62017TJ0330_RES
Case T‑330/17
Ceobus and Others
v
European Commission
Judgment of the General Court (First Chamber), 12 July 2019
(State aid — Aid scheme implemented by France between 1994 and 2008 — Investment subsidies awarded by the Île-de-France Region — Decision declaring the aid scheme compatible with the internal market — Concepts of ‘existing aid’ and ‘new aid’ — Article 107 TFEU — Article 108 TFEU — Article 1(b)(i) and (v) of Regulation (EU) 2015/1589 — Limitation period — Article 17 of Regulation 2015/1589)
Action for annulment — Admissibility — Dismissal of an action on the merits without ruling on admissibility — Discretion of the Courts of the European Union
(Art. 263 TFEU)
(see paragraphs 26, 27)
State aid — Aid granted in breach of the rules of procedure laid down in Article 108(3) TFEU — Obligations of national courts
(Art. 108(3) TFEU)
(see paragraphs 32, 33)
State aid — Existing aid and new aid — Categorisation as existing aid — Criteria — Evolution of the internal market — Subsidised equipment likely to be used by aid beneficiaries in connection with activities open to competition prior to introduction of the aid scheme — No existing aid
(Art. 107 TFEU; Council Regulation 2015/1589, Art. 1(b)(v))
(see paragraphs 52-62)
State aid — Recovery of unlawful aid — Ten-year limitation period laid down in Article 17 of Regulation 2015/1589 — Scope —Commission decision declaring an aid scheme that was unlawfully implemented compatible with the internal market — Not covered — Applicability of the rules on limitation in force before the national court dealing with recovery of the aid
(Council Regulation 2015/1589, Art. 17)
(see paragraphs 69-82)
Résumé
In its judgments of 12 July 2019, Keolis CIF and Others v Commission (T‑289/17), Transdev and Others v Commission (T‑291/17), Région Île-de-France v Commission (T‑292/17), Optile v Commission (T‑309/17), Ceobus and Others v Commission (T‑330/17) and STIF-IDF v Commission (T‑738/17), the Court dismissed several applications for the annulment in part of the decision of the Commission of 2 February 2017 on two aid schemes implemented by France in favour of bus transport undertakings in the Île-de-France region. (
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)
All of these cases concern the grant of two aid schemes to bus transport undertakings in the Île-de-France region. The first scheme was implemented by the Île-de-France Region between 1994 and 2008 and the second by the Syndicat Transport Île de France (Île-de-France Transport Authority) (STIF-IDF) from 2008 onwards. The aid paid under those schemes was intended to promote the purchase of equipment by undertakings providing scheduled public transport services in the Île-de-France region and to compensate for the investment costs borne by them.
In the decision being challenged before the Court, the Commission initially took the view that the two aid schemes were compatible with the internal market. However, it subsequently concluded that the financial assistance awarded under those schemes had been unlawfully implemented, in so far as such assistance was ‘new aid’ and had not been notified to it. In particular, the Commission found an infringement of Article 108(3) TFEU, which prohibits Member States that intend to grant or alter State aid from implementing the planned measures before the Commission has conducted a preliminary review of their plans. Article 108(3) TFEU therefore lays down a standstill obligation that applies to new aid, but not existing aid.
By its judgments in Keolis CIF and Others v Commission, Transdev and Others v Commission, Optile v Commission and Ceobus and Others v Commission, the Court dismissed the actions brought by several operators of road-based passenger transport networks in the territory of that region seeking the annulment of the contested decision to the extent that it concerns the aid scheme implemented by the Île-de-France Region between 1994 and 2008. In that context, a number of applicants had put forward complaints alleging various infringements of the Commission’s obligation to state reasons, all of which were rejected by the Court. In support of their actions, the applicants also challenged the categorisation of investment subsidies received by transport undertakings under the aid scheme at issue as new aid. Moreover, the road transport network operators claimed an infringement of the rules on limitation laid down in Article 17 of Regulation 2015/1589. (
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)
As regards the categorisation of the aid scheme implemented by the Île-de-France Region between 1994 and 2008 as new aid, the Court, first, rejected the complaints alleging infringement of Article 1(b)(i) of Regulation 2015/1589, according to which aid introduced before the entry into force of the TFEU in the Member State concerned is to be regarded as existing aid. The applicants did not submit sufficient evidence to the Court to prove that the aid scheme at issue had been introduced prior to the entry into force of the Treaty establishing the European Economic Community in France on 1 January 1958. Second, the Court rejected the complaints alleging infringement of Article 1(b)(v) of Regulation 2015/1589, under which aid is deemed to be existing aid if, at the time it was put into effect, it did not constitute aid but subsequently became aid due to the evolution of the internal market and without having been altered by the Member State. The Court pointed out that the transport companies in receipt of the award of aid had been likely to use, from the date of introduction of the aid scheme at issue, the equipment financed by that aid in connection with transport activities open to competition. As regards the period from 1994 to 2008, the transport undertakings concerned also did not challenge the categorisation of the subsidies granted as State aid, within the meaning of Article 107(1) TFEU. In addition, the Commission’s finding that all the criteria laid down in that provision were met for the period in question was consistent with the analysis set out in a number of relevant decisions of the national courts.
