Opinion of the Advocate General — ECLI:EU:C:1997:249
Date: 1997-05-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded
Origin: France

Summary 
A — Introduction I - 1723 
B — Legal assessment I - 1730 
I — Preliminary observation I - 1730 
II — Community rules on State aid I - 1731 
III — The legal nature of the contested Commission decision I - 1733 
IV — Breach of the obligation to state reasons laid down in Article 190 of the 
Treaty I - 1738 
1. Scope of the obligation to state reasons I - 1738 
(1) Secondment of administrative staff I - 1741 
(2) Placing of premises at Sécuriposťs disposal I - 1742 
(3) Maintenance of vehicles I - 1743 
(4) Loan of FF 15 000 000 I - 1744 
(5) Prices charged by Sécuripost to the post office I - 1744 
2. Procedural aspects I - 1746 
V — Other aspects I - 1750 
VI — Su mmary I - 1751 
Conclusion I - 1751 
A — Introduction 
1. T h e present proceedings concern the 
appeal b r o u g h t b y t h e C o m m i s s i o n against 
the j u d g m e n t delivered by the C o u r t of First 
Instance o n 28 September 1995 i n Case 
T-95/94. 1 I n that j u d g m e n t t h e C o u r t of 
First Instance annulled a C o m m i s s i o n 
decision of 31 D e c e m b e r 1993 o n aid w h i c h 
* Original language: German. 
1 — Case T-95/94 Chambre Syndicale Nationale des Entreprises 
de Transport de Fonds et Valeurs (Sytravai) and Brink's 
France v Commission [1995] ECR II-2651. 
I - 1 7 2 3 
OPINION OF MR LENZ — CASE C-367/95 P 
the French post office (hereinafter 'the post 
office') had granted to an undertaking in its 
group. 
2. The facts at the origin of the decision are 
described as follows in the contested judg­
ment: 
' 1 . Until 1987, the French post office (here­
inafter "the post office") undertook, through 
its internal departments, the transportation 
of its own moneys and valuables. In 1986 the 
post office decided to carry on certain of its 
activities through the intermediary of com­
mercial companies. On 16 December 1986 
the Société Holding des Filiales de la Poste 
("Sofipost"), controlled as to 99% by the 
French State, was accordingly set up. 
2. On 16 April 1987 Sofipost formed Sécuri-
post SA ("Sécuripost"), which it controls as 
to 99.92%. The object of that company is the 
secure transportation of moneys, the provi­
sion of caretaking and protection services, 
and surveillance. The post office seconded 
over 220 officials to Sécuripost. 
3. By private agreement dated 28 September 
1987, the post office entrusted Sécuripost 
with the performance of the activities falling 
within the spheres referred to above, which 
it had previously carried on itself. Thereafter, 
Sécuripost was to widen its customer base 
and its range of activities. 
4. On 30 September 1987 a framework 
agreement was concluded between the Min­
ister of Posts and Telecommunications and 
Sécuripost. 
5. At the end of 1987, Sofipost advanced the 
sum of FF 5 000 000 to Sécuripost. That loan 
was converted into capital during the first 
half of 1988. 
6. On 1 January 1988 Sofipost increased the 
capital of Sécuripost by means, first, of the 
subscription of the net value of the money 
transportation business transferred by the 
post office to its subsidiary, estimated at 
FF 19 225 000, and, second, of a contribution 
in cash of FF 9 775 000. 
7. During the course of 1989, Sofipost 
granted Sécuripost a second loan of 
FF 15 000 000, at an interest rate correspond­
ing to half a percentage point over the bank 
base rate.' 2 
3. On 4 September 1989 various French 
undertakings and associations of undertak­
ings submitted to the Commission two 
requests for the initiation of a proceeding on 
the basis of Articles 85, 86 and 90 of the EC 
2 — Judgment cited in footnote 1, paragraphs 1 to 7. 
I - 1 7 2 4 
COMMISSION v SYTRAVAL AND BRINK'S FRANCE 
Treaty, on the one hand, and of Articles 92 
and 93 of that Treaty, on the other. They 
included the Chambre Syndicale Nationale 
des Entreprises de Transport de Fonds et 
Valeurs (Sytraval) and Brink's France SARL 
(hereinafter referred to jointly as 'the com­
plainants'). 
4. The present proceedings only concern the 
request based on Articles 92 and 93 of the 
Treaty. 
5. On 14 March 1990 the Commission 
invited the French Government to comment 
on the complaint. The French Government 
replied by letter of 3 May 1990. 
6. On 28 June 1991 the Commission 
informed the complainants that their com­
plaint raised 'a number of important points 
of principle calling, in this instance, for an 
in-depth examination by the relevant Com­
mission departments'. 
7. On 9 October 1991 the Commission 
again informed the complainants that the 
matter raised by them appeared 'particularly 
complex, necessitating extensive technical 
analysis of the voluminous documentation 
produced both by the complainants and by 
the French authorities ... It has not been pos­
sible to complete the inquiry into the matter 
within the period indicated in [the Commis­
sion's] letter of 28 June 1991 because of the 
complexity of the case and the consequent 
need to arrive at a decision which takes 
account of the interests of all of the parties 
concerned'. 3 
8. On 5 February 1992 the Commission 
adopted a decision in which it stated that 
whilst its findings had revealed that 'Sécuri-
post certainly received support from the par­
ent company and from the State when it was 
set up and started operating in the market, it 
cannot be said that there has been a grant of 
State aid within the meaning of Article 92(1) 
of the Treaty'. In that regard, the Commis­
sion informed the complainants, in particu­
lar, that 'the French authorities have formally 
denied the existence of any circumstances 
giving rise, prima facie, to aid falling within 
Article 92(1) — as evidenced, in so far as 
may be necessary, by the documentary evi­
dence adduced in support'. 4 
9. On 13 April 1992 the complainants 
brought an action pursuant to Article 173 of 
the Treaty for the annulment of that 
decision. Those proceedings became devoid 
of purpose when the Commission withdrew 
its decision of 5 February 1992 on 22 June 
1992. 
3 — Judgment cited in footnote 1, paragraphs 9 to 12. 
4 — Judgment cited in footnote 1, paragraph 13. The Court of 
First Instance described the measure in question as a 
'decision rejecting the applicants' complaints' (ibid.). 
I -1725 
O P I N I O N OF MR LENZ — CASE C-367/95 P 
10. O n 24 July 1992 the complainants 
supplemented the complaint which they had 
made to the Commission. 
11. O n 21 January 1993 the Commission 
informed the complainants that it had 
entered the measures taken by the French 
Government with regard to Sécuripost in the 
register of unnotified aids under N o N N 
5/93. 
12. O n 26 March 1993 the French Govern­
ment authorised Sofipost to transfer Sécuri-
posťs property to the private sector. On 22 
April 1993 the complainants submitted a fur­
ther supplement to their complaint. The 
Commission informed the complainants on 5 
May 1993 that it had decided to divide the 
investigation into the matter into two parts, 
dealing respectively with the situation before 
and after the privatisation. 
13. O n 11 October 1993 the complainants 
called on the Commission, pursuant to 
Article 175 of the Treaty, to adopt a decision 
in response to their complaint submitted on 
4 September 1989. 5 
14. O n 31 December 1993 the Commission 
— represented by its Member responsible 
for competition matters — sent the French 
Government a brief letter informing it that it 
had decided to close the inquiry initiated fol­
lowing the abovementioned complaint, since 
according to the information at its disposal it 
was able to conclude that no State aid within 
the meaning of Article 92(1) of the Treaty 
existed. At the same time, however, the 
Commission pointed out that that decision 
did not extend to the measures taken since 
1992 in the context of the privatisation of 
Sécuripost. 6 
15. On the same day the Commission — 
again represented by its Member responsible 
for competition matters — sent the com­
plainants a detailed letter setting out its po­
sition on the arguments which they had put 
forward and explaining that the investigation 
which it had carried out provided no 
grounds for concluding that in this case any 
State aid within the meaning of Article 92 of 
the Treaty existed. The complainants' claims 
to that effect had therefore to be rejected. 
The Commission therefore decided to close 
the investigation initiated following the com­
plaint. At the same time, however, it pointed 
out that that decision did not extend to the 
measures taken since 1992 in the context of 
the privatisation of Sécuripost. 7 
16. The complainants thereupon brought an 
action before the Court of First Instance, 
which, they claimed, should 'annul the 
5 — Judgment cited in footnote 1, paragraphs 14 to 21. 
6 — The Commission also pointed out that the investigation of 
the complaint alleging an infringement of Article 90 in con­
junction with Article 86 of the Treaty was continuing. 
7 — In this letter, too, the Commission went on to say that the 
decision was without prejudice to the complaint alleging an 
infringement of Article 90 in conjunction with Article 86 of 
the Treaty. 
I-1726 
COMMISSION v SYTRAVAL A N D BRINK'S FRANCE 
decision of the Commission of 31 December 
1993, together with all its legal conse­
quences'. 8 
17. The applicants relied on four pleas in 
support of their action: 
'The first plea is based on infringement of 
Article 93(2) of the Treaty, in that the Com­
mission wrongly decided, having regard to 
the circumstances of the case, not to initiate 
the procedure provided for by that provi­
sion. The second plea alleges breach of the 
applicants' right to a fair hearing, in that the 
Commission referred in its decision — 
which adversely affected the applicants — to 
documents which were not communicated to 
them, such as the observations of the French 
Government. The third plea alleges infringe­
ment of Article 190 of the EC Treaty, in that 
the Commission failed to respond in the 
contested decision to the objections raised 
by the applicants in their complaint concern­
ing the grant of aid in the form of (1) the 
secondment to Sécuripost of administrative 
staff of the post office, (2) the placing at the 
disposal of Sécuripost of post office pre­
mises, (3) the supply of fuel and maintenance 
for vehicles on excessively favourable terms 
and (4) the loan of FF 15 000 000 granted by 
Sofipost to Sécuripost at a preferential rate. 
