Opinion of the Advocate General — ECLI:EU:C:2013:255
Date: 2013-04-18
Language of the case: French
Subject matter: State aids;Economic, social and territorial cohesion;Competition;European Regional Development Fund (ERDF)
Procedure: Action for annulment;Appeal - unfounded
Origin: France

Summary 86. Since the first part of the first plea and both parts of the third plea can be upheld, the judgment under appeal must be set aside. VI – Decision on the action at first instance 87. Under the first paragraph of Article 61 of its Statute, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. 88. In the present case the General Court thoroughly examined in its judgment the pleas in law raised by France in the proceedings at first instance. During the proceedings before the General Court and in the appeal proceedings before the Court of Justice, the parties also had an opportunity to exchange views on all aspects of relevance to the decision in the case. The facts do not need any further clarification. The state of proceedings is therefore such that judgment can be delivered. 89. If Article 2 of Directive 93/37 is interpreted and applied as I propose above in respect of the first and third pleas, (44) the action for annulment brought by France is well founded, since, firstly, the private ‘Les Boucaniers’ holiday complex was not subsidised directly by more than 50% if one disregards the tax relief granted by the French State and, secondly, that holiday complex cannot be regarded as a sports, recreation or leisure facility within the meaning of that provision. Even if one assumes that the local inhabitants of Martinique also sporadically use the leisure facilities of the holiday complex (as day guests on payment of a fee), this does not alter its character as a hotel complex which serves purely private interests and provides no services of general interest. 90. Consequently, the contested Commission decision must be annulled (first paragraph of Article 264 TFEU). VII – Costs 91. Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court of Justice itself gives final judgment in the case, it is to make a decision as to costs. (45) 92. Under Article 138(1), in conjunction with Article 184(1), of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 93. In the action for annulment that it brought at first instance, France applied for costs to be awarded against the Commission. As the Commission has been unsuccessful, it must be ordered to pay the costs of the proceedings at first instance. 94. In the appeal proceedings, on the other hand, France has not applied for costs. It is therefore fair, in my view, that each party should bear its own costs. VIII – Conclusion 95. In the light of the foregoing considerations, I propose that the Court of Justice should: (1) Set aside the judgment of the General Court of the European Union of 16 December 2011 in Case T‑488/10 France v Commission; (2) Annul Decision C(2010) 5229 of the European Commission of 28 July 2010; (3) Order the European Commission to pay the costs of the proceedings at first instance, and, for the remainder, order the parties to bear their own costs. 1 – Original language: German. 2 – European Commission Decision C(2010) 5229 of 28 July 2010 concerning the cancellation of part of the contribution of the European Regional Development Fund (ERDF) under the single programming document in respect of objective 1 for Community structural assistance in the French region of Martinique. 3 – Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures for the award of public works contracts (OJ 1993 L 199, p. 54). That directive has in the meantime been repealed and replaced by Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), which had to be transposed by 31 January 2006. However, Directive 93/37 is still applicable to this case, as the grant of ERDF financing for the construction project for the renovation and extension of the ‘Les Boucaniers’ holiday complex falls within its temporal scope. 4 – Article 8 of Directive 2004/18 now contains an essentially identical provision which, in addition to works contracts, is also applicable to service contracts, albeit in both cases only above certain financial thresholds. 5 – Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1). 6 – This tax relief is based on Article 199 undecies B I of the French General Tax Code (Code général des impôts). 7 – By Decision C(2000) 3493 of 21 December 2000, the Commission had approved an ERDF contribution for the years 2000-2006 under the single programming document in respect of objective 1 for Community structural assistance in Martinique, France, of up to EUR 17.15 million. 