Furthermore, the Court rejected the complaints alleging infringement of Article 17 of Regulation 2015/1589, which provides for a limitation period of 10 years for the recovery of aid. The Court made clear that the rules on limitation set out in that provision relate only to the powers of the Commission, so that they are not intended to apply where, as in the present case, the Commission has acknowledged that aid unlawfully paid out is compatible with the internal market after it was granted. The Court considered, however, that the powers of the national authorities concerning the possible recovery of such aid are subject only to the national legal rules on limitation applicable before the national courts.
By its judgment in Région Île-de-France v Commission, the Court dismissed the action brought by the applicant. The Court found that the applicant was incorrect to criticise the Commission for having infringed the obligation to state reasons in its assessments of the selective nature of the aid scheme operated by the applicant between 1994 and 2008 and of the undue economic advantage granted to the beneficiaries of that scheme. In addition, the Court held that there was no reason to question the substance of the assessments in the contested decision concerning the existence of an economic advantage and the selectivity of the scheme. The Court made clear that undertakings from other Member States or other French regions were not eligible to receive the disputed subsidies, which were only open to undertakings active on the scheduled passenger transport market that carried on business in the applicant’s territory. The Court also rejected the plea alleging infringement of Article 1(b)(i) and (v) of Regulation 2015/1589.
By its judgment in STIF-IDF v Commission, the Court dismissed the action brought by STIF-IDF for annulment of the contested decision in so far as it concerns the aid scheme implemented by the applicant from 2008 onwards. That part of the contested decision referred, in particular, to a series of contracts between STIF-IDF and private undertakings operating scheduled public transport services in the territory of the Île-de-France Region, which provided for the payment of a financial contribution by STIF-IDF to the signatory undertakings as compensation for the performance of the public service obligations to which the latter were subject under those contracts.
In support of its action for annulment, STIF-IDF relied on settled case-law according to which a State measure does not constitute State aid within the meaning of Article 107 TFEU when it is 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. In order for such compensation to escape categorisation as State aid in a particular case, the Altmark criteria (
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) must be satisfied. The fourth Altmark criterion states that the level of State intervention must be determined on the basis of an analysis of the costs that a typical undertaking, well-run and adequately equipped so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations. In its action, STIF-IDF specifically criticised the Commission for having incorrectly found in the contested decision that the aid scheme at issue did not satisfy that criterion and for having infringed its obligation to state reasons in that respect.
After confirming that the Commission had provided sufficient details of the reasons for its finding that the aid scheme at issue did not satisfy the fourth Altmark criterion, the Court pointed out that the evidence adduced by STIF-IDF in support of its complaints consisted, in essence, of references to methodological tools it had used before fixing the amount of the financial contributions to be paid to the signatory companies and to the various ex post checks carried out to verify the investments made by them. Since that evidence was not relevant or, at the very least, was insufficient to determine whether the amount of compensation had been fixed in accordance with the fourth Altmark criterion, the Court found that the information provided by STIF-IDF did not demonstrate that the assessment of the aid scheme at issue in the contested decision in the light of that criterion was vitiated by an error of law or of assessment.
(
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)	Commission Decision (EU) 2017/1470 of 2 February 2017 on State aid schemes SA.26763 2014/C (ex 2012/NN) implemented by France in favour of bus transport undertakings in the Île-de-France region (OJ 2017 L 209, p. 24).
(
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)	Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 249, p. 9).
(
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)	These are four criteria for the application of that case-law, laid down in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415, paragraphs 88 to 93).