The fourth plea alleges the existence of mani­
fest errors of assessment concerning (1) the 
way in which the decision dealt with the 
increase of FF 9 775 000 in the capital of 
Sécuripost, (2) advances made against orders 
placed by the post office with Sécuripost and 
(3) abnormal charges applied and guarantees 
provided to it by the post office.' 9 
18. The Court of first Instance considered it 
appropriate, in the light of the documents in 
the case, 'focus its examination on the third 
and fourth pleas jointly, alleging infringe­
ment of Article 190 of the Treaty and mani­
fest error of assessment'. 10 
19. In that regard, the Court considered that 
the contested measure was a decision 'reject­
ing the applicants' request for a declaration 
by the Commission that the French Republic 
had infringed Articles 92 and 93 of the 
Treaty by granting aid to Sécuripost'. 11 
20. In examining the scope of the obligation 
to state the reasons laid down in Article 190 
of the Treaty, the Court pointed out that the 
judicial review which such a statement of 
reasons must allow was not, in the present 
case, 'a review of the question whether there 
has been a manifest error of assessment, 
similar to a review of the exercise by the 
Commission of its exclusive power to exam­
ine the compatibility of national measures 
8 — The actual wording of the form of order sought in the appli­
cation, as stated in the contested judgment, cited in footnote 
1 above, paragraph 28. 
9 — Judgment cited in footnote 1 above, paragraph 31. The fig­
ures in brackets have been added in the interest of clarity. 
10 — Judgment cited in footnote 1, paragraph 32. 
11 — Judgment cited in footnote 1, paragraph 22. The wording is 
virtually identical to the wording in paragraph 1 of the 
operative part of the judgment. 
I - 1 7 2 7 
OPINION OF MR LENZ — CASE C-367/95 P 
already found to constitute State aid ... but a 
review of the interpretation and application 
of the concept of State aid referred to in 
Article 92 of the Treaty which the Commis­
sion has undertaken with a view to deter­
mining whether or not the national measures 
complained of by the applicants are to be 
classified as State aid'. 1 2 
21. Such review must also have regard to the 
context within which the decision was 
adopted. In that regard, the Court of First 
Instance emphasised four points. First, the 
Commission had needed over 51 months in 
which to deal with the complaint submitted 
on 4 September 1989. During that period the 
Commission had adopted two decisions (the 
decision of 5 February 1992 and the con­
tested decision), at an interval of more than 
22 months. Secondly, the Commission had 
stated in its correspondence with the com­
plainants that their complaint raised a num­
ber of important points of principle calling 
for an in-depth examination and extensive 
technical analysis. Thirdly, it was established 
that the Commission had withdrawn its ini­
tial decision of 5 February 1992 following 
the complainants' action for its annulment, 
although that action merely repeated the 
various objections already put forward, 
without raising any new objections. 
Fourthly and finally, the Court of First 
Instance observed that the Commission had 
entered the measures complained of in the 
register of unnotified aids. Furthermore, in 
its letter of 31 December 1993 to the French 
Government the Commission expressed its 
regret that no advance notice had been given 
pursuant to Article 93(3) of the Treaty in 
relation to any of those measures. The Court 
of First Instance concluded that '[i]n the 
light of the foregoing findings, it is necessary 
to examine whether, in the present case, the 
reasons set out in the contested decision are 
capable of supporting the contention that the 
measures complained of by the applicants 
did not constitute State aid within the mean­
ing of Article 92 of the Treaty'. 13 
22. As regards (1) the administrative staff 
seconded by the post office, the Court of 
First Instance held that the Commission, in 
its decision, had completely failed to examine 
the special advantage criticised by the com­
plainants arising from the fact that the offi­
cials in question might, where necessary, be 
reassigned to the department originally 
employing them without Sécuripost having 
to pay any compensation for redundancy or 
dismissal whatever. Moreover, the Commis­
sion had established that Sécuripost did not 
pay any contributions to unemployment 
insurance funds in respect of these employ­
ees, but had not provided the slightest expla­
nation as to why that was not to be regarded 
as State aid. That constituted an infringement 
of Article 190. 14 
23. As regards (2) the placing of premises at 
Sécuriposťs disposal, the Court of First 
Instance noted that the Commission had 
merely stated that the premises had not been 
placed at Sécuriposťs disposal free of charge 
— as claimed in the complaint — but that 
Sécuripost had been required to pay rent. 
The Commission had provided no details 
regarding the amount of the rent, however, 
and had failed to compare it with what com­
petitors had to pay in a comparable situation. 
That constituted a failure to state reasons. 
12 — Judgment cited in footnote 1, paragraph 54. 
13 — Judgment cited in footnote 1, paragraphs 55 to 60. 
14 — Judgment cited in footnote 1, paragraphs 62 and 63. 
I-1728 
COMMISSION v SYTRAVAL A N D BRINK'S FRANCE 
Furthermore, where the Commission decides 
to reject a complaint without allowing the 
complainant to comment, prior to the adop­
tion of the definitive decision, on the infor­
mation obtained in its investigation, 'it is 
under an automatic obligation to examine 
the objections which the complainant would 
certainly have raised if it had been given the 
opportunity of taking cognisance of that 
information'. Consequently, in this regard 
also, according to the Court of First 
Instance, the decision was inadequately rea­
soned. 1 5 
24. As regards (3) the supply of fuel, the 
Commission had, according to the Court of 
First Instance, been 'right' to rely in its 
decision on the explanations given by the 
French Government. However, the decision 
was inadequately reasoned as regards the 
maintenance of Sécuriposťs vehicles, since 
the Commission merely referred to the 
invoicing system applied in that regard, 
without examining 'whether or not the rates 
charged disclosed the existence of State 
aid'. 16 
25. As regards (4) the loans granted by Sofi-
post to Sécuripost, the Court of First 
Instance found that the Commission had 
been 'right' to rely on the explanations given 
by the French Government in so far as the 
loan of FF 5 000 000 was concerned. 1 7 O n 
the other hand, the reasons provided as 
regards the advance of FF 15 000 000 were 
inadequate, since the Commission had 
merely stated that that sum represented a 
commercial transaction. Even in such a case, 
however, an aid might exist. 1 8 
26. The Court of First Instance then pointed 
out that the complainants had criticised the 
Commission for having committed a mani­
fest error of assessment as regards the prices 
charged by Sécuripost to the post office. In 
that regard, the Commission, when making 
the abovementioned comparison between 
those prices and the prices which Sécuripost 
charged to a third party, had confined itself 
to 1993, without attempting to justify or 
clarify its decision to do so. In the absence of 
any details regarding the corresponding rates 
for 1987 to 1992, the Court considered that 
it did not have at its disposal sufficient infor­
mation to review the validity of the con­
tested decision and that it 'was consequently 
necessary for it to raise of its own motion 
the lack of reasons. 19 
27. The Court of First Instance then referred 
to the difficulties which complainants fre­
quently experience in gathering evidence in 
15 — Judgment cited in footnote 1, paragraphs 64 to 66. 
16 — Judgment cited in footnote 1, paragraphs 67 to 69. 
17 — These findings are surprising since, according to the content 
of the application described by the Court of First Instance 
(paragraph 31 of the judgment; see paragraph 17 above) that 
part of the Commission's decision nad not been contested. 
18 — Judgment cited in footnote 1, paragraphs 70 to 71. 
19 — Judgment cited in footnote 1, paragraph 73 to 75. 
I - 1729 
OPINION OF MR LENZ — CASE C-367/95 P 
such cases. The circumstances of the case 
were such as to 'reinforce the Commission's 
obligation to furnish a statement of rea­
sons'. 20 
28. Finally, the Court of First Instance 
stated that the Commission's obligation to 
state reasons for its decisions may 'in certain 
circumstances require an exchange of views 
and arguments with the complainant, since, 
in order to justify to the requisite legal stan­
dard its assessment of the nature of a meas­
ure characterised by the complainant as State 
aid, the Commission needs to ascertain what 
view the complainant takes of the infor­
mation gathered by it in the course of its 
inquiry ... In those circumstances, that obli­
gation constitutes a necessary extension of 
the Commission's obligation to deal dili­
gently and impartially with its inquiry into 
the matter by eliciting all such views as may 
be necessary'. 21 
29. The Court of First Instance concluded 
from those considerations that the contested 
decision must be annulled, since the reasons 
stated '[did] not bear out the conclusion that 
the measures complained of by the appli­
cants did not constitute State aid within the 
meaning of Article 92 of the Treaty'. 22 
30. The Commission lodged an appeal 
against that judgment, claiming that the 
Court of Justice should set it aside and, in 
consequence of that, take all requisite legal 
steps and, in particular, refer the case back to 
the Court of First Instance for a decision on 
the merits and order the applicants to pay 
the costs. 23 The Netherlands, Germany and 
Spain have intervened in support of the 
appeal, as has France (which had already 
intervened before the Court of First Instance 
in support of the Commission). However, 
the applicants in the original proceedings 
have not taken part in the appeal procedure 
before the Court of Justice. 
B — Legal assessment 
I — Preliminary observation 
31. In examining the appeal, it is necessary 
to take account of the fact that the Court of 
First Instance based the annulment of the 
Commission decision on a number of con­
siderations. The appeal can therefore be 
allowed only if all those considerations 
prove to be defective in law and if the judg­
ment of the Court of First Instance is not 
shown to be correct on other grounds. 
20 — Judgment cited in footnote 1, paragraph 77. 
21 — Judgment cited in footnote 1, paragraph 78. 
22 — Judgment cited in footnote 1, paragraph 80. 
23 — It should be pointed out here and now that this application 
for costs cannot be reconciled with the application in 
respect of the merits of the case. Article 222 of the Rules of 
Procedure provides that in appeal proceedings the Court is 
to make a decision as to costs only where the appeal is 
unfounded or where the appeal is well founded and the 
Court itself gives final judgment in the case. 
