Opinion of the Advocate General — ECLI:EU:C:2008:545
Date: 2008-10-08
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: France

Summary of the Judgment 1. Appeals – Grounds – Inadequate statement of reasons – Reliance by the Court of First Instance on implied reasoning – Lawfulness – Conditions (Art. 225 EC; Statute of the Court of Justice, Arts 36 and 53, first para.) 2. State aid – Planned aid – Examination by the Commission – Preliminary review and main review – Compatibility of the aid with the common market – Difficulties of assessment (Art. 88(2) and (3) EC) 3. Approximation of laws – Telecommunications sector – Common framework for general authorisations and individual licences – Directive 97/13 – Procedures for the grant of licences (European Parliament and Council Directive 97/13) 4. Approximation of laws – Telecommunications sector – Common framework for general authorisations and individual licences – Directive 97/13 – Procedures for the grant of licences – Prohibition of discrimination (European Parliament and Council Directive 97/13) 1. The duty incumbent upon the Court of First Instance under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice to state reasons for its judgments does not require the Court of First Instance to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the measures in question were taken and provides the Court of Justice with sufficient material for it to exercise its powers of review. (see para. 42) 2. The procedure under Article 88(2) EC is essential whenever the Commission has serious difficulties in determining whether aid is compatible with the common market. The Commission may therefore restrict itself to the preliminary examination under Article 88(3) EC when taking a decision in favour of aid only if it is able to satisfy itself after the preliminary examination that the aid is compatible with the common market. 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 88(2) EC. The concept of serious difficulties is an objective one and their existence must be sought not only in the circumstances in which the contested measure was adopted but also in the assessments upon which the Commission relied. (see paras 61, 63) 3. Directive 97/13 on a common framework for general authorisations and individual licences in the field of telecommunications services leaves the Member States a discretion as to the choice of procedure for the award of licences provided that the principles of free competition and equal treatment are respected. Thus, the award of Universal Mobile Telecommunications System (UMTS) licences by way of a comparative selection procedure is permissible in so far as the operators receive the same treatment, in particular with regard to fees. With regard, more particularly, to a national measure reducing the fees to be paid by the first two operators to have obtained UMTS licences so as to align the conditions under which all licences were granted, such a procedure excludes the possibility that those operators might suffer discrimination, where the very purpose of that alignment is to take account of the fact that, at the time that the licence was awarded to a new operator, none of the three operators had entered the market – for reasons not of their own choosing – with the result that their situation was, for that reason, comparable. (see paras 90-91, 97) 4. The economic value of a Universal Mobile Telecommunications System (UMTS) licence derives, in particular, from the possibility for the licence holder to make use of the rights attached to the licence which, in the present case, means the possibility of occupying public wireless space in order to use UMTS technology. Discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations. The fact that UMTS licences were awarded to certain operators at an earlier date can justify, or even require, that the related fees be set higher than the fees charged to a new operator only if the economic value of those licences could be regarded, by dint merely of having been awarded earlier, as being of greater value than the licence awarded to the new operator. Accordingly, the fact that the licences were awarded at different dates does not lead to the conclusion that, at the date on which the licence was awarded to the new operator, the operators which had been awarded licences first were in a different situation in relation to the objective of Directive 97/13 on a common framework for general authorisations and individual licences in the field of telecommunications services, namely that of ensuring that operators obtain access to the UMTS market under the same conditions. (see paras 114-115, 119, 122)