Opinion of the Advocate General — ECLI:EU:C:2018:309
Date: 2018-05-08
Language of the case: Spanish
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Spain

summary of the content of that decree and those agreements, it fails to state in what, precisely, that distortion of national law consisted. Moreover, it is not obvious from that summary that the General Court distorted the provisions of Law 32/2003. 80 Secondly, although the Kingdom of Spain’s submission must be understood as criticising the General Court for failing to state the reasons for which it did not refer to those elements of national law referred to in paragraph 78 of the present judgment, it should be remembered that it is for the General Court alone to assess the evidence produced before it. Although it must observe the general principles and the rules of procedure relating to the burden of proof and the taking of evidence and not distort the clear sense of the evidence, the General Court cannot be required to give express reasons for its assessment of the value of each piece of evidence presented to it, in particular where it considers that that evidence is unimportant or irrelevant to the outcome of the dispute (judgment of 26 April 2018, Cellnex Telecom and Telecom Castilla-La Mancha v Commission, C‑91/17 P and C‑92/17 P, not published, EU:C:2018:284, paragraph 76 and the case-law cited). 81 The Kingdom of Spain in no way submits that the General Court disregarded the obligation to observe the general principles and the rules of procedure in relation to the burden of proof and the taking of evidence so far as concerns the evidence referred to in paragraph 78 of the present judgment. 82 Lastly, the Kingdom of Spain’s argument that the General Court erred in law in paragraph 100 of the judgment under appeal, must also be rejected. 83 The fact that there may, in the present case, be a failure in the market concerned is not, contrary to the submissions made by the Kingdom of Spain, a circumstance which may affect the discretion enjoyed by the General Court so far as concerns the assessment of the relevance of the evidence produced before it, in accordance with the case-law cited in paragraph 80 of the present judgment. 84 Moreover, the existence of such a market failure is not, after all, relevant in determining whether the undertakings concerned were indeed entrusted with discharging public service obligations by a public act or whether those obligations were clearly defined in that act (see, to that effect, judgment of 20 December 2017, Comunidad Autónoma del País Vasco and Others v Commission, C‑66/16 P to C‑69/16 P, EU:C:2017:999, paragraph 75). 85 In the second place, it should be noted that the argument put forward by the Kingdom of Spain, alleging that, in paragraph 98 of the judgment under appeal, the General Court misinterpreted the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), is unfounded. 86 The Court of Justice in fact held that the first Altmark condition required it to be determined not only whether the beneficiary undertaking has indeed been entrusted with discharging public service obligations, but also 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 (judgment of 26 April 2018, Cellnex Telecom and Telecom Castilla-La Mancha v Commission, C‑91/17 P and C‑92/17 P, not published, EU:C:2018:284, paragraph 44 and the case-law cited). 87 It therefore follows that the Kingdom of Spain cannot criticise the General Court for having adopted a formalistic approach to paragraph 98 of the judgment under appeal, in requiring the presence of an act of a public authority entrusting SGEI tasks to the operators at issue and of the universal and compulsory nature of those tasks, together with a statement as to the nature and duration of the public service obligations, the undertakings and territory concerned. 88 In the third place, as regards the argument submitted by the Kingdom of Spain, alleging that the General Court erred in law in paragraph 102 of the judgment under appeal, in that it disregarded the fact that the mandate conferring the public service tasks may be defined in several separate acts, is based on an incorrect reading of that paragraph. It is, in fact, in no way apparent from that paragraph that the General Court disregarded that possibility. 89 Equally, the Kingdom of Spain has misread paragraph 104 of the judgment under appeal, since the General Court simply finds, in that paragraph, that Recital 183 of the decision at issue, so far as concerns the existence of a manifest error on the part of the Spanish authorities in selecting a specific platform, has not been disputed by that Member State. The argument submitted by the Kingdom of Spain, alleging a contradiction between paragraphs 104 and 105 of the judgment under appeal, is therefore unfounded. 90 Consequently, the first part of the first ground of appeal must be rejected as being unfounded. The second part – Arguments of the parties 91 The second part of the second ground of appeal concerns the analysis of the fourth condition arising from the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415) (‘the fourth Altmark condition), set out in paragraphs 108 to 113 of the judgment under appeal. The Kingdom of Spain submits that paragraph 110 of the judgment under appeal is vitiated by an error of law, in so far as the General Court held that the comparison with satellite technology was not sufficient to demonstrate that the public undertaking at issue was the most efficient. 92 It is submitted that the General Court failed to check whether, as required by the case-law of the Court of Justice, the Commission examined, diligently and impartially, all of the relevant elements from the administrative procedure, for the purpose of substantiating its finding as to the failure to satisfy the fourth Altmark condition. In particular, the Kingdom of Spain states that it claimed before the General Court that the conclusions drawn by the Commission from the comparative socio-economic study of the technological options for extending DTT signal coverage in the Autonomous Community of Castilla-La Mancha, dated 9 September 2008 (‘the 2008 comparative study’) were flawed, given that, according to that Member State, that study found that it seemed reasonable that the extension of the DTT service in that Autonomous Community should be carried out by means of terrestrial technology. In addition, the Member State submits that the correct review of its discretion, so far as concerns the definition of the public service at issue, consisted in verifying whether the successful tenderers had been selected in a public procurement procedure and whether the level of compensation was adequate. 