I -1730 
COMMISSION v SYTRAVAL AND BRINK'S FRANCE 
II — Community rules on State aid 
32. In the interest of a proper understanding 
of the problems raised by the present case, it 
is necessary to begin by briefly describing 
the rules of the Treaty applicable to State aid 
and in particular the role played by the 
Commission in that sphere. The Court of 
Justice recently examined those rules in its 
judgment in Case C-39/94 24 — which also 
concerned the post office —, where it held as 
follows: 
'35 Article 91(2) of the Treaty provides that 
"[S]ave as otherwise provided in this Treaty, 
any aid granted by a Member State or 
through State resources in any form whatso­
ever which distorts or threatens to distort 
competition by favouring certain undertak­
ings or the production of certain goods shall, 
in so far as it affects trade between Member 
States, be incompatible with the common 
market". 
36 That prohibition, as a matter of principle, 
of State aids is neither absolute nor uncondi­
tional since paragraph (3) in particular of 
Article 92 confers on the Commission a wide 
discretion to allow aid by way of derogation 
from the general prohibition laid down in 
paragraph (1) of that article. The determina­
tion in such cases of the question whether a 
State aid is or is not compatible with the 
common market raises problems which pre­
suppose the examination and appraisal of 
economic facts and conditions which may be 
both complex and liable to change rapidly 
(Case C-301/87 France v Commission [1990] 
ECR I-307, the "Boussac" case, paragraph 
15). 
37 That was the reason for which the Treaty 
provided in Article 93 for a special pro­
cedure under which the Commission would 
monitor aid schemes and keep them under 
constant review. With regard to new aid 
which Member States might be intending to 
grant, a preliminary procedure was estab­
lished; if this procedure was not followed, 
the aid could not be regarded as having been 
properly granted. By virtue of the first sen­
tence of Article 93(3) of the Treaty, the 
Commission is to be notified of plans to 
grant or alter aid before they are put into 
effect. 
38 The Commission then conducts an initial 
review of the planned aid. If at the end of 
that review it considers a plan to be incom­
patible with the common market, it must 
without delay initiate the consultative exami­
nation procedure under Article 93(2). It fol­
lows from the last sentence of Article 93(3) 
that throughout the preliminary period the 
Member State concerned may not put the 
planned aid into effect. Where the consulta­
tive examination procedure is initiated, that 
prohibition continues until the Commission 
reaches a decision on the compatibility of the 
planned aid with the common market (see 24 — Case C-39/94 SFEI and Others v La Poste and Others 
[1996] ECR I-3547. 
I - 1731 
OPINION OF MR LENZ — CASE C-367/95 P 
Case C-47/91 Italy v Commission [1991] 
ECR I-4145, paragraph 24). However, if the 
Commission has not responded within two 
months of notification, the Member State 
concerned may implement the plan after 
informing the Commission (Case 120/73 
Lorenz v Germany [1973] ECR 1471, para­
graph 4).' 
33. The Commission is required to initiate 
the procedure provided for in Article 93(2) 
not only where, following an initial examina­
tion, it considers that the aid is contrary to 
the Treaty, but as soon as it 'has serious dif­
ficulties in determining whether an aid is 
compatible with the common market. The 
Commission may restrict itself to the pre­
liminary examination under Article 93(3) 
when taking a decision in favour of an aid 
only if it is able to satisfy itself after the pre­
liminary examination that the aid is compat­
ible with the Treaty. If, on the other hand, 
the initial examination leads the Commission 
to the opposite conclusion or if it does not 
enable it to overcome all the difficulties 
involved in determining whether the aid is 
compatible with the common market, the 
Commission is under a duty to obtain all the 
requisite opinions and for that purpose to 
initiate the procedure provided for in Article 
93(2)'. 25 
34. The prohibition laid down in the third 
sentence of Article 93(3) has direct effect. 
That means that where an aid measure has 
been implemented without having been noti­
fied to the Commission the persons con­
cerned are able to rely on that provision 
before the national courts. 26 In such a case 
the national courts must guarantee to the 
persons concerned 'that all the necessary 
inferences will be drawn, in accordance with 
their national law, as regards the validity of 
measures giving effect to the aid, the recov­
ery of financial support granted in disregard 
of that provision and possible interim mea­
sures'. 27 
35. In that connection, a national court may 
be required to interpret the concept of aid 
referred to in Article 92 'in order to deter­
mine whether a State measure introduced 
without observance of the preliminary 
examination procedure provided for in 
Article 93(3) ought to have been subject to 
that procedure'. Although the Commission 
has exclusive competence — subject to 
review by the Court — to determine the 
compatibility of an aid with the common 
market, the same does not apply when it 
comes to answering the question whether an 
aid actually exists. In case of doubt the 
national court may consult the Commission 
to seek clarification of the question. Further­
more, the national court may or must, pur­
suant to Article 177 of the Treaty, refer a 
question to the Court for a preliminary rul­
ing on the interpretation of Article 92. 28 
25 — Case C-198/91 Cook v Commission [1993] ECR I-2487, 
paragraph 29; cf. the earlier judgment in Case 84/82 Ger­
many v Commission [1984] 1415, paragraph 13. 
26 — The same applies where an aid measure, although notified 
to the Commission, has already been implemented during 
the preliminary suge or — where the Commission has ini­
tiated a formal procedure — prior to the adoption of the 
final decision. 
27 — Case C-354/90 Fédération Nationale du Commerce 
Extérieur des Produits Alimentaires et Syndicat National des 
Négociants et Transformateurs de Saumon v French State 
[1991] ECR I-5505, paragraph 12. 
28 — See SFEI and Others, cited in footnote 24, paragraphs 49 to 
51. 
I-1732 
COMMISSION v SYTRAVAL AND BRINK'S FRANCE 
III — The legal nature of the contested Com­
mission decision 
36. As I have already mentioned, the Court 
of First Instance considered in its judgment 
that the contested measure was a decision 
rejecting a request for a declaration by the 
Commission that the French Republic had 
infringed Articles 92 and 93 of the Treaty by 
granting aid to Sécuripost. 29 
37. That interpretation is criticised both by 
the Commission and by the Member States 
which have intervened in its support. 
38. The Commission claims that the decision 
at issue in the present case was contained in 
its letter to the French Republic- of 31 
December 1993. The complainants were only 
informed that the decision had been adopted 
in the letter sent to them on the same day. 
Referring to the Opinion of Advocate Gen­
eral Tesauro in Cook v Commission, 30 the 
Commission considers that under the Article 
93 procedure the only decision which it is 
empowered to take is a decision on the com­
patibility of the aid with the Treaty. There is 
no place, on the other hand, for an indepen­
dent and separate decision rejecting a com­
plaint submitted by a competitor of the 
undertaking in receipt of the aid. 
39. The French Government supports the 
Commission's view that the present case 
concerns a Commission decision addressed 
to it and not a decision rejecting the com­
plainants' request. The Netherlands Govern­
ment is of the opinion that under the scheme 
of the Treaty the only decisions possible are 
decisions which the Commission addresses 
to the Member States. The Spanish Govern­
ment also considers that in this sphere only 
the Member State concerned may be 
regarded as the person to whom a Commis­
sion decision is addressed. The observations 
of the German Government — which does 
not expressly address that question — may 
also be taken to preclude the possibility of a 
decision being be addressed to the complain­
ants. 
40. I shall begin by noting — as the Court 
of First Instance did in its judgment 31 — 
that 'neither the Treaty nor Community leg­
islation lays down the procedural system for 
dealing with complaints objecting to grants 
of State aid'. The Council has not yet made 
use of its power under Article 94 of the 
Treaty to 'make any appropriate regulations 
for the application of Articles 92 and 93'. In 
that regard, this area of the law is distin­
guished from that covered by Articles 85 and 
86 of the Treaty. As we know, Regulation 
29 — Sec paragraph 19 above. 
30 — Opinion of 31 March 1993 in Case C-198/91, cited in foot­
note 25 ([1993) ECR I-2502, at I-2509 et seq.). 31 — Judgment cited in footnote 1, paragraph 50. 
I -1733 
OPINION OF MR LENZ — CASE C-367/95 P 
N o 17 of the Council of 6 February 1962, 32 
on the application of Articles 85 and 86, pro­
vides in Article 3 that, as well as Member 
States, 'natural or legal persons who claim a 
legitimate interest' may also request the 
Commission to find that there is an infringe­
ment of Articles 85 and 86 and to require 
those concerned to bring such infringement 
to an end. If such a complaint is rejected by 
the Commission, that decision can be con­
tested by the complainants by means of an 
action for annulment. 33 
41. The absence of corresponding provisions 
does not of course mean that it would be 
impossible in the field of State aid to turn to 
the Commission by submitting a complaint 
to it. O n the contrary, it unquestionably fol­
lows from the principle of proper adminis­
tration that the Commission is required to 
examine all complaints submitted to it in 
respect of aid, whether real or supposed. If 
in the context of an initial examination pur­
suant to Article 93(3) the Commission 
reaches the conclusion that the aid is con­
trary to the Treaty or if it is unable to over­
come all the difficulties in that regard, it is 
required — as I have already mentioned 34— 
to initiate the formal procedure provided for 
in Article 93(2). In the context of that pro­
cedure the Commission must give the 'par­
ties concerned' the opportunity to submit 
their comments. These 'parties concerned' 
include, as well as the undertakings in receipt 
of the aid, 'persons, undertakings or associ­
ations whose interests might be affected by 
the grant of the aid, in particular competing 
undertakings and trade associations'. 35 
42. If, on the other hand, the Commission 
forms the view that there is no need to ini­
tiate the procedure provided for in Article 
93(2), the complainant is still not without 
protection. Where, without initiating the 
procedure under Article 93(2), the Commis­
sion finds, on the basis of Article 93(3), that 
an aid is compatible with the common mar­
ket, that decision can, according to recent 
case-law, be challenged under Article 173 by 
the 'parties concerned' referred to in Article 
93(2). 36 As this Court rightly explained in 
the grounds of its judgment, it is only in this 
way that those persons may secure compli­
ance with the procedural guarantees con­
ferred on them by Article 93(2). 37 
43. These principles apply not only where 
the Commission refuses to initiate the pro­
cedure provided for in Article 93(2) on the 
ground that it has reached the conclusion 
that an aid was plainly compatible with the 
common market but also where it has 
already formed the opinion that no aid 
32 — First Regulation implementing Articles 85 and 86 of the 
Treaty (OJ, English Special Edition 1959-62, p. 87). 
