and after the privatisation.
- On 11 October 1993 the complainants called upon the Commission, pursuant to
Article 175 of the EC Treaty, to adopt a decision in response to their complaint
submitted on 4 September 1989.
- On 31 December 1993 the Commission - represented by its Member responsible
for competition matters - wrote to the French Government, informing it, without
providing any specific statement of reasons, that it had decided, on the basis of the
evidence at its disposal, to close the file by declaring that no State aid existed
within the meaning of Article 92(1) of the Treaty. It emphasised, however, that its
decision did not extend to the measures taken since 1992 in the context of the
privatisation of Sécuripost.
- On the same day, the Commission - again represented by its Member responsible
for competition matters - wrote to the complainants, informing them, in response
to the arguments which they had advanced, that the investigation which it had
carried out provided no grounds for concluding that State aid within the meaning
of Article 92 of the Treaty had been granted in this case, and that it had therefore
decided to close the file.
- By application of 2 March 1994 the complainants brought an action before the
Court of First Instance for annulment of that decision.
- They relied on four pleas in law in support of their action. The first plea was
based on infringement of Article 93(2) of the Treaty, in that the Commission had
wrongly decided, having regard to the circumstances of the case, not to initiate the
procedure provided for by that provision. The second plea alleged breach of the
complainants' right to a fair hearing, in that the Commission referred in its decision
- which adversely affected them - to documents which had not been communicated
to them, such as the observations of the French Government. The third plea
alleged infringement of Article 190 of the EC Treaty, in that the Commission had
failed to respond in the contested decision to the objections raised by the
complainants in their complaint concerning (1) the secondment to Sécuripost of
administrative staff of the post office, (2) the placing at the disposal of Sécuripost
of post office premises, (3) the supply of fuel and maintenance for vehicles on
excessively favourable terms and (4) the loan of FF 15 000 000 granted by Sofipost
to Sécuripost at a preferential rate. The fourth plea alleged the existence of
manifest errors of assessment concerning the way in which the decision dealt with
the increase of FF 9 775 000 in the capital of Sécuripost, advances made against
orders placed by the post office with Sécuripost and abnormal charges applied and
guarantees provided to it by the post office.
The contested judgment
- According to the contested judgment, the complainants' action sought annulment
of the contested decision 'rejecting the applicants' request for a declaration by the
Commission that the French Republic has infringed Articles 92 and 93 of the
Treaty by granting aid to Sécuripost'.
- The Court of First Instance began from the position, stated at paragraph 32 of the
contested judgment, that it was appropriate, in the light of the documents in the
case, to focus its examination jointly on the third and fourth pleas, alleging
infringement of Article 190 of the Treaty and manifest error of assessment.
- Next, in paragraph 51, it found, first, that the contested decision was a decision of
the Commission rejecting the complainants' allegations on the ground that the
measures complained of did not constitute State aid within the meaning of Article
92 of the Treaty and, second, that it was common ground that the contested
decision was a decision within the meaning of the fourth paragraph of Article 189
of the Treaty and that it should therefore have contained a statement of reasons
pursuant to Article 190 of the Treaty. Consequently, the Court of First Instance
considered, in paragraph 53, that it was necessary to verify whether the contested
decision disclosed in a clear and unequivocal manner the reasoning which had led
the Commission to conclude that the measures complained of by the complainants
did not constitute State aid within the meaning of Article 92 of the Treaty, in such
a way as to make the complainants aware of the reasons for the rejection of their
complaint and thus enable them to defend their rights and the Court of First
Instance to exercise its power of review.
- The Court of First Instance stated in that regard, in paragraph 54, that the judicial
review which such a statement of reasons must allow was not, in the instant case,
a review of the question whether there had been a manifest error of assessment,
similar to a review of the exercise by the Commission of its exclusive power to
examine the compatibility of national measures already found to constitute State
aid, but a review of the interpretation and application of the concept of State aid
referred to in Article 92 of the Treaty which the Commission had undertaken with
a view to determining whether or not the national measures complained of by the
complainants were to be classified as State aid.
