Judgment — ECLI:EU:C:2008:375
Date: 2008-07-01
Language of the case: French
Court formation: Grand Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Statement of reasons;Intervention;Private investor/private creditor test;General;Commission decision following the formal investigation procedure;Right to a judicial remedy
Procedure: Action for annulment - unfounded;Judgment delivered after back reference;Appeal - successful
Origin: France

summary of the analytical accounting calculations in relation to the services provided to SFMI-Chronopost, the confidential data having possibly been deleted. As it stood, the contested decision did not contain an adequate statement of reasons for the Commission’s assessment as regards whether or not additional, variable costs were incurred in providing the logistical and commercial assistance. 80. The Court of First Instance next addressed fixed costs. (47) It found that they were not sufficiently explained in the contested decision. First, it was impossible to verify whether the central and local offices’ overheads included fixed costs arising from use of the postal network. That was particularly important in view of the fact that SFMI-Chronopost’s payments did not cover 100% of full costs in the first two years of operation. Second, it could not be determined whether there were other fixed costs of La Poste associated with using the postal network that the price charged should have covered. Consequently, it could not be ascertained whether the contribution to fixed costs was assessed correctly in the light of the Chronopost I requirements. 81. Finally, the Court of First Instance found that the contested decision did not state what return SFMI-Chronopost contributed to La Poste’s capital investment. (48) It was not clear whether the Commission had calculated the IRR in order to show that the private investor test was satisfied and/or in order to calculate the return on the capital investment. 82. In the IRR calculation, the Commission had failed to identify the capital which it considered to have been used in the activity. It merely stated, on the one hand, that it had taken into account the equity injection by La Poste in 1986 and, on the other hand, the financial transactions between La Poste and its subsidiary over the years 1986 to 1991, without identifying sufficiently precisely which financial transactions were involved. Even assuming that the IRR reflected sufficiently precisely the return on the capital investment used for SFMI-Chronopost’s competitive activity, it could not be ascertained whether that possible return on the equity capital investment was appropriate for the purposes of paragraph 40 of Chronopost I, given that the detailed calculation of the IRR was not apparent from the contested decision. 83. The Court of First Instance next made some general comments about cost coverage. (49) In its view, the Commission’s findings in the 57th recital of the contested decision were merely peremptory assertions. There was no detailed examination either of the distinct steps taken to calculate the remuneration of the assistance in question or the infrastructure costs attributable to that assistance, or of the data relating to the analysis of the relevant costs. The Commission had merely asserted that La Poste’s full costs were covered by the remuneration from SFMI-Chronopost, without specifying the figures and calculations on which it based its analysis and findings. Consequently, the Court of First Instance was unable to review whether the method used and the stages of the analysis followed by the Commission were free from error and compatible with the principles laid down in Chronopost I for determining the existence or absence of State aid. 84. The Court of First Instance concluded its assessment of the second plea by indicating that, in the present case, three arguments militated in favour of requiring a more detailed statement of reasons: ‘(97) In the present case, the circumstances justifying a more detailed statement of reasons lie in the fact that, first, this was one of the first decisions dealing with the complex question, in the context of the application of the provisions on State aid, of the calculation of the costs of a parent company operating in a reserved market and providing logistical and commercial assistance to a subsidiary which does not operate in a reserved market. Second, the withdrawal of the Commission’s first rejection decision of 10 March 1992 following the lodging of an action for annulment and the SFEI judgment of the Court of Justice should have led the Commission to reason its approach even more diligently and precisely in relation to the disputed points. Lastly, the fact that the applicants submitted several economic studies during the administrative procedure should have also led the Commission to prepare a thorough statement of reasons while responding to the essential arguments of the applicants, as substantiated by those economic studies.’ 