Opinion of the Advocate General — ECLI:EU:C:2010:565
Date: 2010-09-30
Language of the case: German
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, that its members had to be specialists in the field and be independent (their main job, for example, cannot be to assess the land of the local body involved) and that the rules for their appointment were governed by the individual Länder. As regards the second question, the German Government stated that the valuation committees are unrestricted and independent and that they are in no way bound by any regional reference valuations, although there are certain parameters which may be taken into account. As a first step they determine the parameters that must be taken into account when assessing the land in question and then they decide on the weight which must be attached to those parameters. V – The reference for a preliminary ruling – reformulation A – The dispute in the main proceedings: defining the positions 18. In the dispute in the main proceedings, the Landgericht Berlin will have to determine whether, in the transaction concluded with Seydaland, BVVG, the company responsible for the privatisation of agricultural land in the former German Democratic Republic, acted in accordance with the law. 19. In those terms, the case turns on a central aspect of that privatisation scheme, namely, the method for calculating the market value which must serve as the basis for determining the selling price of that land. 20. It is not in dispute that, under European Union law (‘EU law’), the maximum level of aid which the purchaser may receive is 35% of the market value of the land purchased. (11) Having regard to the above, Paragraph 3(7) of the German Indemnification and Compensation Act established that the value of agricultural land should be calculated by reducing the market value by the maximum 35%. 21. The differences in opinion arise in relation to determining which calculation method must be used in a case such as the present to obtain, reconciling the requirements of the national law with those of the Treaties, the actual market value of the land which is the subject of privatisation. 22. Seydaland considers that, in the light of Paragraph 5 of the German Land Purchase Order, BVVG ought to have determined the selling price of the land, either on the basis of the officially published regional reference valuations, or by having recourse to a valuation committee under Paragraph 192 of the Federal Law on Construction. By choosing a third way, not expressly provided for in Paragraph 5, which entails determining the purchase price on the basis of the prevailing market situation pursuant to its own calculation method, the defendant acted unlawfully. 23. In contrast, BVVG contends that, at the time when the sale was completed, the regional reference valuations were out of step, since they had not been able to adapt quickly enough to the new situation on the market in the new Länder, which was characterised by an extraordinary rise in the price of agricultural land. (12) Those reference valuations did not reflect the prevailing market situation, but rather they reflected lower prices corresponding to the prices of one or two years earlier. Accordingly, if it had calculated the price using the regional reference valuations, it would have obtained a value lower than the market value and, once the 35% reduction had been applied, it would have granted unlawful State aid. 24. Moreover, the Federal Ministry of Finance itself had been aware of that situation when, on 10 July 2007, it instructed BVVG to examine the regional reference valuations published in the Federal Gazette (Bundesanzeiger), so that if they varied by more than 20% from the average values used in comparable market transactions, they could be ignored as a basis for determining market value. 25. According to the defendant’s calculations, that was what occurred in the present case. On that ground, and given the difficulties which would be involved in seeking an individual valuation for each sale in such an extensive privatisation programme, BVVG used a new collection of reference values that it had drawn up itself from data obtained from other recent land sales, and from data from the very valuation committee established under Paragraph 192 of the Federal Law on Construction. 26. In their observations submitted to the Court of Justice, BVVG and the German Government contend that the actions of BVVG were lawful from the point of view of EU law, inasmuch as determining a genuine and actual market value is an inescapable requirement under EU law (in particular, under Article 87 EC and the Commission’s Communication of 1997). Furthermore, they also maintain that the actions were lawful as regards domestic law, asserting that Paragraph 5(1) of the Land Purchase Order does not prohibit the use of a valuation method different from the two for which it expressly provides. 