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Cite as: [2007] EUECJ C-342/6_O, [2007] EUECJ C-342/06_O

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OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 6 December 2007 (1)

Joined Cases C-341/06 P and C-342/06 P

Chronopost SA and La Poste

Union française de l'express

(UFEX) and Others

(Appeals New pleas Composition of the Court of First Instance for a case referred back by the Court of Justice Statement of reasons in a Commission decision State aid Postal sector Service of general economic interest Logistical and commercial assistance)

These are the second appeals in a long-running action which relates principally to commercial and logistical assistance provided by the French Post Office to its subsidiary SFMI-Chronopost, which operates an express delivery service. In Decision 98/365 ('the contested decision'), the Commission decided that such assistance did not constitute State aid. (2) Competitors of SFMI-Chronopost made an application to the Court of First Instance ('UFEX I'), (3) which annulled the contested decision. In the first appeals ('Chronopost I'), (4) the Court of Justice quashed the decision of the Court of First Instance and referred the case back to that Court. The present appeals are brought against the subsequent judgment of the Court of First Instance again annulling the contested decision ('the judgment under appeal': UFEX II). (5)

The pleas now raised on appeal concern (i) the composition of the Court of First Instance in the proceedings leading to the judgment under appeal, (ii) whether that Court ruled on an inadmissible plea, (iii) its examination of the Commission's statement of reasons in the contested decision, and (iv) its assessment of the notion of State aid in respect of the transfer of a customer base to SFMI-Chronopost.

Facts and procedure

Background to the dispute

The dispute underlying the present case originates in a complaint lodged with the Commission in December 1990. The judgment under appeal sets out the background:

'(2) The French Post Office ('La Poste'), which operates as a legal monopoly in the ordinary mail sector, was an integral part of the French State administration until the end of 1990. Since 1 January 1991 it has been a legal entity governed by public law by virtue of Law 90-568 of 2 July 1990 on the organisation of the public post and telecommunications service (JORF of 8 July 1990, p. 8069) .... That law authorises it to perform certain activities open to competition, and particularly express delivery services.

(3) The Société française de messagerie internationale ('SFMI') is a company incorporated under private law which has been entrusted with the management of La Poste's express delivery service [(6)] since the end of 1985. SFMI was formed with a share capital of FRF 10 million (approximately EUR 1 524 490) held as to 66% by Sofipost, a holding company wholly owned by La Poste, and as to 34% by TAT Express, a subsidiary of the airline Transport aérien transrégional (hereinafter 'TAT').

(4) The detailed conditions for the operation and marketing of the express delivery service provided by SFMI under the name of EMS/Chronopost were set out in an order from the French Ministry for Posts and Telecommunications of 19 August 1986. According to that order, La Poste was to provide SFMI with logistical and commercial assistance. The contractual relations between La Poste and SFMI were governed by agreements, the first of which dates from 1986.

(5) In 1992 the structure of the express delivery business carried out by SFMI changed. Sofipost and TAT set up a new company, Chronopost SA, in which their respective holdings were still 66% and 34%. Chronopost, which had exclusive access to La Poste's network until 1 January 1995, concentrated on domestic express deliveries. SFMI was acquired by GD Express Worldwide France, the subsidiary of an international common operator whose participants are the Australian company TNT and the post offices of five countries, a concentration which was authorised by a Commission Decision of 2 December 1991 (Case IV/M.102 TNT/Canada Post, DBP Postdienst, La Poste, PTT Poste and Sweden Post) (OJ 1991 C 322, p. 19). SFMI retained the international express delivery business, using Chronopost as an agent and service provider in the handling of its international dispatches in France (hereinafter 'SFMI-Chronopost'). [(7)]

(6) Syndicat français de l'express international (SFEI), now known as the Union française de l'express (UFEX), of which the three other applicants are members, is a trade association established under French law, grouping together almost all the companies offering express delivery services competing with SFMI-Chronopost.

(7) On 21 December 1990 SFEI lodged a complaint with the Commission alleging principally that the logistical and commercial assistance provided by La Poste to SFMI constituted State aid within the meaning of Article 92 of the EC Treaty (now, after amendment, Article 87 EC). In particular, SFEI complained that the remuneration paid by SFMI for the assistance provided by La Poste was not in accordance with normal market conditions. It alleged that the difference between the market price for the purchase of such services and the price actually paid by SFMI constituted State aid. An economic study carried out by Braxton, a consultancy firm, at SFEI's request, was appended to the complaint in order to demonstrate the value of the amount of aid during the period from 1986 to 1989.

(8) By letter of 10 March 1992 the Commission notified SFEI of its decision to take no action on the complaint. On 16 May 1992 SFEI together with other undertakings lodged an action with the Court of Justice for annulment of that decision. The Court ruled that it was not necessary to proceed to judgment (order of 18 November 1992 in Case C-222/92 SFEI and Others v Commission, not published in the ECR) in the light of the Commission Decision of 9 July 1992 to withdraw the decision of 10 March 1992.'

In addition to the complaint to the Commission, '[o]n 16 June 1993 SFEI and other undertakings brought an action before the Tribunal de Commerce de Paris (Paris Commercial Court) against SFMI, Chronopost, La Poste and others. A second study by Braxton was attached to the application, updating the information contained in the first study and evaluating the amount of the aid up to the end of 1991. In a judgment of 5 January 1994, the Tribunal de Commerce de Paris referred several questions to the Court of Justice for a preliminary ruling on the interpretation of Article 92 of the Treaty and Article 93 of the EC Treaty (now Article 88 EC), one of which sought clarification of the concept of State aid in the circumstances of the present case. The French Government lodged, as an annexe to its observations of 10 May 1994, an economic study by Ernst & Young. In [SFEI and Others (8)] the Court ruled that 'the provision of logistical and commercial assistance by a public undertaking to its subsidiaries, which are governed by private law and carry on an activity open to free competition, is capable of constituting State aid within the meaning of Article 92 of the Treaty if the remuneration received in return is less than that which would have been demanded under normal market conditions' (paragraph 62).' (9)

The Commission's investigations and the contested decision

In 1993, the Commission requested and received further information from France. In March 1996, it notified that Member State that it was initiating the procedure under Article 93(2) of the EC Treaty (now Article 88(2) EC) regarding aid allegedly granted by France to SFMI-Chronopost. On 17 July 1996 it published the formal notice on the initiation of the procedure. (10)

On 17 August 1996 SFEI submitted observations to the Commission in response to the notice, attaching an economic study by Bain & Co. (11) France replied, attaching an economic study by Deloitte Touche Tohmatsu.

On 1 October 1997 the Commission adopted the contested decision. Article 1 states that '[t]he logistical and commercial assistance provided by [La Poste] to its subsidiary SFMI-Chronopost [and the other measures complained of] do not constitute State aid to SFMI-Chronopost'.

UFEX I (12) and Chronopost I (13)

By application lodged on 30 December 1997, UFEX, DHL International, Federal Express and CRIE asked the Court of First Instance to annul the contested decision. France, La Poste and Chronopost subsequently intervened in support of the Commission.

The case was allocated to the Fourth Chamber, Extended Composition, of the Court of First Instance, and a Judge-Rapporteur was designated.

The applicants relied on four pleas for annulment, alleging (i) infringement of the rights of the defence, (ii) an inadequate statement of reasons, (iii) errors of fact and manifest errors of assessment, and (iv) a misapplication by the Commission of the concept of State aid, first in failing to take account of normal market conditions when analysing the remuneration for the assistance provided by La Poste to SFMI-Chronopost, and second in holding that that concept did not cover various measures from which SFMI-Chronopost was alleged to have benefited.