85. Against that background, the Court of First Instance concluded that: ‘(98) … the statement of reasons for the contested 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 allocating with the necessary precision the various costs of La Poste incurred in providing the logistical and commercial assistance to SFMI-Chronopost and the fixed costs arising from use of the postal network, and without specifying the return on the capital investment, fails to satisfy the requirements of Article 190 of the Treaty. … (100) Consequently, it must be held that the contested decision does not enable the Court of First Instance to verify the existence and amount of the various costs which fall within the concept of full costs as defined by the Commission in the contested decision. Accordingly, the statement of reasons for the contested decision does not enable the Court of First Instance to review the legality of the Commission’s assessment in this regard and its compatibility with the requirements laid down by the Court of Justice in its judgment on appeal in order to find that there had been no State aid. (101) It follows that the contested decision must be annulled for defective reasoning in so far as it concludes that the logistical and commercial assistance provided by La Poste to SFMI-Chronopost does not constitute State aid.’ Argument 86. The appellants claim that, in holding the statement of reasons in the contested decision to be insufficient, the Court of First Instance went beyond the requirements set out in Article 253 EC and the Court’s case-law. Chronopost considers that, under the guise of a review of the statement of reasons, the Court of First Instance was examining manifest errors of assessment and seeking to assess the appropriateness of the Commission’s methods. 87. According to UFEX, the Court of First Instance did not call into question the assessment in the contested decision, but limited itself to verifying whether the reasoning behind it was sufficiently precise, complete and comprehensible. It was right to conclude that the statement of reasons was insufficient. More detailed reasoning was required in order to check whether the decision had correctly applied the test for ‘normal market conditions’ laid down by the Court in paragraph 40 of Chronopost I. Assessment 88. Article 253 EC requires decisions of the Commission to state the reasons on which they are based. 89. According to the Court’s settled case-law, that statement of reasons ‘must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review. 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 reasons meets the requirements of Article 253 EC 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 … .’ (50) 90. In a 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 demonstrate the existence of State aid. The Commission is not required, however, to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance.’ (51) 91. I note in passing that the case-law cited by UFEX to indicate that the Commission must have carried out a close examination based on solid evidence (52) and a cogent and consistent body of evidence (53) concerns not State aid but the prospective analysis which is carried out in respect of the market impact of mergers and alleged cartels. 92. In the present appeals it is common ground, and indeed was acknowledged by the Court of First Instance in the judgment under appeal, (54) that the relevant context is whether the contested decision satisfies the legal test for ‘normal market conditions’ set by the Court in paragraph 40 of Chronopost I. (55) 93. The Court’s test in Chronopost I is general in nature. It lays down the approach to be taken in order to assess whether the provision of commercial and logistical assistance involves State aid. It does not specify the economic, accounting or financial standards to be applied. In requiring ‘all’ additional, variable costs to be included, it does not indicate which costs should be considered variable. Nor does it state what would constitute an ‘appropriate’ contribution to fixed costs or an ‘adequate’ return on the capital investment. 