Opinion of the Advocate General — ECLI:EU:C:2010:160
Date: 2010-03-24
Language of the case: German
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded
Origin: Germany

Summary of the Judgment 1. State aid – Concept – Measures intended to compensate for the costs of public service tasks undertaken by a company – Not included – Conditions laid down in the judgment in Case C-280/00 (Art. 87(1) EC) 2. Appeals – Grounds – Review by the Court of Justice of the assessment of the facts and evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.) 3. Appeals – Grounds – Ground of appeal against a ground of the judgment not necessary to support the operative part – Invalid ground of appeal (Art. 225 EC; Statute of the Court of Justice, Art. 58) 4. Actions for annulment – Commission decision concerning State aid – Judicial review – Limits (Art. 230 EC) 5. State aid – Concept – Measures intended to compensate for the costs of public service tasks undertaken by a company – Not included – Conditions laid down in the judgment in Case C-280/00 (Arts 87(1) EC and 230 EC) 1. Measures, whatever their form, that are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained in normal market conditions are to be regarded as State aid, provided that the other conditions fixed by Article 87(1) EC are satisfied. In that context, with regard to undertakings responsible for a service of general economic interest, in so far as a State measure must be regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them, that measure is not caught by Article 87(1) EC. However, for such compensation to escape classification as State aid in a particular case, a number of conditions extracted from the judgment in Case C-280/00 Altmark must be satisfied. In particular, the compensation may not exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations. It follows that, when the Commission must examine the validity of a system for financing a service of general economic interest in the light of Article 87 EC, it is required, in particular, to check whether that condition is satisfied. The Commission is thus bound to examine the evidence which the parties to the administrative proceedings submitted to it and which might be relevant for the purposes of the analysis concerning the existence of an ‘advantage’ for the purposes of Article 87(1) EC. The Commission could have recourse to the use of a method different from that arising from the application of the criteria extracted from the judgment in Altmark if it was prevented, for objective reasons, from undertaking an examination of the information provided by the parties. In cases of transfers of State resources to an undertaking entrusted with a service of general economic interest, the Commission may not presume that such transfers constitute an advantage for the purposes of Article 87(1) EC, if it does not examine, first, whether the total of the transfers exceeded the total of the additional costs incurred by the recipient undertaking and, second, whether that undertaking had incurred other net additional costs associated with the provision of a service of general economic interest for which it had the right to claim compensation out of the total of the transfers on the conditions laid down in Altmark. (see paras 38, 40-44, 46-47, 54, 57) 2. It is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value that should be attached to the evidence produced to it. Save when the clear sense of the evidence has been distorted, that appraisal does not, therefore, constitute a point of law subject, as such, to review by the Court of Justice. In addition, the distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. (see paras 63-64) 3. On an appeal, a complaint directed against a ground included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and is therefore nugatory. (see para. 75) 4. It is clear from Article 230 EC that the object of an action for annulment is to review the legality of the acts adopted by the Community institutions named therein. The analysis of the pleas in law raised in such an action has neither the object nor the effect of replacing a full investigation of the case in the context of an administrative procedure. In cases of transfers of State resources to an undertaking entrusted with a service of general economic interest, when the General Court undertakes an analysis of the method used by the Commission in the contested decision to check whether the transfers could have constituted an advantage for the purposes of Article 87(1) EC, the General Court cannot be held to have exceeded its powers, in breach of Article 230 EC, if its examination was confined to the judicial review of the contested decision’s legality, unless it substituted its own method for that of the Commission. (see paras 84-85, 87-89) 5. Review by the Community judicature of complex economic assessments made by the Commission must necessarily be confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment of the facts or misuse of powers. Such complex economic assessments are made when the Commission examines the validity of a system of financing a service of general economic interest in the light of Article 87 EC, which entails examining the conditions laid down in the judgment in Case C-280/00 Altmark. The General Court does not have to examine all the criteria set down by the Court of Justice in Altmark, once it has been established that the Commission decision is unlawful in the light of one of those conditions. (see paras 97-98)