Judgment;Abstract — ECLI:EU:T:2019:346
Date: 2019-05-22
Language of the case: Spanish
Court formation: Fourth Chamber
Subject matter: State aids;Competition
Procedure: Action for annulment - successful
Origin: Spain

summary of grounds for that agreement, which reproduces that city council’s findings on that matter. 54 It must be noted, first, that the reports containing expert advice from the city council departments which were allegedly received by Madrid City Council were not communicated either during the procedure before the Commission or during that before the Court. Despite the multiple points at which the Kingdom of Spain and the Commission could have been in contact during the administrative procedure, and also the opportunities offered to that city council to participate in that procedure, no legal analysis as to that city council’s liability with respect to the non-transferral of plot B-32 was communicated to the Commission. 55 Secondly, although the summary of grounds of the 2011 settlement agreement does contain some factual information on the regulations applicable to plot B-32 and the obligation on Madrid City Council to transfer that plot, such a summary cannot be regarded as a real legal analysis of the causes leading to the acknowledgement of that city council’s liability for the non-transferral of that plot. In particular, the development of the regulations applicable to that plot as of the 1991 agreement until the 2011 settlement agreement is not stated in detail. Nor is there any analysis of who would be liable, and on what grounds, for the non-transferral of the plot in question. It is, by contrast, merely stated, as the Commission observes, that the transfer of the plot concerned was impossible and attention is drawn to the good will of the parties with a view to reaching an agreement in a context in which the liabilities of each of them were unclear. 56 As regards the applicant’s challenging of the Commission’s alleged argument that Madrid City Council had no obligation to conclude the 2011 settlement agreement until such an obligation had been declared by a court, it is sufficient to observe that such a challenge has no factual basis, since at no point in the contested decision did the Commission find that the obligation to conclude that settlement agreement should have been the result of a court decision. 57 It is important to add that, in contrast to the case which gave rise to the judgment of 27 September 1988, Asteris and Others (106/87 to 120/87, EU:C:1988:457), in which the national authorities had been ordered to provide compensation for a loss resulting from an unlawful act declared by a court decision, in the present case Madrid City Council was not found to be liable in court proceedings and the compensation granted to the applicant is the result of the 2011 settlement agreement which is aimed at ending a dispute between the parties and under which only that city council bore the liability for the non-transferral of plot B-32. 58 The Commission did not err in concluding, in recital 105 of the contested decision, that a prudent market economy operator, when faced with a situation such as that in the case before it, would have sought legal advice before signing the 2011 settlement agreement and accepting full legal liability for the impossibility of transferring plot B-32 under the 1998 implementation agreement. 59 Such a finding is all the more warranted having regard to the legal framework applicable to plot B-32 as of the date of the 1998 implementation agreement until that of the conclusion of the 2011 settlement agreement and considering the shared competence with regard to urban planning held by the Autonomous Community of Madrid and Madrid City Council, together with the applicant’s knowledge of that legal context. 60 In this respect, it is useful to note that it is apparent from the documents in the file that, as of the 1996 agreement until the 2011 settlement agreement, the legal regime applicable to plot B-32 did not facilitate the transfer of that plot. 61 According to the facts as accepted in the contested decision, which are not disputed, when the applicant and the Autonomous Community of Madrid signed the 1996 agreement, the plots of land and rights to be transferred were to be identified at a later point and the parties set the value of the transaction at EUR 27 million. When the 1998 implementation agreement was signed, the parties agreed upon, inter alia, the transfer of plot B-32 to the applicant and the value of that plot was estimated by the technical departments of Madrid City Council at EUR 595 194. Account had been taken of the fact that only the land planning had been concluded for the area in which that plot was located but not yet its urban development and the fact that no building activity had started yet. 62 According to other facts accepted in the contested decision, which are not disputed either, in 1998 plot B-32 was not transferred by Madrid City Council to the applicant because Madrid City Council did not yet hold legal ownership of that plot. It was envisaged in the 1998 implementation agreement that the transfer would become effective seven days after the registration of Madrid City Council as owner of plot B-32 in the Spanish Property Register. On 28 July 2000, Madrid City Council became the owner of that plot, but that fact was not registered in the Property Register until 11 February 2003. That plot was not transferred. It was considered, under the local urban development plan dated 28 July 1995, to be classified for basic sport use and was included in the PGOU, approved on 17 April 1997 by that city council and the Autonomous Community of Madrid. 