Opinion of the Advocate General — ECLI:EU:C:2010:78
Date: 2010-02-23
Language of the case: English
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - successful
Origin: France

summary without detailed explanation’. (58) The General Court added that, since the contractual terms of the purchase of the land by the French authorities were unknown, it was possible that the land was acquired as a result of a compulsory purchase order and that, as a consequence, the value quoted exceeded the true market value. 159. To my mind, the reasoning of the General Court is erroneous, and the Commission’s ground of appeal should be upheld. 160. As part of its assessment regarding the existence of aid, the Commission found itself – as we have seen – having to re-construct the value of a plot of land after an interval of many years, applying the private investor test in order to determine whether State aid was involved. Even leaving aside the recent discussion of the discretion which must be attributed to the Commission in just such a difficult situation, I believe that its conduct in the present case was entirely proper. Indeed, in circumstances such as those just described, use of a land valuation which was (i) prepared by one of the public authorities involved in the transaction and (ii) referred to in an official document seems to me to be a methodologically correct choice. 161. I would also regard as unfounded the objection of the General Court relating to the fact that the value indicated might not be credible if the public authorities had obtained the land by means of a compulsory purchase order. The basic idea of the General Court in that regard is that that particular form of purchase can be more costly than a purchase under normal market conditions, in that it may involve the payment of specific compensation to the owners. 162. It should be observed in this regard, first, that the compulsory purchase mechanism is inherently designed to favour the public wellbeing over private interests and unlikely to involve the payment to a property owner of sums significantly higher than the market value of the property to which the purchase order relates. If anything, the reverse is more likely. 163. Secondly, however, and this seems to me to be the crucial point, the City Council of Orleans did not mention the cost of the land, but only an estimate of its value. Furthermore, it should not be forgotten that that estimate was only one of the factors considered together in the Commission’s final decision on the aid. 164. In conclusion, the 11th ground of appeal put forward by the Commission is well founded and should be upheld. 7. The 15th ground of appeal, alleging that the General Court distorted the facts and the evidence 165. By the 15th ground of appeal, the Commission submits that the General Court distorted the facts of the case. 166. In reality, this plea consists in no more that a few lines of text and does not disclose any new material as compared with the arguments put forward in the context of the other grounds of appeal. 167. It is clear that where a plea in law is framed in such a fashion, it cannot be upheld, since there is no argument to support it. This is all the more true in the case of alleged distortion, because an allegation of distortion must be substantiated by a considerable body of evidence, which identifies precisely the elements which were distorted and demonstrates the errors of assessment made by the General Court. (59) C – Other grounds of appeal 1. The fifth ground of appeal, according to which the General Court ruled on the basis of factors on which Scott had not relied a) Arguments of the parties 168. The Commission submits that the General Court erred in law in agreeing to take into consideration (60) the ‘alternative’ land valuations, even though Scott had not specifically referred to those valuations in its application initiating proceedings. 169. According to Scott, there is no question of any error, given that, in its application initiating proceedings, it challenged the Commission’s assessment of how much the aid was worth and referred in particular to the letter of 24 December 1999, which was largely based on those alternative assessments as to the value of the land. b) Appraisal 170. The Commission’s ground of appeal cannot be upheld. 171. The application initiating the proceedings brought by Scott before the General Court contained specific criticisms of the land valuation carried out by the Commission, as compared with the valuation carried out by the French tax authorities, with reference to the letter of 24 December 1999 which the Commission – erroneously, according to Scott – had refused to take into account. (61) 172. Accordingly, faced with those criticisms of the contested decision, and given the production of the letter containing the references to the ‘alternative’ land valuations, the General Court was entitled to hold that it could undertake a review, in relation to the value of the land, on the basis of the evidence before it. V – Conclusion 173. To sum up, I therefore propose that the Court raise of its own motion the existence of a serious flaw in the reasoning of the judgment under appeal and, in consequence, set that judgment aside. In the alternative, I propose that the seventh, ninth, tenth (the first part only), eleventh and twelfth grounds of appeal put forward by the Commission be upheld and, in any case, that, as a consequence, the judgment under appeal be set aside in its entirety. In the lesser alternative, I consider the first, second and third grounds of appeal worthy of being upheld. 