- In paragraph 55, the Court of First Instance considered that it was necessary to
bear in mind the context within which the contested decision had been adopted,
since the question whether or not a statement of reasons is adequate must be
assessed with regard not only to its wording but also to its context. The Court of
First Instance made four points in that regard: first, the contested decision had
been adopted after a particularly long period of time had elapsed (paragraph 56);
second, the Commission had stated in its correspondence with the complainants
that their complaint raised a number of important points of principle calling for an
in-depth examination and extensive technical analysis (paragraph 57); third, the
Commission had withdrawn its initial decision of 5 February 1992 in response to the
action for annulment brought by the complainants, even though that action merely
repeated the various objections raised in their original complaint, without raising
any new objections (paragraph 58); and, fourth, the Commission had entered the
measures complained of in the register of unnotified aid and had expressed regret,
in a letter to the French Government, that no advance notice had been given
pursuant to Article 93(3) of the Treaty in relation to any of the measures taken
(paragraph 59).
- In the light of those findings, the Court of First Instance considered, in
paragraph 60, that it was necessary to examine whether, in the case before it, the
reasons set out in the contested decision were capable of supporting the contention
that the measures complained of by the complainants did not constitute State aid
within the meaning of Article 92 of the Treaty.
- It concluded in that regard that, as regards the complainants' objection concerning
the secondment of administrative staff, the contested decision was vitiated by an
inadequate statement of reasons (paragraphs 62 and 63) and that, as regards the
objections relating to the placing of premises at Sécuripost's disposal
(paragraphs 65 and 66), the maintenance of vehicles (paragraph 69), the loan of
FF 15 000 000 (paragraph 72) and the prices charged by Sécuripost to the post
office (paragraphs 74 to 76), the reasons given for that decision were insufficient.
- In that connection, the Court of First Instance considered, in paragraphs 66 and 72,
that, where the Commission decides to reject a complaint concerning a measure
characterised by the complainant as unnotified State aid, without allowing the
complainant to comment, prior to the adoption of the definitive decision, on the
information obtained in the context of the Commission's investigation, it is under
an automatic obligation to examine the objections which the complainant would
certainly have raised if it had been given the opportunity of taking cognisance of
that information.
- The Court of First Instance considered, moreover, in paragraph 78, that the
Commission's obligation to state reasons for its decisions may in certain
circumstances require an exchange of views and arguments with the complainant,
since, in order to justify to the requisite legal standard its assessment of the nature
of a measure characterised by the complainant as State aid, the Commission needs
to ascertain what view the complainant takes of the information obtained by it in
the course of its inquiry. The Court of First Instance considered that, in those
circumstances, that obligation constitutes a necessary extension of the Commission's
obligation to deal diligently and impartially with its inquiry into the matter by
eliciting all such views as may be necessary.
- Finally, in paragraph 80, the Court of First Instance held that the contested
decision must be annulled, since the reasons stated for the decision did not bear
out the conclusion that the measures complained of by the complainants did not
constitute State aid within the meaning of Article 92 of the Treaty.
The appeal
- The Commission claims that the Court should:
- set aside the contested judgment and, in consequence of that, take all
requisite legal steps and, in particular, refer the case back to the Court of
First Instance for a decision on the merits; and
- order the applicants in the proceedings before the Court of First Instance
to pay the costs.
- The French Republic claims that the Court should:
- allow the Commission's appeal and set aside the contested judgment; and
- grant the form of order sought by the Commission in the proceedings at
first instance.
- The Federal Republic of Germany, the Kingdom of Spain and the Kingdom of the
Netherlands also claim that the Court should allow the Commission's appeal.
- The Commission advances three pleas in law in support of its appeal. It submits
that the Court of First Instance erred in law:
- as to the addressee of a decision concerning State aid;
- as to the scope of the obligation to provide a statement of reasons; and
- as to the procedural rules to be followed in dealing with State aid cases.
- In the Commission's submission, the Court of First Instance failed to take proper
account of the legal framework established by the Treaty with regard to State aid
and disregarded the case-law of the Court of Justice relating thereto. Where, as
in the present case, the Commission makes a decision concerning the existence of
State aid objected to in a complaint, the complainant enjoys no special rights and
can contest the legality of that decision only on the same basis as any other
applicant to whom it is of direct and individual concern.
Findings of the Court
The system established by the Treaty for monitoring State aid
- Before examining the pleas relied on in the appeal, it is appropriate to recall the
relevant rules under the system established by the Treaty for monitoring State aid.