33 — See, for example. Case C-282/95 P Guérin Automobiles v 
Commission [1997] ECR I-1503, paragraph 36. 
34 — See paragraph 32 above. 
35 — Case 323/82 Intermills v Commission [1984] ECR 3809, 
paragraph 16. 
36 — Sec Case C-313/90 CIRFS and Others v Commission [1993] 
ECR I-1125, paragraphs 26 and 27, and Cook v Commis­
sion, cited in footnote 25, paragraph 23. 
37 — Cook v Commission, cited in footnote 25, paragraph 23, and 
Case C-225/91 Matra v Commission [1993] ECR I-3203, 
paragraph 17. 
I - 1734 
COMMISSION v SYTRAVAL A N D BRINK'S FRANCE 
exists. 38 The Commission, too has taken this 
view in the present case. 
44. In each of the abovementioned judg­
ments the Court of Justice considered that 
the content of the Commission's decision 
consisted in the refusal to initiate the pro­
cedure provided for in Article 93(2). 39 In 
those judgments it also considered that the 
contested decision was addressed to the 
Member State concerned, not the complain­
ant. 40 The Court of Justice therefore ascer­
tained in each case whether the decision was 
of direct and individual concern to the com­
plainant. The question therefore arises in the 
present case whether the finding of the 
Court of First Instance that the contested 
measure was a decision addressed to the 
complainants rejecting their complaint is 
compatible with that case-law. 
45. To my mind that question must be 
answered in the affirmative. As regards, first 
of all, the form of words employed by the 
Court of First Instance, it should be 
observed that the Court of Justice expressed 
itself in very similar terms in Irish Cement v 
Commission, a case decided in 1988. That 
case, too, concerned a letter sent by the 
Commission to an undertaking which had 
complained of an aid granted to a competi­
tor. The Court of Justice held, in that con­
text, that '[c]onsequently, the letter of 14 
May 1985 constitutes a decision by the 
Commission rejecting the complaint relating 
to the aid granted to Quinn'. 41 In that judg­
ment it observed that the objective of the 
complaint could only be the opening of the 
procedure provided for in Article 93(2). 42 
In those circumstances, I do not regard the 
actual classification given to such a decision 
as being of great importance. 
46. On the other hand, more weight should 
be given to the objection that the person to 
whom such a decision of the Commission is 
addressed can only be a Member State. It 
does in fact seem logical that in principle a 
decision of the Commission concerning an 
aid granted by a Member States should be 
addressed solely to that Member State. The 
same is true where, as in this case, the Com­
mission acted on the basis of a complaint and 
reached the conclusion that it was unneces­
sary to initiate the formal procedure pro­
vided for in Article 93(2). Where the Com­
mission adopts such a decision and informs 
the complainant by letter that it has done so, 
the complainant clearly cannot challenge the 
letter, but only the decision itself, and then 
only if the conditions set out in the fourth 
paragraph of Article 173 are met. That was 
the position in Cook v Commission and 
Matra v Commission. 43 
38 — This view also forms the basis of the judgment of the Court 
of First Instance in Case T-471/93 Tiercé Ladbroke v Com­
mission [1995] ECR II-2537. 
39 — The Court expressly stated this in CIRFS v Commission, 
cited in footnote 36, paragraph 26. 
40 — See, for example. Cook v Commission, cited in footnote 25, 
paragraph 15. 
41 — Joined Cases 166/86 and 220/86 Irish Cement v Commis­
sion [1988] ECR 6473, paragraph 11. 
42 — Judgment cited in footnote 41, paragraph 9. 
43 — Cook v Commission, cited in footnote 25, paragraphs 8 and 
13, and Matra v Commission, cited in footnote 37, para­
graphs 5 and 6. 
I -1735 
OPINION OF MR LENZ — CASE C-367/95 P 
If one examines the other judgments of the 
Court of Justice concerning the possibility 
that such a decision could also be addressed 
to the complainant, it will be found that that 
possibility has indeed been raised. It cannot 
be said with absolute certainty, however, that 
the Court of Justice has thus far actually rec­
ognised such a possibility. This is also true as 
regards Irish Cement v Commission. In that 
case the action was not directed against the 
Commission decision 'rejecting the com­
plaint' but against a subsequent letter which, 
in this Court's view, merely confirmed the 
decision (which in the meantime had become 
final). The Court of Justice therefore dis­
missed the action as inadmissible and 
expressly left open the question whether the 
'decision' (if any) contained in the second 
letter was of 'direct and individual concern' 
to the applicant. 44 It is not certain, therefore, 
whether in this Court's view the decision 
contained in the first letter was actually 
addressed to the complainant. In a decision 
delivered some years later to which I have 
already referred, CIRFS and Others v Com­
mission, this Court construed a similar letter 
from the Commission to the complainants as 
constituting communication of a decision 
addressed to the French Republic, whereby 
the Commission refused to initiate the pro­
cedure provided for in Article 93(2). 45 
47. To my mind, however, the possibility of 
addressing such a decision directly to the 
complainant should not be precluded. The 
wording of the Treaty does not compel the 
conclusion that a Commission decision not 
to initiate the procedure under Article 93(3) 
can only be addressed to the Member State 
which adopted the aid measure in question. 
In that regard I am unable to support the 
view expressed by Advocate General Tesauro 
in Cook v Commission that the Commission 
cannot react to a complaint 'until after 
deciding whether the aid is compatible and 
its reply cannot be anything more or less 
than the communication of the decision con­
cerning the compatibility of the aid'. 46 
48. It is true, admittedly, that the subject-
matter of the procedure before the Commis­
sion is the legality of the conduct of the 
Member State. 47 It should be observed, 
however, that in cases such as this the Mem­
ber State plays a very limited role in the pro­
cedure in comparison to that played by the 
complainant. The French Republic did not 
notify the measure at issue to the Commisr 
sion and therefore also did not seek a 
decision from the Commission. It was the 
complainants who, by their complaint, 
caused the investigation to be launched. As I 
have already mentioned, recent case-law con­
fers on a complainant who is one of the 'par­
ties concerned' referred to in Article 93(2) 
the right to challenge by means of legal pro­
ceedings a Commission decision refusing to 
initiate the procedure provided for in that 
article. That means — as I have yet to show 
— that the Commission is under an obliga­
tion to state the reasons for its decision. 
Whether or not the Commission satisfied 
44 — Judgment cited in footnote 41, paragraph 16. 
45 — Judgment cited in footnote 36, paragraphs 26 and 28. The 
action was considered admissible, however, since the 
decision included therein was of direct and individual con­
cern to at least one of the complainants (ibid., paragraph 29 
et seq.). 
46 — Opinion cited in footnote 30, at [1993] ECR I-2510. 
47 — I myself considered that factor decisive in my Opinion of 
17 September 1992 in CIRFS v Commission, cited in foot­
note 36 ([1993] ECR I-1148, at I-1160). 
I -1736 
COMMISSION v SYTRAVAL A N D BRINK'S FRANCE 
that obligation in the present case is central 
to the arguments in the contested judgment. 
It should be pointed out here and now, how­
ever, that in its letter of 31 December 1993 to 
the complainants the Commission set out in 
detail the reasons for its decision, whereas it 
failed to do so in the letter which it sent to 
the French Republic on the same day. 48 On 
the assumption that in the present case the 
Commission decision was contained in its 
letter to the French Republic, it is difficult to 
escape the conclusion that the decision does 
not contain an adequate statement of rea­
sons. If, on the other hand, the decision is 
contained in the Commission's letter to the 
complainants, then in my opinion there is 
nothing to indicate that (contrary to first 
impressions) the decision was a decision 
addressed to the French Republic. The letter 
to the complainants was not accompanied by 
a copy of the letter to the French Republic. 
As far as I can see, moreover, that letter was 
not even mentioned in the letter to the com­
plainants. The submission that in the present 
case the complainants only received com­
munication of a decision taken in another 
connection therefore strikes me as far­
fetched. Such a construction rings false. Fur­
thermore, the Commission has acknowl­
edged the 'unfortunate presentation' of its 
decision in the present case. 
49. What seems to me to be the most natural 
solution, therefore, is to interpret the Com­
mission's letter as the Court of First Instance 
did. In my opinion the Commission must be 
recognised as having the power to address 
decisions of the type in issue here directly to 
the complainant. After all, it is essentially the 
complainant's arguments that the Commis­
sion analyses in such a decision. Further­
more, it is principally the complainant who 
is concerned by the decision, since, unlike 
the Member State concerned, it may have an 
interest in instituting court proceedings 
against it. This approach strikes me as having 
the advantage of practicality. 
50. Should this approach be criticised on the 
ground that it fails to have proper regard to 
the interests of the Member State concerned, 
my answer would be that the Commission is 
empowered, but not obliged, to address such 
a decision to the complainant. 49 If, for 
example, the aid measure which is the subject 
of the complaint was notified by the 
Member State concerned, it seems to me, 
too, more normal for the Commission to 
address its decision to that State. It could 
have proceeded in this way also in the 
present case. If it did not do so, this does not 
seem to me to pose any problem. 
