JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
1 February 2023 (*)
(Directive 2014/25/EU – Procurement procedures of entities operating in the water, energy, transport and postal services sectors – Implementing decision on the applicability of Article 34 of Directive 2014/25 to railway passenger transport in Sweden – Rights of the defence – Right to be heard)
In Case T‑659/20,
SJ AB, established in Stockholm (Sweden), represented by J. Karlsson and M. Johansson, lawyers,
applicant,
supported by
Kingdom of Sweden, represented by M. Salborn Hodgson, H. Eklinder, C. Meyer-Seitz, A. Runeskjöld, H. Shev, R. Shahsavan Eriksson and O. Simonsson, acting as Agents,
intervener,
v
European Commission,
represented by S. Baches Opi, P. Ondrůšek and G. Wils, acting as Agents,
defendant,
THE GENERAL COURT (Fifth Chamber),
composed, at the time of the deliberations, of D. Spielmann (Rapporteur), President, R. Mastroianni and I. Gâlea, Judges,
Registrar: S. Spyropoulos, Administrator,
having regard to the written part of the procedure,
further to the hearing on 25 October 2022,
gives the following
Judgment
1        By its action based on Article 263 TFEU, the applicant, SJ AB, seeks the annulment of Article 2 of Commission Implementing Decision (EU) 2020/1193 of 2 July 2020 on the applicability of Article 34 of Directive 2014/25/EU of the European Parliament and of the Council to railway passenger transport in Sweden (OJ 2020 L 262, p. 18; ‘the contested decision’), by which the European Commission decided that Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243) continued to apply to contracts awarded by contracting entities and intended to enable activities related to the provision of commercially operated railway passenger services to be carried out in the territory of Sweden.
Background to the dispute
2        The applicant is a public undertaking which was created in 2001 and is wholly owned by the Kingdom of Sweden. It is one of the six divisions formed following the separation and privatisation of the former public railway company Affärsverket Statens Järnvägar. The applicant is active in the railway passenger transport sector.
3        On 13 December 2019, the applicant submitted to the Commission a request under Article 35(1) of Directive 2014/25 seeking to establish that that directive does not apply to public procurement in the field of railway passenger transport in Sweden, as an activity relating to the operation of networks for the purposes of Article 11 of that directive (‘the request for exemption’).
4        On 2 July 2020, the Commission adopted the contested decision, by which it partially granted the request for exemption. Thus, the Commission decided, in Article 1 of the contested decision, that Directive 2014/25 did not apply to contracts awarded by contracting entities and intended to enable activities related to the provision of railway passenger services under a public service obligation to be carried out in the territory of Sweden. In Article 2 of that decision, it decided that Directive 2014/25 continued to apply to contracts awarded by contracting entities and intended to enable activities related to the provision of commercially operated railway passenger services to be carried out in the territory of Sweden.
Forms of order sought
5        The applicant, supported by the Kingdom of Sweden, claims that the Court should:
–        annul Article 2 of the contested decision;
–        order the Commission to pay the costs.
6        The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
7        In support of its action, the applicant relies on six pleas in law. The first and second pleas allege infringements of Article 34 of Directive 2014/25. The third plea alleges manifest errors of assessment as regards the definition of the relevant markets. The fourth and fifth pleas allege manifest errors in the assessment of the direct exposure to competition of the applicant’s activities relating to the provision of commercially operated railway services. The sixth plea alleges infringement of the principle of sound administration, of the right to be heard and of the obligation to state reasons.
8        It is appropriate to begin by examining the second part of the sixth plea in law, alleging infringement of the right to be heard.
9        Article 41(2)(a) of the Charter of Fundamental Rights of the European Union provides that the right of every person to have his or her affairs handled impartially, fairly and within a reasonable time includes the right to be heard before any individual measure which would affect him or her adversely is taken (see, to that effect, judgments of 8 November 2018, “Pro NGO!” v Commission, T‑454/17, EU:T:2018:755, paragraph 55, and of 14 July 2021, AI v ECDC, T‑65/19, EU:T:2021:454, paragraph 121).