- Article 92(1) of the Treaty provides that, '[s]ave as otherwise provided in this
Treaty, any aid granted by a Member State or through State resources in any form
whatsoever which distorts or threatens to distort competition by favouring certain
undertakings or the production of certain goods shall, in so far as it affects trade
between Member States, be incompatible with the common market.'
- Article 93 of the Treaty provides for a special procedure by which the Commission
is to keep State aid under constant review. As regards proposed new grants of aid
by the Member States, it establishes a procedure which must be followed before
any aid can be regarded as lawfully granted. Under the first sentence of
Article 93(3) of the Treaty, as interpreted by the case-law of the Court, the
Commission is to be notified of any plans to grant or alter aid before those plans
are implemented.
- The Commission then conducts an initial review of the planned aid. If at the end
of that review it considers a plan to be incompatible with the common market, it
must without delay initiate the procedure under the first paragraph of Article 93(2),
which provides: 'If, after giving notice to the parties concerned to submit their
comments, the Commission finds that aid granted by a State or through State
resources is not compatible with the common market having regard to Article 92,
or that such aid is being misused, it shall decide that the State concerned shall
abolish or alter such aid within a period of time to be determined by the
Commission.'
- It follows from the last sentence of Article 93(3) that throughout the preliminary
period the Member State concerned may not put the planned aid into effect.
Where the examination procedure is initiated under Article 93(2), that prohibition
continues until the Commission reaches a decision on the compatibility of the
planned aid with the common market. However, if the Commission has not
responded within two months of notification, the Member State concerned may
implement the plan after informing the Commission (see, in particular,
Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraph 38).
- In the context of the procedure laid down by Article 93, the preliminary stage of
the procedure for reviewing aid under Article 93(3) of the Treaty, which is intended
merely to allow the Commission to form a prima facie opinion on the partial or
complete conformity of the aid in question, must therefore be distinguished from
the examination under Article 93(2), which is designed to enable the Commission
to be fully informed of all the facts of the case (Case C-198/91 Cook v Commission
[1993] ECR I-2487, paragraph 22, and Case C-225/91 Matra v Commission [1993] ECR I-3203, paragraph 16).
- The procedure under Article 93(2) is essential whenever the Commission has
serious difficulties in determining whether an aid is compatible with the common
market. It follows that the Commission, when taking a decision in favour of an aid,
may restrict itself to the preliminary examination under Article 93(3) only if it is
able to satisfy itself after an initial examination that the aid is compatible with the
Treaty. If, on the other hand, the initial examination leads the Commission to the
opposite conclusion or if it does not enable it to overcome all the difficulties
involved in determining whether the aid is compatible with the common market,
the Commission is under a duty to carry out all the requisite consultations and for
that purpose to initiate the procedure under Article 93(2) (see, in particular,
Case 84/82 Germany v Commission [1984] ECR 1451, paragraph 13, and the
judgments, cited above, in Cook v Commission, paragraph 29, and Matra v
Commission, paragraph 33).
- Where, without initiating the procedure under Article 93(2), the Commission finds,
on the basis of Article 93(3), that an aid is compatible with the common market,
the persons intended to benefit from the procedural guarantees provided by
Article 93(2) may secure compliance therewith only if they are able to challenge
that decision by the Commission before the Court (see, in particular, Cook v
Commission, paragraph 23, and Matra v Commission, paragraph 17).
- The parties concerned, within the meaning of Article 93(2) of the Treaty, who, as
persons directly and individually concerned, are thus entitled under the fourth
paragraph of Article 173 of the Treaty to institute proceedings for annulment are
those persons, undertakings or associations whose interests might be affected by the
grant of the aid, in particular competing undertakings and trade associations (see,
in particular, Case 323/82 Intermills v Commission [1984] ECR 3809, paragraph 16).
- It is in the light of those legal elements that the three pleas in law advanced by the
Commission in support of its appeal must be considered.
The first plea
- By its first plea, the Commission submits that, in holding that the contested decision
constituted a rejection of a complaint, the Court of First Instance misconstrued the
nature of that decision. The Commission and the four intervening Member States
maintain that the only decisions which the Commission may take under Articles 92
and 93 of the Treaty are decisions addressed to a Member State concerning the
existence or compatibility of aid. Where, in performance of its duty to observe the
principle of sound administration, the Commission communicates its decision to a
complainant, that communication cannot as such constitute a decision addressed
to the complainant. As Community law now stands, there is no such category of
decisions in the sphere of State aid as decisions rejecting a complaint.