27. However, in the order for reference, the Landgericht Berlin does not call into question, even indirectly, the lawfulness of BVVG’s actions in the present case. What the referring court wishes to know is whether ‘the second and fourth sentences of Paragraph 5(1)’ of the Land Purchase Order are, in principle, consistent with Article 87 EC. 28. It is, therefore, not a question of determining whether the calculation method used in the present case by BVVG allows the market value of the land to be obtained (that does not appear to be in dispute), but rather whether the other methods expressly provided for in Paragraph 5 would also have allowed such a value to be obtained. Only if the answer to that question is in the affirmative, can that provision be held to be consistent with EU law. (13) 29. However, before carrying out that analysis it is necessary to reformulate the question. B – Reformulating the question 30. In the first place, it should be borne in mind that the Landgericht Berlin refers only to the second and fourth sentences of Paragraph 5(1), which, in the version in force at the time the contract was entered into, expressly referred to two calculation methods: regional reference valuations and the valuation committee under Paragraph 192 of the Federal Law on Construction, respectively. 31. In principle, therefore, the Landgericht Berlin excluded from the question referred the first sentence of Paragraph 5, which provides that ‘the market value of agricultural land … shall be determined in accordance with the Wertermittlungsverordnung [Land Valuation Order] of 6 December 1988’. The German Government, none the less, maintains that that part of the provision is indispensable for a proper interpretation of Paragraph 5, and is the most important sentence for ensuring its full compatibility with EU law. In order, therefore, to provide a useful reply to the national court, I take the view that it is appropriate to include all of Paragraph 5(1) of the Land Purchase Order in the analysis. 32. In the second place, it should be recalled that the Court of Justice, in the context of a reference for a preliminary ruling, cannot adjudicate directly on whether a provision of national law is consistent with EU law. Reference to Paragraph 5 of the Land Purchase Order must, accordingly, be made indirectly. 33. In the light of all of the foregoing, I consider that the question referred can be properly reformulated as follows: ‘Is a national rule such as that laid down Paragraph 5(1) of the Flächenerwerbsverordnung contrary to Article 87 EC?’ VI – Analysis A – Whether the calculation methods laid down in Paragraph 5(1) allow the actual market value to be obtained 34. As was stated above, assessing whether Paragraph 5 of the Land Purchase Order is consistent with Article 87 EC requires a determination of whether the calculation methods in that provision are suitable for determining the actual market value of the agricultural land. Only in the event of a reply in the affirmative can it be ensured that the price set will not be so low as to imply that the purchaser had been granted State aid. 35. For the purposes of that analysis, certain considerations seem appropriate. 36. It is hardly necessary to point out that obtaining the market value of that land is relevant on account of the fact that Germany has chosen to apply, to that value, the maximum reduction permitted, namely 35% of that value, to the selling price. (14) Had Germany chosen to apply a significantly lower reduction, the risk that an incorrect determination of the market value would immediately result in unlawful State aid would have been considerably lower. In contrast, where – as in this case – the Member State chooses to make the maximum reduction which it is entitled to make, every assessment of the market value of the land, in respect of which it can be reasonably stated that it does not reflect the market value because it is too low, results in unlawful aid. 37. It is clear that no method is infallible in assessing, ex ante, actual market value and it is also clear that not all possible methods are equally suitable. In the original version of the provision in dispute, Germany rejected both open bidding and individual reference valuations, choosing two procedures, a principal procedure which entailed applying the so‑called regional reference valuations, and another alternative procedure which involved assessment by a valuation committee which, at least in part, also appeared to be guided by its own tables of values. 38. Of course, the best way to obtain market value consists in submitting the transaction to an open and unconditional public bidding procedure. Thus, the Commission Communication of 10 July 1997 assumes that sales by bidding procedure are always concluded at market value and consequently do not contain State aid. If there is no bidding procedure, however, the Communication clearly indicates its preference for an individual valuation of the asset, based on ‘generally accepted market indicators and valuation standards’. 