8 – Case T‑488/10 France v Commission. 9 – In the language of the case, paragraph 43 of the judgment under appeal reads as follows: ‘Il convient de rappeler que, afin d’examiner si les marchés de travaux en cause portaient sur des travaux de bâtiment relatifs aux équipements sportifs, récréatifs et de loisirs au sens de l’article 2, paragraphe 2, de la directive 93/37, il y a lieu de se baser sur la vocation d’ensemble du club Les Boucaniers et non sur les travaux entrepris. À cet égard, il convient de relever que, en examinant, dans la décision attaquée, le projet consistant en une rénovation complète du club Les Boucaniers, la Commission a analysé l’applicabilité de l’article 2, paragraphe 2, de la directive 93/37 en ce sens.’ 10 – See Case C‑164/98 P DIR International Film and Others v Commission [2000] ECR I‑447, paragraphs 38 and 49; Joined Cases C‑442/03 P and C‑471/03 P P&O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission [2006] ECR I‑4845, paragraphs 60 and 67; Case C‑487/06 P British Aggregates v Commission [2008] ECR I‑10515, paragraph 141; and Case C‑73/11 P Frucona Košice v Commission [2013] ECR, paragraph 89. 11 – According to settled case-law, the Court of Justice examines in appeal proceedings whether the General Court has distorted the clear sense of facts or evidence (see, for example, Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraphs 35 and 37; Case C‑326/05 P Industrias Químicas del Vallés v Commission [2007] ECR I‑6557, paragraph 57; and Joined Cases C‑71/09 P, C‑73/09 P and C‑76/09 P Comitato ‘Venezia vuole vivere’ v Commission [2011] ECR I‑4727, paragraphs 152 and 153. 12 – See, to this effect (in respect of a document which was open to a number of interpretations), Case C‑260/09 P Activision Blizzard Germany v Commission [2011] ECR I‑419, paragraph 54. 13 – The société en nom collectif (SNC) under French law is a commercial partnership in which the partners are personally liable in respect of the whole of their assets. 14 – The Commission, on the other hand, emphasises that the tax relief was granted to the société en nom collectif as such for the construction project at issue. 15 – See Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraph 49; Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraph 106; Case C‑440/07 P Commission v Schneider Electric [2009] ECR I‑6413, paragraph 191; and Case C‑337/09 P Council v Zhejiang Xinan Chemical Industrial Group [2012] ECR, paragraph 55. 16 – Commission v Brazzelli Lualdi and Others, cited in footnote 15, paragraph 59; Case C‑295/07 P Commission v Département du Loiret [2008] ECR I‑9363, paragraph 95; and Case C‑548/09 P Bank Melli Iran v Council [2011] ECR I‑11381, paragraph 122. 17 – Case C‑76/93 P Scaramuzza v Commission [1994] ECR I‑5173, paragraph 18; PKK and KNK v Council, cited in footnote 11, paragraph 64; Case C‑485/08 P Gualtieri v Commission [2010] ECR I‑3009, paragraph 37; and Case C‑322/09 P NDSHT v Commission [2010] ECR I‑11911, paragraph 41. 18 – Article 3 of Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (OJ 2009 L 188, p. 93). 19 – Thus, it was already made clear in Case 173/73 Italy v Commission [1974] ECR 709, paragraph 13, that a measure is not excluded from the ambit of Article 107 TFEU (formerly Article 92 of the EEC Treaty) merely because of its alleged fiscal nature; see also Case C‑169/08 Presidente del Consiglio dei Ministri [2009] ECR I‑10821, paragraphs 58 and 66. 20 – That the concept of a subsidy is narrower than the concept of aid is clear, inter alia, from Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1, 19; Case C‑276/02 Spain v Commission [2004] ECR I‑8091, paragraph 24; and Case C‑279/08 P Commission v Netherlands [2011] ECR I‑7671, paragraph 86. 21 – See, in particular, paragraphs 32 and 33 of the judgment under appeal. 22 – Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts (OJ, English Special Edition 1971 (II), p. 682). 23 – Council Directive 89/440/EEC of 18 July 1989 amending Directive 71/305/EEC concerning coordination of procedures for the award of public works contracts (OJ 1989 L 210, p. 1). 24 – The judgment under appeal incorrectly refers to Article 1a of Directive 89/440 whereas it should, in fact, refer to Article 1a of Directive 71/305 as amended by Directive 89/440. 25 – In the Commission’s Proposal for a Council Directive amending Directive 71/305/EEC concerning the coordination of procedures for the award of public works contracts (COM(86) 679 final), the provision was still numbered as Article 2a and stated as follows in paragraph 1: ‘Member States shall take the necessary steps to ensure compliance with the provisions of this Directive where investments in respect of works contracts awarded by entities other than those defined in Article 1(b) are financed totally or in part, directly or indirectly, from public funds.’ 