The Court of First Instance upheld the first part of the fourth plea and annulled Article 1 of the contested decision in so far as it found that the logistical and commercial assistance provided by La Poste to SFMI-Chronopost did not constitute State aid. The Court of First Instance considered it unnecessary to examine the second part of the fourth plea or the other pleas in so far as they related to the logistical and commercial assistance provided by La Poste to SFMI-Chronopost. In particular, it was not necessary to examine the second plea. The first plea and the parts of the third plea which did not relate to the complaints examined under the fourth plea were rejected.

By applications lodged at the Court Registry on 19 and 23 February 2001, Chronopost, La Poste and France appealed against UFEX I.

The appellants relied on several pleas, the first of which alleged that the Court of First Instance had infringed Article 92(1) of the EC Treaty (now Article 87(1) EC) by giving an incorrect interpretation to the concept of 'normal market conditions' used in SFEI. In paragraph 75 of UFEX I, the Court of First Instance had found that the Commission should at least have checked that the payment received by La Poste was comparable to that demanded by a private holding company or a private group of undertakings not operating in a reserved sector.

This Court held that that assessment was flawed in law in that it failed to take into account that La Poste was in a situation which was very different from that of a private company acting under normal market conditions. As an entity entrusted with a service of general economic interest within the meaning of Article 90(2) of the EC Treaty (now Article 86(2) EC), La Poste had to acquire, or be provided with, substantial infrastructures and resources enabling it to provide basic postal services to all users, including in areas where the tariffs did not cover the costs of the services. The creation and maintenance of La Poste's network was thus not in line with a purely commercial approach and would never have been undertaken by a private company. Moreover, the provision of logistical and commercial assistance consisted precisely in making that network available. It was thus inseparably linked to it. The Court concluded:

'(38) Accordingly, in the absence of any possibility of comparing the situation of La Poste with that of a private group of undertakings not operating in a reserved sector, normal market conditions, which are necessarily hypothetical, must be assessed by reference to the objective and verifiable elements which are available.

(39) In the present case, the costs borne by La Poste in respect of the provision to its subsidiary of logistical and commercial assistance can constitute such objective and verifiable elements.

(40) On that basis, there is no question of State aid to SFMI-Chronopost if, first, it is established that the price charged properly covers all the additional, variable costs incurred in providing the logistical and commercial assistance, an appropriate contribution to the fixed costs arising from use of the postal network and an adequate return on the capital investment in so far as it is used for SFMI-Chronopost's competitive activity and if, second, there is nothing to suggest that those elements have been underestimated or fixed in an arbitrary fashion.'

The Court accordingly declared the first plea well founded. It set aside UFEX I without examining the other pleas and referred the case back to the Court of First Instance.

The judgment under appeal (14)

On its return to the Court of First Instance, the case was initially allocated to the Fourth Chamber (Extended Composition) and the same Judge-Rapporteur was designated as in UFEX I. Following the decision of 13 September 2004 (15) to change the composition of the Chambers of the Court of First Instance, the Judge-Rapporteur was transferred to the Third Chamber (Extended Composition), to which the case was then reallocated.

The applicants essentially relied on the second, third and fourth pleas raised in the proceedings giving rise to UFEX I. (16) The first part of the fourth plea now alleged error in applying the concept of normal market conditions as construed in the judgment in Chronopost I.

The parties presented oral argument and replied to the Court's questions at the hearing on 15 June 2005.

The Court of First Instance upheld the second plea (inadequate statement of reasons) and the complaint in the second part of the fourth plea relating to the transfer of Postadex. It rejected all other complaints except those in the first part of the fourth plea which it considered it was not able to examine. It annulled the contested decision in so far as it found that neither the logistical and commercial assistance provided by La Poste to its subsidiary, SFMI-Chronopost, nor the transfer of Postadex constituted State aid to SFMI-Chronopost.

The appeals

By notices lodged at the Registry of the Court on 4 and 7 August 2006 respectively, Chronopost (Case C-341/06 P) and La Poste (Case C-342/06 P) appealed against the judgment of the Court of First Instance. The appellants ask the Court to set aside the judgment under appeal and to order the applicants to pay all costs. Chronopost also asks the Court to give final judgment in the case and to confirm the legality of the contested decision.

UFEX, DHL Express (France) (previously DHL International), Federal Express International (France) and CRIE (in liquidation) submitted a joint response to each appeal. Neither France nor the Commission responded. (17) Pursuant to Article 117 of the Rules of Procedure, the President of the Court allowed Chronopost and La Poste to reply to the inadmissibility points. UFEX then submitted rejoinders.

The two appeals were joined by Order of the President of the Court of 18 April 2007.

No hearing was requested, and none has been held.

First ground of appeal: Breach of procedure in respect of the composition of the court

The appellants complain that their right to a fair trial was violated because the Judge-Rapporteur in the procedure leading to the judgment under appeal was also Judge-Rapporteur in the proceedings leading to UFEX I.

Relevant rules

Rules of Procedure of the Court of Justice ('the Rules of the Court of Justice')

Article 42(2) states that '[n]o new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.'

By virtue of Article 118, Article 42(2) applies to the procedure before the Court on appeal from a decision of the Court of First Instance.

Rules of Procedure of the Court of First Instance ('the Rules of the Court of First Instance')

Article 48(2) mirrors, with identical wording, Article 42(2) of the Rules of the Court.

Article 118 provides:

'1. Where the Court of Justice sets aside a judgment or an order of a Chamber, the President of the Court of First Instance may assign the case to another Chamber composed of the same number of Judges.

2. Where the Court of Justice sets aside a judgment delivered or an order made by the Court of First Instance sitting in plenary session or by the Grand Chamber, the case shall be assigned to that Court or that Chamber as the case may be.

2a. Where the Court of Justice sets aside a judgment delivered or an order made by a single Judge, the President of the Court of First Instance shall assign the case to a Chamber composed of three Judges of which that Judge is not a member.

...'

Argument

The appellants state that, even though the Community as such is not a party to the Convention for the Protection of Human Rights and Fundamental Freedoms ('the ECHR'), it is bound to respect the rights guaranteed by the ECHR. The right to an independent and impartial tribunal is a component of the right to a fair trial under Article 6 ECHR. Apparent (objective) bias is sufficient to infringe that right and arises if the composition of a court raises legitimate doubts about its impartiality. The case-law of both the European Court of Human Rights and the French courts shows that the presence of the same judge in successive proceedings raises such doubts. La Poste considers that Article 118(1) and (2a) of the Rules of the Court of First Instance indicate a concern about judges re-examining cases in which they sat first time round.

UFEX in its responses argues that the plea is new and therefore inadmissible under the Rules of the Court. Letters from the Registry of the Court of First Instance had informed the appellants of the composition of the court before the hearing and the Judge-Rapporteur's name was on the Report for the Hearing. The appellants nevertheless raised no objections before that court. Petrides (18) shows that a procedural safeguard thus waived cannot be invoked on appeal.

As to the substance of the plea, UFEX submits, first, that the composition of the Court of First Instance for the judgment under appeal conformed with Article 118 of the Rules of the Court of First Instance regarding the composition of the Court of First Instance for a case referred back by the Court of Justice upon quashing a previous decision. Moreover, the principle of collegiality governing the composition of the Community judicature serves to neutralise any risk of bias. Second, those Community rules do not infringe Article 6(1) ECHR. The European Court of Human Rights, says UFEX, takes a case-by-case approach to the question and has not stated any general principle that a judge cannot sit in successive procedures in the same case. Third, the rules take account of the diverse traditions of the Member States. Moreover, it is in the interests of good administration of Community justice for the Judge-Rapporteur to be maintained in a complex case referred back to the Court of First Instance.