94. In my view, the first reason given in the judgment under appeal to justify a detailed statement of reasons (namely the fact that the contested decision was one of the first dealing with the complex issue at hand) (56) justifies, on the contrary, a broader and more general statement of reasons. There is little point in providing every last detail if the overall approach is wrong. Moreover, the contested decision was adopted several years before Chronopost I. It seems to me that, rather than examining whether the Commission’s reasoning complied in every detailed respect with the exact wording of the test (later) laid down in Chronopost I (whose precise requirements could therefore not have been known to the decision’s draftsman), judicial review of the decision’s reasoning should here be concentrated on examining whether the Commission’s overall approach was in fact correct – that is, whether it complies with the substance of the Chronopost I test. 95. That view is confirmed by the history of the present action before the Community courts. Both the decision in UFEX I and the judgment setting aside that decision in Chronopost I turned on the correct interpretation of ‘normal market conditions’ when applied to the relationship between La Poste and SFMI-Chronopost. 96. Accordingly, it seems to me that the issue is whether the reasoning is sufficient to determine whether the Commission based its decision on the correct criteria for determining normal market conditions, as laid down by the Court in Chronopost I. 97. The judgment under appeal, however, annulled the contested decision essentially because it considered that the reasoning and data provided by the Commission were too general and imprecise. (57) It complained in particular about the lack of precision with regard to the economic and accounting concepts used, the nature of costs examined and the components of the financial calculations undertaken. It found that it was unable to check for factual errors and errors of assessment, and, in respect of variable costs, considered that the contested decision should at least have contained a general summary of the analytical accounting calculations in relation to the services provided. 98. There is no question that transparency in itself is important. It is also true that the greater the detail available, the more likely it is that any manifest error of appreciation by the Commission, either in its methodology or in the accuracy of the data it uses, will be identified. Thus, for example, the provision of a general summary of the accounting calculations would not necessarily guarantee that manifest errors would be identified. 99. In the present context, however, it is not clear that the details which the Court of First Instance found to be lacking are strictly necessary in order to assess whether the Commission misapplied the concept of ‘normal market conditions’ as defined in Chronopost I. 100. Admittedly, it is not unreasonable to interpret the conditions as requiring compliance with generally accepted accounting, commercial and investment criteria. Indeed, the private investor principle in Community law operates on such a basis. To that extent, the details that the Court of First Instance required could, in theory, reveal deviations from generally accepted principles which could constitute manifest errors. But those principles themselves are broad and diverse enough to allow considerable scope for debate, and the Court of Justice has provided only a general test of what constitutes ‘normal market conditions’. It follows that that debate would take place within what the Court of First Instance acknowledges to be an area where the Commission enjoys wide discretion. (58) 101. In the context of the present litigation, it therefore seems to me that the elements which the Court of First Instance found to be lacking in the Commission’s statement of reasons are of secondary importance. The contested decision provides sufficient reasoning and detail to enable its legality to be reviewed in the light of Chronopost I. 102. As far as the costs of the assistance are concerned, paragraphs [iii] and [xi] of the 33rd recital and the 42nd and 57th recitals (59) show that the ‘total costs’ taken into account include all variable costs and a proportional contribution to fixed costs in respect of both logistical and commercial assistance. 103. Paragraph [iii] of the 33rd recital indicates that La Poste breaks down ‘total costs’ into ‘direct operating costs’ and a proportion of ‘central and local offices’ overheads’. That breakdown does not correspond to variable and fixed costs respectively, since according to the 57th recital fixed costs include buildings and vehicles. However, that recital makes it clear that variable costs were covered from the first year. By stating that only ‘some fixed costs’ were covered in the first two years (1986 to 1987) and that from 1988 ‘all the costs incurred by [La Poste]’ were covered, it is plain that all fixed costs were covered from that year. Moreover, it seems clear from the 42nd recital that the allocation of fixed costs was proportional. 