26 – At first reading, the Parliament approved the following wording, which at that time was still to be inserted as Article 2a of Directive 71/305 (OJ 1988 C 167, p. 65): ‘Member States shall take the necessary steps to ensure compliance with the provisions of this Directive where the contracting authorities … provide majority financing for investments in respect of works contracts awarded by entities other than those defined in Article 1(b). “Financing” shall be taken to mean: … the payment of public subsidies, … interest subsidies on loans granted, … the granting of tax concessions, … the granting of property concessions.’ 27 – The precise wording of the statement for entry in the Council minutes is as follows: ‘The Council and the Commission confirm the need to ensure that in applying Article 1a the different forms of direct subsidies, including Community ones, for the works contracts in question are, as far as possible, taken into account.’ 28 – Judgment under appeal, end of paragraph 35. 29 – See above, points 9 to 11 of this Opinion. 30 – See in this regard the case-law cited in footnote 17 above. 31 – Judgment under appeal, in particular the end of paragraph 30 and paragraph 59. 32 – Opinion of Advocate General Léger in Case C‑399/98 Ordine degli Architetti delle Province di Milano e Lodi and Others [2001] ECR I‑5409, point 106; see also paragraph 30 of the judgment under appeal. 33 – These are the contracts within the meaning of Class 50, Group 502, of the ‘general industrial classification of economic activities in the European Communities’ (NACE) to which Article 2(2) of Directive 93/37 refers. 34 – See, for example, the limitation applied in settled case-law of the term ‘public contract’ so as to exclude quasi‑in-house operations, dating back to the judgment in Case C‑107/98 Teckal [1999] ECR I‑8121, paragraph 50, second sentence. 35 – The use of a hospital depends on the state of health of the respective user and is therefore very much an individual matter. Similarly, the use of educational facilities depends entirely or in part on the particular capabilities and preferences of each individual. 36 – See, for example, the Communication from the Commission ‘Services of general interest in Europe’ (OJ 2001 C 17, p. 4) and the report ‘Services of general interest’ which the Commission submitted to the Laeken European Council (COM(2001) 598 final). 37 – See the Opinion of Advocate General Léger in Case C‑252/96 P Parliament v Gutiérrez de Quijano y Lloréns [1998] ECR I‑7421, point 36. 38 – See, to this effect, the order of 27 September 2004 in Case C‑470/02 P UER v M6and Others, paragraph 69, and Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden v API and Commission [2010] ECR I‑8533, paragraph 65. 39 – See above, point 64 of this Opinion. 40 – See Case C‑451/08 Helmut Müller [2010] ECR I‑2673, paragraphs 49, 54, 57 and 58, and Case C‑271/08 Commission v Germany [2010] ECR I‑7091, paragraph 75, which dealt with the successor legislation to Directive 93/37 in Directive 2004/18. 41 – See in this regard Helmut Müller, cited in footnote 40, paragraphs 50 to 52. The background to the criterion of direct economic interest was examined recently by Advocate General Wathelet in his Opinion in Case C‑576/10 Commission v Netherlands, pending before the Court, points 108 to 113; see also the Opinion of Advocate General Mengozzi in Helmut Müller, cited in footnote 40, points 46 to 62. 42 – The Commission refers to paragraph 31 of the judgment under appeal. 43 – Case C‑324/98 Telaustria and Telefonadress [2000] ECR I‑10745, paragraphs 60 to 62; Case C‑231/03 Coname [2005] ECR I‑7287, paragraphs 16 and 17; and Case C‑91/08 Wall [2010] ECR I‑2815, paragraph 68. 44 – See above, points 54 to 82 of this Opinion. 45 – Pursuant to the general principle that new procedural rules apply to all proceedings pending at the time when they enter into force (settled case-law, see, for example, Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others [1981] ECR 2735, paragraph 9), the decision on costs in the present case is based on the Rules of Procedure of the Court of Justice of 25 September 2012, which entered into force on 1 November 2012 (see also, to this effect, Case C‑417/11 P Council v Bamba [2012] ECR, paragraphs 91 and 92). There is, however, no substantive difference from Article 69(2), in conjunction with Article 118 and Article 122(1), of the Rules of Procedure of the Court of Justice of 19 June 1991.