- As the Court of First Instance observed in paragraph 50 of the contested judgment,
neither the Treaty nor Community legislation lays down the procedural system for
dealing with complaints objecting to grants of State aid.
- In those circumstances, decisions adopted by the Commission in the field of State
aid must be held to be addressed to the Member States concerned. That is also
so where such decisions concern State measures to which objection is taken in
complaints on the ground that they constitute State aid contrary to the Treaty and
the Commission refuses to initiate the procedure under Article 93(2) because it
considers either that the measures complained of do not constitute State aid within
the meaning of Article 92 of the Treaty or that they are compatible with the
common market. Where the Commission adopts such a decision and proceeds, in
accordance with its duty of sound administration, to inform the complainants of its
decision, it is the decision addressed to the Member State which must form the
subject-matter of any action for annulment which the complainant may bring, and
not the letter to that complainant informing him of the decision.
- Consequently, whilst it may be regrettable that the Commission did not inform the
complainants of its position by sending them a copy of a properly reasoned decision
addressed to the Member State concerned, the Court of First Instance erred in law
in finding that the contested decision constituted a decision addressed not to that
State but to the complainants, rejecting their application for a declaration by the
Commission that the French Republic had infringed Articles 92 and 93 of the
Treaty by granting the aid to Sécuripost.
- The error of law thus committed by the Court of First Instance does not, however,
invalidate its judgment, since, as the Commission has conceded, the decision in
question was of direct and individual concern to the complainants. In finding in its
decision that the investigation had revealed no grounds for concluding that State
aid existed within the meaning of Article 92 of the Treaty, the Commission
implicitly refused to initiate the procedure under Article 93(2). It follows from the
judgments of the Court cited in paragraphs 40 and 41 above that, in such a
situation, the persons intended to benefit from the procedural guarantees afforded
by Article 93(2) may secure compliance therewith only if they are able to challenge
the decision in question before the Community judicature under the fourth
paragraph of Article 173 of the Treaty. That principle is of equal application,
whether the ground on which the decision is taken is that the Commission regards
the aid as compatible with the common market or that, in its view, the very
existence of aid must be discounted.
- Since the complainants undeniably qualify as persons entitled to the benefit of the
procedural guarantees in question, they must, as such, be regarded as directly and
individually concerned by the contested decision. Consequently, they were entitled
to seek its annulment (Cook v Commission, paragraphs 25 and 26).
- In the light of those considerations, it must be held that, by holding that, in the
circumstances of the present case, the contested decision was a decision addressed
to the complainants rejecting their application for a declaration by the Commission
that Articles 92 and 93 of the Treaty had been infringed, the Court of First
Instance did not commit an error in law such as to invalidate its judgment.
The second and third pleas
- By its second and third pleas, the Commission submits that the error of the Court
of First Instance as to the addressee of the Commission's decision resulted in an
incorrect assessment of the obligations to state reasons and to investigate
complaints.
- Whilst acknowledging that, regardless of the addressee, it is obliged to provide a
statement of reasons permitting the legality of the decision to be reviewed, and
that, as regards the complainants, it was bound to examine all the facts and points
of law which they brought to its notice, the Commission submits that the Court of
First Instance was wrong in assessing the scope of the obligation to state reasons
as if the complainants were the addressees of its decision.
- Thus, the Commission maintains that the Court of First Instance committed an
error of law in holding, in paragraph 53 of the contested judgment, that the
contested decision should have disclosed reasons in such a way as to make the
complainants aware of the grounds for the rejection of their complaint and thus
enable them to defend their rights. It maintains that a complainant who
subsequently pleads, in annulment proceedings, the insufficiency of the reasons
given for a decision must be able to do so only on the same basis as any other
applicant to whom that decision is of direct and individual concern.
- The Commission further maintains that, whilst it is true that respect for the rights
of the defence in any procedure initiated against a person which may result in an
act adversely affecting him constitutes a fundamental principle of Community law,
nevertheless, in State aid cases it is only the Member State concerned which finds
itself in such a situation, and it is therefore only that State which must formally be
called upon to express its point of view regarding the comments submitted by
interested third parties.