51. Even if one were not disposed to concur 
in that approach, it should be pointed out 
that persons to whom such a decision 
addressed to a Member State is of direct and 
individual concern may challenge it and that 
the Commission has expressly (and quite 
rightly) recognised that the complainants 
48 — On the content of this letter, see paragraph 14 above. 
49 — This also makes it possible to prevent the danger that any 
complainant (includine, for example, those in no way 
affected by an aid) will De granted a right of action against a 
corresponding decision of the Commission. Furthermore, it 
is also conceivable that the Commission's obligation to 
investigate complaints might be limited in that it would 
only be obliged to do so where the complainants were "par­
ties concerned' within the meaning of Article 93(2) of the 
Treaty. 
I - 1737 
OPINION OF MR LENZ — CASE C-367/95 P 
satisfied these conditions. In those circum­
stances, it would seem to me wrong to seek 
to have the contested judgment set aside on 
the sole ground that it did not properly iden­
tify the content of the decision and the per­
sons to whom it was addressed, when there 
could be no doubt as to the objective of the 
action. 
IV — Breach of the obligation to state rea­
sons laid down in Article 190 of the Treaty 
52. The Court of First Instance itself stated 
that its judgment dealt with only two of the 
applicants' pleas, alleging, respectively, 
infringement of Article 190 of the Treaty and 
manifest error of assessment by the Com­
mission. The French Government has rightly 
observed, however, that the Court of First 
Instance eventually annulled the decision 
solely on the ground of infringement of 
Article 190. 50 In that regard, the Court of 
First Instance held, first, that the Commis­
sion's reasons were inadequate. It also con­
sidered that the Commission had infringed 
Article 190 by failing to take certain mea­
sures (namely to examine the complaints 
which the complainants had not raised but 
which they certainly would have raised in 
certain circumstances, and to give them the 
opportunity to express their views). I shall 
deal with these two aspects separately. 
1. Scope of the obligation to state reasons 
53. In a recent judgment the Court defined 
the scope of the obligations under Article 
190 as follows: 
'It is settled case-law that the statement of 
reasons required by Article 190 of the Treaty 
must show clearly and unequivocally the 
reasoning of the institution which enacted 
the measure so as to inform the persons con­
cerned of the justification for the measure 
adopted and to enable the Court to exercise 
its power of review. It is not necessary, how­
ever, for details of all relevant factual and 
legal aspects to be given, in so far as the 
question whether the statement of the 
grounds for a decision meets the require­
ments of Article 190 of the Treaty must be 
answered with regard not only to its word­
ing but also to its context and to all the legal 
rules governing the matter in question.' 51 
The Court of First Instance also started from 
this principle in its judgment. 52 
54. The Netherlands Government, which 
interprets the contested measure as a 
50 — On this question, see paragraph 26 above. In that regard, it 
should be observed that in the part of its judgment where it 
examines the complainants' complaint alleging a manifest 
error of assessment the Court of First Instance raises of its 
own motion the question of an infringement of Article 190 
and declares the corresponding part of the decision unlaw­
ful for that reason. 
51 — Case C-22/94 The Irish Farmers Association and Others 
[1997] ECR I-1809, paragraph 39. 
52 — Judgment cited in footnote 1, paragraph 52. 
I -1738 
COMMISSION v SYTRAVAL A N D BRINK'S FRANCE 
decision addressed to the French Republic, 
has pointed out in its observations that the 
definition of the scope of the obligation to 
state reasons should also take account of the 
interests of third parties (as those of the 
complainants in the present case). I must 
agree. 53 As I have already mentioned, a 
decision of the Commission not to initiate 
the procedure provided for in Article 93(2) 
may be challenged by the 'parties concerned' 
referred to in that provision. 54 The persons 
concerned cannot properly exercise that 
right, however, unless they are '[informed] of 
the justification for the measure adopted'. 
The Commission must therefore be consid­
ered to be under a duty to state the reasons 
on which such decisions are based, pursuant 
to Article 190. The German Government's 
opinion to the contrary, namely that such an 
obligation to state reasons is not to be 
inferred from Article 190 or from Article 93, 
cannot in my view be reconciled with recent 
case-law (with which the German Govern­
ment fails to deal in its observations). Nor, 
for the same reason, am I able to support the 
opinion put forward by the Netherlands 
Government to the effect that, since the 
Commission is not under a duty, pursuant to 
Article 93(3), to hear the complainants (a 
point to which I shall return), it is also not 
under a duty to provide the reasons for 
rejecting arguments which were none the less 
submitted. 
The fact that the Commission, for the pur­
pose of the reasons on which its decision was 
based, was accordingly required to have 
regard to the complainants' interests is in my 
opinion even more relevant to the question, 
which I have already discussed, as to the per­
sons to whom the decision was addressed. 
55. It was therefore indeed for the Court of 
First Instance to 'verify whether, in the 
present case, the contested decision discloses 
in a clear and unequivocal manner the rea­
soning which led the Commission to con­
clude that the measures complained of by the 
applicants did not constitute State aid within 
the meaning of Article 92 of the Treaty, in 
such a way as to make the complainants 
aware of the reasons for the rejection of their 
complaint and thus enable them to defend 
their rights and the Court to exercise its 
power of review'. 55 
56. As I have already mentioned, the Court 
of First Instance further observed in its judg­
ment that the judicial review which such a 
statement of reasons must allow was not a 
review of the assessment of measures already 
found to constitute State aid. It was, rather, a 
review of the interpretation and application 
of the concept of State aid. 56 In that regard, 
too, I agree with the Court of First Instance. 
The French Government is quite right to 
point out that the answer to the question 
whether State aid exists in a particular case 
may also present difficulties. Judicial review 
must therefore focus on whether or not 
establishing the existence of aid involves 
complex technical or economic evaluations. 
The Court of Justice has also acknowledged, 
in SFEI and Others, that the examination of 
53 — See the earlier judgment in Joined Cases 296/82 and 318/82 
Netherlands and Leeuwarder Papierwarenfabriek v Com­
mission [1985] ECR 809, paragraph 19 (where the Court 
considered that, apart from the interest of the person to 
whom a measure was addressed, the interest of 'other per­
sons to whom it is of direct and individual concern within 
the meaning of the second paragraph of Article 173 of the 
Treaty' was also deserving of protection. 
54 — See paragraph 42 above. 
55 — Judgment cited in footnote 1, paragraph 53. 
56 — See paragraph 20 above. 
I - 1739 
OPINION OF MR LENZ — CASE C-367/95 P 
the question of the existence of aid presup­
poses an 'economic analysis' taking into 
account all the relevant factors. 57 That is cer­
tainly true. None the less, I consider that the 
margin of discretion is considerably nar­
rower here than when determining whether 
an aid is compatible with the common mar­
ket, if only because the interpretation of the 
concept of 'aid', unlike the latter question, 
does not fall within the exclusive competence 
of the Commission. 58 That question does 
not need to be resolved here, as it is of no 
relevance to the present case. Should prefer­
ence be given to the view which I have 
rejected, it would in any event be necessary 
to reach the conclusion that the statement of 
the reasons for the Commission's decision is 
even more important. As the Court of Jus­
tice held in Germany v Council, the 'Bremer 
Vulkan case 59 — which also concerned the 
classification of certain measures as aid — 
the requirement to state reasons must be 
assessed according to the circumstances of 
the case. According to the Court, it followed 
that the Commission 'had to take account of 
all the circumstances and all the relevant fac­
tors of the case'. 60 
57. As regards the extent of the statement of 
reasons which the Commission was required 
to provide in the present case, it should 
admittedly be observed that the decision was 
taken on the basis of the informal examina­
tion carried out pursuant to Article 93(3). 
The Commission could not therefore be 
expected to analyse in its decision all the cir­
cumstances relevant to the present case in its 
decision. 61 It must, on the other hand, be 
expected to examine and assess the argu­
ments put forward by the complainants. 
58. A number of the Member States which 
intervened in the proceedings claimed that, 
in the light of the case-law of the Court of 
Justice, in particular the Lorenz judgment, 62 
the Commission, in carrying out its prelimi­
nary examination, had only a short time in 
which to examine a proposal to grant aid. 
That fact must have an impact on the extent 
of the statement of reasons. That consider­
ation is of no relevance to the present case, 
however. On the one hand, more than four 
years elapsed in this case before the con­
tested decision was taken, and on the other 
hand — and this is the decisive factor — the 
case-law in question (and the short period of 
time resulting from it) is not applicable 
where a Member State has implemented 
planned measures without first notifying 
them to the Commission. 63 That was the 
position in the present case. 
59. None the less, even though the statement 
of reasons to be provided by the Commis­
sion must therefore be subject to rigorous 
requirements, it appears to me that the 
57 — Judgment cited in footnote 24, paragraph 61. 
58 — Nor am I convinced by Tiercé Ladbroke v Commission 
(cited in footnote 38), to which the French Government 
refers and whence it follows (paragraph 55) that both 
examinations should be subject to the same criteria. 
59 — Joined Cases C-329/93, C-62/95 and C-63/95 Germany 
and Others v Commission [1996] ECR I-5151. 
60 — Judgment cited in footnote 59, paragraphs 31 and 32. 
61 — Therefore also those, for example, which would require fur­
ther investigation on its part. 
62 — See paragraph 32 in fine, above. 
63 — This was established in SFEI and Others, cited in footnote 
24, paragraph 48. 
I - 1 7 4 0 
COMMISSION v SYTRAVAL A N D BRINK'S FRANCE 
complaint raised by all the interveners in the 
present proceedings, namely that the Court 
of First Instance went far beyond what was 
reasonable in this context and, in essence, 
examined not the question 'whether there 
was an adequate statement of reasons but the 
question as to whether those reasons were 
factually correct, is to a considerable extent 
justified. 