174. Since the General Court examined only one of the four pleas in law relied upon by Scott in support of its action, the state of the proceedings does not permit the Court of Justice to give final judgment in the matter. The case must therefore be referred back to the General Court for judgment. 175. In conclusion, I propose that the Court of Justice: – set aside the judgment under appeal; – refer the case back to the General Court; – order that the decision on costs be reserved. 1 – Original language: Italian. 2 – OJ 2002 L 12, p. 1. 3 – Case T‑369/00 Département du Loiret v Commission [2007] ECR II‑851. 4 – Case C‑295/07 P Commission v Département du Loiret [2008] ECR I‑0000. 5 – Case C‑276/03 P Scott v Commission [2005] ECR I‑8437. 6 – The two judgments in question, both delivered on 10 April 2003, are those in Case T‑369/00 Département du Loiret v Commission [2003] ECR II‑1789, against which no appeal has been brought, and in Case T‑366/00 Scott v Commission [2003] ECR II‑1763, which gave rise to the appeal cited in footnote 5 above. 7 – Case C‑232/05 Commission v France [2006] ECR I‑10071. 8 – Judgment under appeal, paragraph 37. 9 – However, a brief perusal of the application initially lodged by Scott before the General Court suggests that that refusal was, in fact, used by the applicant as a basis for its first plea in law – not explicitly addressed by the General Court – alleging breach of procedural rights. 10 – Judgment under appeal, paragraph 128. 11 – Judgment under appeal, paragraph 106. 12 – Judgment under appeal, paragraph 123. 13 – Judgment under appeal, paragraph 137. 14 – Judgment under appeal, paragraph 151. 15 – Judgment under appeal, paragraph 154. The regulation in question is Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1). 16 – It should be noted that the contested Decision also concerns the aid granted in the form of the application of the water treatment levy at a preferential rate. The pleas relating to that part of the decision were withdrawn by the applicant, however, in the course of the proceedings before the General Court, following the resolution of the issues concerning whether the action was time‑barred. See the judgment under appeal, paragraph 31. 17 – It is interesting to note that, in a sort of curious parallelism, in the other judgment concerning the same series of events – delivered in Case T‑369/00 on the same day as the judgment under appeal (see footnote 3 above) – the General Court did exactly the reverse. In fact, as the Court of Justice found on appeal (see footnote 4 above), the General Court annulled the contested Decision in its entirety on the basis of a single ground (error in the calculation of the interest), which justified only annulment, in whole or in part, of Article 2 of the contested Decision. 18 – Judgment under appeal, paragraph 34. 19 – Nor should it be forgotten that the ‘parallel’ judgment in Case T‑369/00, delivered on the same day, had annulled the contested decision in its entirety. Accordingly, at least from a practical point of view, Scott had achieved everything that it had set out to obtain. 20 – Case C‑166/95 P Commission v Daffix [1997] ECR I‑983, paragraph 25. 21 – Case C‑19/93 P Rendo and Others v Commission [1995] ECR I‑3319, paragraph 13, and Case C‑535/06 P Moser Baer India v Council [2009] ECR‑0000, paragraph 24. Paragraph 46 of the judgment in Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873 lends itself to the same interpretation. 22 – Judgment of 28 February 2008 in Case C‑17/07 P Neirinck v Commission, paragraph 38. 23 – Joined Cases C‑341/06 P and C‑342/06 P Chronopost v UFEX and Others [2008] ECR I‑4777, paragraphs 46 to 49. 24 – That line of reasoning is set out in Case 18/57 Nold v High Authority [1959] ECR 41, at p. 52. See, more recently, Commission v Daffix, cited in footnote 20 above, paragraph 24; Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 67; and Case C‑265/97 P VBA v Florimex and Others [2000] ECR I‑2061, paragraph 114. 25 – Case C‑89/08 P Commission v Ireland and Others [2009] ECR I‑0000, paragraphs 54 to 57, and Case C‑197/09 RX-II and M v EMEA [2009] ECR I‑0000, paragraph 57. 26 – Case C‑252/96 P Parliament v Gutiérrez de Quijano y Lloréns [1998] ECR I‑7421, paragraphs 29 to 34; the order of 27 September 2004 in Case C‑470/02 P UER v M6 and Others, paragraph 69; and the order of 13 June 2006 in Case C‑172/05 P Mancini v Commission, paragraph 41. 27 – See also my Opinion in Case C‑362/08 P Internationaler Hilfefonds v Commission, still pending (in particular, point 90 and footnote 23). 28 – Judgment under appeal, paragraph 128. 