In their replies, the appellants challenge the inadmissibility plea raised by UFEX. Chronopost considers the plea inoperative because a violation of the right to an impartial tribunal constitutes an infringement of an essential procedural requirement. As such, it is a matter of public policy which the Court must raise of its own motion.

The appellants submit that the inadmissibility plea is ill-founded in any event. The plea could not have been raised before the delivery of the judgment under appeal. Pleas in an appeal are necessarily new in that they challenge the judgment under appeal. The right to an impartial tribunal is inalienable and cannot be waived like a procedural guarantee. Further, the appellants maintain that there is no procedure to challenge the composition of the Court of First Instance or to object to a particular judge sitting. Finally, Chronopost states that the letters from the Registry of the Court of First Instance did not contain the names of the judges sitting in the Chambers and that it did not receive a copy of the Report for the Hearing.

In its rejoinders, UFEX argues that the assertion that the present plea is a matter of public policy is in itself a new plea. Since there was no infringement of a fundamental right, it is also inoperative. The appellants could have raised the plea before the Court of First Instance under Article 48(2) of the Rules of the Court of First Instance. Pleas on appeal are not necessarily new, since they should be raised on points debated before the court below. Where they are new, Article 42(2) of the Rules of the Court of Justice applies to appeals by virtue of Article 118 thereof. UFEX also notes that Chronopost should have known the composition of the Chambers of the Court of First Instance since they were published in the Official Journal. (19)

Assessment

As to admissibility, I recall that Chronopost and La Poste were interveners supporting the Commission in the proceedings before the Court of First Instance.

Under Article 40 of the Statute of the Court of Justice, an intervener may only support the form of order sought by one of the parties. The Community Courts have interpreted that limitation as precluding an intervener from raising arguments or pleas that are entirely unconnected with the issues underlying the dispute, as established by the applicant and defendant. (20)

An allegation of breach of procedure on the ground of the composition of the Court of First Instance has no connection with the pleas raised before that court by the Commission. Consequently, Chronopost and La Poste were precluded from raising that plea before the Court of First Instance.

One should then ask whether the Commission itself could have raised such a plea in the proceedings before the Court of First Instance.

Under Article 48(2) of the Rules of the Court of First Instance, no new plea may be introduced in the course of proceedings unless it is based on matters which come to light in the course of the procedure. The Court of First Instance applies an objective test to the question whether the matters have 'come to light' during the procedure, namely whether the party had been in a position to be aware of the matters previously. (21)

The composition of the Chamber of the Court of First Instance to which the case was assigned upon being referred back by the Court is self-evidently a matter which could not have come to light before the proceedings commenced. Under Article 48(2) of the Rules of the Court of First Instance, the Commission would therefore have been entitled to raise a new plea to challenge it.

The Commission was, moreover, objectively in a position to do so. The Chamber to which the case was allocated was communicated to the parties. The changes in composition of the Chambers of the Court of First Instance in 2004 were announced in the Official Journal. The composition of the Chambers is also disclosed on the Court's web site. The name of the Judge-Rapporteur appears on the report for the hearing sent to the parties before the hearing. Finally, the composition of the court and the name of the Judge-Rapporteur are clearly shown on the notice listing the case for hearing that is displayed outside the courtroom.

The Commission was therefore objectively in a position to know, in the course of the proceedings before the Court of First Instance, that the Judge-Rapporteur in UFEX I was included in the composition of the court the second time round. However, nothing in the judgment under appeal or the Court's case file suggests that the Commission raised any objection.

In Petrides (22) the Court rejected a ground of appeal alleging infringement of the principle audi alteram partem and the principle of equality of arms because the appellant had not raised the matter before the Court of First Instance in circumstances where it had the opportunity to do so and had thus waived a procedural safeguard.

The Commission would here likewise not be permitted to raise the question of the composition of the Court of First Instance as a ground of appeal. The Commission could have objected to the composition of the Chamber before the lower court. By not so doing, it waived a procedural safeguard and would not now be able to revive the issue.

It seems to me that it would be contrary both to the Court's ruling in Petrides and to Article 40 of the Statute of the Court of Justice if an intervener at first instance were able to raise on appeal a plea which the party it supported had failed to raise before the court below.

That conclusion is admittedly based on a rather formal analysis of the position of an intervener. Conceptually, I do not think it can be said that an intervener has no right to a fair trial, even if it is not his own trial. In accordance with Article 40 of the Statute of the Court of Justice, he necessarily has an interest in the result of a case (otherwise, he would not be permitted to intervene). Moreover, Chronopost and La Poste are no longer interveners, but appellants before this Court. Article 6(1) ECHR guarantees everyone the right to a fair trial '[i]n the determination of his civil rights and obligations or of any criminal charge against him'. (23)

However, it seems to me that, if the Court decides that Chronopost and La Poste could themselves have objected to the composition of the Court of First Instance before that Court even in the absence of an objection from the Commission, they must then be considered, for the reasons given in points 40 to 43 above, to have waived that right.

I therefore consider that the first ground of appeal is inadmissible.

As regards the appellants' argument that their plea must be examined by the Court in any event since it raises a matter of public policy, I do not agree with UFEX that that argument itself constitutes a new plea. It was, rather, submitted in reply to UFEX's objection of inadmissibility.

That said, I do not accept the appellants' argument.

The appellants' argument is based on case-law showing that an essential procedural requirement is violated if an administrative authority, such as the Commission, denies interested parties the opportunity to respond or comment before the adoption of an administrative act. (24)

However, Petrides is clear authority that an applicant which fails, in the course of judicial proceedings, to assert its rights of defence when it has the opportunity to do so cannot invoke those rights later on. The Court in that case did not deem it necessary to consider the applicant's plea of its own motion.

The principles alleged by the applicant in Petrides to have been breached are as much an element of the right to a fair trial as the right to an impartial tribunal: indeed, audi alteram partem and nemo judex in suacausa form the two pillars of natural justice. I therefore see no reason why the Court should adopt a different approach in the present case.

Should the Court nonetheless decide to admit the plea, it should in my view reject it on the substance.

First, there is no manifest breach of an essential procedural requirement. Article 118(1) of the Rules of the Court of First Instance does not prohibit successive proceedings in a case which has been remitted from being heard by the same Chamber. That may be contrasted with the very different rule under Article 118(2a), according to which a judge may not rehear a case referred back to the Court of First Instance if he or she sat as a single judge the first time round. Nor does anything in the Rules of the Court of First Instance suggest that the same judge may not act as Judge-Rapporteur if a case is remitted after appeal. Indeed, Article 118(2) specifically requires Grand Chamber (and, of course, plenary) cases to be re-examined by the same formation of judges.

Secondly, the appellants do not allege actual (subjective) bias. The only (objective) bias alleged relates to the composition of the Chamber in the Court of First Instance to which their case was assigned upon being referred back by the Court of Justice.

The appellants correctly observe that, although the Community is not a party to the ECHR, Article 6(2) EU provides that 'the Union shall respect fundamental rights, as guaranteed by the [ECHR] ... .' Further, the ECHR has special significance among the sources of inspiration for the fundamental rights the observance of which the Court ensures. (25) Article 6(1) ECHR, which guarantees the right to an impartial tribunal, forms part of those fundamental rights.