10      In addition, the right to be heard is one of the rights of the defence, a general principle of EU law which is applicable even in the absence of any specific rules in that regard (judgment of 28 October 2021, Vialto Consulting v Commission, C‑650/19 P, EU:C:2021:879, paragraph 122).
11      However, the right to be heard extends to all the matters of fact and of law which form the basis for the decision-making act but not the final position which the administration intends to adopt (judgment of 15 March 2006, BASF v Commission, T‑15/02, EU:T:2006:74, paragraph 94).
12      Furthermore, it must be borne in mind that an infringement of the rights of the defence, in particular the right to be heard, results in the annulment of the decision taken at the end of the administrative procedure at issue only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see judgments of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 79 and the case-law cited, and of 14 June 2018, Makhlouf v Council, C‑458/17 P, not published, EU:C:2018:441, paragraph 42 and the case-law cited).
13      In that regard, an applicant relying on infringement of his or her rights of defence cannot be required to show that the decision of the EU institution concerned would have been different in content, but simply that such a possibility cannot be totally ruled out (see judgments of 1 October 2009, Foshan Shunde Yongjian Housewares & Hardware v Council, C‑141/08 P, EU:C:2009:598, paragraph 94 and the case-law cited, and of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 106).
14      The assessment of that question must, moreover, be made in the light of the factual and legal circumstances of each case (judgment of 18 June 2020, Commission v RQ, C‑831/18 P, EU:C:2020:481, paragraph 107).
15      The applicant claims that the Commission infringed its right to be heard by failing to communicate to it, prior to the adoption of the contested decision, information regarding the prices of certain train, airline and bus tickets, which was collected by the Commission during the week of 2 March 2020. It also disputes the merits of the Commission’s analysis of those prices and alleges that that analysis is vitiated by several material and methodological errors. In that regard, the applicant complains, in particular, that the Commission (i) relied on incorrect figures, such as prices which did not correspond to the prices displayed on the websites of the various operators on the dates in question, as well as pricing averages affected by calculation errors, and (ii) incorrectly compared data which were not comparable. It adds that the price analysis in question influenced decisively, first, the Commission’s conclusion that commercially operated railway services were not exposed to competition from air transport, secondly, the definition of the geographic market for commercially operated railway services and, thirdly, the assessment of the direct exposure to competition of the activity of providing commercially operated railway services on the Stockholm-Gothenburg and Stockholm-Malmö routes, as well as at national level.
16      The Commission admits that, because of incomplete data in the request for exemption and in order to ascertain whether the conclusions of its analysis of the data included in that request were still relevant, it collected, during the week of 2 March 2020, pricing data from the websites of the transport operators referred to in the request for exemption, in order to compare the prices of airline, train and bus tickets on the five routes examined in the contested decision. The Commission also admits that it did not communicate the pricing data in question to the applicant and does not dispute the clerical errors identified by the latter. In addition, the Commission does not dispute that the analysis of those data could have had an influence on both its definition of the product market and its conclusions relating, first, to the lack of direct exposure of commercially operated railway services to competition from air transport services of the same nature and, second, to the lack of direct exposure to competition of the activity of providing commercially operated railway services on the Stockholm-Gothenburg and Stockholm-Malmö routes, as well as at national level.
17      It follows that the Commission did not communicate to the applicant all the matters of fact forming the basis for the contested decision within the meaning of the case-law referred to in paragraph 11 above.
18      The Commission stated at the hearing that, if the Court were to consider that the applicant’s right to be heard regarding the data collected by the Commission in order to assess the competitive pressure exerted by air transport on railway transport on one of the five routes examined in the contested decision, namely the Stockholm-Gothenburg route, had been infringed, it would follow that those data could not be taken into account in assessing the direct exposure to competition of the applicant’s activities on that route. The Commission added that it did not know whether the observations which the applicant could have submitted regarding the data collected would have led it to alter its conclusion in relation to the Stockholm-Gothenburg route and to take the view that that route was directly exposed to competition.