39. Therefore, the mere fact that Paragraph 5 of the Land Purchase Order does not provide for a bidding procedure in those cases – which would be difficult to implement in respect of such an extensive privatisation programme – does not imply that that paragraph is incompatible with EU law. 40. In addition, the use of tables of values or reference valuations also does not constitute, in my opinion, a decisive factor per se for finding that the calculation method in question is unsuitable for determining market value: the Commission’s own Communication refers, as has been noted, to the use of ‘market indicators’ and ‘generally accepted … valuation standards’. However, the notion that those indicators or criteria must be the most up‑to‑date possible to prevent them losing their validity and being out of step with new market circumstances underpins the Communication. (15) The risk that those indicators or criteria are out of step is undoubtedly greater in the event that prices are rising sharply as in the present case. 41. Lastly, the greater or lesser likelihood of a particular procedure for calculating market value achieving its objective clearly has consequences as regards whether it complies with EU law. However, where the question is phrased in terms of a general and abstract opinion on a given procedure – as is the case here – it is necessary to find a certain level of ‘improbability’ that the result – namely, the market value – can be obtained, before that procedure can be declared contrary to EU law. 42. That said, the fact that the ‘improbability’ may not be assessed in general terms does not mean that each and every application of the provision in question complies with EU law. It follows that the answer which the Court of Justice gives in this case will not resolve all the issues with which the national court is faced regarding the application of that provision. On the contrary, it will be for the national court to assess whether or not, in the particular circumstances of the case, there has been a grant of unlawful State aid. 43. With that in mind and from that dynamic perspective, it is necessary to analyse the two calculation methods expressly laid down in Paragraph 5 of the Land Purchase Order. 1. The calculation method based on ‘regional reference valuations’ (regionale Wertansätze) 44. The weakness of any such reference valuations – the point is barely touched upon – is that they possibly, indeed foreseeably, become out of date, that is to say, that they do not respond to developments in the market. In short, they are rigid in the face of an essentially fluctuating phenomenon. That is why the possibility of ‘updating’ those values is of critical importance, despite the fact that it can never be regarded as certain that such updating will be sufficient. 45. The case‑file offers hardly any concrete details on how those regional reference valuations are reached (16) or, even more importantly, details on how often and how quickly they are updated (which might depend on the Land). 46. Seydaland submits a letter from the Regional Surveyor’s Office (Landesamt für Vermessung) for the Land of Saxony-Anhalt which states that the real estate reference values (Bodenrichtwerte) under Paragraph 196 of the Federal Law on Construction, on which the regional reference valuations are based, are updated regularly (at least once a year). Even if that were confirmed, that fact would reflect the situation in that Land only. 47. Moreover, it has hardly been mentioned in the proceedings that, at the time when the contract in question was entered into, the officially published tables did not reflect the actual market value. From a dynamic perspective, therefore, it can be concluded that those regional reference valuations could not correspond to market value, if they are not updated on a sufficiently regular basis, especially where prices are rising. 2. The calculation entrusted to a ‘valuation committee’ (Gutachtersausschuss) 48. Paragraph 5 of the Land Purchase Order itself appears to resolve the aforementioned difficulty by providing for the possibility, in such cases, of replacing the calculation based on regional reference valuations – the primary source to be used – with the involvement of the competent regional valuation committee which compiles a report on market value pursuant to Paragraph 192 of the Federal Law on Construction. 49. The involvement of the valuation committees could be a more flexible instrument, better able to adapt to rapid fluctuations in prices. However, no unanimous opinion on that point emerges from the case‑file. 50. The Landgericht Berlin, on the one hand, confirms that the committees do not calculate the market value ‘according to the prevailing market situation, but rather according to a compilation of selling prices, which the valuation committee maintains pursuant to Paragraph 195 of the Federal Law on Construction and which may be several years old’. The valuation committees also work, in short, with pre‑determined tables which are likely to present the same difficulties as the regional reference valuations as regards being out of step. (17) 51. As against that, however, the German Government maintains that the members of the valuation committee are not bound by any reference valuation, and that they may adapt their decision as to the value in the light of other factors. In particular, under the first sentence of Paragraph 5 of the Land Purchase Order, the valuation committee may – according to the German Government (18) – apply different and more flexible assessment methods. That possibility will, however, be considered below. 