(1) Secondment of administrative staff 
60. As regards the staff seconded to Sécuri-
post by the post office, it is established, in 
the light of the findings of the Court of First 
Instance, that in their complaint the com­
plainants had also criticised the fact that, 
should the need arise, Sécuripost could dis­
pense with the services of these employees 
without having to pay compensation for 
redundancy or dismissal. The Court of First 
Instance pointed out in its judgment that the 
Commission had admitted railing to examine 
that complaint in its decision. That finding is 
not challenged by the Commission or by the 
other parties to the proceedings before the 
Court. 
61. During the proceedings before the Court 
of First Instance the Commission observed 
that in the present case this was merely a 
'secondary aspect' of a complaint regarding 
the payment by the State of the remuner­
ation of the staff of Sécuripost. The Court of 
First Instance considered that explanation 
inadequate, since in its view the Commission 
was required to answer each of the com­
plaints, 'if only by referring where appropri­
ate to the de minimis rule'. It therefore con­
sidered that in that regard the decision did 
not contain an adequate statement of rea­
sons. 64 
62. To my mind that is correct. If the 
requirement to state reasons in Article 190 is 
intended to enable the Community courts to 
review the legality of the decision, the Com­
mission must be regarded as being required 
to comment expressly on all the points in the 
complaint. 65 Nor does that mean that the 
requirements laid down in Article 190 must 
be extended beyond their proper scope. If an 
aspect of a complaint appears to be second­
ary or less important, one is entitled to 
expect the Commission to explain, albeit 
summarily, that this is the case. That 'was not 
done. The statement of reasons subsequently 
provided by the Commission during the 
proceedings before the Court of First 
Instance cannot make good that defect. 
63. Purely in the interest of completeness, it 
should be pointed out that this of course 
does not mean that the Commission must 
expressly answer all the points in a com­
plaint. If a criticism appears to be manifestly 
beside the point or irrelevant it would be 
going too far to expect the Commission to 
answer it in any event. That is certainly not 
the case in the present situation, however. 
The possibility of dispensing with the 
64 — Judgment cited in footnote 1, paragraphs 61 and 62. 
65 — The question whether the Court of First Instance, in Tiercé 
Ladbroke v Commission, cited in footnote 38, accepted a 
less rigorous criterion on this point (ibid., paragraphs 31 to 
34) may be left open. It does not appear that in the decision 
forming the subject of that judgment the Commission com­
pletely failed to deal with a point in the complaint. 
I - 1741 
OPINION OF MR LENZ — CASE C-367/95 P 
services of certain employees without incur­
ring heavy burdens is not a circumstance 
such as may be regarded as manifestly irrel­
evant to the question of the existence of an 
aid. 
64. The situation is different as regards the 
complainants' objection that Sécuripost was 
not required to pay contributions to the 
unemployment insurance funds in respect of 
those employees. O n that point, the Com­
mission stated in its decision that such con­
tributions did not need to be paid since their 
employment was guaranteed by their status 
as officials. The validity of that reasoning 
seems dubious. It should be pointed out, 
however, that Article 190 of the Treaty 
merely requires the Commission to explain 
the reasons on which a decision is based. I t 
does not follow from Article 190 that those 
reasons must also be accurate. Examination 
of the material accuracy of a decision must 
be distinguished from the question as to 
whether that decision is adequately reasoned. 
The obligation to state the reasons on which 
a decision is based must in fact — as I have 
already stated repeatedly — make it possible 
to ascertain its material accuracy and cannot 
therefore be the same thing. In that regard, 
the assessment of the Court of First Instance 
is incorrect in law. 
(2) Placing of premises at Sécuriposťs dis­
posal 
65. As regards the placing of premises at 
Sécuriposťs disposal by the post office, the 
complainants had maintained in their 
complaint that Sécuripost was not required 
to pay any consideration. The Commission 
relied in its decision on the fact that Sécuri­
post was required to pay rent. The Court of 
First Instance held that the Commission had 
omitted to ascertain the amount of the rent 
paid by Sécuripost and to compare it with 
the rent which its competitors were required 
to pay in a comparable situation. The Court 
of First Instance considered that this consti­
tuted a defect in reasoning. 6 6 
66. I am unable to endorse that assessment. 
In its decision the Commission provided the 
reasons for which it did not consider that the 
objection in question was established. That 
statement of reasons makes it possible to 
review the question whether the Commis­
sion's view was correct. It is quite clear that 
the obligation to pay rent precludes the 
argument that the premises were made avail­
able free of charge. 
67. It is equally clear, of course, that the 
mere fact that Sécuripost was required to pay 
rent is not enough to preclude the possibility 
that the provision of the premises in ques­
tion might include an element of aid. That 
might be the case if the rent was lower than 
that which its competitors were required to 
pay. However, that possibility was not raised 
by the complainants in their complaint. Of 
course, the question arises whether it was 
enough for the Commission to establish that 
rent was charged or whether, on the other 
hand, it should have examined more closely 
the amount of the rent paid by Sécuripost. 
66 — Judgment cited in footnote 1, paragraphs 64 to 66. 
I-1742 
COMMISSION y SYTRAVAL A N D BRINK'S FRANCE 
That, however, is an obligation arising (pos­
sibly) from Article 93 and the procedure 
provided for therein. It does not, on the 
other hand, concern the breach of the obliga­
tion to state reasons laid down in Article 
190. 6 7 On this point, too, the assessment by 
the Court of First Instance is incorrect in 
law. 
68. It must be recognised, however, that in 
Germany and Others v Commission, the 
'Bremer Vulkan judgment, cited above, the 
Court of Justice also appears to have adopted 
an approach similar to that adopted by the 
Court of First Instance in the present case. 
In that case the Commission had adopted a 
decision establishing the existence of an aid 
contrary to the Treaty. The objective of the 
procedure was essentially to evaluate certain 
shares. The Commission considered in its 
decision that it was necessary to rely solely 
on the stock market price, since the value of 
shares is determined by the market. The 
Court of Justice, on the other hand, consid­
ered that the Commission should also have 
taken account of other factors (for example 
the 'intrinsic' value of the undertaking con­
cerned). Since it had not done so, the Court 
of Justice found that '[o]n this point ... the 
contested act lacks an adequate statement of 
reasons'. 6 8 It cannot be denied that in that 
case, too, judicial review centred essentially 
on the material accuracy of the decision and 
not on the requirement to state reasons as 
such. 
(3) Maintenance of vehicles 
69. The precise content of the objection 
raised by the applicants in their complaint 
relating to the maintenance of vehicles is not 
apparent from the judgment of the Court of 
First Instance. 6 9 According to the Commis­
sion's position, as stated in the judgment, the 
complainants had objected that Sécuriposťs 
vehicles were maintained by the Service 
Nationale des Ateliers et Garages des P T T 
(national workshops and garages department 
of the post office, hereinafter 'SNAG'). I n 
that regard, the Commission pointed out in 
its decision that SNAG invoiced Sécuripost 
for all the services provided and for that pur­
pose used an invoicing system similar to that 
used by private garages. The Court of First 
Instance considered that the Commission 
had failed to answer the complainants' objec­
tion, since it had not examined whether or 
not the rates charged disclosed the existence 
of State aid. 7 0 
70. O n this point, too, I take the view — as 
does, for example, the Netherlands Govern­
ment — that the Court of First Instance 
reviewed not the observance of Article 190 
but rather the material accuracy of the rea­
sons put forward by the Commission. In 
that regard, reference should be made to the 
observations which I made when discussing 
the making available of premises. 71 
67 — On this point, see also paragraph 78 et seq., below. 
68 — Judgment cited in footnote 59, paragraphs 28 to 37. 
69 — Sec paragraph 36 of the judgment cited in footnote 1; sec 
abo paragraph 42 thereof. 
70 — Judgment cited in footnote 1, paragraphs 67 and 69. 
71 — See paragraphs 66 to 68 above. 
I-1743 
OPINION OF MR LENZ — CASE C-367/95 P 
(4) Loan of FF 15 000 000 
71. As regards the loan of FF 15 000 000 to 
Sécuripost, the Commission stated in its 
decision that the rate of interest applied was 
equal to half a percentage point over the 
bank base rate. It inferred from this that the 
complainants' objection should be rejected, 
since the loan represented a commercial 
transaction. The Court considered that 'the 
fact that the transaction was of a commercial 
nature is not in itself sufficient to show that 
it does not amount to State aid within the 
meaning of Article 92 of the Treaty, since 
such a transaction may none the less be 
effected at a rate which gives Sécuripost a 
special advantage by comparison with its 
competitors'. In that regard, the decision was 
inadequately reasoned. 72 
72. O n this point, too, the Court of First 
Instance did not in my opinion review com­
pliance with Article 190 but the material 
accuracy of the decision. The Commission 
stated the reasons which had led it to con­
clude that the loan in issue did not represent 
an aid. Whether or not these reasons were 
accurate is another matter. If, for example, 
the complainants were in a position to show 
that the rates normally applied on the market 
for such a loan were in reality substantially 
higher than those charged to Sécuripost the 
statement of reasons provided by the Com­
mission in its decision would be invalid. 
However, this is not a question of the obliga­
tion to state reasons, but a question of the 
material validity of the reasons. 
(5) Prices charged by Sécuripost to the post 
office 
73. The complainants maintained in their 
complaint that the agreements concluded 
between the post office and Sécuripost, par­
ticularly those relating to money transporta­
tion, had provided for a rate substantially 
higher than that normally charged in that 
sector. In its decision the Commission 
undertook a comparison between the rates 
charged by Sécuripost to the post office and 
those charged to Casino shops. The Court of 
First Instance observed in its judgment that 
the Commission based its comparison solely 
on information relating to 1993, without 
attempting to justify or clarify its decision to 
do so. In the absence of any details regarding 
the years 1987 to 1992, the Court of First 
Instance considered that 'it [did] not have at 
its disposal the requisite information 
enabling it to review the validity of the con­
tested decision'. According to the Court of 
First Instance, the decision contained inad­
equate reasons in that respect and the Court 
was required to raise this matter of its own 
motion. 
