Opinion of the Advocate General — ECLI:EU:C:2013:766
Date: 2013-11-21
Language of the case: French
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: France

summary of the French Republic’s arguments, that none of the pleas raised before the General Court referred expressly to analysis of that criterion. It is not for the General Court to reconstruct the pleas before it on the basis of sporadic allusions appearing in various parts of the application. (75) Consequently, the first plea must also be rejected. IV – Conclusion 80. In conclusion I propose that the Court should: – dismiss the appeal by the French Republic; – order the French Republic to bear its own costs and to pay those incurred by the European Commission. 1 – Original language: French. 2 – OJ 1997 L 274, p. 1. 3 – As is apparent from the contested decision, the guarantee at issue in favour of La Poste, deemed to be a public establishment of an industrial and commercial nature (‘EPIC’), was inferred from a body of evidence, especially the non-application of insolvency and bankruptcy procedures and the designation of the State as being liable to cover debts contracted (see paragraphs 20 to 36 of the decision). 4 – The French Republic raised three pleas in support of its action before the General Court. The first plea alleges an error of law in that the Commission has not established to the requisite legal standard that there is State aid. By its second plea, the French Republic argues that the Commission made errors of law and fact in finding that La Poste, by virtue of its status as an EPIC, enjoyed an implied and unlimited State guarantee in respect of its debts. The third plea alleges that there is no advantage for the purposes of Article 107(1) TFEU. 5 – Case C‑520/07 P Commission v MTU Friedrichshafen [2009] ECR I‑8555. 6 – Case C‑290/07 P Commission v Scott [2010] ECR I‑7763. 7 – Law of 16 July 1980 on penalties in administrative matters and the enforcement of judgments by public law legal persons (JORF of 17 July 1980, p. 1799). 8 – Judgment of the Conseil d’Etat of 18 November 2005 (Decisions of the Conseil d’État, p. 515). 9 – ECHR 26 September 2006 (Application no 57516/00). 10 – See paragraph 139 of the contested decision. 11 – Commission Notice on the application of Articles 87 and 88 of the EC Treaty to State aid in the form of guarantees (2008/C 155/02), (OJ 2008 C 155, p. 10, point 1.2, first paragraph), ‘the Notice’. 12 – See Notice, point 1.2, second paragraph. 13 – See Joined Cases C‑399/10 P and C‑401/10 P Bouygues and Bouygues Télécom v Commissionand Others and Commission v France and Others [2013] ECR, paragraph 101 and the case-law therein cited. 14 – To this effect, see Case C‑200/97 Ecotrade [1998] ECR I‑7907, paragraph 41. 15 – Ecotrade, paragraph 43; Case C‑275/10 Residex Capital IV [2011] ECR I‑13043, paragraphs 39 to 42, and Bouyguesand BouyguesTélécom v Commissionand Others and Commission v France and Others, paragraph 107. 16 – I note at the outset the complexity attendant upon any withdrawal of aid granted in the form of an implied guarantee pursuant to Article 1 of the contested decision. It is true that the Court has already had to deal with indirect measures. The degree of difficulty resulting from the implied nature of the measure at issue here seems to me to be none the less of a quite exceptional nature. 17 – I note that the implied guarantee constituting unlawful aid is accepted by the Commission in the absence of any national legal provision enabling clarification of the national legal status of La Poste. 18 – As I noted in points 87 and 88 of my Opinion in Belgium v Deutsche Post and DHL International, the distinction between evidence and proof must be preserved. It is not for the General Court to prove certain matters but it must be in a position to draw a logical and reasoned conclusion from the matters presented to it (Case C‑148/09 P Belgium v Deutsche Post and Others [2011] ECR I‑8573). 19 – In regard to the criterion of serious difficulties regarding initiation of the formal procedure by the Commission, see Case T‑73/98 Prayon-Rupel v Commission [2001] ECR II‑867 and, more recently, Case C‑646/11 P 3F v Commission [2013] ECR, paragraph 31 and the case-law therein cited. 