63 It is apparent from the contested decision that, according to Ley 9/2001, de 17 de julio 2001, del Suelo de la Comunidad de Madrid (Law 9/2001 of 17 July 2001 concerning the land planning of the Autonomous Community of Madrid), all pieces of land, facilities, constructions and buildings have to be used in accordance with their designation and corresponding land planning classification and, under Article 7.7.2(a) of the PGOU, the plots which fall within the category of being for ‘sport use’ are plots of land in public ownership. That law was in force when Madrid City Council was registered as owner of plot B-32 in 2003. The same law includes an obligation for pieces of land considered to be for basic sport use to be land in public ownership and any transfer is to be precluded, since the public nature of the plot renders it inalienable. 64 The applicant does not dispute that, when the 1998 implementation agreement was signed, plot B-32 was designated, under the PGOU, as being for ‘basic sport use’. Nor did it dispute that, in 2003, when Madrid City Council had to execute its transfer obligation, that plot was public council land and was inalienable. 65 It is important to observe that the applicant therefore knew, at the date the 1998 implementation agreement was concluded, that Madrid City Council was not the owner of plot B-32, that that plot fell within a specific category, namely the category of being for basic sport use, and that it was necessary, at the very least, that the city council concerned acquire the plot and that the plot be registered in the Property Register before its transfer to the applicant could be envisaged. 66 Nor did the applicant dispute that plots falling within the category of being for ‘basic sport use’ constituted plots in public ownership by virtue of Article 7.7.2(a) of the PGOU, approved on 17 April 1997 and therefore applicable at the date of the 1998 implementation agreement. In signing that implementation agreement, it therefore knew that, before the transfer of plot B-32 into its ownership, that plot had to be declassified so that it could be transferred, since plots of land in public ownership cannot, as such, under Spanish law, be transferred. 67 It is apparent from the contested decision and from the answers to the questions put by the Court that the PGOU is a document with regard to which competence is held not only by Madrid City Council but also by the Autonomous Community of Madrid. That city council cannot amend the PGOU of its own motion, but must propose that amendment to that autonomous community. 68 It must be added that the legal framework applicable to plot B-32 changed between the date on which the 1998 implementation agreement was signed and the date on which the 2011 settlement agreement was signed. Law 9/2001 of 17 July 2001 concerning the land planning of the Autonomous Community of Madrid provided that all pieces of land, facilities, constructions and buildings had to be used in accordance with their designation and corresponding land planning classification. 69 It is common ground between the parties that, although the plots falling within the category of being for ‘basic sport use’ were already plots in public ownership under Article 7.7.2(a) of the PGOU, Law 9/2001 of 17 July 2001 concerning the land planning of the Autonomous Community of Madrid rendered the possibility of transferring plot B-32 even more difficult. 70 It is important to add that, inasmuch as neither the Kingdom of Spain, nor Madrid City Council or the applicant have communicated to the Commission a detailed legal analysis concerning that city council’s liability for the non-transferral of plot B-32, it is not for the Commission to carry out that analysis itself and to make a global assessment, taking into account — in addition to the evidence provided — all other relevant evidence enabling it to determine whether the Kingdom of Spain took the measure in question in its capacity as a market economy operator or as the State of the Kingdom of Spain (see, to that effect, judgments of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 86, and of 24 October 2013, Land Burgenland and Others v Commission, C‑214/12 P, C‑215/12 P and C‑223/12 P, EU:C:2013:682, paragraph 60). The Commission does not bear the evidential burden for the purposes of proving that that city council was not required to provide compensation for the loss caused by the failure to perform its contractual obligations and for the purposes of determining the city council’s maximum level of liability. 