52. Even having regard to those favourable indications, a finding that that second calculation method is consistent with Article 87 EC can be made only subject to the proviso that, in practice, it makes it possible to obtain a suitable result. Once again, it will be for the national court to assess whether or not the indicators or tables which the valuation committee uses, or must use, are sufficiently up‑to‑date, and whether that committee has sufficient freedom, if the need arises, to depart from those pre‑determined values. B – Whether Paragraph 5(1) provides for other alternative calculation methods 53. Even though it may be concluded that the two calculation methods examined above do not guarantee a sufficiently accurate assessment of market value, Paragraph 5(1) of the Land Purchase Order could still be consistent with EU law, if it were possible to interpret it as not preventing the use of an alternative mechanism for determining that market value (for example, that used by BVVG). 54. It is not clear from the case‑file whether that alternative calculation method is an implicit possibility under Paragraph 5, or whether it was necessary to disapply Paragraph 5 in order to achieve a result which respected the requirements of Article 87 EC. 55. The referring court and the Commission work on the premiss that Paragraph 5(1) allows only for two methods of calculating market value. The German Government, by contrast, maintains that that provision leaves open the possibility that other calculation methods may be used by referring, in its first sentence, to the general provisions of the Land Valuation Order (Wertermittlungsverordnung), which contains three additional valuation methods. BVVG, for its part, adds that, in any event, Paragraph 5 does not exclude recourse to an individual valuation of the land carried out by an expert, in accordance with the general rules which govern civil disputes (Paragraph 404(2) of the Zivilprozessordnung (Code of Civil Procedure)). 56. On the other hand, the new version of Paragraph 5(1) of the Land Purchase Order, which entered into force on 11 July 2009, expressly provides for the possibility of having recourse to an approved expert to assess market value, who must also take account of ‘how prices have developed recently in the context of bidding procedures for comparable land’. (19) 57. The decision whether to favour one or the other of the two possible interpretations of the disputed provision, although it may be essential to reply to the question referred as it was formulated, is not one for the Court of Justice, but rather must be made by the referring national court. 58. Irrespective of the foregoing, it must be noted that case‑law has consistently held that the national court must interpret the national law which it has to apply, as far as is at all possible, in a manner which accords with the requirements of EU law. (20) As has been explained, the German Government and BVVG propose an interpretation of Paragraph 5 of the Land Purchase Order which complies with those requirements, but it is the Landgericht Berlin which must determine whether or not such an interpretation is possible. VII – Conclusion 59. In accordance with the foregoing considerations, I propose that the Court of Justice reply to the question referred by the Landgericht Berlin as follows: (1) Procedures for determining the market value of agricultural land such as those laid down in Paragraph 5(1) of the German Land Purchase Order of 20 December 1995 are not contrary to Article 87 EC, in so far as: (a) the reference valuations, detailed as the primary source for determining value, are updated as regularly as is required by market developments, or (b) where, in the alternative, the independent valuation committee is involved, it is not necessarily bound by assessment criteria which are likely to be out of step due to market developments. It is for the national court to determine, case‑by‑case, whether the conditions laid down in (a) and (b) above are met. 2. The issue whether or not a national rule, such as that contained in the Land Purchase Order, allows recourse to other criteria for determining value, different from those expressly laid down in the relevant provision, where that may be relevant in the light of the foregoing, must be resolved by the national court in accordance with an interpretation consistent with European Union law. 1 – Original language: Spanish. 2 – OJ 1997 C 209, p. 3. 3 – Council Regulation of 20 May 1997 (OJ 1997 L 142, p. 1). 4 – Council Regulation of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending and repealing certain Regulations (OJ 1999 L 160, p. 80). 