In respect of objective bias, which arises when there are legitimate doubts about the impartiality of a tribunal, the European Court of Human Rights has held that 'it cannot be stated as a general rule resulting from the obligation to be impartial that a superior court which sets aside an administrative or judicial decision is bound to send the case back to a different jurisdictional authority or to a differently composed branch of that authority'. (26) The participation of the same judge in successive hearings of the same case may raise justified doubts as to impartiality only in combination with other factors. (27) No such additional factor is alleged here.

Furthermore, judges at the European Court of Human Rights itself may on occasion participate in successive hearings of the same case. When a Chamber judgment is referred to the Grand Chamber under Article 43 ECHR, the President of the referring Chamber and the judge who sat in respect of the State Party concerned (but no other judge from the referring Chamber) may sit in the Grand Chamber. (28) It is not unknown for judges sitting in both proceedings to change their minds. (29)

Finally, the appellants note that Article 6(2) EU also requires the Union to respect fundamental rights resulting from the constitutional traditions common to the Member States. They point out that in France, courts to which a case is remitted must be differently constituted to the court hearing the case the first time round. UFEX responds that that is not the case in Germany, Spain and the United Kingdom. It seems clear that to refer to the situation in one State does not suffice to demonstrate the existence of a constitutional tradition common to the Member States.

I therefore conclude that if (quod non) the first ground of appeal is admissible, it is in any event unfounded.

Second ground of appeal: Breach of procedure in that the Court of First Instance did not assess La Poste's plea of inadmissibility and in that it ruled on the substance of an inadmissible plea

Argument

La Poste states, first, that it had argued in its written observations that UFEX's complaint relating to the transfer of Postadex was a new plea and that the Court of First Instance failed to rule on whether, in consequence, that plea was inadmissible. Second, La Poste submits that since that plea was new, the Court of First Instance should not in any event have examined it.

UFEX considers the first part of La Poste's plea to be confused and imprecise, and hence inadmissible. Regarding the substance of that part, UFEX states that the Court of First Instance is not obliged to rule on an inadmissibility plea raised by an intervener if that plea has not been raised by the defendant. As to the second part of La Poste's plea, UFEX's plea was not new but was raised in its application in the first set of proceedings.

Assessment

Regarding the first part of the plea, it is quite clear from the Court's case-law that an intervener does not have standing to raise a plea of inadmissibility that is not set out in the forms of order sought by the defendant. (30) The Commission, as defendant, did not raise the plea in question. Accordingly, the Court of First Instance was not obliged to rule on it.

The judgments of the Court which La Poste cites in support of its contention that the question is approached on a case-by-case basis in fact show, as UFEX rightly points out, that the Court examines the substance of an inadmissibility plea raised by an intervener rather than a defendant solely when it raises an issue of public policy. (31)

As to the second part of the plea, La Poste seeks essentially to re-argue the substance of the inadmissibility plea that it submitted to the Court of First Instance. It would be inconsistent with the Court's case-law referred to above to examine on appeal a plea that is inadmissible at first instance.

I therefore suggest that the Court should reject the first part of the second ground of appeal and declare the second part inadmissible.

Third ground of appeal: Error of law in respect of the assessment of the statement of reasons in the contested decision

Background

It is first necessary to set out in some detail the relevant parts of the contested decision and the judgment under appeal.

The contested decision

The 33^rd recital (32) to the contested decision describes, inter alia, the logistical and commercial assistance provided by La Poste to SFMI-Chronopost and explains how their cost is calculated and accounted for:

'[i (33)]1. Logistical assistance, which consists in making available to SFMI-Chronopost the usage of the postal infrastructure for the collection, sorting, transport and delivery of its dispatches.

...

[iii] To calculate the total cost of the assistance to SFMI-Chronopost, [La Poste] calculates first the direct operating costs before central and local offices' overheads on the basis of the production range (chain of elementary operations) of the services provided and the actual traffic volumes. The central and local offices' overheads are then allocated in proportion to the operating costs of each service. (34)

[iv] As regards the production range, [La Poste] did not have an analytical accounting system which enabled it to calculate the real costs incurred in providing the logistical assistance to SFMI-Chronopost. Until 1992 those costs were calculated on the basis of approximations. The services provided to SFMI-Chronopost were divided into elementary operations, which before 1992 had not bee[n] timed. To establish those costs [La Poste] compared the corresponding services to similar existing postal services, whose operations had already been timed and valued (such as the deposit of a registered letter). In 1992 those operations were timed and valued, account being taken of the actual traffic volumes of the express courier activity. This has enabled [La Poste] to assess the actual cost of the logistical assistance.'

Paragraph [vi] states that the remuneration paid by SFMI-Chronopost covered total costs by 116.1% over the period 1986 to 1991 and 119% over the period 1986 to 1995 in cumulative terms. In 1986 and 1987 the cover rates were 70.3% and 84.3% respectively. In those two years, revenues covered direct costs before central and local offices' overheads.

'[x]2. Commercial assistance, which consists in SFMI-Chronopost's access to [La Poste]'s customers and enjoyment of its goodwill. In this connection, the complainant maintains that in 1986 [La Poste] transferred the customers of the Postadex product to SFMI-Chronopost for no consideration (Postadex was replaced by EMS-Chronopost in 1986). In addition, SFMI benefits from promotional and advertising campaigns undertaken by [La Poste].'

Paragraph [xi] explains that the prices paid by SFMI-Chronopost for logistical existence also cover the total costs incurred by La Poste, including those related to commercial assistance.

In the 34^th recital (35) the Commission summarised SFEI's allegations of State aid based on conclusions contained in the economic reports it had commissioned. The total State aid alleged was FRF 1.516 billion over the period 1986 to 1991, comprising FRF 1.048 billion of logistical aid and FRF 468 million for commercial assistance. (36) For the overall amount of aid alleged, the Commission explained the 'normal market price' approach taken by SFEI. For logistical assistance, SFEI calculated the cost by reference to an undertaking which set up and operated a network similar to La Poste's. For commercial assistance, the Commission summarised SFEI's methodology to the extent that it believed it was explained in the complaint.

In its assessment, the Commission first rejected SFEI's ex novo approach to valuing logistical assistance and its evaluation of individual components of commercial assistance. (37) In respect of the latter, the Commission stated why it did not consider that the transfer of Postadex, which SFEI had valued at FRF 38 million, (38) constituted State aid. It did not entail any cash advantage for SFMI-Chronopost. Access by a subsidiary to a parent company's customer base, which was an intangible asset, was a common feature of relationships between companies in a group. The transfer was the logical corollary of the creation of SFMI-Chronopost to run La Poste's express delivery services.

Next, the Commission rejected SFEI's overall approach to evaluating State aid. (39) It considered that SFEI's reasoning reflected a fundamental flaw (40) in the interpretation of the SFEI judgment. (41) According to the Commission, SFEI had interpreted 'normal market price' to mean the price at which a comparable private company would provide those services to an unrelated company, including a fee for access to the postal network. However, nothing in the Court's case-law suggested that it should disregard the strategic considerations and synergies arising from the fact that La Poste and SFMI-Chronopost belonged to the same group. Such considerations played an important role in investment decisions of a holding company and were thus applicable to the case at hand, which concerned the behaviour of a parent company and its subsidiary. The Court had never suggested that a different approach should be taken when one of the parties had a monopoly. The Commission continued:

'[56] Accordingly, the relevant question is whether the terms of the transaction between [La Poste] and SFMI-Chronopost are comparable to those of an equivalent transaction between a private parent company, which may very well be a monopoly (for instance, because of the ownership of exclusive rights), and its subsidiary. ...