29 – Joined Cases C‑74/00 P and C‑75/00 P Falck andAcciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraphs 81 to 83, and Scott v Commission, cited in footnote 5 above, paragraph 33. See also the Opinion of Advocate General Jacobs in Scott v Commission (points 67 to 69). 30 – Case 234/84 Belgium v Commission [1986] ECR 2263, paragraphs 27 to 29, and Case C‑301/87 France v Commission [1990] ECR I‑307, paragraphs 29 and 30. 31 – See, in particular, the second recital in the preamble to that regulation. 32 – See Case T‑34/02 Le Levant 001 and Others v Commission [2006] ECR II‑267, paragraphs 91 to 96 and the order of the President of the General Court of 4 April 2002 in Case T‑198/01 R Technische Glaswerke Ilmenau v Commission ECR II‑2153, paragraph 85. It should also be noted that, in the judgment on the substance of Case T‑198/01 R, the General Court followed the classic line of authority in more orthodox fashion: see Case T‑198/01 Technische Glaswerke Ilmenau v Commission [2004] ECR II‑2717, paragraphs 191 to 195. 33 – Joined Cases T‑228/99 and T‑233/99 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission [2003] ECR II‑435, paragraphs 131 to 143. What is more, on that occasion the General Court categorised the obligation to hear the views of the interested Member State as an essential procedural requirement, breach of which can be raised by the Court of its own motion. 34 – See, for example, Case C‑141/02 P Commission v T-Mobile Austria [2005] ECR I‑1283, paragraph 72. See also Case 179/82 Lucchini Siderurgica v Commission [1983] ECR 3083, paragraph 27, and Case C‑255/90 P Burban v Parliament [1992] ECR I‑2253. 35 – Commission v Sytraval and Brink’s France, cited in footnote 24 above, paragraph 62. 36 – Case C‑269/90 P Technische Universität München [1991] ECR I‑5469, paragraphs 23 to 25. 37 – Case C‑16/90 Nölle [1991] ECR I‑5163, paragraphs 13 and 30 to 32. 38 – Emphasis added. 39 – See the judgment under appeal, paragraph 56. 40 – See the judgment under appeal, paragraph 128. 41 – See the judgment under appeal, paragraph 121. 42 – See the judgment under appeal, paragraph 154. 43 – See the judgment under appeal, paragraphs 152 and 154. 44 – See, to that effect, Case C‑83/98 P France v Ladbroke Racing and Commission [2000] ECR I‑3271, paragraph 25, and Case C‑487/06 P British Aggregates v Commission [2008] ECR I‑0000, paragraph 111. 45 – Case C‑88/03 Portugal v Commission [2006] ECR I‑7115, paragraph 99; Case C‑66/02 Italy v Commission [2005] ECR I‑10901, paragraph 135; Case C‑456/00 France v Commission [2002] ECR I‑11949, paragraph 41; and Case C‑310/99 Italy v Commission [2002] ECR I‑2289, paragraph 46. 46 – British Aggregates v Commission, cited in footnote 44 above, paragraph 114; Joined Cases C‑328/99 and C‑399/00 Italy and SIM 2 Multimedia v Commission [2003] ECR I‑4035, paragraph 39; and Case C‑56/93 Belgium v Commission [1996] ECR I‑723, paragraph 11. 47 – An eloquent illustration of that potential ‘dilemma’ for the Courts of the Union can be seen, by way of example, in Case C‑525/04 P Spain v Lenzing [2007] ECR I‑9947, paragraphs 56 to 58 and the case-law cited therein. 48 – See, for example, Case C‑276/02 Spain v Commission [2004] ECR I‑8091, paragraph 31; Case C‑277/00 Germany v Commission [2004] ECR I‑3925, paragraph 39; Case C‑394/01 France v Commission [2002] ECR I‑8245, paragraph 34; Case C‑241/94 France v Commission [1996] ECR I‑4551, paragraph 33; and Case 234/84 Belgium v Commission [1986] ECR 2263, paragraph 16. 49 – See, by way of example: as regards State aid, Spain v Lenzing, cited in footnote 47 above (paragraph 54 and the case-law cited therein). 50 – Judgment under appeal, paragraphs 110 and 111. 51 – Judgment under appeal, paragraph 115. 52 – Judgment under appeal, paragraphs 124 to 142. 53 – Case C‑405/07 P Netherlands v Commission [2008] ECR I‑0000, paragraph 44 and the case-law cited therein. 54 – Judgment under appeal, paragraph 105. 55 – Italy and SIM 2 Multimedia v Commission, cited in footnote 46 above, paragraphs 38 and 39, and Belgium v Commission, cited in footnote 46 above, paragraphs 10 and 11. See also point 109 and footnote 35 of the Opinion of Advocate General Jacobs delivered on 27 October 2005 Case C‑222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑289. 56 – See point 102 of the present Opinion. 57 – In September 2007, the Commission lodged – at the same time as its application for leave to submit a reply – the document to which it referred in its appeal. The document in question contains the official minutes of the debate preceding the approval of the decision of the City Council in May 1994. It is not necessary, however, to address the problem of the admissibility of such a document, since it is merely accessory to the decision taken by the City Council, which the Commission has already lodged before the General Court. 58 – Judgment under appeal, paragraph 118. 59 – Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C 219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 50, and the order of 16 December 2004 in Case C‑222/03 P APOL and AIPO v Commission, paragraph 40. 60 – See the judgment under appeal, paragraphs 130 and 131. 61 – See the application initiating the proceedings brought by Scott before the General Court, points 9.3 and 9.4.