71 It follows from all the forgoing that the first and second complaints of the first plea must be rejected. The third complaint of the first plea and the second plea 72 By the third complaint of the first plea and the second plea the applicant challenges, in essence, the assessment of the value of the advantage and, in particular, of the value of plot B-32 as adopted by the Commission. 73 The applicant claims that Madrid City Council was unable to exonerate itself from liability on account of the failure to comply with the 1998 implementation agreement and that the financial exposure of that city council was not equivalent to the price of plot B-32 for that city council. It submits that the market value of that plot, as promised to the applicant, is the value of the right to receive full ownership of that plot, without any restriction as to its resale. 74 The maximum level of financial exposure of Madrid City Council in the event of a dispute with the applicant and if it were liable in law for the failure to comply with the 1998 implementation agreement is, the applicant submits, between EUR 33 and EUR 240 million, according to the estimations of the property consultancy’s report. The financial exposure would, in any case, be more than EUR 4 275 000. The applicant asserts that the Commission did not dispute that it would have been possible to change the land planning classification of plot B-32 in order to enable that plot to be transferred. 75 The applicant adds that the financial exposure of Madrid City Council, even if it were not to be found liable for failure to comply with the contract (should it be held that the transfer was impossible as of the outset or subsequently became impossible in a situation where the city council was exonerated from its obligations), would not be zero but would be significantly greater than the value of plot B-32. It argues that Madrid City Council’s maximum level of financial exposure would correspond to EUR 40 million were the 1998 implementation agreement to be held null and void, or EUR 33 million were it to be held that the implementation agreement should be held void on account of an obstacle precluding execution which arose subsequently. 76 The applicant adds that the Commission adopted an estimation of the market value of plot B-32 which was manifestly incorrect and it relies on three other estimations which each attribute a value to that plot of between EUR 22 million and EUR 25 million. 77 Having set out the various scenarios contained in the property valuation office’s report, namely scenarios SE-00, SE-01, SE-02 and SE-03, the applicant claims that scenario SE-03, according to which plot B-32 is the object merely of a right of use, valued at EUR 4 275 000, allowing exploitation for 30 years for basic sport use, lacks any probative value. 78 Scenario SE-03 does not enable the market value of plot B-32 to be determined, but only an investment value. 79 Moreover, the applicant submits, the estimation of the market value made by the property valuation office is vitiated by obvious methodological errors. First, solely a right of use was taken into consideration, which was valued incorrectly. The estimation does not comply with the rules applicable to the valuation of rights of use provided for in Orden Ministerial ECO/805/2003, de 27 de marzo, sobre normas de valoración de bienes inmuebles y de determinados derechos para ciertas finalidades financieras (Ministerial Order ECO/805/2003 of 27 March 2003 on the rules for the valuation of immovable property and of certain rights for financial purposes). According to the estimations produced by the applicant, the value of the right of use was between EUR 23 million and EUR 24 million, depending on its duration. Secondly, the investment plan accepted in the property valuation office’s report does not observe the criterion of greatest and best use of the land and is inappropriate in order to maximise the value of the plot. 80 The applicant submits that the relevance of the other valuations available in addition to that contained in the property valuation office’s report has not been adequately refuted. 81 The Commission disputes the applicant’s arguments. 82 As a preliminary point, it must be stated that, according to the applicant, the financial exposure of Madrid City Council as a result of the failure to comply with the 1998 implementation agreement, irrespective of whether that city council were to be held liable for that failure to comply, in any event exceeded the market value of plot B-32. Thus, it is not, in its view, even necessary for the Court to rule on that value. 83 In this connection, it is important to note, first, that Madrid City Council has not proven that it commissioned legal advice prior to signing the 2011 settlement agreement in order to clarify who was to bear, in the light of Spanish law, liability for the non-transferral of plot B-32. Secondly, in that settlement agreement the applicant and that city council relied on the value of that plot, as estimated by the technical departments of that city council, in order to compensate the applicant on account of the impossibility of transferring that plot to it under the 1998 implementation agreement. 