Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

26 September 2024 (*)

( Appeal – State aid – Article 107(1) TFEU – Aid granted by Belgium to JCDecaux Street Furniture Belgium – Advertising displays installed in the City of Brussels (Belgium) – Non-payment of rent and taxes applicable to those displays – Aid declared incompatible with the internal market – Obligation to recover that aid – Concept of ‘advantage’ – Determination of the applicable legal framework – Method for calculating the amount of aid to be recovered )

In Case C‑710/22 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 November 2022,

JCDecaux Street Furniture Belgium SA, established in Brussels (Belgium), represented initially by M. Malanda and A. Winckler, lawyers, and subsequently by B. Cambier, M. Malanda, A. Paternostre and A. Winckler lawyers,

appellant,

the other parties to the proceedings being:

European Commission, represented initially by G. Braga da Cruz, C.-M. Carrega and C. Georgieva, acting as Agents, and subsequently by C.-M. Carrega and C. Georgieva, acting as Agents,

defendant at first instance,

Clear Channel Belgium SPRL, established in Brussels, represented by P. de Bandt, M. Gherghinaru and L. Panepinto, lawyers,

intervener at first instance,

THE COURT (First Chamber),

composed of A. Arabadjiev, President of the Chamber, T. von Danwitz, P.G. Xuereb (Rapporteur), A. Kumin and I. Ziemele, Judges,

Advocate General: A. M. Collins,

Registrar: A. Juhász-Tóth, Administrator,

having regard to the written procedure and further to the hearing on 17 January 2024,

after hearing the Opinion of the Advocate General at the sitting on 11 April 2024,

gives the following

Judgment

1        By its appeal, JCDecaux Street Furniture Belgium SA (‘JCDecaux’) seeks to have set aside the judgment of the General Court of the European Union of 7 September 2022, JCDecaux Street Furniture Belgium v Commission (T‑642/19, ‘the judgment under appeal’, EU:T:2022:503), by which the General Court dismissed its action for the annulment of Commission Decision (EU) 2019/2120 of 24 June 2019 on State aid granted by Belgium to JCDecaux Belgium Publicité (SA.33078 (2015/C) (ex 2015/NN)) (OJ 2019 L 320, p. 119) (‘the decision at issue’).

 Background to the dispute and the decision at issue

2        The background to the dispute, as set out in paragraphs 2 to 12 of the judgment under appeal, may be summarised as follows.

3        On 16 July 1984, the City of Brussels (Belgium) and JCDecaux concluded a contract (‘the 1984 contract’), for a term of 15 years, concerning the installation in that city of bus shelters and street furniture known as ‘mobiliers urbains pour l’information’ (‘information street furniture’) (‘MUPIs’), some of which could be used for advertising purposes.

4        That contract provided that JCDecaux was to install and operate, in the City of Brussels, bus shelter advertisements and MUPIs of which JCDecaux would retain ownership on the following conditions:

–        JCDecaux would not be required to make any payment for rent, right of occupancy or fees for the bus shelters or the MUPIs, but was to offer the City of Brussels certain benefits in kind: it was to provide, free of charge, waste-paper bins, public toilets and electronic newspapers, and to display a general map, a tourist and hotel map and also a map of the pedestrianised streets in the City of Brussels;

–        in return, JCDecaux was permitted to use the bus shelters and MUPIs it supplied for advertising;

–        each display could be used for a period of 15 years running from the date of its installation, as recorded in the presence of both parties to the contract.

5        In 1995, the City of Brussels terminated the 1984 contract.

6        In 1998, the City of Brussels issued a call for tenders for the manufacture, supply, installation, commissioning and maintenance of MUPIs, passenger shelters and display panels, some of which could be used for advertising purposes.

7        In order to honour its contractual obligations under the 1984 contract and to ensure the transparency of the call for tenders, the City of Brussels listed, in Annex 10 to the special tender specifications of that call for tenders (‘Annex 10’), 282 bus shelters and 198 MUPIs covered by the 1984 contract (‘the advertising displays listed in Annex 10’), for which JCDecaux retained a right of use under the 1984 contract, indicating, for each of those displays, its location and the scheduled date of its removal.