104. Paragraph 40 of Chronopost I makes it clear that the ‘adequate return on investment’ should derive from the price charged for commercial and logistical assistance. From the definition of ‘full-cost prices’ in the 57th recital the Commission’s examination of SFMI-Chronopost’s remuneration of to La Poste’s equity capital investment can be compared with the Court’s approach. 105. The contested decision also provides SFEI, the complainant, with an adequate explanation of the reasons for which the facts and points of law put forward in the complaint failed to demonstrate the existence of State aid. 106. In the 45th to 62nd recitals the Commission sets out its reasons for rejecting SFEI’s complaints, as summarised in the 34th recital. In essence, it rejects the approach taken by SFEI for valuing the different components of alleged State aid. In particular, it is clear from the contested decision (60) that the detailed economic studies provided by the complainant to demonstrate the existence of State aid were based on a concept of ‘normal market price’ which the Commission stated to be fundamentally flawed. (61) Against that background, a detailed response to the assumptions and calculations behind the overall amounts of State aid alleged in those studies would be irrelevant. 107. I therefore do not consider the third reason advanced to justify a more detailed statement to be valid. (62) The Court of First Instance itself accepted that the Commission’s reasons for rejecting the SFEI’s method for calculating costs were set out clearly in the contested decision. (63) It seems to me that the Commission did respond to the ‘essential arguments of the applicants, as substantiated in [the] economic studies’. The Commission’s view was essentially that SFEI’s overall approach and methodology were incorrect. After that, what purpose would be served by requiring there to be a ‘thorough statement of reasons’ examining particular points in greater detail? I add that the Court of First Instance did not elaborate on which elements of SFEI’s complaints it considered were inadequately dealt with in the contested decision. That is in striking contrast with the approach it took in Sytraval and Brink’s France. (64) 108. I am not convinced that the Court of First Instance’s second reason (65) for requiring more detailed reasoning in the Commission’s decision stands up to closer scrutiny. It is fair enough to require a decision-maker to pay due attention to the pertinent decisions of a court that affect the way in which the decision he is presently drafting is formulated. The Commission did indeed concentrate its analysis on the SFEI judgment. (66) I do not however think that the mere withdrawal of an earlier decision materially alters the scope of the obligation to state reasons imposed by Article 253 EC. Rather, the precise extent of the obligation to state reasons continues to be determined by the context and all the legal rules governing the matter in question. 109. I conclude that, by finding the statement of reasons in the contested decision to be defective, the Court of First Instance erred in law. Accordingly, I suggest that the Court should allow the third ground of appeal. Fourth ground of appeal: Error of law in the assessment of the concept of State aid in respect of the transfer of Postadex (67) The Court of First Instance’s assessment (68) 110. First, the Court of First Instance pointed out that the concept of State aid had a very wide scope for the purposes of Article 92 of the Treaty (now Article 87 EC), whose aim was to prevent trade between Member States from being affected by advantages granted by public authorities which, in various forms, distorted or threatened to distort competition by favouring certain undertakings or products. (69) It included interventions which, in various forms, mitigated the charges usually included in the budget of an undertaking. According to settled case-law, the Treaty defines measures of State intervention by reference to their effect. 111. The Court of First Instance rejected the Commission’s argument that the transfer of the Postadex client base, as a logical corollary of a subsidiary being created, did not amount to State aid. (70) The client base amounted to an intangible asset which had an economic value, even if that value was difficult to quantify. La Poste was able to create the Postadex service using the resources of a legal monopoly. SFMI-Chronopost (71) paid no consideration to La Poste. The transfer of such an asset nevertheless constituted an advantage for the beneficiary. It could be attributed to the State. Consequently, the transfer constituted State aid. 112. The Court of First Instance concluded that the Commission had erred in law in taking the view that the transfer of the Postadex client base did not constitute State aid on the ground that it did not entail any cash advantage. Accordingly, the contested decision had to be annulled in so far as the Commission considered that