Opinion of the Advocate General — ECLI:EU:C:2017:654
Date: 2017-09-07
Language of the case: Spanish
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Action for annulment - successful;Appeal - successful
Origin: Spain

Summary — Judgment of the Court (Fourth Chamber), 20 December 2017 1. State aid — Concept — Measures designed to compensate for the cost of public service tasks performed by an undertaking — Not included — Conditions set out in the Altmark judgment — Cumulative nature (Art. 107(1) TFEU) 2. State aid — Concept — Measures designed to compensate for the cost of public service tasks performed by an undertaking — Distinction between the Altmark test, intended to determine whether there is State aid, and the Article 106(2) TFEU test, intended to establish whether that aid is compatible with the internal market (Arts 106(2) TFEU and 107(1) TFEU) 3. State aid — Concept — Measures designed to compensate for the cost of public service tasks performed by an undertaking — First condition set out in the Altmark judgment — Clearly defined public service obligations — No recipient undertaking actually entrusted with carrying out public service obligations — Inclusion in the concept –Market failure — Circumstance not sufficient for a finding that a service of general economic interest exists — Member States’ discretion — Scope (Arts 14 TFEU, 106(2) TFEU and 107(1) TFEU; Protocole No 26 annexed to the TEU and TFEU treaties) 4. Appeal — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.) 5. Appeal — Grounds — Incorrect assessment of the evidence duly produced — Inadmissible save when the clear sense of the evidence is distorted — Duty of the General Court to state the reasons for its assessment of the evidence — Scope (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.) 1. See the text of the decision. (see paras 44-49) 2. As regards the relationship between the conditions laid down in the judgment in Altmark and the examination of an aid measure under Article 106(2) TFEU, verification of the conditions laid down in that case-law occurs upstream, that is to say in the examination of the issue of whether the measure at issue must be characterised as State aid. That issue must be resolved before the one which consists in examining, where necessary, if incompatible aid is nevertheless necessary to the performance of the tasks assigned to the recipient of the measure at issue, under Article 106(2) TFEU. Since the conditions laid down in the judgment in Altmark, and those necessary for the application of Article 106(2) TFEU thus generally pursue different objectives, in order to assess an aid measure under Article 106(2) TFEU, the Commission is not required to verify the second and third conditions laid down by the judgment in Altmark. It is nevertheless the case that the first Altmark condition, according to which the recipient undertaking must actually be required to discharge public service obligations which must be clearly defined, also applies where the derogation laid down in Article 106(2) TFEU has been invoked. (see paras 55, 56) 3. The Member States are entitled, while complying with EU law, to define the scope and the organisation of their service of general interest (SGEIs), and may take into account, in particular, objectives pertaining to their national policy. In that respect, the Member States enjoy a wide discretion, which may be called into question by the Commission only in the event of a manifest error. However, the Member States’ power to define SGEIs is not unlimited. It follows from the judgment in Altmark, that, in that respect, the first Altmark condition is essentially intended to determine whether, first, the recipient undertaking actually has public service obligations to discharge and, secondly, whether those obligations are clearly defined in national law. That condition is designed to ensure transparency and legal certainty, and thus requires that minimum criteria be met in relation to the existence of one or more acts of public authority defining, in a sufficiently precise manner, at least the nature, duration and scope of the public service obligations imposed on the undertakings entrusted with the performance of those obligations. In the absence of a clear definition of such objective criteria, it is not possible to verify whether a particular activity may be covered by the concept of an SGEI. The fact that there is a market failure on the market concerned and that the service at issue is an activity that could be characterised as an SGEI are not relevant for the purposes of determining whether the undertakings concerned were actually entrusted with discharging public service obligations by a public act and whether those obligations were clearly defined in that act. (see paras 69-73, 75) 4. See the text of the decision. (see paras 97-99) 5. See the text of the decision. (see para. 110)