- Next, the Commission states that, in consequence of that misinterpretation of the
import of the contested decision, the Court of First Instance conferred new rights
on complainants by taking the view that the Commission is obliged of its own
motion to examine the objections which a complainant would certainly have raised
had he been given the opportunity of taking cognisance of that information, and
that the obligation to state reasons may in certain circumstances require an
exchange of views and arguments with the complainant. If the scope of the
investigation were to encompass all the hypothetical objections which an 'ideal
complainant' would certainly raise, as envisaged by the Court of First Instance, the
Commission would be systematically obliged to conduct such an exchange of views
and arguments in every case.
- Lastly, the Commission maintains that, in the present case, the Court of First
Instance carried out, in the guise of a review of the statement of reasons provided,
what in fact amounted to a review of the error of assessment, thereby treating the
purely procedural requirement to state reasons as a matter concerning the
substantive legality of the decision. The real criticism levelled by the Court of First
Instance at the Commission was that it had committed a manifest error of
assessment attributable to the inadequacy of the investigation carried out by that
institution.
- The four intervening Member States put forward, in essence, the same arguments
as the Commission. The Federal Republic of Germany observes, however, that,
where the Commission decides to close the preliminary review procedure under
Article 93(3) and chooses to do so by way of a decision within the meaning of
Article 189 of the Treaty, it is not obliged to furnish any statement of reasons, since
the preliminary review procedure is not conducted inter partes and thus confers no
legal protection on complainants.
- Having regard to those arguments, it is necessary to examine the scope of the
obligations incumbent of the Commission when it receives a complaint objecting
to national measures such as State aid.
- As regards, first, the proposition that the Commission is under an obligation in
certain circumstances to conduct an exchange of views and arguments with the
complainant, flowing, according to the contested judgment, from the Commission's
obligation to state reasons for its decisions, it must be stated that there exists no
basis for the imposition of such an obligation on the Commission.
- As the Advocate General notes at point 83 of his Opinion, such an obligation
cannot be founded solely on Article 190 of the Treaty. Moreover, as the
Commission and the interveners have observed, it follows from the judgments cited
in paragraphs 38 and 39 of this judgment that the Commission is not obliged to
give the complainants an opportunity to state their views at the stage of the initial
review provided for by Article 93(3) of the Treaty. Furthermore, those judgments
show that, in the context of an examination under Article 93(2), the Commission
is required merely to give notice to the parties concerned to submit their
comments. Consequently, as observed by the interveners and by the Advocate
General at point 91 of his Opinion, the imposition on the Commission of an
obligation requiring it to conduct an exchange of views and arguments with the
complainant in the context of the initial review provided for by Article 93(3) of the
Treaty could lead to conflict between the procedural regime established by that
provision and that laid down by Article 93(2).
- Next, as regards the statement that the Commission is obliged to examine certain
objections of its own motion, it must be stated, contrary to what was held by the
Court of First Instance, that the Commission is under no obligation to examine of
its own motion objections which the complainant would certainly have raised had
it been given the opportunity of taking cognisance of the information obtained by
the Commission in the course of its investigation.
- That criterion, which requires the Commission to place itself in the applicant's
shoes, is not an appropriate criterion for defining the scope of the Commission's
obligation of investigation.
- However, this finding does not mean that the Commission is not obliged, where
necessary, to extend its investigation of a complaint beyond a mere examination of
the facts and points of law brought to its notice by the complainant. The
Commission is required, in the interests of sound administration of the fundamental
rules of the Treaty relating to State aid, to conduct a diligent and impartial
examination of the complaint, which may make it necessary for it to examine
matters not expressly raised by the complainant.
- As regards the Commission's obligation to state reasons, it is settled case-law that
the statement of reasons required by Article 190 of the Treaty must be appropriate
to the act at issue and must disclose in a clear and unequivocal fashion the
reasoning followed by the institution which adopted the measure in question in such
a way as to enable the persons concerned to ascertain the reasons for the measure
and to enable the competent Community court to exercise its power of review.
The requirements to be satisfied by the statement of reasons depend on the
circumstances of each case, in particular the content of the measure in question,
the nature of the reasons given and the interest which the addressees of the
measure, or other parties to whom it is of direct and individual concern, may have
in obtaining explanations. It is not necessary for the reasoning to go into all the
relevant facts and points of law, since the question whether the statement of
reasons meets the requirements of Article 190 of the Treaty must be assessed with
regard not only to its wording but also to its context and to all the legal rules
governing the matter in question (see, in particular, Joined Cases 296/82 and 318/82
Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809,
paragraph 19, Case C-350/88 Delacre and Others v Commission [1990] ECR I-395,
paragraphs 15 and 16, and Case C-56/93 Belgium v Commission [1996] ECR I-723,
paragraph 86).