the transfer of Postadex by La Poste to SFMI-Chronopost did not constitute State aid. Argument 113. The appellants claim that the Court of First Instance was wrong to find that the contested decision erred in taking the view that the transfer of Postadex to SFMI-Chronopost did not constitute State aid. They say that the situation cannot be compared to the behaviour of a parent company in the private sector with an existing subsidiary. Rather, La Poste created a subsidiary, transferring an economic activity into a distinct entity specifically created for the purpose. At the point of creation of a subsidiary there is no beneficiary. The Commission encourages such spin-offs in order to enhance the competitive functioning of the market. 114. According to UFEX, the free transfer of Postadex’s captive client base undoubtedly benefited SFMI-Chronopost as a new market entrant. Assets are always transferred for consideration. The benefit should have been evaluated in accordance with the Court’s guidelines in Chronopost I. Assessment 115. In the contested decision, the Commission recognises that the Postadex customer base represents an intangible asset. (72) As the Court of First Instance observes, the fact that an element may be difficult to quantify does not mean that it has no value. (73) For my part, I accept that the customer base had a positive economic value at the time of the transfer to SFMI-Chronopost in 1985. 116. What precisely occurred when La Poste created SFMI-Chronopost? It seems to me that, in particular, a distinction must be drawn between, on one hand, the activities relating to the express delivery service and, on the other hand, the value of those activities. 117. It is clear that the new entity took over the activities. They included the management and utilisation of the client base. However, through the very creation of the subsidiary, the economic value of the activities therein accrued to its shareholders. La Poste thus retained a proportion of the value corresponding to a 66% shareholding. TAT obtained the balance of the value in return for a capital injection. In other words, the value of the activities was reflected in the value of the shares first issued to, and subsequently held by, the shareholders. 118. Thus the situation is different from a privatisation. When a State divests an asset to an outside investor it receives consideration. State aid arises if, under the private investor principle, the money raised is lower than the value of the assets sold. (74) With the creation of SFMI-Chronopost, the only outside investor to be involved was TAT, which took a 34% shareholding. If SFMI-Chronopost had paid any money to La Poste, that would simply have reduced the value of the subsidiary and, correspondingly, that of La Poste’s shareholding. 119. It seems to me that the private investor principle is also applicable to the conversion by a State entity of an activity into a subsidiary. (75) The question is whether a private investor would have acted in the same way rather than, for example, selling off the business to an outside party. In effect, the Commission addresses this question in the contested decision by examining the IRR achieved on La Poste’s equity injection in 1986. (76) 120. In the judgment under appeal, the Court of First Instance quite rightly notes that what is now Article 87(1) EC distinguishes measures of State intervention in relation to their effects. (77) However, I find it difficult to see how the creation of SFMI-Chronopost can have had a distorting effect on the market. It was a new competitor only to the extent that it was a newly created company with a new name. The activities and the client base were those of Postadex. It seems far more likely that the effect of creating a separate subsidiary to carry out activities formerly subsumed under a State monolith will, providing business transactions with its parent are conducted on the basis of the Chronopost I formula, ultimately be to enhance competitiveness in the market. 121. For all these reasons, I do not consider that, at the time of the conversion of Postadex into a subsidiary, La Poste relinquished the value of Postadex to SFMI-Chronopost. Consequently, the Court of First Instance erred in holding that the transfer of Postadex to SFMI-Chronopost constitutes State aid on the ground that La Poste received no consideration from SFMI-Chronopost. (78) 122. For the reasons set out above, I suggest that the Court should also allow the fourth ground of appeal. Final remarks 123. Under Article 61 of the Statute of the Court of Justice the Court may, if it quashes the decision of the Court of First Instance, give final judgment in the matter where the state of the proceedings so permits or refer the case back to the Court of First Instance for judgment. 