[57] The Commission considers that internal prices at which products and services are transacted between companies belonging to the same group do not involve any financial advantage whatsoever if they are full-cost prices (total costs plus a mark-up to remunerate equity capital investment). In this case payments made by SFMI-Chronopost did not cover total costs over the first two years of operation, but covered total costs before central and local offices' overheads. The Commission considers that this situation is not abnormal since revenues from the operations of a new firm belonging to a group of companies may cover only variable costs in the start-up period. Once the undertaking has stabilised its position on the market, the revenues generated by it must be in excess of variable costs so as to make a contribution to the fixed costs of the group. Over the first two years (1986 to 1987) of operation payment made by SFMI-Chronopost covered not only variable costs, but also some fixed costs (such as buildings and vehicles). France has shown that as from 1988 the remuneration paid by SFMI-Chronopost for the assistance covers all the costs incurred by [La Poste], plus a contribution by way of interest on its equity capital. Therefore, the logistical and commercial assistance was provided by [La Poste] to its subsidiary under normal business conditions and did not constitute State aid.'

The Commission also considered that the provision of logistical and commercial assistance did not constitute State aid under the market economy investor principle. (42) The internal rate of return ('IRR') based on dividends distributed by SFMI-Chronopost plus the growth in value of La Poste's original capital injection exceeded SFMI-Chronopost's cost of equity in 1986. That still held true if the FRF 38 million alleged by SFEI to be the value of Postadex was included as an equity injection in the IRR calculation, together with SFEI's valuation of SFMI-Chronopost's advantageous conditions of access to La Poste's network.

The judgment under appeal

After summarising the relevant case-law of the Community courts, (43) the Court of First Instance set out the scope of its review of the statement of reasons in the contested decision. (44) In the light of Chronopost I, it had to examine in particular the adequacy of that statement as regards whether the price charged to SFMI-Chronopost for assistance covered La Poste's additional, variable costs incurred, an appropriate contribution to fixed costs arising from the use of the postal network and an adequate return on the capital investment relating to SFMI-Chronopost's competitive activity.

The Court of First Instance considered that 'the reasons for which the Commission rejected the method for calculating the costs proposed by the applicants are clear from the grounds set out in [the 49^th to 56^th recitals] of the contested decision'. (45) However, it also had to examine the Commission's reasoning in respect of (i) how it calculated and assessed La Poste's costs under the 'full costs' method and (ii) the price charged in that connection.

Turning first to the additional, variable costs, (46) the Court of First Instance considered that the 33^rd and 57^th recitals of the contested decision did not sufficiently indicate the precise scope that the Commission intended to confer on the economic and accounting concepts used for that purpose, or the precise nature of the costs examined by the Commission to show that there had been no State aid, in order to permit a review of whether those costs actually corresponded to the additional, variable costs incurred in providing the logistical and commercial assistance within the meaning of Chronopost I. Explanations subsequently provided by the Commission merely reinforced the conclusion that the reasoning in the contested decision itself was far too general.

It was not possible to ascertain what the 'direct operating costs' were or which costs in La Poste's accounts were directly attributable to the various activities. The reference in the 57^th recital to 'some fixed costs' was too imprecise to determine what exactly SFMI-Chronopost covered in the first two years of operation. Furthermore, there was no explanation as to how the services provided by La Poste were divided into elementary operations or how those were compared with similar existing postal services. Since the costs incurred before 1992 were based on approximations, the manner in which the services were compared needed to be explained in order for any factual errors or errors of assessment to be ascertained. Finally, it was not at all clear how commercial assistance was taken into account when calculating the full costs.

The Court of First Instance concluded that the contested decision should have included an appropriate statement of reasons in that connection and, at the very least, a general summary of the analytical accounting calculations in relation to the services provided to SFMI-Chronopost, the confidential data having possibly been deleted. As it stood, the contested decision did not contain an adequate statement of reasons for the Commission's assessment as regards whether or not additional, variable costs were incurred in providing the logistical and commercial assistance.

The Court of First Instance next addressed fixed costs. (47) It found that they were not sufficiently explained in the contested decision. First, it was impossible to verify whether the central and local offices' overheads included fixed costs arising from use of the postal network. That was particularly important in view of the fact that SFMI-Chronopost's payments did not cover 100% of full costs in the first two years of operation. Second, it could not be determined whether there were other fixed costs of La Poste associated with using the postal network that the price charged should have covered. Consequently, it could not be ascertained whether the contribution to fixed costs was assessed correctly in the light of the Chronopost I requirements.

Finally, the Court of First Instance found that the contested decision did not state what return SFMI-Chronopost contributed to La Poste's capital investment. (48) It was not clear whether the Commission had calculated the IRR in order to show that the private investor test was satisfied and/or in order to calculate the return on the capital investment.

In the IRR calculation, the Commission had failed to identify the capital which it considered to have been used in the activity. It merely stated, on the one hand, that it had taken into account the equity injection by La Poste in 1986 and, on the other hand, the financial transactions between La Poste and its subsidiary over the years 1986 to 1991, without identifying sufficiently precisely which financial transactions were involved. Even assuming that the IRR reflected sufficiently precisely the return on the capital investment used for SFMI-Chronopost's competitive activity, it could not be ascertained whether that possible return on the equity capital investment was appropriate for the purposes of paragraph 40 of Chronopost I, given that the detailed calculation of the IRR was not apparent from the contested decision.

The Court of First Instance next made some general comments about cost coverage. (49) In its view, the Commission's findings in the 57^th recital of the contested decision were merely peremptory assertions. There was no detailed examination either of the distinct steps taken to calculate the remuneration of the assistance in question or the infrastructure costs attributable to that assistance, or of the data relating to the analysis of the relevant costs. The Commission had merely asserted that La Poste's full costs were covered by the remuneration from SFMI-Chronopost, without specifying the figures and calculations on which it based its analysis and findings. Consequently, the Court of First Instance was unable to review whether the method used and the stages of the analysis followed by the Commission were free from error and compatible with the principles laid down in Chronopost I for determining the existence or absence of State aid.

The Court of First Instance concluded its assessment of the second plea by indicating that, in the present case, three arguments militated in favour of requiring a more detailed statement of reasons:

'(97) In the present case, the circumstances justifying a more detailed statement of reasons lie in the fact that, first, this was one of the first decisions dealing with the complex question, in the context of the application of the provisions on State aid, of the calculation of the costs of a parent company operating in a reserved market and providing logistical and commercial assistance to a subsidiary which does not operate in a reserved market. Second, the withdrawal of the Commission's first rejection decision of 10 March 1992 following the lodging of an action for annulment and the SFEI judgment of the Court of Justice should have led the Commission to reason its approach even more diligently and precisely in relation to the disputed points. Lastly, the fact that the applicants submitted several economic studies during the administrative procedure should have also led the Commission to prepare a thorough statement of reasons while responding to the essential arguments of the applicants, as substantiated by those economic studies.'

Against that background, the Court of First Instance concluded that:

'(98) ... the statement of reasons for the contested decision, which is limited to a very general explanation of the method followed by the Commission for assessing the costs and of the final result obtained, without however allocating with the necessary precision the various costs of La Poste incurred in providing the logistical and commercial assistance to SFMI-Chronopost and the fixed costs arising from use of the postal network, and without specifying the return on the capital investment, fails to satisfy the requirements of Article 190 of the Treaty.

...

(100) Consequently, it must be held that the contested decision does not enable the Court of First Instance to verify the existence and amount of the various costs which fall within the concept of full costs as defined by the Commission in the contested decision. Accordingly, the statement of reasons for the contested decision does not enable the Court of First Instance to review the legality of the Commission's assessment in this regard and its compatibility with the requirements laid down by the Court of Justice in its judgment on appeal in order to find that there had been no State aid.