8        JCDecaux won that tender and the City of Brussels concluded a second contract with that undertaking on 14 October 1999 (‘the 1999 contract’). That contract, which was also concluded for a 15-year term, consisted of a purchase order, the special tender specifications referred to in the preceding paragraph of this judgment and the annexes thereto, including Annex 10. That contract, which replaced the 1984 contract, provided for the following conditions:

–        ownership of the MUPIs installed would pass to the City of Brussels, in return for the payment of a net fixed price per display supplied, fully equipped, installed and made operational;

–        JCDecaux was to pay a monthly rent to use the MUPIs covered by the contract for advertising.

9        When the 1999 contract was implemented, certain advertising displays listed in Annex 10 were removed before the dates stipulated in that annex, whilst others (‘the displays at issue’) continued to be used by JCDecaux beyond those dates, without the City of Brussels claiming payment of rent or taxes from that company. In August 2011, the last advertising displays listed in Annex 10 were dismantled.

10      On 19 April 2011, Clear Channel Belgium SPRL (‘CCB’) lodged a complaint with the European Commission in which it claimed that, by continuing to use the displays at issue without paying rent or taxes to the City of Brussels, JCDecaux had benefited from State aid incompatible with the internal market.

11      On 24 March 2015, the Commission initiated the formal investigation procedure provided for in Article 108(2) TFEU.

12      By a judgment of 29 April 2016, the cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium) upheld a judgment of the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium) of 13 December 2010, by which it had been held that JCDecaux had used the displays at issue on public property in the City of Brussels without authorisation, right or title.

13      On 24 June 2019 the Commission adopted the decision at issue.

14      Articles 1 and 2 of that decision are worded as follows:

‘Article 1

The State aid to [JCDecaux], in an amount equivalent to the rent and taxes not paid on the [displays at issue], granted by Belgium unlawfully between 15 September 2001 and 21 August 2010 in breach of Article 108(3) [TFEU], is incompatible with the internal market.

Article 2

1.      Belgium shall recover the aid referred to in Article 1 from the beneficiary.

…’

  The procedure before the General Court and the judgment under appeal

15      By application lodged at the General Court Registry on 25 September 2019, JCDecaux brought an action for annulment of Articles 1 to 4 of the decision at issue.

16      By order of the President of the First Chamber of the General Court of 22 April 2020, CCB was granted leave to intervene in support of the form of order sought by the Commission.

17      In support of its action, JCDecaux relied on four pleas in law, of which only the first and third are relevant for the purposes of the present appeal. The first plea in law alleged a manifest error of assessment and an error of law in that the Commission found that the use of the displays at issue constituted an economic advantage for the purposes of Article 107(1) TFEU. The third plea in law, put forward in the alternative, alleged a failure to state reasons in the decision at issue as regards the assessment of the amount of aid to be recovered.

18      By the judgment under appeal, the General Court dismissed that action in its entirety.

 Procedure before the Court of Justice and forms of order sought

19      By its appeal, JCDecaux claims that the Court of Justice should:

–        set aside the judgment under appeal;

–        give final judgment in the matter and uphold the form of order sought at first instance by annulling Articles 1 to 4 of the decision at issue; and

–        order the Commission to pay the costs.

20      The Commission contends that the Court should:

–        dismiss the appeal;

–        order JCDecaux to pay the costs.

21      By letters of 28 November 2022 and of 14 April 2023, JCDecaux informed the Court of Justice that it did not wish to submit a request for confidential treatment of the information contained in its appeal and in its reply, respectively. However, it clarified, in the first of those letters, that the appeal referred to certain data set out in its application at first instance and the annexes thereto, of which the General Court, by order of 5 March 2021 JCDecaux Street Furniture Belgium v Commission (T‑642/19, EU:T:2021:135), recognised the confidential nature.

 The appeal

22      In support of its appeal, JCDecaux puts forward two grounds alleging, first, contradictory reasoning in the judgment under appeal and an error of law in the interpretation and application of the concept of ‘economic advantage’ for the purposes of Article 107(1) TFEU and, second, a distortion of the facts and of the applicable legal framework.

 The first ground of appeal

 Arguments of the parties

23      By its first ground of appeal, JCDecaux submits that the judgment under appeal is vitiated by contradictory reasoning in that, in paragraphs 31 and 40 of that judgment, the General Court found, solely on the basis of the judgment of 29 April 2016 of the cour d’appel de Bruxelles (Court of Appeal, Brussels), that JCDecaux had used the displays at issue without authorisation, right or title, whereas, in paragraphs 42 and 102 of the judgment under appeal, it considered that that use, which is unlawful and results solely from the conduct of that undertaking, constituted State aid granted by the City of Brussels.