124. Since the Court of First Instance considered that it could not examine some of the arguments in the first part of the fourth plea on the ground that the reasoning in the contested decision was insufficient, (79) it seems to me that the state of proceedings does not allow the Court to give final judgment. I therefore propose that the case be referred back to the Court of First Instance and that costs be reserved. Conclusion 125. In the light of the arguments above, I suggest that the Court: – set aside the judgment delivered on 7 June 2006 by the Court of First Instance in Case T-613/97 UFEX and Others v Commission to the extent that it annulled Commission Decision 98/365/EC of 1 October 1997 concerning alleged State aid granted by France to SFMI-Chronopost ‘in so far as it finds that neither the logistical and commercial assistance provided by La Poste to its subsidiary, SFMI-Chronopost, nor the transfer of Postadex constitute State aid to SFMI-Chronopost’; – refer the case back to the Court of First Instance; – reserve the costs. 1 – Original language: English. 2 – Commission Decision 98/365/EC of 1 October 1997 concerning alleged State aid granted by France to SFMI-Chronopost (OJ 1998 L 164, p. 37). 3 – Case T-613/97 UFEX and Others v Commission [2000] ECR II-4055. 4 – Joined Cases C-83/01 P, C-93/01 P and C-94/01 P Chronopost and Others v UFEX and Others [2003] ECR I-6993. 5 – Case T-613/97 UFEX and Others v Commission [2006] ECR II-1531. 6 – Which operated under the name of Postadex. 7 – In this Opinion, as in the contested decision, reference will be made to ‘SFMI-Chronopost’, even when only one of the two companies is involved. The judgments cited in footnotes 3 to 5 have followed this practice. 8 – Case C-39/94 [1996] ECR I-3547. I refer to this judgment as ‘SFEI’. 9 – Paragraph 10 of the judgment under appeal. 10 – OJ 1996 C 206, p. 3. 11 – It also extended its complaint of December 1990 to include a number of points which do not concern the present appeal. 12 – Cited in footnote 3. 13 – Cited in footnote 4. 14 – Cited in footnote 5. 15 – OJ 2004 C 251, p. 12. 16 – See point 10 above. 17 – I refer to the entities which responded collectively as ‘UFEX’. 18 – Case C-64/98 P [1999] ECR I-5187, paragraph 32. 19 – See footnote 15. 20 – See Case C-155/91 Commission v Council [1993] ECR I-939, paragraphs 23 to 24, and Case T-237/02 Technische Glaswerke Ilmenau v Commission [2006] ECR II-0000, paragraph 97 and the case-law cited there. The latter judgment is currently under appeal (Case C-139/07 P) but not on this point. 21 – See Case T-340/04 France Télécom v Commission [2007] ECR II-0000, paragraph 164 and the case-law cited there. 22 – Cited in footnote 18. See also point 33 of the Opinion of Advocate General Ruiz-Jarabo Colomer. 23 – In Antunes v Portugal, no. 64330/01, §43, 31 May 2005, the European Court of Human Rights held that Article 6(1) ECHR was applicable in a case where an applicant who had asked for criminal proceedings to be taken up against her former government employer and who participated in those proceedings as an ‘assistente’ had, by that token, demonstrated her interest in the conviction of the accused and in compensation for damages suffered. 24 – Case C-291/89 Interhotel v Commission [1991] ECR I-2257, paragraphs 14 to 17; Joined Cases T-186/97, T-187/97, T-190/97 to T-192/97, T-210/97, T-211/97, T-216/97, T-217/97, T-218/97, T-279/97, T-280/97, T-293/97 and T-147/99 Kaufring and Others v Commission [2001] ECR II-1337, paragraphs 134 to 135. 25 – See, for example, Case C-540/03 Parliament v Council [2006] ECR I-5769, paragraph 35 and the case-law cited there. 26 – Ringeisen v Austria, judgment of 16 July 1971, Series A no. 13, p. 40, § 97, my emphasis. In that case, the fact that two members in the remitted case had participated in the original decision did not constitute grounds for legitimate suspicion. The court reached a similar conclusion in Diennet v France, judgment of 26 September 1995, Series A no. 325-A, p. 17, § 38, where three out of seven judges in the proceedings under examination had taken part in the first decision. In Schwarzenberger v Germany, no. 75737/01 (Sect. 5) (Eng) – (10.8.06), § 42, the court listed judgments which applied the same principle to analogous situations, such as pre-trial decisions. 27 – In Ferrantelli and Santangelo v Italy, judgment of 7 August 1996, Reports 1996-III, §§ 58-60, which the appellants cite, the European Court of Human Rights found that a fear of bias was objectively justified because it arose from the combination of two circumstances, one of which was the fact that a judge in the applicants’ case had previously convicted the applicants’ accomplice. 