74. If one examines the corresponding pas­
sage in the Commission decision, it will be 
seen that the method employed in comparing 
the prices is not at first sight very easy to 
understand. It should be pointed out, how­
ever, that the Court of First Instance does 72 — Judgment cited in footnote 1, paragraph 72. 
I - 1744 
COMMISSION v SYTRAVAL A N D BRINK'S FRANCE 
not criticise the contested decision for being 
inadequately reasoned in that regard. 73 The 
fact remains that the Commission relied 
exclusively on the figures relating to 1993. 
75. The view might be taken that the Com­
mission therefore dealt with the objection in 
question only for 1993 but otherwise failed 
to respond to it. There would thus be no 
statement of reasons for the years 1987 to 
1992 to indicate why the Commission con­
cluded that no State aid existed during that 
period. Such an approach is not without 
merit. To my mind, however, a different 
interpretation is to be preferred. If the Com­
mission based its conclusion on the 1993 fig­
ures to which it referred in its decision, it 
must be inferred that it considered those fig­
ures to be decisive. In other works, the 
Commission apparently believed that the fig­
ures relating to 1993 were representative of 
the entire period to be considered. Whether 
that was in fact the case, however, is a ques­
tion of the material accuracy of the decision 
and not the statement of reasons on which it 
was based. On this point, too, the criticisms 
made by the Commission and the other par­
ties to the proceedings are therefore well 
founded. 74 
76. I shall merely observe as an incidental 
point that the fact, emphasised by the Court 
of First Instance, that in this part of its 
decision the Commission merely repeated 
the explanations given by the French Gov­
ernment strikes me as irrelevant in this con­
text. All that is required here is to ascertain 
whether sufficient reasons were given. That 
is the case in my opinion. The fact that the 
Commission did not prepare the reasons 
itself, but took them over from the French 
Government, is of no importance, since it is 
clear that the Commission adopted those 
explanations. 
77. It should be observed, however, that the 
difference in prices for 1993 established by 
the comparison was higher than 10%. 
According to the findings of the Court of 
First Instance — which are binding on the 
Court of Justice in its appellate capacity — 
the prices paid to Sécuripost by the post 
office also showed a steady fall, but in 1993 
were still more than 10% higher than those 
paid by comparable customers. That means 
that the price differences to which the com­
plainants refer for the previous years were 
even greater. Nor, according to the Court of 
First Instance, did the Commission deny that 
those price differences existed during the 
years 1987 to 1992. 75 Having regard to those 
circumstances, the Commission could not, in 
my opinion, conclude solely on the basis of 
the figures for 1993 that no State aid had 
existed. That, on this point, constitutes a 
(manifest) error of assessment, as the com­
plainants also alleged in the proceedings 
73 — That would appear to be due to the fact that the complain­
ants declared during the proceedings at first instance that 
they were now able to grasp the calculations, as a result of 
the explanations given by the Commission in its defence, 
but that they none the less maintained their complaint 
(alleging a manifest error of assessment), particularly as 
regards the year chosen by the Commission (judgment 
cited in footnote 1, paragraph 46). 
74 — In Germany and Others v Commission, the 'Bremer Vul­
kan' case, to which I have already referred on a number of 
occasions (see footnote 59), the Commission also appeared 
not to have stated the reasons for choosing the relevant 
time for the evaluation of the aid measure (the provision of 
a guarantee by the Land Bremen). The Court of Justice 
held, however, that the Commission had 'clearly' chosen 
this point in time because that was the time when the com-
p etent authority had carried out 'the final assessment of the 
actors and circumstances on the basis of which it gave the 
guarantee. On this point the contested act contains an 
adequate statement of reasons' (ibid., paragraph 30). 75 — Judgment cited in footnote 1, paragraph 74. 
I -1745 
O P I N I O N O F MR L E N Z — CASE C-367/95 P 
before the Court of First Instance. Since the 
decision of the Court of First Instance there­
fore appears to be materially well founded in 
that regard, in spite of the error which that 
Court committed — the decision discloses a 
(manifest) error of assessment rather than a 
lack of reasons — the appeal cannot suc­
ceed. 76 
2. Procedural aspects 
78. The Court of First Instance considered 
that where the Commission decides not to 
initiate the procedure provided for in Article 
93(2) of the Treaty but has not first given the 
complainant the opportunity to comment on 
the results of the investigation it is 'under an 
automatic obligation to examine the objec­
tions which the complainant would certainly 
have raised if it had been given the opportu­
nity of taking cognisance of that infor­
mation'. 77 
79. The Netherlands Government has 
pointed out the difficulties which such an 
approach entails. It would in fact be 
extremely difficult for the Commission to 
carry out the task assigned to it by the Court 
of First Instance. That is so in particular 
where the Commission has only a limited 
time in which to carry out the preliminary 
examination provided for in Article 93(3). 78 
80. In my view, however, there is no need to 
go further into that question. As the French 
Government has rightly pointed out, that 
question concerns the scope of the obliga­
tions which Article 93 and the procedure laid 
down therein impose on the Commission. 
On the pretext of reviewing compliance with 
Article 190 the Court of First Instance, 
according to that Government, reviewed 
compliance with a new procedural rule pos­
tulated by the Court itself. I must subscribe 
to that point of view. The obligation to state 
reasons which is laid down in Article 190 
certainly does not imply an obligation to 
answer arguments which have not been put 
forward. The corresponding criticisms of the 
parties to the proceedings are therefore well 
founded. 
81. The Court of First Instance also put for­
ward the proposition that the obligation to 
state reasons in Article 190 might in certain 
circumstances require the Commission to 
allow a complainant to make his views 
known during the Article 93(3) stage and to 
undertake an exchange of views and argu­
ments ('un débat contradictoire'). 79 
82. It is impossible to see precisely what sta­
tus should be attributed to this consideration 
76 — See, for example. Case C-320/92 P Finsider v Commission 
[1994] ECR I-5697, paragraph 37. 
77 — Judgment cited in footnote 1, paragraph 66. See also para­
graph 71 of the judgment, which refers to paragraph 66. 
78 — On this point, see paragraph 58 above. 
79 — Judgment cited in footnote 1, paragraph 78. 
I -1746 
COMMISSION y SYTRAVAL AND BRINK'S FRANCE 
in the context of the reasons given by the 
Court of First Instance. The introduction to 
the paragraph in question includes a word 
('moreover') which may lead to the conclu­
sion that it is more in the nature of an inci­
dental consideration. If it were in fact a non­
essential ground, the criticisms relating to it 
could of course not result in the judgment 
being set aside and would therefore be inef­
fectual. 80 Since the conclusion reached by 
the Court of First Instance, which is set out 
in paragraph 80 of the judgment, follows 
almost immediately after this passage, how­
ever, and refers to all of the foregoing, it 
must no doubt be accepted that that reason­
ing of the Court of First Instance is not a 
merely ancillary consideration. 
83. As regards the substance, it is quite obvi­
ous here, too, that the Court of First 
Instance cannot base itself in that regard on 
Article 190, but goes far beyond the require­
ments of that provision. It essentially implies 
that this is so where it states that the obliga­
tion which it postulates 'constitutes a neces­
sary extension of the Commission's obliga­
tion to deal diligently and impartially with 
its inquiry into the matter by eliciting all 
such views as may be necessary'. 81 Thus 
what is examined is not whether the Com­
mission has properly provided the reasons 
for its decision but whether it has complied 
with its procedural obligations. 
84. Since on this point (too) the Court of 
First Instance based its decision solely on an 
infringement of Article 190, it would not 
normally be necessary to consider whether 
the proposition which it expounds at this 
point may none the less be considered cor­
rect for other reasons. I consider that such an 
examination is advisable in the present case, 
however. On the one hand, all the parties to 
the appeal proceedings have gone into that 
question in considerable detail. On the other 
hand, it should be observed that the Court of 
First Instance itself clearly wished, through 
this firmly expounded proposition, to pro­
voke a debate and to give a new direction to 
the case-law. 
85. To speak of a new direction is justified, 
therefore, because according to the case-law 
thus far an obligation to hear the persons 
affected by an aid measure exists only in the 
context of the procedure provided for in 
paragraph (2) of Article 93. As an instance of 
that case-law, it will suffice to quote the find­
ings of the Court of Justice to that effect in 
Matra v Commission: 
'As the Court has already held ... the pre­
liminary stage of the procedure for reviewing 
aid under Article 93(3) of the Treaty, which 
is intended merely to allow the Commission 
to form a prima facie opinion on the partial 
or complete conformity of the aid in ques­
tion, must be distinguished from the exami­
nation under Article 93(2) of the Treaty. It is 
only in connection with the latter examina­
tion, which is designed to enable the Com­
mission to be fully informed of all the facts 
of the case, that the Treaty imposes an 
80 — See, for example, Case C-395/95 P Geotronics v Commis­
sion [1997] ECR I-2271, paragraph 23. 
81 — Judgment cited in footnote 1, paragraph 78, in fine. 
I -1747 
OP I NI ON OF MR LENZ — CASE C-367/95 P 
obligation on the Commission to give the 
parties concerned notice to submit their 
comments.' 82 
'The Treaty does not, on the other hand, lay 
down any such obligation where the Com­
mission is able lawfully to restrict itself to 
finding that aid is compatible in the prelimi­
nary stage provided for by Article 93(3) of 
the Treaty.' 83 
The Court of First Instance itself confirmed 
that case-law again in a recent decision. 84 
86. As all the parties to the appeal proceed­
ings have rightly observed, the Court of First 
Instance failed to have sufficient regard in its 
judgment to this fundamental distinction 
between the two stages of the examination. 85 
Admittedly, the Treaty does not prohibit the 
Commission from hearing the views of an 
interested party at the stage of the prelimi­
nary examination procedure provided for in 
Article 93(3) or from passing on to such a 
party — while observing the legitimate 
requirements of confidentiality — the com­
ments sent to it by the Member State con­
cerned, as the Commission, according to the 
Court of First Instance, has already done in 
certain cases. 86 The Commission should be 
left to decide, in the normal framework of its 
discretion, whether or not it wishes to make 
use of that possibility. An obligation to hear 
the comments of the parties concerned, how­
ever, only exists in the procedure provided 
for in Article 93(2). 