24      According to JCDecaux, the alleged economic advantage arises from the sole fact of having, without any decision, authorisation or intervention by the competent public authorities, used the displays at issue by occupying public property unlawfully. Since the Belgian authorities did not accept the retention of the displays at issue, such unilateral conduct cannot, without manifest contradiction, serve as a basis for finding that there is an economic advantage granted by those authorities.

25      In the alternative, JCDecaux submits that the General Court made a second contradiction in its reasoning. After having stated, in paragraph 42 of the judgment under appeal, that the economic advantage allegedly granted by the City of Brussels constituted aid even though that advantage was intended to compensate JCDecaux so as to abide by the economic balance of the 1984 contract, the General Court did not draw any inferences, in particular in paragraphs 83 to 89 of that judgment, from such a statement as regards the legal classification of that advantage and the method for calculating the amount of aid to be recovered. Thus, first, that judgment would lead to full recovery of the alleged economic advantage, without taking into account the costs and losses incurred by JCDecaux as a result of the early removal of certain advertising displays listed in Annex 10. Second, in paragraph 87 of that judgment, the General Court wrongly endorsed the method used by the Commission in the decision at issue for calculating the amount of the aid to be recovered, without taking into account the fact that that advantage was intended to compensate for those costs and that damage.

26      The Commission disputes both the admissibility and the merits of all the arguments put forward by JCDecaux.

 Findings of the Court

–       Admissibility

27      The Commission submits that the first ground of appeal is inadmissible. In the first place, that ground criticises the General Court’s findings as to the compensatory purpose of the economic advantage conferred on JCDecaux and the interpretation of the applicable national law. Those are findings of fact which do not come within the jurisdiction of the Court of Justice in the context of an appeal.

28      In that regard, it should be borne in mind that it follows from Article 256 TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to establish the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. Save where the evidence produced before the General Court has been distorted, that assessment does not constitute a question of law which is, as such, subject to review by the Court of Justice. When the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (judgment of 12 May 2022, Klein v Commission, C‑430/20 P, EU:C:2022:377, paragraph 39 and the case-law cited).

29      It should also be borne in mind that, with respect to the assessment in the context of an appeal of the General Court’s findings on national law, which, in the field of State aid, constitute findings of fact, the Court of Justice has jurisdiction only to determine whether that law was distorted (judgment of 8 November 2022, Fiat Chrysler Finance Europe v Commission, C‑885/19 P and C‑898/19 P, EU:C:2022:859, paragraph 82 and the case-law cited).

30      In the present case, JCDecaux is not requesting a new assessment of the facts concerning the purpose of the economic advantage referred to in the decision at issue, but calls upon the Court of Justice to ascertain whether the reasoning of the judgment under appeal is contradictory. Moreover, the first ground of appeal is not intended to call into question the General Court’s interpretation of national law, but rather criticises the contradictory reasoning in the findings made by that court with respect to the judgment of 29 April 2016 of the cour d’appel de Bruxelles (Court of Appeal, Brussels). According to settled case-law, the question whether the grounds of a judgment of the General Court are contradictory is a question of law which is amenable to judicial review in the context of an appeal (judgment of 16 July 2009, Der Grüne Punkt – Duales System Deutschland v Commission, C‑385/07 P, EU:C:2009:456, paragraph 71 and the case-law cited).

31      It follows that the Commission’s argument to the effect that the first ground of appeal is aimed at calling into question findings of fact must be rejected.

32      In the second place, the Commission contends, in essence, that JCDecaux’s argument, based on the alleged absence of an act of the public authorities, constitutes a new plea in law since that company is challenging the imputability of the aid at issue to the State for the first time at the appeal stage.

33      In that regard, it should be borne in mind that, under the second sentence of Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal. In addition, as is apparent from settled case-law, to allow a party to put forward for the first time before the Court of Justice a ground for complaint which it did not raise before the General Court would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to a review of the assessment by the General Court of the pleas and arguments debated before it (judgment of 18 January 2024, Jenkinson v Council and Others, C‑46/22 P, EU:C:2024:50, paragraph 68 and the case-law cited).