19      Therefore, having regard, first, to the errors identified by the applicant – and not disputed by the Commission – affecting the data collected by the Commission and, second, to the fact that the statement of reasons for the contested decision is based, in part, on the analysis of those data and not solely on the analysis of the data submitted in the request for exemption, the applicant has demonstrated to the requisite legal standard that, for the purposes of the case-law referred to in paragraph 13 above, it could not be entirely ruled out that the contested decision – which includes an examination of the direct exposure to competition of the applicant’s activities on five routes, including the Stockholm-Gothenburg route, as well as at national level – might have been different in content if the Commission had given the applicant the opportunity to comment on the data in question.
20      That conclusion cannot be called into question by the Commission’s arguments that the procedure for adopting the contested decision is subject to tight procedural deadlines which are strictly enforced and are not subject to its discretion, the data in question were public and freely accessible, and the burden of proof was on the applicant.
21      It is true that the general scheme of the procedure provided for in Articles 34 and 35 of Directive 2014/25, read in conjunction with Annex IV thereto, is characterised by a need for speed, which imposes strict time limits on the Commission with regard to the adoption of an implementing decision such as the contested decision; if the Commission fails to comply with those time limits, a request for exemption is deemed to be successful and contracts intended to enable the activity in question to be carried out cease to be subject to that directive.
22      In that regard, it follows from the second subparagraph of Article 35(3) of Directive 2014/25, read in conjunction with point (b) of paragraph 1 of Annex IV thereto, that, in principle, the period for adopting an implementing decision, such as the contested decision, is 130 working days in cases where, as in the present case, (i) free access to the market could not be presumed on the basis of the first subparagraph of Article 34(3) of that directive and (ii) freedom, in fact and in law, of access to that market had to be established.
23      However, in accordance with the case-law referred to in paragraph 10 above, those provisions apply without prejudice to respect for the right to be heard.
24      Furthermore, in its examination of a request for exemption, the Commission, if it deems it necessary, may, under paragraph 2 of Annex IV to Directive 2014/25, require, inter alia, the contracting entity concerned to provide all necessary information or to supplement or clarify information given within an appropriate time limit. In the present case, the Commission has neither established nor even claimed that it was unable to set the applicant an appropriate time limit within the meaning of that provision – that is to say, a time limit compatible with compliance with the time limit referred to in paragraph 22 above – within which to submit its observations regarding the pricing data collected during the week of 2 March 2020.
25      Moreover, given the Commission’s limited powers of investigation in the context of the procedure under Article 35 of Directive 2014/25 and the fact that the burden of proof rests on the person requesting exemption from the application of that directive, the Commission could not be required to go beyond the observations made by the applicant in the present case in the request for exemption (see, to that effect, judgment of 27 April 2016, Österreichische Post v Commission, T‑463/14, EU:T:2016:243, paragraph 75).
26      Lastly, the fact, provided for in recital 44 of Directive 2014/25, that the assessment carried out by the Commission may be based on information from sources already available, such as – as in the present case – the websites of other passenger transport operators, likewise cannot prevent respect for the right to be heard of the person requesting exemption.
27      Consequently, the second part of the sixth plea in law must be upheld and, accordingly, Article 2 of the contested decision must be annulled, without there being any need to examine the other pleas in the action.
Costs
28      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
29      Under Article 138(1) of the Rules of Procedure, the Member States which have intervened in the proceedings are to bear their own costs. The Kingdom of Sweden must therefore bear its own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Annuls Article 2 of Commission Implementing Decision (EU) 2020/1193 of 2 July 2020 on the applicability of Article 34 of Directive 2014/25/EU of the European Parliament and of the Council to railway passenger transport in Sweden;
2.      Orders the European Commission to pay the costs;
3.      Orders the Kingdom of Sweden to bear its own costs.
Spielmann
Mastroianni
Gâlea
Delivered in open court in Luxembourg on 1 February 2023.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.