5 – Law on State compensation for the confiscation of land, which cannot be the subject of restitution, on the basis of the right of occupation and the prerogatives of an occupying power (Gesetz über staatliche Ausgleichsleistungen für Enteignungen auf besatzungsrechtlicher oder besatzungshoheitlicher Grundlage, die nicht mehr rückgängig gemacht werden können) BGBl. I 1994, p. 2624. 6 – Order governing the acquisition of agricultural and forest land, the procedure and consultative committee established under the Indemnification and Compensation Act (Verordnung über den Erwerb land- und forstwirtschaftlicher Flächen, das Verfahren sowie den Beirat nach dem Ausgleichsleistungsgesetz) BGBl. I 1995, 2072. 7 – That version was in force until 10 July 2009. The new version, in force since 11 July 2010, is worded as follows (the changes are underlined): ‘The market value of agricultural land under the first and sixth sentences of Paragraph 3(7) … of the Indemnification and Compensation Act is determined in accordance with the Land Valuation Order of 6 December 1988 (BGBl I 2209) ... Where there are regional reference valuations of arable and pasture land, the value shall be determined according to them. The regional reference valuations shall be published by the Federal Finance Minister in the Federal Gazette [Bundesanzeiger]. Where there are grounds for believing that the established regional reference valuations are not a suitable basis, the Privatisation Authority will make an offer in the light of how the value has developed. The potential purchaser or the Privatisation Authority may seek an alternative market value assessment, from the competent regional valuation committee established under Paragraph 192 of the Federal Law on Construction or from an approved expert, which must also take account of how the value has developed recently in the context of bidding procedures for comparable land’. 8 – Commission Decision 1999/268/EC of 20 January 1999 on the acquisition of land under the German Indemnification and Compensation Act (OJ 1999 L 107, p. 21). 9 – State aid decision No 506/99 – Germany, notified to the Federal Republic of Germany by a letter from the Commission dated 19 January 2000. 10 – Although the original version of the question referred reads ‘points 2 and 3’, that is an error. 11 – It is also not disputed that the use of a selling price lower than the market price, in this case, constitutes a ‘State aid’ within the meaning of the case‑law, as it meets all the conditions of Article 87 EC. Another example of that kind of aid can be found in Case C‑295/07 P Commission v Département du Loiret [2008] ECR I‑9363. 12 – According to the defendant, prices rose by 18% in 2007 and by 15% in 2008. 13 – The argument that the Commission’s Decision of 22 December 1999 had approved the two calculation methods laid down in Paragraph 5 is irrelevant for these purposes, since nothing prevents the Court of Justice from forming a different view, contrary to the theoretical approval of the Commission. I therefore do not believe it is necessary to analyse the details of that decision. In any event, as the German Government itself and the Commission accept, that decision did not approve those calculation methods unconditionally, rather with the proviso that, in practice, they allow the market value of the land in question to be obtained. 14 – Paragraph 3(7) of the Indemnification and Compensation Act. 15 – For that reason, the fifth subparagraph of Title II, point 2(a), of the Communication states that market value is to be that at which the land could be freely sold ‘on the date of valuation’. 16 – Apart from the fact that they are based on certain ‘real estate reference values’ (Bodenrichtwerte) under Paragraph 196 of the Federal Law on Construction. The regional reference valuations and those real estate reference values seem to differ depending on the area which the one or the other covers (see, to that effect, Columbus, C. ‘Die Gemeinschaftskonformität des regionalen Wertansatzes’, Briefe zum Agrarrecht 1/2009, pp. 14-15). 17 – In fact, the compilation of selling prices (Kaufpreissammlung) maintained under Paragraph 195 of the Federal Law on Construction is used to draw up the ‘real estate reference values’ (Bodenrichtwerte) under Paragraph 196 of that law, which are, in turn, the basis for the regional reference valuations (regionale Wertansätze) (see the previous footnote). 18 – That statement is made in its first pleading upon intervening in the case. 19 – It is clear that the amendment of the provision may be regarded as indicating that there were specific gaps in the earlier version, but the German Government maintains that the amendment merely clarified the actual meaning of the Paragraph, without expanding its content. 20 – Case C‑262/97 Engelbrecht [2000] ECR I‑7321, paragraph 39; Case C‑115/08 ČEZ [2009] ECR I‑10265, paragraph 138; Case C‑91/08 Wall [2010] ECR I‑0000, paragraph 70; and Joined Cases C‑188/10 and C‑189/10 Aziz Melki and Sélim Abdeli [2010] ECR I‑0000, paragraphs 49 and 50.