34      In the present case, it is clear, as the Advocate General noted, in essence, in point 45 of his Opinion, that, contrary to the Commission’s claim, by its first ground of appeal, JCDecaux does not challenge the imputability of the economic advantage at issue to the State, but submits that the General Court could not, without manifestly contradicting itself, base itself on the judgment of 29 April 2016 of the cour d’appel de Bruxelles (Court of Appeal, Brussels) to confirm the existence of State aid, when that judgment found that that advantage did not arise from any decision by a public authority. Consequently, the argument in question cannot be regarded as a new plea.

35      It follows that the first ground of appeal is admissible.

 Substance

36      JCDecaux submits, by way of principal argument, that there is a contradiction between the findings set out at paragraphs 31 and 40 of the judgment under appeal and the findings by which the General Court confirmed, in paragraphs 42 and 102 of that judgment, the existence of State aid.

37      In that regard, it must be borne in mind that that argument is based on a misreading of the judgment under appeal. It is true that the General Court held, in paragraphs 31 and 40 of the judgment under appeal, that by its judgment of 29 April 2016, the cour d’appel de Bruxelles (Court of Appeal, Brussels) found that the JCDecaux had used the displays at issue without authorisation, right or title.

38      However, in paragraph 29 of the judgment under appeal, the General Court held that, by derogation from the terms of the 1999 contract, Annex 10 provided that the advertising displays listed in that annex could continue to be used by JCDecaux under the conditions laid down in the 1984 contract, namely without paying any rent or tax, but only until the removal dates stipulated in that annex. On the other hand, it follows, in essence, from recital 49 of the decision at issue, referred to in paragraph 30 of the judgment under appeal, and also from paragraph 41 of that judgment, that the Belgian authorities consented to the continued use of the displays at issue after the removal dates stipulated in that same annex in order to maintain the economic balance of the 1984 contract.

39      In those circumstances, contrary to what JCDecaux submits, the General Court did not hold, solely on the basis of the judgment of 29 April 2016 of the cour d’appel de Bruxelles (Court of Appeal, Brussels), that the use of the displays at issue continued after the removal dates stipulated in Annex 10, without the consent of the Belgian authorities.

40      It follows that the findings made by the General Court in paragraphs 42 and 102 of the judgment under appeal are not based on contradictory reasoning.

41      JCDecaux submits, in the alternative, that, in paragraph 42 of the judgment under appeal, the General Court held that the continued use of the displays at issue beyond the removal dates stipulated in Annex 10 constituted an economic advantage, whereas, also in paragraph 42, it held that that continued use was intended to compensate that undertaking for the costs and losses caused by the early removal of certain advertising displays listed in Annex 10. In so doing, the General Court engaged in contradictory reasoning and omitted to draw the conclusions from that finding as regards the assessment of the amount of aid to be recovered.

42      JCDecaux complains that the General Court failed to draw any conclusions from that finding, particularly in paragraphs 83 to 89 of the judgment under appeal, as regards the assessment of the amount to be recovered, which would lead, incorrectly, to the recovery of the alleged advantage in its entirety, without taking into account the costs JCDecaux incurred due the early removal of certain advertising displays listed in Annex 10 and the contractual damage that it suffered. The General Court also endorsed, incorrectly, in paragraph 87 of the judgment under appeal, the method for calculating the aid to be recovered, as established by the Commission in the decision at issue, without taking into account the existence of the compensation mechanism.

43      It should be borne in mind, in the first place, as observed by the General Court in paragraph 24 of the judgment under appeal, that the concept of advantage, which is intrinsic to the classification of a measure as State aid, is an objective one, irrespective of the motives of the persons responsible for the measure in question. Accordingly, the nature of the objectives pursued by State measures and their grounds of justification have no bearing whatsoever on whether such measures are to be classified as State aid. Article 107(1) TFEU does not distinguish between the causes or the objectives of State aid measures, but defines them in relation to their effects (judgment of 25 January 2022, Commission v European Food and Others, C‑638/19 P, EU:C:2022:50, paragraph 122 and the case-law cited).