20 – See Joined Cases C‑324/90 and C‑342/90 Germany and Pleuger Worthington v Commission [1994] ECR I‑1173, paragraph 15. 21 – See to this effect Germany and Pleuger Worthington v Commission paragraph 23. 22 – See to this effect Case C‑276/02 Spain v Commission [2004] ECR I‑8091, paragraph 37. 23 – Case C‑12/03 P Commission v Tetra Laval [2005] ECR I‑987, paragraph 39. 24 – See to this effect judgment in Commission v Scott, paragraph 90. 25 – See, specifically in regard to the second plea before the General Court, paragraphs 66, 71, 78, 82, 87, 92 to 94 of the judgment under appeal. 26 – Judgments in Joined Cases T‑228/99 and T‑233/99 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission [2003] ECR II‑435, paragraph 270, and in Case T‑196/04 Ryanair v Commission [2008] ECR II‑3643, paragraph 59. 27 – In regard to the distinction to be maintained between burden of proof and standard of proof see Opinion of Advocate General Kokott in Case C‑97/08 P Akzo Nobel and Others v Commission point 74 and footnote 64. 28 – The term ‘standard of proof’ appeared in the Court’s case-law in Tetra Laval; Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729; C‑413/06P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951 and C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, GlaxoSmithKline Services and Others v Commission and Others, [2009] ECR I‑9291, paragraphs 87. 29 – Case 107/82 AEG-Telefunken v Commission [1983] ECR 3151, paragraph 136. 30 – Case 29/83 and 30/83 Compagnie royale asturienne des mines and Rheinzink v Commission [1984] ECR 1679, paragraph 20. 31 – Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I‑1307, paragraphs 70 and 127. 32 – See Bertelsmannand Sony Corporation of America v Impala, paragraphs 47, 51 and 52. The criterion was employed by the General Court in Case T‑210/01 General Electric v Commission [2005] ECR II‑5575, at paragraphs 64 and 65 ‘in all likelihood’, at paragraph 331 ‘foreseeable with a sufficient degree of probability’ and at paragraph 340 ‘… the Commission has not established on the basis of convincing evidence, and with a sufficient degree of probability, that the merged entity would have used GECAS’ commercial strength and the financial strength of the group resulting from GE Capital’s position … in the future’. 33 – Sibony, A., and Barbier de La Serre, E., ‘Charge de la preuve and théorie du contrôle en droit communautaire de la concurrence’, RTD Eur. 2007, p. 205. 34 – See to this effect Case C‑279/08 P Commission v Netherlands [2011] ECR I‑7671, paragraph 111. 35 – Bouygues and Bouygues Télécom and Others v Commission and Commission v France and Others, paragraphs 109 and 110. 36 – Commission v Scott, paragraphs 64 to 66. 37 – See Case T‑163/05 Bundesverband deutscher Banken v Commission [2010] ECR II‑387, paragraph 38. 38 – See to this effect, inter alia 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 49, and Case C‑206/04 P Mülhens v OHIM [2006] ECR I‑2717, paragraph 28. 39 – See Case C‑82/01 P Aéroports de Paris v Commission [2002] ECR I‑9297, paragraphs 56 and 63. 40 – Case C‑263/09 P Edwin v OHIM [2011] ECR I‑5853, paragraph 53. 41 – See, ex multis, Case C‑39/94 SFEI and Others [1996] ECR I‑3547, paragraph 60, and C‑487/06 P British Aggregates v Commission [2008] ECR I‑10515, paragraph 82. 42 – Moreover I note that an advantage in terms of a guarantee is also distinct in the sense that the guarantee may be of benefit to both lender and borrower or solely to the borrower. On this point see point 33 et seq. of the Opinion of Advocate General Kokott in ResidexCapital IV and Case C‑329/93, C‑62/95 and C‑63/95 Germany and Others v Commission [1996] ECR I‑5151, paragraph 56. 43 – Case C‑124/10 P Commission v EDF [2012] ECR, paragraph 77 and case-law therein cited. 44 – See Opinion of Advocate General Mengozzi in Bouyguesand Bouygues Télécom v Commission and Others and Commission v France and Others, and the case-law therein cited at paragraph 47, in particular Cases C‑173/73 Italy v Commission [1974] ECR 709, paragraph 27, C‑310/85 Deufil v Commission [1987] ECR 901, paragraph 8, and C‑241/94 France v Commission [1996] ECR I‑4551, paragraph 20. 