84 In those circumstances, notwithstanding the finding which the Commission happened to reach beforehand — namely that a prudent market economy operator would not, in the same conditions as those in the present case, have signed the 2011 settlement agreement without legal advice — that institution cannot be criticised, with regard to the assessment of whether there was an advantage and its amount, for concerning itself with the value of plot B-32, having accepted the premiss that Madrid City Council was liable. 85 That said, it may usefully be pointed out that the conduct of a private investor, which must be compared to that of a public investor, need not be the conduct of an ordinary investor laying out capital with a view to realising a profit in the relatively short term. That conduct must, at least, be the conduct of a private holding company or a private group of undertakings pursuing a structural policy — whether general or sectoral — and guided by prospects of profitability in the longer term (judgment of 21 March 1991, Italy v Commission, C‑305/89, EU:C:1991:142, paragraph 20). 86 In those circumstances, the application of the criterion of the private investor is not aimed at establishing what could be the maximum profitability obtained by an investor in a particular sector or across the whole economy, but at establishing whether a comparable private investor could, in the circumstances of the case under consideration, have made the investment concerned. It is thus a matter of establishing whether the investment concerned is the result of a degree of economic rationality, at least in the long term (judgment of 3 July 2014, Spain and Others v Commission, T‑319/12 and T‑321/12, not published, EU:T:2014:604, paragraph 42). 87 According to that case-law, it is thus necessary to assess whether, having regard to the initial intention of the parties to the 1998 implementation agreement, and also to the regulations applicable to plot B-32, both at the date at which that implementation agreement was signed and at the date of the signing of the 2011 settlement agreement, it is reasonable to think that a market economy operator would have accepted to pay all the compensation for the non-transferral of the plot concerned, which was estimated to be equal to the value of that plot, namely EUR 22 690 000. 88 It must be added that, so far as concerns the scope of the review by the General Court, in the light of the case-law, although that review is in principle a comprehensive one with regard to whether a measure comes within the scope of Article 107(1) TFEU, the Court of Justice has held that such judicial review was limited where the appraisals by the Commission were technical or complex in nature (see judgments of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 114 and the case-law cited, and of 28 October 2015, Hammar Nordic Plugg v Commission, T‑253/12, EU:T:2015:811, paragraph 30 (not published)). 89 The review by the European Union judicature of the complex economic assessments made by the Commission is necessarily limited and confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers (judgment of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 66). 90 It has already been held that, in order to determine whether the sale of land by the public authorities to a private individual constitutes State aid, the Commission must apply the test of a private investor in a market economy, to determine whether the price paid by the presumed recipient of the aid corresponds to the selling price which a private investor, operating in normal competitive conditions, would be likely to have fixed. As a rule, the application of that test requires the Commission to make a complex economic assessment (judgment of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 68). 91 It is important to add that, since plot B-32 was not transferred, it was provided that compensation would be paid whose valuation is characterised by the absence of an unconditional bidding procedure. Such a fact may also render the Commission’s task complex (see, by analogy, judgment of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 70). 92 Only a manifest error in the determination of the value of plot B-32 is therefore capable of rendering the contested decision unlawful (see, to that effect, judgment of 28 October 2015, Hammar Nordic Plugg v Commission, T‑253/12, EU:T:2015:811, paragraph 34 (not published)). 93 In the present case, it is apparent from the contested decision and the other information in the file that the various estimations made in order to determine the value of plot B-32 differ considerably. 94 For the purposes of the 1998 implementation agreement, the assumed value of plot B-32 was determined by officials in the City council urban development department at EUR 595 194. It is stated that that valuation was made ‘using the valuation methodology laid down in Spanish law’, without any further details being provided. 95 For the purposes of the 2011 settlement agreement, the departments of Madrid City Council based their assessment on the cadastral value, which, according to the applicant, takes account of factors such as the value of the land, the value of the constructions thereon, the location and the market at issue. In the report published on 27 July 2011, those departments determined the value of plot B-32 to be EUR 22 693 054.44. The details of the valuation are set out in recital 36 of the contested decision and they were not disputed by the parties. That was the value which was adopted in the 2011 settlement agreement. 