44      In that regard, in so far as the economic advantage referred to in the decision at issue consists in JCDecaux’s continued use of the displays at issue after the dates specified in Annex 10 without paying rent or taxes to the City of Brussels, the General Court correctly held, in paragraph 25 of the judgment under appeal, that the fact that that advantage was intended to compensate for an alleged loss suffered by that undertaking as a result of the early removal of certain advertising displays listed in Annex 10 does not imply that that compensation cannot constitute State aid.

45      It should also be borne in mind that, in response to JCDecaux’s argument to the effect that the Commission found, incorrectly, in the decision at issue that the City of Brussels had not conducted itself like a market operator, the General Court rightly recalled, in paragraphs 37 to 41 of the judgment under appeal, that, in order to determine whether a State measure constitutes aid, it is necessary that objective and verifiable evidence clearly show that the Member State concerned took, before or at the same time as conferring an economic advantage, the decision to compensate, by means of the measure actually implemented, for damage allegedly caused to a co-contractor in the performance of its contractual obligations (see, to that effect, judgment of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraphs 82 and 83).

46      In that regard, the General Court held, in paragraph 38 of the judgment under appeal, that there was no evidence in the documents on the Court’s file that the City of Brussels had carried out an analysis of the loss allegedly incurred by JCDecaux as a result of the early removal of certain advertising displays listed in Annex 10 or of the profit that could be earned from the continued use of the displays at issue. In addition, the General Court held, in paragraph 39 of that judgment, that there was no evidence in the file that the City of Brussels had ‘monitored the implementation of the compensation mechanism established by the 1984 contract’.

47      Furthermore, in paragraph 41 of the judgment under appeal, the General Court noted, in essence, that, in any event, the wish to establish, through the 1999 contract, a form of compensation intended to preserve the economic balance of the 1984 contract did not exempt the national administration from carrying out an assessment of the existence and extent of the loss which may have been incurred by JCDecaux as a result of the early removal of certain displays listed in Annex 10.

48      It follows from the foregoing considerations that the General Court, although it did not rule out the possibility that the terms of the 1999 contract may have contained a mechanism intended to compensate JCDecaux, also considered, however, that such compensation did not preclude, in an analysis of the existence of State aid under Article 107(1) TFEU, a finding that there was an economic advantage for the purpose of applying that provision. Accordingly, the General Court, without vitiating the judgment under appeal by contradictory reasoning, was able to find, in paragraph 42 of that judgment, that the continued use by JCDecaux of the displays at issue after the removal dates stipulated in that annex constituted an economic advantage for the purposes of Article 107(1) TFEU, even though that continued use was intended to compensate that undertaking for the early removal of certain displays listed in Annex 10 that had been installed pursuant to the 1984 contract.

49      As regards, in the second place, the method for calculating the amount of the aid to be recovered, it is apparent from paragraphs 43 to 48 above that, in the present case, the General Court did not err in law in finding that the compensatory purpose pursued by the Belgian authorities was not such as to call into question the categorisation as an economic advantage for the purposes of Article 107(1) TFEU. Accordingly, the General Court cannot be criticised for having failed to invalidate, in the light of that purpose, the method for calculating the amount of the aid to be recovered established in the decision at issue.

50      In addition, in paragraph 95 of the judgment under appeal, which was not criticised by JCDecaux in the first ground of appeal, the General Court was able to reject the argument by which JCDecaux claimed that only the economic advantage exceeding the compensation for the alleged loss could be categorised as State aid, on the ground that that line of argument was based on the incorrect premiss that the continued use of the displays at issue did not constitute an economic advantage.

51      Consequently, the General Court cannot be criticised for finding, as evidenced by a combined reading of paragraphs 87 and 95 of the judgment under appeal, that the method for calculating the amount of aid to be recovered, as established by the Commission, did not need to take into account the compensatory purpose pursued by the City of Brussels.

52      Since the reasoning in the judgment under appeal criticised by JCDecaux is not contradictory, the first ground of appeal must accordingly be rejected.

 The second ground of appeal

 Arguments of the parties

53      By its second ground of appeal, JCDecaux submits that the General Court distorted the facts and the applicable legal framework by finding that the continued use of the displays at issue after the removal dates stipulated in Annex 10 were covered by the 1999 contract.