45 – Joined Cases T‑228/99 and T‑233/99 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission [2003] ECR II‑435, paragraph 270. 46 – Paragraph 106 of the judgment under appeal. 47 – See to this effect Joined Cases C‑72/91 and C‑73/91 Sloman Neptun [1993] ECR I‑887, paragraph 21. 48 – See to this effect Ecotrade 45. 49 – Case C‑295/97 Piaggio [1999] ECR I‑3735, paragraph 42. 50 – Joined Cases C‑71/09 P, C‑73/09 P and C‑76/09 P Comitato ‘Venezia vuole vivere’ v Commission [2011] ECR I‑4727, paragraph 63. 51 – Residex, paragraph 39 52 – See Joined Cases C‑341/06 P and C‑342/06 P Chronopost and La Poste/UFEX and Others [2008] ECR I‑4777, paragraph 128, by dint of a contrario reasoning. 53 – See by analogy Case Belgium v Deutsche Post and DHL International, paragraphs 84 to 87. 54 – Incidentally that reflects the approach already followed by the Commission in adopting a similar decision concerning EDF which at that time had EPIC status (see paragraphs 67 to 72 of Commission Decision 2005/145/EC of 16 December 2003 on the State aid granted by France to EDF and the electricity and gas industries (OJ 2003 L 49, p. 9). That decision was not the subject of an action. 55 – Paragraph 2.2 of the contested decision. 56 – On the ground that the guarantee existed before 1958 the Commission applied Article 1(b) of Council Regulation (EC) No 659/1999 of 22 March 1999, laying down detailed rules for the application of Article 93 of the EEC Treaty (OJ 1999 L 83, p. 1). 57 – It is apparent from the file that it was only in 1990 that the former Directorate General for Posts and Telecommunications was converted into two legal entities governed by public law with effect from 1 January 1991: France Télécom and La Poste. As is stated in paragraph 3 of the judgment under appeal by judgment of 18 January 2001 the Court of Cassation upheld the principle that La Poste was deemed to be an EPIC. The argument as to an existing aid means that before 1990 the implied guarantee mechanism was in force since it involved a State entity. Thus under that interpretation the State was its own guarantor. 58 – Chronopost and La Poste v UFEX and Others, paragraph 144. 59 – Joined Cases C‑442/03 P and C‑471/03 P P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission [2006] ECR I‑4845, paragraph 110. 60 – Case C‑301/87 France v Commission, ‘Boussac Saint Frères’, [1990] ECR I‑307, paragraphs 32 and 33. 61 – See P&O European Ferries (Vizcaya)andDiputación Foral de Vizcaya v Commission and Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraph 49. 62 – See point 4 of the Opinion of Advocate General Capotorti in Case C‑730/79 Philip Morris Holland v Commission [1980] ECR 2671. See also Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission, paragraph 296 and the case-law therein cited and Case C‑222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑289, paragraph 140. 63 – Case C‑372/97 Italy v Commission [2004] ECR I‑3679, paragraphs 44 and 45. 64 – To this effect Cases C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 47, and C‑352/09 P ThyssenKrupp Nirosta v Commission [2011] ECR I‑2359, paragraph 136. 65 – Case C‑482/99 France v Commission, ‘Stardust’, [2002] ECR I‑4397 and Notice, paragraph 4.1. 66 – See to this effect Bundesverband deutscher Banken v Commission, paragraph 36 et seq. 67 – Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraphs 211 to 213. 68 – See Case C‑89/08 P Commission v Ireland and Others [2009] ECR I‑11245. 69 – Ibidem, paragraphs 34 and 35. 70 – See to this effect Case C‑278/92 to C‑280/92 Spain v Commission [1994] ECR I‑4103, paragraph 22, and Opinion of Advocate General Léger in Case C‑280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I‑7747, point 20. 71 – Commission v EDF and Others, paragraph 92. 72 – Annex 3 to the appeal before the Court: letter from the French Government to the Registry of General Court of 15 June 2012. 73 – In particular Case C‑419/08 P Trubowest Handel and Makarov v Council and Commission [2010] ECR I‑2259, paragraphs 30 to 32 and case-law therein cited. 74 – Case C‑176/06 P Stadtwerke Schwäbisch Hall and Others v Commission [2007] ECR I‑170. 75 – As I have already proposed in my Opinion in Belgium v Deutsche Post and DHL International.