96 After the 2011 settlement agreement was signed, the officials of the Spanish Land Registry, which is part of the Spanish Ministry of Economy and Finance, updated the value of plot B-32 and estimated that value as not less than EUR 25 776 296. According to the applicant, such an update serves to bring the cadastral value closer to the market value, without exceeding that market value. The cadastral value is based, for example, on data relating to actual transactions on the market. Those officials are independent from the officials of Madrid City Council. 97 The applicant commissioned and has produced the property consultancy’s report, in which the market value of plot B-32 in 1998 was assessed at EUR 574 000, which is thus relatively similar to the value upheld for the purposes of the 1998 implementation agreement. In the same report, the market value of the same plot in 2011 was assessed at EUR 22 690 000, which approximately corresponds to the value upheld in the 2011 settlement agreement. The applicant states that the property consultancy’s report uses the static residual valuation method, on the assumption of the sale of the various units shortly after construction of sports infrastructure on the land concerned. That report took into account a transfer to full ownership without restrictions as to resale as well as the objective of that settlement agreement to provide compensation. 98 In the property valuation office’s report, ordered by the Commission, in short, four scenarios were envisaged: scenario SE-00, in which the land is public property and has no market value but only a cost price, namely EUR 3 930 000; scenario SE-01, in which the land is intended for the construction of social housing and is assessed at EUR 18 000 000; scenario SE-02, in which the market value of the land corresponds to 10% of the value in the sector, namely EUR 12 245 000; scenario SE-03, in which plot B-32 cannot be transferred, but can only be the object of a right of use, which would allow exploitation of that land for 30 years for sport use, any subsequent resale being excluded, which would lead to a value of EUR 4 275 000. 99 The Commission stated that in the present case it adopted the value as it followed from scenario SE-03 of the property valuation office’s report, having regard to the land planning classification of the land determining its use and excluding its resale. 100 First of all, it must be held that the Commission did not commit any manifest error in adopting the value following from such a scenario, which was estimated having regard to the right of use of plot B-32. 101 It is not disputed that, in order to determine the value of plot B-32, it was necessary to base the assessment on the situation at the date of the 2011 settlement agreement. That date corresponds in fact to that of the offsetting of debts and payment of compensation as decided upon in that settlement agreement and which are at the origin of the present proceedings. 102 As is apparent from the legal regime applicable to plot B-32, at that date, such a plot was part of public land and could not be transferred, it being only possible to grant a right of use. 103 As the Commission correctly observed in recital 123 of the contested decision, were the payment of compensation to be sought from Madrid City Council, the value of plot B-32 had to correspond to the value which it had for that city council, and thus to the right of use of that plot and not the hypothetical value it would have had had it been transferrable. 104 Next, as regards the right of use, the applicant claimed that that right had not been valued correctly and that its estimation did not comply with the rules applicable to the valuation of rights of use in Spain. 105 On that issue, it must be held that the Commission did not commit a manifest error of assessment in adopting scenario SE-03 in the property valuation office’s report. 106 The other scenarios in the property valuation office’s report and the other estimations on which the applicant relies represent a much greater departure from the circumstances of the case, inasmuch as they are not based on the hypothesis of an estimation of a right of use of a plot which is part of public land, but on an asset which could be sold with full ownership. 107 In scenario SE-03 of the property valuation office’s report, the Commission had available to it the only hypothesis seeking to estimate the right of use of plot B-32. 108 The applicant also claims that the Commission based its decision on the erroneous assumption that the right of use could not be sold. 109 Admittedly, it is stated in recital 111 of the contested decision that the land planning classification of the land determines its use and excludes its resale. In response to a question put by the Court, the Commission stated that it had given precedence to the hypothesis which consisted in accepting the investment value and exploitation of the right of use for 30 years for sport use. 110 Such a hypothesis is also the closest to what the applicant had in mind in 1996, in its land swap transaction with Madrid City Council, since that exchange was initially agreed upon with the intention that the applicant would itself exploit the land that it received from that city council. 