54      By the first part of the second ground of appeal, JCDecaux criticises the General Court for having held, in paragraphs 29 and 30 of the judgment under appeal, first, that it was common ground between the parties that, after the conclusion of the 1999 contract, that undertaking could install and use street furniture in the territory of the City of Brussels only under the conditions laid down in that contract, according to which it had to pay rent and taxes; second, that after the removal dates stipulated in Annex 10, the displays at issue were to be replaced by new displays covered by the 1999 contract, and therefore subject to that payment obligation; and, third, the continued use of the displays at issue under the conditions established by the 1984 contract after those dates allowed that undertaking ‘to avoid installing and using new displays covered by the 1999 contract and, consequently, to avoid paying the rent and taxes which it should have paid under that contract’.

55      In that regard, JCDecaux submits, first of all, that the entry into effect of the 1999 contract should not have had an effect on the legal framework applicable to the displays at issue. Under Belgian contract law, those advertising displays, which had been installed under the 1984 contract, continued to be governed by that contract until they were actually removed, whether that removal had taken place before or after the dates stipulated in Annex 10. It points out that it was in return for a considerable investment, consisting, for the most part, in the design, manufacture, installation and maintenance of the MUPIs and bus shelters made available to the City of Brussels, that it had been permitted to use for advertising purposes.

56      Next, JCDecaux submits that no provision in the 1999 contract provides for the automatic removal of displays covered by the 1984 contract or any other existing street furniture. The 1999 contract does, however, expressly provide that the displays installed pursuant thereto coexist with those listed in Annex 10 without the contractual terms applicable to the latter being amended thereby. Moreover, there is no obligation to replace individually, in the same locations, each of the displays at issue. In addition, the maintenance of those displays after the removal dates stipulated in Annex 10 allowed it to avoid installing and using new displays covered by the 1999 contract.

57      Lastly, JCDecaux submits that the 1984 and 1999 contracts are fundamentally different in terms of their underlying economic rationale and their respective conditions. In its view, the General Court could not, even if only for comparison in order to be able to calculate the alleged economic advantage, assume that it would have necessarily replaced each of the displays at issue by an identical display at the same location and paid the City of Brussels rent and taxes corresponding to significantly different services provided for by the 1999 contract.

58      By the second part of the second ground of appeal, JCDecaux submits that, in paragraphs 53, 54 and 56 of the judgment under appeal, the General Court distorted the legal framework applicable to the displays at issue.

59      In that regard, JCDecaux submits, first, that the General Court held, incorrectly, in paragraph 56 of the judgment under appeal, that the tax regulations adopted by the City of Brussels between 2001 and 2011 were applicable to those displays, on the ground, set out in paragraph 54 of that judgment, that, during the pre-litigation procedure, the Belgian authorities had not disputed that element.

60      In so doing, the General Court disregarded the fact that the City of Brussels, which enjoys fiscal autonomy under Article 170(4) of the Belgian Constitution, adopted advertising tax regulations only as from 2001. The General Court therefore failed to take into account the fact that those tax regulations are subsequent to the entry into effect of the 1999 contract. The General Court also failed to take into account the two judgments of 4 November 2016 of the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking)), from which it is apparent that the advertising displays covered by the 1999 contract should be exempt from advertising tax.

61      Second, JCDecaux submits that the fact that it did not have to pay any tax on the displays at issue does not constitute a selective advantage given that, contrary to the General Court’s assessment in paragraph 53 of the judgment under appeal, the selective nature of that alleged advantage cannot be presumed, particularly since CCB also benefitted from the same exemption for similar advertising displays which it used in other Belgian municipalities, a point confirmed by the cour d’appel de Bruxelles (Court of Appeal, Brussels) by a judgment of 4 September 2018.

62      The Commission disputes both the admissibility and the merits of all the arguments put forward by JCDecaux.

 Findings of the Court

63      In addition to the case-law referred to in paragraph 28 above, it is appropriate to clarify that the appraisal of the facts and the assessment of the evidence do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal and that there is such distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect. However, such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. Moreover, where an appellant alleges distortion of the evidence by the General Court, he or she must indicate precisely the evidence alleged to have been distorted by that court and show the errors of appraisal which, in his or her view, led to that distortion (judgment of 23 March 2023, PV v Commission, C‑640/20 P, EU:C:2023:232, paragraphs 77 and 78 and the case-law cited). There will be distortion where, in particular, the General Court has manifestly exceeded the limits of a reasonable assessment of the evidence (judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 79).