93 Lastly, the Kingdom of Spain points out a contradiction between the judgment under appeal and the judgments of 26 November 2015, Abertis Telecom and Retevisión I v Commission (T‑541/13, not published, EU:T:2015:898), and Comunidad Autónoma de Cataluña and CTTI v Commission (T‑465/13, not published, EU:T:2015:900), in which the General Court held that the Commission had failed to justify, to the requisite legal standard, the failure to satisfy the fourth Altmark condition. This, it submits, amounts to a breach, on the part of the General Court, of the principle of the sound administration of justice. 94 The Commission submits that, if the first part of the second ground of appeal were to be rejected by the Court, the second part thereof would, in any event, become ineffective, given that the conditions arising from the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), are cumulative. – Findings of the Court 95 Given that the present part of the second ground of appeal concerns an alleged error made by the General Court so far as concerns its examination of the fourth Altmark condition, it must be noted that, in view of the cumulative nature of the conditions arising from the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), even if the General Court erred in considering that one of those conditions was not satisfied, that could not bring about the setting aside of the judgment under appeal if the General Court also held, without erring in law, that another of those conditions was not satisfied (judgment of 20 December 2017, Spain v Commission, C‑81/16 P, EU:C:2017:1003), paragraph 57 and the case-law cited). 96 It is clear from the examination of the first part of the second ground of appeal that the General Court did not err in law in rejecting the Kingdom of Spain’s submissions challenging the recitals of the decision at issue, in which the Commission found that that the first Altmark condition had not been satisfied. 97 In those circumstances, the second part of the second ground of appeal must be rejected as ineffective. The third ground of appeal Arguments of the parties 98 By its third ground of appeal, the Kingdom of Spain submits that the General Court erred in law in finding, in paragraph 139 of the judgment under appeal, that the measure at issue was not compatible with the internal market, on the ground that it failed to observe the principle of technological neutrality. The General Court erred in making such a finding, it is submitted, given that the 2008 comparative study made a comparison between the respective costs of the satellite and terrestrial platforms. 99 It is submitted that it is apparent from paragraphs 132 to 138 of the judgment under appeal, that the Commission took the view that that study failed to demonstrate any significant cost difference between those two platforms, and that the findings of that study were not reliable. In upholding the Commission’s assessment as to the failure to observe the principle of technological neutrality, the General Court failed to carry out its judicial review in accordance with the case-law arising from the judgment of 15 February 2005, Commission v Tetra Laval (C‑12/03 P, EU:C:2005:87, paragraph 39). In particular, the Kingdom of Spain submits, in essence, that the ‘failures’ in the 2008 comparative study, which the General Court identified in paragraphs 143, 145 and 148 of the judgment under appeal, derive in fact from the Commission’s flawed methodological premisses, which the General Court failed to verify. The Member State thereby takes the view that the approach adopted in that study was correct and that it was essential to understanding the reasons why the satellite platform was more expensive than the terrestrial, particularly on account of the presence of an existing terrestrial infrastructure. 100 The Commission submits that the arguments relied upon in support of the third ground of appeal are inadmissible or ineffective and, in any event, unfounded. Findings of the Court 101 By its third ground of appeal, the Kingdom of Spain submits that the General Court failed to carry out its judicial review correctly in holding, in paragraph 139 of the judgment under appeal, that the Member State’s arguments, which drew on the 2008 comparative study, failed to demonstrate that the Commission had erred in finding that the measure at issue was incompatible with the internal market. 102 It must be pointed out that, by the arguments put forward in support of that ground of appeal, the Kingdom of Spain claims, in reality, that the General Court failed to take due account of the 2008 comparative study, which is tantamount to disputing the General Court’s assessment of the evidence. 103 According to settled case-law of the Court of Justice, appraisal of the facts and assessment of the evidence do not, save where the facts or evidence are distorted, constitute points of law subject, as such, to review by the Court of Justice on appeal (judgment of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission, C‑70/16 P, EU:C:2017:1002, paragraph 47 and the case-law cited). 104 In any event, it is settled case-law of the Court that, in the context of the review conducted by the EU judicature of complex economic assessments made by the Commission in the field of State aid, it is not for that judicature to substitute its own economic assessment for that of the Commission. The EU Courts must, inter alia, establish not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (judgment of 20 December 2017, Spain v Commission, C‑81/16 P, EU:C:2017:1003, paragraph 70 and the case-law cited). 105 While the Kingdom of Spain submits that the General Court failed to carry out its review of the Commission’s assessment so far as concerns the reliability of the 2008 comparative study, in accordance with that case-law, it must be noted that, in confining itself to asserting that the failures of the 2008 comparative study reflected a methodological choice on the part of the Spanish authorities, the Member State has failed to produce any concrete evidence in support of its claim. 106 The third ground of appeal must, therefore, be rejected as inadmissible and, in any case, unfounded. 107 Since none of the grounds of appeal relied upon by the Kingdom of Spain in support of its appeal has been upheld, the appeal must be dismissed in its entirety. Costs 108 In accordance with the Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded, the Court is to make a decision as to costs. Article 138(1) of those rules, which is applicable to appeal proceedings by virtue of Article 184(1) of the same rules, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 109 Since the Commission has applied for costs and the Kingdom of the Spain has been unsuccessful, the latter must be ordered to pay the costs. On those grounds, the Court (Fourth Chamber) hereby: 1. Dismisses the appeal; 2. Orders the Kingdom of Spain to pay the costs. [Signatures] * Language of the case: Spanish.