- As regards, more particularly, a Commission decision finding that no State aid as
alleged by a complainant exists, the Commission must at least, contrary to the
submission of the German Government, provide the complainant with an adequate
explanation of the reasons for which the facts and points of law put forward in the
complaint have failed to demonstrate the existence of State aid. The Commission
is not required, however, to define its position on matters which are manifestly
irrelevant or insignificant or plainly of secondary importance.
- It is in the light of those findings regarding the scope of the Commission's
obligations in investigating the case and in stating reasons for the contested decision
that the Court must appraise the arguments of the Commission and of the
interveners to the effect that the Court of First Instance treated the purely
procedural requirement to state reasons as a matter concerning the substantive
legality of the decision and that, on the basis of an alleged insufficiency of
reasoning, it was in fact criticising the Commission for having committed a manifest
error of assessment attributable to the inadequacy of the investigation carried out
by that institution.
- As pointed out in paragraph 19 of this judgment, the Court of First Instance
examined the pleas alleging infringement of Article 190 of the Treaty and manifest
error of assessment together.
- It must, however, be remembered that these are distinct pleas, each of which may
be raised in proceedings under Article 173 of the Treaty. The first, alleging
absence of reasons or inadequacy of the reasons stated, goes to an issue of
infringement of essential procedural requirements within the meaning of that article
and, involving a matter of public policy, must be raised by the Community
judicature of its own motion (see, in particular, Case C-166/95 P Commission v
Daffix [1997] ECR I-983, paragraph 24). By contrast, the second, which goes to the
substantive legality of the contested decision, is concerned with infringement of a
rule of law relating to the application of the Treaty within the meaning of Article
173, and can be examined by the Community judicature only if it is raised by the
applicant.
- It should also be noted that, as the Advocate General found at point 52 of his
Opinion, although the Court of First Instance examined those two pleas together,
it ultimately based its annulment of the Commission's decision solely on
infringement of Article 190 of the Treaty. However, certain of the criticisms of that
decision which were upheld in the contested judgment cannot be based on a breach
of the obligation to provide a statement of reasons.
- Thus, as regards the placing of premises at Sécuripost's disposal by the post office,
the Court of First Instance held, in paragraph 65 of the contested judgment, that
the Commission should have compared the rents actually paid by Sécuripost with
those payable by its competitors for comparable premises. With regard to the
maintenance of Sécuripost's vehicles by the 'Service National des Ateliers et
Garages des PTT' (national workshops and garages department of the post office,
hereinafter 'SNAG'), the Court of First Instance held, in paragraph 69 of its
judgment, that the Commission should have compared the rates actually charged
by SNAG with those charged by private garages.
- Similarly, in paragraph 72 of the contested judgment, the Court of First Instance
found that the fact that the loan of FF 15 000 000 constituted a commercial
transaction was not in itself sufficient to show that it did not amount to State aid,
since such a transaction may be effected at a rate which represents a special
advantage. The Commission should therefore have considered whether the rate
charged was in line with the market rate.
- Furthermore, as regards the complainants' objection that the rates charged by
Sécuripost to the post office were appreciably higher than those normally charged
in the sector concerned, the Court of First Instance noted, in paragraphs 74 and
75 of the contested judgment, that the Commission's comparison of the prices
charged for the provision of services to the post office and to Casino shops had
been based solely on information relating to 1993. That comparison had omitted
to take into consideration the differences in the prices charged between 1987 and
1992, despite a steady fall in the rates charged by Sécuripost to the post office
between 1987 and 1993, in accordance, in particular, with the framework agreement
between the post office and Sécuripost of 30 September 1987, thus further
magnifying the differences cited by the complainants. It followed, according to the
Court of First Instance, that the Commission should have examined the rates
charged by Sécuripost to the post office and to other customers in the years prior
to 1993.
- It follows that, as regards the matters referred to in paragraphs 69 to 71 of this
judgment, the Court of First Instance failed to draw the necessary distinction
between the requirement to state reasons and the substantive legality of the
decision. On the basis of an alleged insufficiency of reasoning, it criticised the
Commission for a manifest error of assessment attributable to the inadequacy of
the investigation carried out by that institution.