(101) It follows that the contested decision must be annulled for defective reasoning in so far as it concludes that the logistical and commercial assistance provided by La Poste to SFMI-Chronopost does not constitute State aid.'

Argument

The appellants claim that, in holding the statement of reasons in the contested decision to be insufficient, the Court of First Instance went beyond the requirements set out in Article 253 EC and the Court's case-law. Chronopost considers that, under the guise of a review of the statement of reasons, the Court of First Instance was examining manifest errors of assessment and seeking to assess the appropriateness of the Commission's methods.

According to UFEX, the Court of First Instance did not call into question the assessment in the contested decision, but limited itself to verifying whether the reasoning behind it was sufficiently precise, complete and comprehensible. It was right to conclude that the statement of reasons was insufficient. More detailed reasoning was required in order to check whether the decision had correctly applied the test for 'normal market conditions' laid down by the Court in paragraph 40 of Chronopost I.

Assessment

Article 253 EC requires decisions of the Commission to state the reasons on which they are based.

According to the Court's settled case-law, that statement of reasons '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 Court to exercise its power of review. 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 253 EC 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 ... .' (50)

In a decision finding that no State aid as alleged by a complainant exists, 'the Commission must at least ... 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.' (51)

I note in passing that the case-law cited by UFEX to indicate that the Commission must have carried out a close examination based on solid evidence (52) and a cogent and consistent body of evidence (53) concerns not State aid but the prospective analysis which is carried out in respect of the market impact of mergers and alleged cartels.

In the present appeals it is common ground, and indeed was acknowledged by the Court of First Instance in the judgment under appeal, (54) that the relevant context is whether the contested decision satisfies the legal test for 'normal market conditions' set by the Court in paragraph 40 of Chronopost I. (55)

The Court's test in Chronopost I is general in nature. It lays down the approach to be taken in order to assess whether the provision of commercial and logistical assistance involves State aid. It does not specify the economic, accounting or financial standards to be applied. In requiring 'all' additional, variable costs to be included, it does not indicate which costs should be considered variable. Nor does it state what would constitute an 'appropriate' contribution to fixed costs or an 'adequate' return on the capital investment.

In my view, the first reason given in the judgment under appeal to justify a detailed statement of reasons (namely the fact that the contested decision was one of the first dealing with the complex issue at hand) (56) justifies, on the contrary, a broader and more general statement of reasons. There is little point in providing every last detail if the overall approach is wrong. Moreover, the contested decision was adopted several years before Chronopost I. It seems to me that, rather than examining whether the Commission's reasoning complied in every detailed respect with the exact wording of the test (later) laid down in Chronopost I (whose precise requirements could therefore not have been known to the decision's draftsman), judicial review of the decision's reasoning should here be concentrated on examining whether the Commission's overall approach was in fact correct that is, whether it complies with the substance of the Chronopost I test.

That view is confirmed by the history of the present action before the Community courts. Both the decision in UFEX I and the judgment setting aside that decision in Chronopost I turned on the correct interpretation of 'normal market conditions' when applied to the relationship between La Poste and SFMI-Chronopost.

Accordingly, it seems to me that the issue is whether the reasoning is sufficient to determine whether the Commission based its decision on the correct criteria for determining normal market conditions, as laid down by the Court in Chronopost I.

The judgment under appeal, however, annulled the contested decision essentially because it considered that the reasoning and data provided by the Commission were too general and imprecise. (57) It complained in particular about the lack of precision with regard to the economic and accounting concepts used, the nature of costs examined and the components of the financial calculations undertaken. It found that it was unable to check for factual errors and errors of assessment, and, in respect of variable costs, considered that the contested decision should at least have contained a general summary of the analytical accounting calculations in relation to the services provided.

There is no question that transparency in itself is important. It is also true that the greater the detail available, the more likely it is that any manifest error of appreciation by the Commission, either in its methodology or in the accuracy of the data it uses, will be identified. Thus, for example, the provision of a general summary of the accounting calculations would not necessarily guarantee that manifest errors would be identified.

In the present context, however, it is not clear that the details which the Court of First Instance found to be lacking are strictly necessary in order to assess whether the Commission misapplied the concept of 'normal market conditions' as defined in Chronopost I.

Admittedly, it is not unreasonable to interpret the conditions as requiring compliance with generally accepted accounting, commercial and investment criteria. Indeed, the private investor principle in Community law operates on such a basis. To that extent, the details that the Court of First Instance required could, in theory, reveal deviations from generally accepted principles which could constitute manifest errors. But those principles themselves are broad and diverse enough to allow considerable scope for debate, and the Court of Justice has provided only a general test of what constitutes 'normal market conditions'. It follows that that debate would take place within what the Court of First Instance acknowledges to be an area where the Commission enjoys wide discretion. (58)

In the context of the present litigation, it therefore seems to me that the elements which the Court of First Instance found to be lacking in the Commission's statement of reasons are of secondary importance. The contested decision provides sufficient reasoning and detail to enable its legality to be reviewed in the light of Chronopost I.

As far as the costs of the assistance are concerned, paragraphs [iii] and [xi] of the 33^rd recital and the 42^nd and 57^th recitals (59) show that the 'total costs' taken into account include all variable costs and a proportional contribution to fixed costs in respect of both logistical and commercial assistance.

Paragraph [iii] of the 33^rd recital indicates that La Poste breaks down 'total costs' into 'direct operating costs' and a proportion of 'central and local offices' overheads'. That breakdown does not correspond to variable and fixed costs respectively, since according to the 57^th recital fixed costs include buildings and vehicles. However, that recital makes it clear that variable costs were covered from the first year. By stating that only 'some fixed costs' were covered in the first two years (1986 to 1987) and that from 1988 'all the costs incurred by [La Poste]' were covered, it is plain that all fixed costs were covered from that year. Moreover, it seems clear from the 42^nd recital that the allocation of fixed costs was proportional.

Paragraph 40 of Chronopost I makes it clear that the 'adequate return on investment' should derive from the price charged for commercial and logistical assistance. From the definition of 'full-cost prices' in the 57^th recital the Commission's examination of SFMI-Chronopost's remuneration of to La Poste's equity capital investment can be compared with the Court's approach.

The contested decision also provides SFEI, the complainant, with an adequate explanation of the reasons for which the facts and points of law put forward in the complaint failed to demonstrate the existence of State aid.

In the 45^th to 62^nd recitals the Commission sets out its reasons for rejecting SFEI's complaints, as summarised in the 34^th recital. In essence, it rejects the approach taken by SFEI for valuing the different components of alleged State aid. In particular, it is clear from the contested decision (60) that the detailed economic studies provided by the complainant to demonstrate the existence of State aid were based on a concept of 'normal market price' which the Commission stated to be fundamentally flawed. (61) Against that background, a detailed response to the assumptions and calculations behind the overall amounts of State aid alleged in those studies would be irrelevant.