111 Lastly, as regards the complaint alleging infringement of the principle of sound administration, it must be observed that the Commission commissioned an expert’s report drawn up on the basis of several scenarios, that it analysed those various scenarios and other valuations made and that it therefore did not simply accept the findings of the property valuation office’s report. 112 As regards the applicant’s argument based on the differences between the initial and final versions of the property valuation office’s report, it is sufficient to point out that the values upheld in those two versions in respect of scenario SE-03 are practically identical, as the Commission has correctly observed, that is EUR 4 270 000 for the purposes of the initial report and EUR 4 275 000 for the purposes of the final report. 113 It follows from all the foregoing that the third complaint of the first plea and the second plea must be rejected as unfounded. The third plea in law 114 The applicant argues that the Commission infringed Article 107(1) TFEU, Article 296 TFEU, the obligation to state reasons and the principle of sound administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, inasmuch as it disputed the value of plot B-32 in order to determine that there was an advantage while accepting that the value of the other plots transferred to the applicant by way of compensation under the 2011 settlement agreement was correct. However, that latter value was calculated using the same valuation method as that used by Madrid City Council for the purposes of plot B-32. Relying on various cases, the applicant asserts that the Commission bore the burden of proving that there had been State aid and that it was not for it to evaluate merely some of the benefits of the transaction in a selective and isolated manner. Moreover, the applicant states that it was required to accept the valuation of the land made by that city council, notwithstanding the under-estimation of its value. Under Spanish law, it had no means of legal redress enabling it to challenge the valuation for the purposes of claiming the difference between the contractual valuation and the market value. Were the Commission to have examined if the benefits of the transaction were balanced, it would have concluded that the amount of State aid allegedly granted would in no case have exceeded EUR 10 931 835. 115 The Commission points out that the purpose of the investigation in the present case was to examine whether there was any State aid resulting from the compensation granted by Madrid City Council following its failure to comply with the 1998 implementation agreement, to determine whether a prudent market economy operator would have accepted full liability without prior legal advice, given the many legal uncertainties, and to ascertain whether the debt agreed upon by that city council corresponded to the financial exposure which that operator would have accepted for the specific value of plot B-32 in 2011. The decision initiating the procedure and the contested decision were clear in that regard. According to the Commission, it is also necessary to assess the reasons stated for the contested decision having regard to its context and it was not required to reply to all the arguments put forward during the administrative procedure by an interested party. It asserts that, in accordance with the case-law, it stated sufficient reasons for that decision. It adds that the purpose of the investigation was not to determine whether the applicant had received unlawful aid having regard to all the commitments made in the 2011 settlement agreement. It contends that the cases relied upon by the applicant are not relevant and, if the applicant had received a lesser benefit than that which had been agreed upon, it could have claimed the value fixed in the 2011 settlement agreement, which it did not do. 116 In this connection, according to the case-law, in order to verify whether the advantage could have been obtained under normal market conditions, the Commission is required to carry out a complete analysis of all factors that are relevant to the transaction at issue and its context (see judgment of 30 June 2015, Netherlands and Others v Commission, T‑186/13, T‑190/13 and T‑193/13, not published, EU:T:2015:447, paragraph 88 and the case-law cited). 117 It has also been held that, so far as concerns the assessment of the value of aid in the form of the sale of land by a public entity to a private individual at a purportedly preferential price, the principle of a private investor operating in a market economy applied and that the value of the aid was equal to the difference between what the recipient actually paid and what it should have paid at the time under normal market conditions to purchase an equivalent piece of land from a private vendor (see judgment of 30 June 2015, Netherlands and Others v Commission, T‑186/13, T‑190/13 and T‑193/13, not published, EU:T:2015:447, paragraph 77 and the case-law cited). 