87. This distinction between the two stages 
of the procedure is also correct in this con­
text. The preliminary examination procedure 
is designed to allow the Commission to form 
a (provisional) opinion, within a short time, 
as to whether an aid measure is or is not 
compatible with the Treaty. If the Commis­
sion were placed under a duty, in this con­
text, to consult the parties concerned, or 
indeed to undertake an exchange of views 
and arguments with them, that objective 
would be defeated. The practicability of the 
preliminary examination procedure — and in 
particular its completion in a short time — 
would then be called in question. 
88. The judgment of the Court of First 
Instance is clearly based on the intention to 
protect the interests of the complainants and 
other parties concerned (within the meaning 
of Article 93(2)) by requiring the Commis­
sion to hear them 'in certain circumstances' 
at the stage of the preliminary examination 
procedure. The Court of First Instance also 
very righdy observes, in that context, that 
complainants generally encounter great diffi­
culties in such a situation in gathering the 
82 — Judgment cited in footnote 37, paragraph 16. 
83 — Judgment cited in footnote 37, paragraph 53. 
84 — See judgment of the Court of First Instance (Third Cham­
ber, Extended Composition) of 22 October 1996 in Case 
T-266/94 Foreningen af Jernskibs-og Maskinbyggerier i 
Danmark, Skibsvèerftsforeningen and Others v Commission 
[1996] ECR II-1399, paragraph 257. In the present case the 
contested judgment was delivered by the Court of First 
Instance (Fourth Chamber, Extended Composition). 
85 — See, in the same sense, P. J. Slot: 'De concurrentie waakt. 
Het aanvechten van steunmaatregelen', in NJB 1996, p. 797, 
at p. 800. 86 — Judgment cited in footnote 1, paragraph 79. 
I -1748 
COMMISSION v SYTRAVAL A N D BRINK'S FRANCE 
evidence necessary to support their com­
plaint. The Court's intention to protect these 
persons is therefore perfectly legitimate. In 
my opinion, however, the new obligation 
which the Court of First Instance places on 
the Commission is not necessary in order to 
attain that objective. 
89. The recent case-law of the Court of Jus­
tice already provides a means of guaranteeing 
the rights of the parties concerned in a way 
which is as simple as it is effective. In that 
regard, the Court of Justice stated in Cook v 
Commission: 
'As the Court pointed out in its abovemen-
tioned judgment in Germany v Commission 
(at paragraph 13), the procedure under 
Article 93(2) is essential whenever the Com­
mission has serious difficulties in determin­
ing whether an aid is compatible with the 
common market. The Commission may 
restrict itself to the preliminary examination 
under Article 93(3) when taking a decision in 
favour of an aid only if it is able to satisfy 
itself after the preliminary examination that 
the aid is compatible with the Treaty. If, on 
the other hand, the initial examination leads 
the Commission to the opposite conclusion 
or if it does not enable it to overcome all the 
difficulties involved in determining whether 
the aid is compatible with the common mar­
ket, the Commission is under a duty to 
obtain all the requisite opinions and for that 
purpose to initiate the procedure provided 
for in Article 93(2).' 8 7 
In that regard, it is for the Commission ' to 
determine, subject to review by the Court, 
on the basis of the factual and legal circum­
stances of the case, whether the difficulties 
involved in assessing the compatibility of the 
aid warrant the initiation of that pro­
cedure'. 8 8 
90. If the Commission is therefore consid­
ered to be required in such a situation to ini­
tiate the procedure provided for in Article 
93(2), which requires consultation with the 
parties concerned, the rights of that category 
of persons will be sufficiently taken into 
account. Where at the close of the prelimi­
nary examination the Commission still has 
doubts as to the compatibility of an aid 
measure with the Treaty it is required to ini­
tiate the procedure provided for in Article 
93(2). Where, on the other hand, it has 
become convinced that the measure is com­
patible with the Treaty, it may decide not t o 
initiate that procedure. In that case it must 
naturally set out its reasons in order to 
enable the parties concerned to challenge the 
decision, where appropriate, before the 
Community courts. 
87 — Judgment cited in footnote 25, paragraph 29 (as regards the 
Germany v Commission judgment to which the Court 
refers, see paragraph 25 above); see, in the same sense, Case 
T-49/93 SIDE v Commission [1995] ECR II-2501, para­
graph 58. 
88 — Judgment cited in footnote 25, paragraph 30; sec, in the 
same sense, SIDE v Commission, citeď in footnote 87, para­
graph 59. 
I-1749 
OPINION OF MR LENZ — CASE C-367/95 P 
91. That approach also avoids certain incon­
sistencies concerning the procedural regime 
to which the view of the Court of First 
Instance would inevitably lead. The French 
Government has rightly observed that, in the 
context of the procedure provided for in 
Article 93(2), it is considered sufficient, for 
the purpose of consultation, that the Com­
mission should invite the parties concerned, 
by an announcement in the Official Journal, 
to submit their comments, whereas the 
Court of First Instance requires, in the con­
text of the preliminary examination pro­
cedure, that the Commission should commun­
icate to the complainant in person the 
explanations provided by the Member State 
concerned, in order to receive the complain­
ant's comments. More important still is the 
fact, pointed out by the Commission, that it 
is impossible to see what in the view of the 
Court of First Instance constitutes the differ­
ence between circumstances which justify 
initiating the procedure provided for in 
Article 93(2) and those which require the 
Commission to undertake an exchange of 
views and arguments with the complainant 
in the context of Article 93(3). 
92. As regards the present proceedings, it 
should be observed that the complainants, by 
their first plea, claimed that the Commission 
had been wrong to decide not to initiate the 
procedure provided for in Article 93(2). 89 
Having regard to the circumstances of the 
case as described by the Court of First 
Instance, it appears to me that there is no 
doubt that this plea was well founded. The 
explanations provided by the Commission 
during the procedure clearly disclosed that it 
had encountered 'serious difficulties' in the 
course of its examination. Accordingly, it 
was not entitled to extend the preliminary 
stage until those difficulties appeared to it to 
have been overcome, but was required to ini­
tiate the procedure provided for in Article 
93(2). Furthermore, even having regard to 
the fact that the complainants subsequently 
supplemented their initial complaint and that 
the Commission adopted an initial decision 
on 5 February 1992, which was withdrawn 
shortly afterwards, the time which it needed 
to take cannot be regarded as reasonable for 
a preliminary examination procedure. I 
should have found it more convincing if the 
Court of First Instance had based the annul­
ment of the Commission decision on this 
plea rather than granting complainants a new 
procedural right based on Article 190. 90 
V — Other aspects 
93. The Netherlands Government has 
claimed in its observations that the Court of 
First Instance itself failed to provide 
adequate reasons for its judgment, so that the 
judgment should also be set aside for that 
reason. In that regard, the Netherlands Gov­
ernment refers to the question of the admis­
sibility of the action and also to the finding 
of the Court of First Instance that the cir­
cumstances of the case 'reinforce the Com­
mission's obligation to furnish a statement of 
reasons'. As I have already expressed my 
views on these aspects in their respective 
contexts, 91 there is no need to examine this 
objection separately. 
89 — Sec paragraph 17 above. 
90 — See, in the same sense, V. Sottili: 'Partecipazione ai procedi­
menti comunitari di controllo nel settore della concor­
renza', in Foro Amministrativo 1996, p. 2812 et seq., at 
p. 2824. 
91 — See paragraphs 36 to 51 (in particular paragraph 51) and 
paragraphs 90 and 92. 
I - 1 7 5 0 
COMMISSION v SYTRAVAL AND BRINK'S FRANCE 
VI — Summary 
94. To sum up, it may therefore be found 
that the majority of the objections to the 
grounds on which the Court of First 
Instance annulled the Commission's decision 
must be upheld, in so far as it is thereby 
alleged that the corresponding considerations 
of the Court of First Instance find no basis 
in Article 190 of the Treaty. It follows that 
the contested judgment is vitiated by errors 
of law. In my view, however, the Court of 
First Instance rightly found that the Com­
mission had failed to provide reasons in con­
nection with the secondment of administra­
tive staff to Sécuripost. 92 As regards the 
prices which Sécuripost charged the post 
office, what is established is not a failure to 
provide reasons but a (manifest) error of 
assessment affecting the Commission 
decision. 93 Since these two points are suf­
ficient to render the Commission decision 
defective and to justify the judgment of the 
Court of First Instance annulling it, the 
appeal — despite the fact that a large number 
of the pleas raised in it are well founded — 
cannot, in the result, be upheld. 
95. The decision as to costs follows from the 
first paragraph of Article 122 and Article 69 
of the Rules of Procedure of the Court of 
Justice. Since the Commission's appeal is 
unfounded, but the applicants at first 
instance have not taken part in the appeal 
proceedings and have therefore not asked for 
costs, Article 69(2) is not applicable. In my 
view, in such a situation — which is quite 
unusual — the Commission must be ordered 
to bear its own costs, in accordance with the 
legal principle expressed in the third sub­
paragraph of Article 69(5). The Member 
States which have intervened in the proceed­
ings must bear their own costs, pursuant to 
Article 69(4). 
Conclusion 
96. I therefore propose that the C o u r t dismiss the appeal and order the parties t o 
bear their own costs. 
92 — See paragraphs 60 to 63 above. 
93 — See paragraph 77 above. 
I - 1751