I therefore do not consider the third reason advanced to justify a more detailed statement to be valid. (62) The Court of First Instance itself accepted that the Commission's reasons for rejecting the SFEI's method for calculating costs were set out clearly in the contested decision. (63) It seems to me that the Commission did respond to the 'essential arguments of the applicants, as substantiated in [the] economic studies'. The Commission's view was essentially that SFEI's overall approach and methodology were incorrect. After that, what purpose would be served by requiring there to be a 'thorough statement of reasons' examining particular points in greater detail? I add that the Court of First Instance did not elaborate on which elements of SFEI's complaints it considered were inadequately dealt with in the contested decision. That is in striking contrast with the approach it took in Sytraval and Brink's France. (64)

I am not convinced that the Court of First Instance's second reason (65) for requiring more detailed reasoning in the Commission's decision stands up to closer scrutiny. It is fair enough to require a decision-maker to pay due attention to the pertinent decisions of a court that affect the way in which the decision he is presently drafting is formulated. The Commission did indeed concentrate its analysis on the SFEI judgment. (66) I do not however think that the mere withdrawal of an earlier decision materially alters the scope of the obligation to state reasons imposed by Article 253 EC. Rather, the precise extent of the obligation to state reasons continues to be determined by the context and all the legal rules governing the matter in question.

I conclude that, by finding the statement of reasons in the contested decision to be defective, the Court of First Instance erred in law. Accordingly, I suggest that the Court should allow the third ground of appeal.

Fourth ground of appeal: Error of law in the assessment of the concept of State aid in respect of the transfer of Postadex (67)

The Court of First Instance's assessment (68)

First, the Court of First Instance pointed out that the concept of State aid had a very wide scope for the purposes of Article 92 of the Treaty (now Article 87 EC), whose aim was to prevent trade between Member States from being affected by advantages granted by public authorities which, in various forms, distorted or threatened to distort competition by favouring certain undertakings or products. (69) It included interventions which, in various forms, mitigated the charges usually included in the budget of an undertaking. According to settled case-law, the Treaty defines measures of State intervention by reference to their effect.

The Court of First Instance rejected the Commission's argument that the transfer of the Postadex client base, as a logical corollary of a subsidiary being created, did not amount to State aid. (70) The client base amounted to an intangible asset which had an economic value, even if that value was difficult to quantify. La Poste was able to create the Postadex service using the resources of a legal monopoly. SFMI-Chronopost (71) paid no consideration to La Poste. The transfer of such an asset nevertheless constituted an advantage for the beneficiary. It could be attributed to the State. Consequently, the transfer constituted State aid.

The Court of First Instance concluded that the Commission had erred in law in taking the view that the transfer of the Postadex client base did not constitute State aid on the ground that it did not entail any cash advantage. Accordingly, the contested decision had to be annulled in so far as the Commission considered that the transfer of Postadex by La Poste to SFMI-Chronopost did not constitute State aid.

Argument

The appellants claim that the Court of First Instance was wrong to find that the contested decision erred in taking the view that the transfer of Postadex to SFMI-Chronopost did not constitute State aid. They say that the situation cannot be compared to the behaviour of a parent company in the private sector with an existing subsidiary. Rather, La Poste created a subsidiary, transferring an economic activity into a distinct entity specifically created for the purpose. At the point of creation of a subsidiary there is no beneficiary. The Commission encourages such spin-offs in order to enhance the competitive functioning of the market.

According to UFEX, the free transfer of Postadex's captive client base undoubtedly benefited SFMI-Chronopost as a new market entrant. Assets are always transferred for consideration. The benefit should have been evaluated in accordance with the Court's guidelines in Chronopost I.

Assessment

In the contested decision, the Commission recognises that the Postadex customer base represents an intangible asset. (72) As the Court of First Instance observes, the fact that an element may be difficult to quantify does not mean that it has no value. (73) For my part, I accept that the customer base had a positive economic value at the time of the transfer to SFMI-Chronopost in 1985.

What precisely occurred when La Poste created SFMI-Chronopost? It seems to me that, in particular, a distinction must be drawn between, on one hand, the activities relating to the express delivery service and, on the other hand, the value of those activities.

It is clear that the new entity took over the activities. They included the management and utilisation of the client base. However, through the very creation of the subsidiary, the economic value of the activities therein accrued to its shareholders. La Poste thus retained a proportion of the value corresponding to a 66% shareholding. TAT obtained the balance of the value in return for a capital injection. In other words, the value of the activities was reflected in the value of the shares first issued to, and subsequently held by, the shareholders.

Thus the situation is different from a privatisation. When a State divests an asset to an outside investor it receives consideration. State aid arises if, under the private investor principle, the money raised is lower than the value of the assets sold. (74) With the creation of SFMI-Chronopost, the only outside investor to be involved was TAT, which took a 34% shareholding. If SFMI-Chronopost had paid any money to La Poste, that would simply have reduced the value of the subsidiary and, correspondingly, that of La Poste's shareholding.

It seems to me that the private investor principle is also applicable to the conversion by a State entity of an activity into a subsidiary. (75) The question is whether a private investor would have acted in the same way rather than, for example, selling off the business to an outside party. In effect, the Commission addresses this question in the contested decision by examining the IRR achieved on La Poste's equity injection in 1986. (76)

In the judgment under appeal, the Court of First Instance quite rightly notes that what is now Article 87(1) EC distinguishes measures of State intervention in relation to their effects. (77) However, I find it difficult to see how the creation of SFMI-Chronopost can have had a distorting effect on the market. It was a new competitor only to the extent that it was a newly created company with a new name. The activities and the client base were those of Postadex. It seems far more likely that the effect of creating a separate subsidiary to carry out activities formerly subsumed under a State monolith will, providing business transactions with its parent are conducted on the basis of the Chronopost I formula, ultimately be to enhance competitiveness in the market.

For all these reasons, I do not consider that, at the time of the conversion of Postadex into a subsidiary, La Poste relinquished the value of Postadex to SFMI-Chronopost. Consequently, the Court of First Instance erred in holding that the transfer of Postadex to SFMI-Chronopost constitutes State aid on the ground that La Poste received no consideration from SFMI-Chronopost. (78)

For the reasons set out above, I suggest that the Court should also allow the fourth ground of appeal.

Final remarks

Under Article 61 of the Statute of the Court of Justice the Court may, if it quashes the decision of the Court of First Instance, give final judgment in the matter where the state of the proceedings so permits or refer the case back to the Court of First Instance for judgment.

Since the Court of First Instance considered that it could not examine some of the arguments in the first part of the fourth plea on the ground that the reasoning in the contested decision was insufficient, (79) it seems to me that the state of proceedings does not allow the Court to give final judgment. I therefore propose that the case be referred back to the Court of First Instance and that costs be reserved.

Conclusion

In the light of the arguments above, I suggest that the Court:

set aside the judgment delivered on 7 June 2006 by the Court of First Instance in Case T-613/97 UFEX and Others v Commission to the extent that it annulled Commission Decision 98/365/EC of 1 October 1997 concerning alleged State aid granted by France to SFMI-Chronopost 'in so far as it finds that neither the logistical and commercial assistance provided by La Poste to its subsidiary, SFMI-Chronopost, nor the transfer of Postadex constitute State aid to SFMI-Chronopost';

refer the case back to the Court of First Instance;

reserve the costs.

1 Original language: English.

2 Commission Decision 98/365/EC of 1 October 1997 concerning alleged State aid granted by France to SFMI-Chronopost (OJ 1998 L 164, p. 37).

3 Case T-613/97 UFEX and Others v Commission [2000] ECR II-4055.

4 Joined Cases C-83/01 P, C-93/01 P and C-94/01 P Chronopost and Others v UFEX and Others [2003] ECR I-6993.

5 Case T-613/97 UFEX and Others v Commission [2006] ECR II-1531.

6 Which operated under the name of Postadex.

7 In this Opinion, as in the contested decision, reference will be made to 'SFMI-Chronopost', even when only one of the two companies is involved. The judgments cited in footnotes 3 to 5 have followed this practice.

