Judgment — ECLI:EU:T:2006:150
Date: 2006-06-07
Language of the case: French
Court formation: Third Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Statement of reasons;Private investor/private creditor test;General;Commission decision following the formal investigation procedure;Commission decision following a preliminary review or proceeding to the formal investigation procedure
Procedure: Action for annulment - unfounded;Action for annulment - successful;Judgment delivered after back reference
Origin: France

Summary of the Judgment 
1. Acts of the institutions — Statement of reasons — Obligation — Scope 
(EC Treaty, Art 92 (now, after amendment, Art 87 EC) and Arts 93 and 190 (now Arts 88 
EC and 253 EC)) 
2. Acts of the institutions — Statement of reasons — Obligation — Scope 
(EC Treaty, Art 190 (now Art. 253 EC)) 
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SUMMARY — CASE T-613/97 
3. Acts of the institutions — Statement of reasons — Obligation — Scope 
(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC) and Art. 190 (now Art. 253 EC)) 
4. Acts of the institutions — Statement of reasons — Obligation — Scope 
(EC Treaty, Art 92 (now, after amendment, Art 87 EC) and Arts 93 and 190 (now Arts 88 
EC and 253 EC)) 
5. State aid — Definition 
(EC Treaty, Art. 92(1) (now, after amendment, Art 87(1) EC)) 
6. State aid — Definition 
(EC Treaty, Art. 92(1) (now, after amendment, Art 87(1) EC)) 
1. The statement of reasons required by 
Article 190 of the Treaty (now Art­
icle 253 EC) must be appropriate to the 
measure at issue and must disclose in a 
clear and unequivocal fashion the rea­
soning followed by the institution which 
adopted the measure in question in such 
a way as to enable the persons con­
cerned to ascertain the reasons for the 
measure and to enable the competent 
Community court to exercise its power 
of review. The requirements to be 
satisfied by the statement of reasons 
depend on the circumstances of each 
case, in particular the content of the 
measure in question, the nature of the 
reasons given and the interest which the 
addressees of the measure, or other 
parties to whom it is of direct and 
individual concern, may have in obtain­
ing explanations. It is not necessary for 
the reasoning to go into all the relevant 
facts and points of law, since the 
question whether the statement of rea­
sons meets the requirements of Art­
icle 190 of the Treaty must be assessed 
with regard not only to its wording but 
also to its context and to all the legal 
rules governing the matter in question. 
As regards, more particularly, a Com­
mission decision finding that no State 
aid as alleged by a complainant exists, 
the Commission must at least provide 
the complainant with an adequate 
explanation of the reasons for which 
the facts and points of law put forward 
in the complaint have failed to demon­
strate the existence of State aid. The 
Commission is not required, however, to 
define its position on matters which are 
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UFEX AND OTHERS v COMMISSION 
manifestly irrelevant or insignificant or 
plainly of secondary importance. 
(see paras 63, 64) 
2. Where the Commission has a power of 
assessment in order to carry out its 
duties, respect for the rights guaranteed 
by the Community legal order in admin­
istrative procedures is of even more 
fundamental importance. Those guaran­
tees include, in particular, the duty of the 
competent institution to examine care­
fully and impartially all the relevant 
aspects of the individual case and to 
state sufficient reasons for its decisions. 
(see para. 65) 
3. Even if, in stating the reasons for the 
decisions which it takes to enforce the 
rules on competition, the Commission is 
not required to discuss all the issues of 
fact and law and the considerations 
which have led it to adopt its decision, 
it is none the less required under 
Article 190 of the Treaty (now Article 
253 EC) to set out at least the facts and 
considerations having decisive import­
ance in the context of the decision in 
order to make clear to the Court and the 
persons concerned the circumstances in 
which it has applied the Treaty. 
Other than in exceptional circum­
stances, the statement of reasons must 
be contained in the decision itself, and it 
is not sufficient for it to be explained 
subsequently for the first time before the 
Court. The statement of reasons must in 
principle be notified to the person 
concerned at the same time as the 
decision adversely affecting him. A fail­
ure to state the reasons cannot be 
remedied by the fact that the person 
concerned learns the reasons for the 
decision during the proceedings before 
the Community judicature. Accordingly, 
when a Commission decision applying 
Article 92 of the Treaty (now, after 
amendment, Article 87 EC) suffers from 
serious omissions, the Commission may 
not remedy that defect by adducing for 
the first time before the Court figures 
and other analytical data from which it 
may be concluded that its application of 
Article 92 of the Treaty was correct, 
unless none of the parties had chal­
lenged the analytical data in question 
during the prior administrative proced­
ure. 
It follows that arguments presented by 
the Commissions agents before the 
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SUMMARY — CASE T-613/97 
Court of First Instance cannot make 
good the insufficiency of a contested 
decision's reasoning. The operative part 
and the grounds of a decision — which 
must state reasons under Article 190 of 
the Treaty — constitute an indivisible 
whole, with the result that it is for the 
College of Commissioners alone, in 
accordance with the principle of collegi­
ate responsibility, to adopt both the one 
and the other, any alteration to the 
statement of reasons going beyond 
simple corrections of spelling or gram­
mar being the exclusive province of that 
college. 