28 – Article 27(3) ECHR. See further Mowbray, A., An Examination of the Work of the Grand Chamber of the European Court of Human Rights, [2007] P.L. (Autumn) 507, in particular at 519 et seq. 29 – See, for example, Kyprianou v Cyprus [GC], no. 73797/01, ECHR 2005-XIII – (15.12.05), itself a case concerning an allegation of judicial bias. Judge Costa (now the President of the European Court of Human Rights), who had been President of Chamber in the first judgment, changed his mind on two issues in the Grand Chamber proceedings. In his partly dissenting opinion he addresses the question whether judges who sit twice should stick to their original view. He states: ‘… everything depends on the specific features of the case … and on each judge’s greater or lesser degree of stubbornness (or ability to reconsider his or her previous conclusions); once again, this depends on individual cases, more perhaps than on individual temperaments.’ He concludes (rather delightfully) that the referral of that particular case ‘has bolstered my views while enabling me to correct them: one can always do better (or in any event less badly …)’. 30 – Case C-13/00 Commission v Ireland [2002] ECR I-2943, paragraph 5 and the case-law cited. 31 – Joined Cases C-305/86 and C-160/87 Neotype Techmashexport v Commission and Council [1990] ECR I-2945, paragraph 18, and Case C-313/90 CIRFS v Commission [1993] ECR I-1125, paragraph 23. In those cases, the plea of inadmissibility alleged lack of standing of the applicants. In the much older Joined Cases 42 and 49/59 SNUPAT v High Authority [1961] ECR 53, p. 75, the Court did not expressly state that an issue of public policy was raised, but acknowledged the right of the interveners to raise a plea of inadmissibility challenging the application to annul an act which was merely confirmatory of another that was time-barred. 32 – Part D of the contested decision. 33 – I have given Roman numerals to the paragraphs of this recital for ease of reference. 34 – In the 42nd recital the Commission further states that fixed costs have been allocated in proportion to the business carried out by La Poste on behalf of its subsidiary. 35 – Part E of the contested decision. 36 – Those amounts approximate to, respectively, EUR 231 million, EUR 160 million and EUR 71 million. 37 – 45th to 48th recitals. 38 – Approximately EUR 5.8 million. 39 – 49th to 57th recitals. 40 – 53rd recital. 41 – Cited in footnote 8. See also point 4 above. 42 – 58th to 63rd recitals. 43 – Paragraphs 63 to 71. 44 – Paragraphs 72 to 73. 45 – Paragraph 73. 46 – Paragraphs 77 to 85. 47 – Paragraphs 86 to 89. 48 – Paragraphs 90 to 93. 49 – Paragraphs 94 to 95. 50 – Case C-197/99 P Belgium v Commission [2003] ECR I-8461, paragraph 72 and the case-law cited there. 51 – Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 64. 52 – Case T-464/04 Independent Music Publishers and Labels Association v Commission [2006] ECR II-2289, paragraph 248. The judgment is, moreover, currently under appeal. 53 – Joined Cases C-68/94 and C-30/95 France and Others v Commission [1998] ECR I-1375, paragraph 228. 54 – At paragraph 72. 55 – See point 14 above. 56 – Paragraph 97. 57 – Paragraphs 75 to 95. 58 – In paragraph 128 of the judgment under appeal, the Court of First Instance stated that the assessment of how La Poste’s costs incurred in providing logistical and commercial assistance were calculated in the absence of analytical accounts involved a complex economic appraisal. In such circumstances the Commission enjoyed a wide discretion. 59 – See points 69 and 73 above, and footnote 34. 60 – 34th recital. 61 – 53rd recital. 62 – Paragraph 97 of the judgment under appeal. 63 – Paragraph 73. 64 – Case T-95/94 [1995] ECR II-2651, paragraphs 62 to 63, and see paragraphs 74 to 77 of the Sytraval appeal, cited in footnote 51. 65 – Paragraph 97. 66 – See point 73 above. 67 – La Poste’s express delivery service. See footnote 6. 68 – Paragraphs 158 to 171 of the judgment under appeal. 69 – The Court of First Instance referred to Case 173/73 Italy v Commission [1974] ECR 709, paragraph 13 (paragraph 26 in the French version), and Case C-387/92 Banco Exterior de España [1994] ECR I-877, paragraph 12. 70 – 48th recital of the contested decision. See point 72 above. 71 – I recall that the subsidiary created was called SFMI. See footnote 7. 72 – 48th recital. 73 – Paragraph 169 of the judgment under appeal. 74 – See, to that effect, Case C-334/99 Germany v Commission [2003] ECR I-1139, paragraphs 133 to 134, relating to the sale for a negative price of an enterprise in former East Germany. 75 – The test laid down in Chronopost I is, conversely, inapplicable since that test relates to cost coverage in commercial transactions between parent and subsidiary in the State sector. 76 – 59th to 63rd recitals of the contested decision. 77 – Paragraph 160. 78 – Paragraph 167 of the judgment under appeal. 79 – Paragraph 102.