8 Case C-39/94 [1996] ECR I-3547. I refer to this judgment as 'SFEI'.

9 Paragraph 10 of the judgment under appeal.

10 OJ 1996 C 206, p. 3.

11 It also extended its complaint of December 1990 to include a number of points which do not concern the present appeal.

12 Cited in footnote 3.

13 Cited in footnote 4.

14 Cited in footnote 5.

15 OJ 2004 C 251, p. 12.

16 See point 10 above.

17 I refer to the entities which responded collectively as 'UFEX'.

18 Case C-64/98 P [1999] ECR I-5187, paragraph 32.

19 See footnote 15.

20 See Case C-155/91 Commission v Council [1993] ECR I-939, paragraphs 23 to 24, and Case T-237/02 Technische Glaswerke Ilmenau v Commission [2006] ECR II-0000, paragraph 97 and the case-law cited there. The latter judgment is currently under appeal (Case C-139/07 P) but not on this point.

21 See Case T-340/04 France Télécom v Commission [2007] ECR II-0000, paragraph 164 and the case-law cited there.

22 Cited in footnote 18. See also point 33 of the Opinion of Advocate General Ruiz-Jarabo Colomer.

23 In Antunes v Portugal, no. 64330/01, �43, 31 May 2005, the European Court of Human Rights held that Article 6(1) ECHR was applicable in a case where an applicant who had asked for criminal proceedings to be taken up against her former government employer and who participated in those proceedings as an 'assistente' had, by that token, demonstrated her interest in the conviction of the accused and in compensation for damages suffered.

24 Case C-291/89 Interhotel v Commission [1991] ECR I-2257, paragraphs 14 to 17; Joined Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97, T-216/97, T-217/97, T-218/97, T-279/97, T-280/97, T-293/97 and T-147/99 Kaufring and Others v Commission [2001] ECR II-1337, paragraphs 134 to 135.

25 See, for example, Case C-540/03 Parliament v Council [2006] ECR I-5769, paragraph 35 and the case-law cited there.

26 Ringeisen v Austria, judgment of 16 July 1971, Series A no. 13, p. 40, � 97, my emphasis. In that case, the fact that two members in the remitted case had participated in the original decision did not constitute grounds for legitimate suspicion. The court reached a similar conclusion in Diennet v France, judgment of 26 September 1995, Series A no. 325-A, p. 17, � 38, where three out of seven judges in the proceedings under examination had taken part in the first decision. In Schwarzenberger v Germany, no. 75737/01 (Sect. 5) (Eng) (10.8.06), � 42, the court listed judgments which applied the same principle to analogous situations, such as pre-trial decisions.

27 In Ferrantelli and Santangelo v Italy, judgment of 7 August 1996, Reports 1996-III, �� 58-60, which the appellants cite, the European Court of Human Rights found that a fear of bias was objectively justified because it arose from the combination of two circumstances, one of which was the fact that a judge in the applicants' case had previously convicted the applicants' accomplice.

28 Article 27(3) ECHR. See further Mowbray, A., An Examination of the Work of the Grand Chamber of the European Court of Human Rights, [2007] P.L. (Autumn) 507, in particular at 519 et seq.

29 See, for example, Kyprianou v Cyprus [GC], no. 73797/01, ECHR 2005-XIII (15.12.05), itself a case concerning an allegation of judicial bias. Judge Costa (now the President of the European Court of Human Rights), who had been President of Chamber in the first judgment, changed his mind on two issues in the Grand Chamber proceedings. In his partly dissenting opinion he addresses the question whether judges who sit twice should stick to their original view. He states: '... everything depends on the specific features of the case ... and on each judge's greater or lesser degree of stubbornness (or ability to reconsider his or her previous conclusions); once again, this depends on individual cases, more perhaps than on individual temperaments.' He concludes (rather delightfully) that the referral of that particular case 'has bolstered my views while enabling me to correct them: one can always do better (or in any event less badly ...)'.

30 Case C-13/00 Commission v Ireland [2002] ECR I-2943, paragraph 5 and the case-law cited.

31 Joined Cases C-305/86 and C-160/87 Neotype Techmashexport v Commission and Council [1990] ECR I-2945, paragraph 18, and Case C-313/90 CIRFS v Commission [1993] ECR I-1125, paragraph 23. In those cases, the plea of inadmissibility alleged lack of standing of the applicants. In the much older Joined Cases 42 and 49/59 SNUPAT v High Authority [1961] ECR 53, p. 75, the Court did not expressly state that an issue of public policy was raised, but acknowledged the right of the interveners to raise a plea of inadmissibility challenging the application to annul an act which was merely confirmatory of another that was time-barred.

32 Part D of the contested decision.

33 I have given Roman numerals to the paragraphs of this recital for ease of reference.

34 In the 42^nd recital the Commission further states that fixed costs have been allocated in proportion to the business carried out by La Poste on behalf of its subsidiary.

35 Part E of the contested decision.

36 Those amounts approximate to, respectively, EUR 231 million, EUR 160 million and EUR 71 million.

37 45^th to 48^th recitals.

38 Approximately EUR 5.8 million.

39 49^th to 57^th recitals.

40 53^rd recital.

41 Cited in footnote 8. See also point 4 above.

42 58^th to 63^rd recitals.

43 Paragraphs 63 to 71.

44 Paragraphs 72 to 73.

45 Paragraph 73.

46 Paragraphs 77 to 85.

47 Paragraphs 86 to 89.

48 Paragraphs 90 to 93.

49 Paragraphs 94 to 95.

50 Case C-197/99 P Belgium v Commission [2003] ECR I-8461, paragraph 72 and the case-law cited there.

51 Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 64.

52 Case T-464/04 Independent Music Publishers and Labels Association v Commission [2006] ECR II-2289, paragraph 248. The judgment is, moreover, currently under appeal.

53 Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 228.

54 At paragraph 72.

55 See point 14 above.

56 Paragraph 97.

57 Paragraphs 75 to 95.

58 In paragraph 128 of the judgment under appeal, the Court of First Instance stated that the assessment of how La Poste's costs incurred in providing logistical and commercial assistance were calculated in the absence of analytical accounts involved a complex economic appraisal. In such circumstances the Commission enjoyed a wide discretion.

59 See points 69 and 73 above, and footnote 34.

60 34^th recital.

61 53^rd recital.

62 Paragraph 97 of the judgment under appeal.

63 Paragraph 73.

64 Case T-95/94 [1995] ECR II-2651, paragraphs 62 to 63, and see paragraphs 74 to 77 of the Sytraval appeal, cited in footnote 51.

65 Paragraph 97.

66 See point 73 above.

67 La Poste's express delivery service. See footnote 6.

68 Paragraphs 158 to 171 of the judgment under appeal.

69 The Court of First Instance referred to Case 173/73 Italy v Commission [1974] ECR 709, paragraph 13 (paragraph 26 in the French version), and Case C-387/92 Banco Exterior de España [1994] ECR I-877, paragraph 12.

70 48^th recital of the contested decision. See point 72 above.

71 I recall that the subsidiary created was called SFMI. See footnote 7.

72 48^th recital.

73 Paragraph 169 of the judgment under appeal.

74 See, to that effect, Case C-334/99 Germany v Commission [2003] ECR I-1139, paragraphs 133 to 134, relating to the sale for a negative price of an enterprise in former East Germany.

75 The test laid down in Chronopost I is, conversely, inapplicable since that test relates to cost coverage in commercial transactions between parent and subsidiary in the State sector.

76 59^th to 63^rd recitals of the contested decision.

77 Paragraph 160.

78 Paragraph 167 of the judgment under appeal.

79 Paragraph 102.