64      The findings of fact made by the General Court in the judgment under appeal could accordingly be called into question only if it were to be shown that it is manifestly clear from the documents submitted to the General Court that those findings are incorrect.

65      In the context of the first part of the second ground of appeal, JCDecaux submits, in essence, that the General Court distorted the facts and the applicable legal framework by finding, in paragraph 30 of the judgment under appeal, that the continued use of the displays at issue after the removal dates stipulated in Annex 10 enabled it to avoid installing and using new displays covered by the 1999 contract and, consequently, to avoid paying the rent and taxes which it should have paid under that contract.

66      In that regard, it should be noted that, in paragraph 29 of the judgment under appeal, the General Court found that it was common ground between the parties that, following the conclusion of the 1999 contract, JCDecaux could install and use street furniture in the territory of the City of Brussels only under the conditions laid down in that contract, in accordance with which it had to pay rent and taxes. As the General Court noted, also in that paragraph, according to Annex 10, by derogation from the terms of the 1999 contract, JCDecaux could continue to use the advertising displays listed in that annex under the conditions laid down in the 1984 contract, namely without paying any rent or tax, but only until the removal dates stipulated in that same annex. After those dates, those displays were to be replaced by new displays covered by the 1999 contract and therefore subject to the obligation to pay taxes and rent.

67      The reasoning set out in paragraph 30 of the judgment under appeal and summarised in paragraph 65 above is based on those findings.

68      The Court finds that JCDecaux has not demonstrated that it is manifestly clear from the evidence submitted to the General Court that those findings are incorrect. Accordingly, the first part of the second ground of appeal must be rejected as inadmissible.

69      By the second part of the second ground of appeal, JCDecaux submits, in essence, that, in paragraphs 53, 54 and 56 of the judgment under appeal, the General Court distorted the legal framework applicable to the use of the displays at issue.

70      As regards JCDecaux’s allegation to the effect that the General Court failed to take account of Article 170(4) of the Belgian Constitution, and found, incorrectly, that the tax regulations of the City of Brussels adopted as from 2001 applied to it, it must be held, as observed by the Advocate General in point 67 of his Opinion, that that allegation is not intended to call into question as such the General Court's finding, in paragraph 54 of the judgment under appeal, that the Belgian authorities did not dispute, during the pre-litigation procedure, that the tax regulations of the City of Brussels constituted the applicable tax system in the present case.

71      As regards JCDecaux’s argument to the effect that, in paragraph 63 of the judgment under appeal, the General Court failed to take into account two judgments of 4 November 2016 of the tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking)), from which it is apparent that the advertising displays covered by the 1999 contract should be exempt from advertising tax, it must be noted that the General Court merely dismissed their relevance for the purposes of categorisation as State aid. JCDecaux has failed to demonstrate the reasons why those judgments are capable of calling into question the assessment made by the General Court in paragraph 63.

72      Similarly, JCDecaux’s argument, to the effect that the condition relating to the existence of an economic advantage for the purposes of the application of Article 107(1) TFEU required account to be taken of the fact that CCB was also exempt from advertising tax for the use of advertising displays in other Belgian municipalities, must be rejected. As observed by the Advocate General in point 69 of his Opinion, that fact is irrelevant for the determination of whether JCDecaux had benefited from such an advantage.

73      It follows that the second ground of appeal must be rejected as in part inadmissible and in part unfounded.

74      Since none of the grounds of appeal has been upheld, the appeal must be dismissed in its entirety.

 Costs

75      Under Article 138(1) of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

76      Since the Commission has applied for costs and JCDecaux has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Commission.

77      Article 184(4) of the Rules of Procedure provides that, where, without having brought the appeal itself, an intervener at first instance has participated in the written or oral part of the proceedings before the Court of Justice, the Court may decide that it is to bear its own costs. In the present case, CCB, intervener at first instance although not the party who brought the appeal, did take part in the oral part of the proceedings before the Court, but has not applied for JCDecaux to be ordered to pay the costs. In those circumstances, it must be ordered to bear its own costs relating to the appeal proceedings.

On those grounds, the Court (First Chamber) hereby:

1.      Dismisses the appeal;

2.      Orders JCDecaux Street Furniture Belgium SA to bear its own costs and to pay those incurred by the European Commission;

3.      Orders Clear Channel Belgium SPRL to bear its own costs.

[Signatures]

*      Language of the case: French.

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