- Be that as it may, the Court of First Instance did not, as regards the other
complaints, err in law in finding that the contested decision was vitiated by
insufficient reasoning.
- First, the Court of First Instance found, in paragraph 62 of the contested judgment,
that the decision at issue was vitiated by insufficient reasoning concerning the
complainants' objection that the Commission had failed to examine the specific
advantage, criticised in their complaint, arising from the fact that the officials
seconded to Sécuripost by the post office might at any time be reassigned to the
department originally employing them if staff reductions proved necessary in the
undertaking to which they were seconded, without that undertaking having to pay
in such circumstances any compensation whatever for redundancy or dismissal. In
the proceedings before the Court of First Instance, the Commission had merely
contended in that regard that non-payment of compensation for redundancy or
dismissal was no more than a secondary aspect of an objection raised in the various
complaints, regarding the total or partial payment by the State of the remuneration
of the staff of Sécuripost.
- The Court of First Instance was correct in finding that the reasoning contained in
the contested decision was inadequate in that regard, since the Commission had not
responded to that objection. That objection, which had been expressly raised in the
complaint, could not be regarded as a secondary aspect of the objection concerning
the total or partial payment by the State of the remuneration of the staff of
Sécuripost. Even if the remuneration of all the staff seconded by the post office
had been paid by Sécuripost, the latter would still have enjoyed the potential
benefit of not having to pay any compensation in the event of their redundancy or
dismissal.
- Next, in paragraph 63 of its judgment, the Court of First Instance found that the
reasons given in the contested decision were inadequate with regard to the
complainants' objection concerning the fact that Sécuripost made no contribution
to unemployment insurance funds in respect of officials on secondment. According
to the contested judgment, the Commission answered that objection by stating that
'on the other hand, no contributions need to be made to unemployment insurance
funds in respect of the employment of officials on secondment, since their
employment is guaranteed by their status as officials'.
- On that point too, the Court of First Instance correctly held that the reasons given
in the contested decision were inadequate. As the Court of First Instance
observed, the Commission expressly acknowledged in the contested decision that
no contributions to unemployment insurance funds had been paid, but its
explanation as to why it concluded that this did not constitute State aid within the
meaning of Article 92 of the Treaty is so deficient that the reasons given in the
contested decision must be regarded as inadequate.
- Having regard to the foregoing, the pleas put forward by the Commission in
support of its appeal must be upheld in part. However, like the Court of First
Instance, this Court has also found deficiencies in the reasons on which the
contested decision is based. Those deficiencies are in themselves sufficient to
justify annulment of the decision. Consequently, the appeal must be dismissed in
its entirety.
Costs
- In accordance with the first paragraph of Article 122 of the Rules of Procedure of
the Court of Justice, where an appeal is unfounded, the Court is to make a decision
as to costs. Under Article 69(2) of the Rules of Procedure the unsuccessful party
is to be ordered to pay the costs if they have been applied for in the successful
party's pleadings, and under Article 69(3), where each party succeeds on some or
fails on other heads, or where the circumstances are exceptional, the Court may
order that the costs be shared or that the parties bear their own costs.
80. In the present case, the Commission has been unsuccessful, but the complainants,
who were the applicants in the proceedings at first instance, have not taken part
in the appeal procedure and have not therefore applied for costs. In those
circumstances, the Commission and the French Republic must be ordered, pursuant
to Article 69(3) of the Rules of Procedure, to bear their own costs. The Federal
Republic of Germany, the Kingdom of Spain and the Kingdom of the Netherlands
must also be ordered to bear their own costs, in accordance with Article 69(4) of
the Rules of Procedure.
On those grounds,
THE COURT
hereby:
1. Dismisses the appeal;
2. Orders the Commission of the European Communities, the Federal
Republic of Germany, the Kingdom of Spain, the French Republic and the
Kingdom of the Netherlands to bear their own costs.
Rodríguez IglesiasGulmann
Ragnemalm
Wathelet Mancini
Moitinho de Almeida
Kapteyn Murray
Edward
PuissochetHirsch
JannSevón
|
Delivered in open court in Luxembourg on 2 April 1998.
R. Grass
G.C. Rodríguez Iglesias
Registrar
President
1: Language of the case: French.