118 It must be stated that, according to the case-law, to assess the lawfulness of the contested decision, it is necessary to take into account the information at the Commission’s disposal or available to it at the date on which it adopted that decision. In that regard, if it should prove to be the case that the Commission’s assessment is contradicted or placed in doubt by information of which it was unaware during the administrative procedure, it must be established whether such information could have been known to and taken into consideration by it at the appropriate time and, if that were the case, whether that information should as a matter of course have been considered by the Commission, at least as relevant data in order to apply the private investor test (judgment of 30 June 2015, Netherlands and Others v Commission, T‑186/13, T‑190/13 and T‑193/13, not published, EU:T:2015:447, paragraph 90 and the case-law cited). 119 In the present case, it must be pointed out that the Commission has accepted that it examined whether there was State aid resulting from the compensation granted by Madrid City Council in connection with the 2011 settlement agreement. 120 It is important to note that, under the 2011 settlement agreement, the parties agreed that the compensation would be paid by replacing the transfer of plot B-32 by the transfer by Madrid City Council of other plots to the applicant and by offsetting their mutual debts. The result was a remaining net claim of EUR 8.04 for the applicant against that city council. 121 The 2011 settlement agreement thus did not concern only the acknowledgement of the debt resulting from the non-transferral of plot B-32, but it sought to compensate the applicant for that non-transferral by transferring other plots to it and by offsetting mutual debts. 122 However, it is common ground that the plots transferred instead of plot B-32 have not been subject to a valuation by the Commission. It reproduced the values accepted in the 2011 settlement agreement. 123 In reply to written questions put by the Court, the applicant confirmed, without the Commission contesting that point, that during the administrative procedure, it had mentioned that there was a difference between the values of the plots transferred under the 2011 settlement agreement and the value of those plots as given in the property consultancy’s report, and thus that the value of those plots had possibly been overestimated. 124 In addition, the applicant also pointed out in the administrative procedure that the property valuation office’s report did not contain any valuation of the plots transferred under the 2011 settlement agreement. 125 Therefore, by merely examining the value of plot B-32, the Commission did not take into consideration all the aspects of the transaction at issue and its context. Contrary to what it was required to do, it thus could not have carried out a complete analysis of all the relevant factors, for the purposes of establishing not only the valuation of the amount of aid, but also, above all, whether there was in fact an advantage resulting from the measure at issue, considered in the light of all the relevant factors. 126 It must be stated that, in reply to questions put by the Court, the Commission advanced that it was not required to take account of facts postdating those which had been the object of the investigation procedure or of advantages which were unrelated to the measure under investigation as such. 127 However, it is sufficient to point out that an estimation of the plots transferred under the 2011 settlement agreement was included in the property consultancy’s report communicated during the administrative procedure. Moreover, the measure under investigation was not restricted merely to the acceptance of the debt resulting from the non-transferral of plot B-32, but to the possible existence of State aid stemming from the compensation granted by Madrid City Council under the 2011 settlement agreement. 128 The Commission therefore has not proven to the requisite standard that the measure at issue conferred an advantage on the applicant. Since at least one of the cumulative requirements mentioned in paragraph 37 above is not satisfied, the Commission could not treat the measure at issue as State aid for the purposes of Article 107(1) TFEU. 129 It follows from the foregoing that the third plea in law must be declared well founded. Consequently, the contested decision must be annulled. Costs 130 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must, in addition to bearing its own costs, be ordered to pay those incurred by the applicant, in accordance with the form of order sought by the applicant. On those grounds, THE GENERAL COURT (Fourth Chamber), hereby: 1. Annuls Commission Decision (EU) 2016/2393 of 4 July 2016 on the State aid SA.33754 (2013/C) (ex 2013/NN) implemented by Spain for Real Madrid CF; 2. Declares that the European Commission is to bear its own costs and orders it to pay the costs incurred by Real Madrid Club de Fútbol. Kanninen Schwarcz Iliopoulos Delivered in open court in Luxembourg on 22 May 2019. [Signatures] * Language of the case: Spanish.