In this respect, the Community judica­
ture is required, in an action for annul­
ment under Article 173 of the EC Treaty 
(now, after amendment, Article 230 EC), 
to confine itself to a review of the legality 
of the contested act. Consequently, it is 
not the task of the Court of First 
Instance to remedy any absence of 
reasoning or to supplement that reason­
ing of the Commission by adding to it or 
substituting for it elements which are 
not in the contested decision itself. 
(see paras 66-70) 
4. The scope of the obligation to provide a 
statement of reasons for a decision must 
be assessed by reference to the circum­
stances of each case which could, in an 
appropriate case, justify a more detailed 
statement of reasons. 
Circumstances lying in the fact that the 
decision constitutes one of the first 
dealing with a complex economic ques­
tion, in the context of the application of 
the provisions on State aid, such as that 
of the calculation of the costs of a parent 
company operating in the reserved 
market of ordinary mail and providing 
logistical and commercial assistance to a 
subsidiary which does not operate in a 
reserved market, justify a more detailed 
statement of reasons. Similarly, the fact 
that, in that context, complainants sub­
mitted several economic studies during 
the administrative procedure must also 
lead the Commission to prepare a 
thorough statement of reasons while 
responding to the essential arguments 
of those complainants, as substantiated 
by those economic studies. 
In those circumstances, a statement of 
reasons for such a decision which is 
limited to a very general explanation of 
the method followed by the Commission 
for assessing the costs and of the final 
result obtained, without however allo­
cating with the necessary precision the 
various costs of the parent company 
incurred in providing the logistical and 
commercial assistance to its subsidiary 
and the fixed costs arising from use of 
the postal network, and without specify­
ing the return on the capital investment, 
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UFEX AND OTHERS v COMMISSION 
fails to satisfy the requirements of 
Article 190 of the Treaty (now Article 
253 EC). 
(see paras 96-98) 
5. The assessment by the Commission of 
the question how the costs of a parent 
company operating in a reserved market 
incurred in providing logistical and 
commercial assistance to its subsidiary 
which is not operating in a reserved 
market are calculated in the absence of 
analytical accounts involves a complex 
economic appraisal When the Commis­
sion adopts a measure involving a 
complex economic appraisal it enjoys a 
wide discretion, and judicial review of 
that measure, even though it is in 
principle a comprehensive' review of 
whether a measure falls within the scope 
of Article 92(1) of the Treaty (now, after 
amendment, Article 87(1) EC), is limited 
to verifying whether the Commission 
complied with the relevant rules govern­
ing procedure and the statement of 
reasons, whether the facts on which the 
contested finding was based have been 
accurately stated and whether there has 
been any manifest error of assessment of 
those facts or a misuse of powers. In 
particular, the Court is not entitled to 
substitute its own economic assessment 
for that of the author of the decision. 
In this respect, since the parent com­
pany operates in the ordinary mail 
sector, the Commission does not com­
mit a manifest error of assessment in its 
choice of the linear backward projection 
method. The argument that that method 
fails to take account of increasing 
returns of scale, since the total unit cost 
of production of express delivery activ­
ities should decrease significantly when 
the volume of production increases, 
refers to the case of a private under­
taking commencing its business activ­
ities and, in particular, to the situation 
where that undertaking sets up its net­
work ex novo. It does not apply to the 
setting up of a new activity which 
represents only a small part of a business 
activity which already exists and in 
respect of which most of the fixed costs 
have already been borne. In a sector 
such as that of ordinary mail, where the 
fixed costs are very significant but stem 
from the very existence of the network 
of the parent company operating in that 
reserved market and are independent of 
the business activity of the subsidiary, 
such an argument cannot be upheld. 
(see paras 128, 130, 131) 
6. For the purposes of Article 92 of the 
Treaty (now, after amendment, Article 
87 EC), the concept of State aid has a 
very wide scope. The aim of that 
provision is to prevent trade between 
Member States from being affected by 
advantages granted by public authorities 
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SUMMARY — CASE T-613/97 
which, in various forms, distort or 
threaten to distort competition by 
favouring certain undertakings or cer­
tain products. The concept of aid there­
fore covers not only positive benefits, 
such as subsidies, but also interventions 
which, in various forms, mitigate the 
charges which are normally included in 
the budget of an undertaking and which, 
without therefore being subsidies in the 
strict meaning of the word, are similar in 
character and have the same effect. The 
supply of goods or services on prefer­
ential terms is one of the indirect 
advantages which have the same effects 
as subsidies. 
Furthermore, Article 92(1) of the Treaty 
(now, after amendment, Article 87(1) 
EC) does not distinguish between meas­
ures of State intervention by reference to 
their causes or their aims but defines 
them in relation to their effects. 
The transfer, for no consideration, to a 
subsidiary governed by private law, of 
the client base of a service which does 
not belong to the reserved sector, 
created by its parent company operating 
in a reserved market with the resources 
of its legal monopoly therefore consti­
tutes State aid. That transfer is a 
measure separate from logistical and 
commercial assistance from such an 
undertaking to its subsidiary. In add­
ition, that client base amounts to an 
intangible asset which has an economic 
value. That finding cannot be invalidated 
by the fact that that client base has no 
value in accounting terms. Even if it is an 
element which is difficult to quantify, 
that does not mean that it has no value. 
In this respect, the creation and market­
ing of address lists for certain activities 
constitute, in themselves, economic 
activities. 
(see paras 158-160, 163-169) 
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