JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
12 June 2014 (*)
(State aid — Software licence agreement — Decision finding no State aid — Actions for annulment — Competitive position not substantially affected — Inadmissibility — Procedural rights of the interested parties — Admissibility — Failure to initiate formal investigation procedure — No serious difficulties — Advantage)
In Case T‑488/11,
Scheepsbouwkundig Advies- en Rekencentrum (Sarc) BV, established in Bussum (Netherlands), represented by H. Speyart and R. Bolhaar, lawyers,
applicant,
v
European Commission, represented by H. van Vliet, K. Talabér-Ritz and S. Noë, acting as Agents,
defendant,
supported by
Kingdom of the Netherlands, represented initially by C. Wissels, M. Noort and B. Koopman, and subsequently by C. Wissels, M. Noort, J. Langer and M. Bulterman, acting as Agents,
and by
Technische Universiteit Delft, established in Delft (Netherlands), represented by R. van den Tweel and P. Huurnink, lawyers,
interveners,
APPLICATION for the annulment of Commission Decision C(2011) 642 final of 10 May 2011 relating to the State Aid Proceedings NN 68/2010 — Netherlands, declaring after the preliminary examination stage that the licence agreement for the use of a software source code concluded between Technische Universiteit Delft and Delftship BV does not constitute State aid,
THE GENERAL COURT (Fifth Chamber),
composed of A. Dittrich, President, J. Schwarcz and V. Tomljenović (Rapporteur), Judges,
Registrar: J. Plingers, Administrator,
having regard to the written procedure and further to the hearing on 8 January 2014,
gives the following
Judgment
Background to the dispute
1        The applicant, Scheepsbouwkundig Advies- en Rekencentrum (Sarc) BV, is a Netherlands company. It develops and markets software for ship design, called ‘PIAS’ and for ship loading, called ‘LOCOPIAS’.
2        By letter of 12 December 2008, the applicant lodged a complaint with the European Commission in which it alleged that State aid had been unlawfully granted to the Dutch company Delftship BV (‘DS’). DS develops and markets software for ship design, called ‘Delftship’, and for ship loading, called ‘Delftload’, which it developed on the basis of Delftship.
3        In its complaint, the applicant claims that DS received unlawful aid as a result of the advantageous conditions granted under the software licence agreement (‘the licence agreement’) which DS concluded with the Technische Universiteit Delft (Delft Technical University, ‘TUD’). The licence agreement concerned the exploitation by DS of the source code of the Delftship software. The Delftship software had been created and developed by an engineer and a TUD lecturer who founded DS after leaving their posts at that university.
4        By letter of 20 February 2009, the Commission asked the Netherlands authorities for information relating to the licence agreement.
5        By letter of 13 May 2009, the Netherlands authorities submitted information to the Commission in response to its request.
6        By letter of 29 May 2009, the Commission sent the applicant a non-confidential version of the observations submitted by the Netherlands authorities. It also stated that those authorities had put forward arguments for dismissing the applicant’s suspicion regarding the existence of unlawful State aid.
7        By letter of 16 June 2009, the applicant sent the Commission its observations designed to rebut the arguments of the Netherlands authorities.
8        By letter of 17 July 2009, the Commission requested further information from the Netherlands authorities. The latter replied by letter of 20 November 2009.
9        By letter of 31 March 2010, the Commission informed the applicant that, according to its interim findings, the licence agreement did not appear to involve State aid.
10      By letter of 31 May 2010, the applicant requested the Commission to reopen its investigation into that case, informed it that it had commissioned a new independent assessment concerning the existence of an advantage conferred on DS and asked the Commission to adopt a decision. It sent that assessment to the Commission on 1 September 2010.
11      On 10 May 2011, the Commission adopted Decision C(2011) 642 final relating to the State Aid Proceedings NN 68/2010 — Netherlands, declaring after the preliminary examination that the licence agreement for the use of a software source code concluded between TUD and DS did not constitute State aid (‘the contested decision’). In that decision, which it adopted after the preliminary examination provided for in Article 108(2) TFEU, the Commission concluded that the licence agreement did not grant DS an advantage within the meaning of Article 107(1) TFEU and did not involve State aid (see paragraph 78 of the contested decision).
12      In the contested decision, in the first place, after recalling the principal stages of the administrative procedure (see paragraphs 1 to 10 of the contested decision) and presenting the parties (see paragraphs 11 to 14 of the contested decision), the Commission described the conditions of the grant by TUD to DS of the licence to exploit the Delftship software (see paragraphs 15 to 20 of the contested decision). In that regard, the Commission pointed out that the Delftship software had been developed by TUD between 1997 and October 2006 and that it had been used by the students and employees of that university for teaching and research purposes. In June 2006, the engineer who had developed that software announced that he was leaving TUD. The latter, which considered that it did not have the means to continue developing that software on its own, began to negotiate a licence agreement with the future founders of DS. On 31 October 2006, the software’s source code was frozen. On 1 November 2006, the engineer who had developed the software left TUD. On 22 January 2007, TUD and DS concluded a licence agreement for the general, exclusive and non-transferable exploitation of the Delftship software source code. Under that agreement, DS was required, inter alia, to develop the software, to provide TUD with updated versions free of cost and to pay TUD an annual royalty equivalent to 5% of the annual turnover generated by the sale of sub-licences for the use of the software. It was on the basis of the Delftship software source code that DS developed, from 2007 onwards, the Delftload software. The Commission also stated that the applicant had brought proceedings against DS before a Netherlands court for termination of that licence agreement and damages. On 1 July 2009, that court dismissed the applicant’s action (see paragraphs 15 to 29 of the contested decision).
13      In the second place, the Commission recalled the arguments put forward by the applicant according to which the licence agreement constituted unlawful State aid owing to the favourable conditions granted to DS. In that regard, the applicant claimed, in essence, that the royalty payable by DS was lower than the market price, which allowed DS to offer software at a low rate on the market. That has consequences on the market that affect the applicant (see paragraphs 21 to 29 of the contested decision). The Commission also pointed out that the Netherlands authorities had maintained that the licence agreement did not constitute State aid within the meaning of Article 107(1) TFEU and that the royalties in question were not lower than a market price (see paragraphs 30 to 40 of the contested decision).
14      In the third place, the Commission carried out an examination of the aid which allegedly resulted from the advantageous conditions granted under the licence agreement (‘the measure at issue’). First, it considered that the provisions laid down in Chapter 3 of the Community framework for State aid for research and development and innovation (OJ 2006 C 323, p. 1, ‘the RDI Framework’) were not of direct application in the present case. Secondly, it examined whether the grant of the licence agreement gave DS an advantage, within the meaning of Article 107(1) TFEU. It found, at the outset, that the different stages of the negotiations which led to the conclusion of the licence agreement showed that TUD had managed to improve its contractual position (see paragraph 40 of the contested decision). It then pointed out that TUD had taken several factors into consideration, inter alia, the experience of the engineer who developed the Delftship software, and concluded that the rate of the royalties paid under the licence agreement was a market price (see paragraphs 45 to 51 of the contested decision). Finally, the Commission examined the three valuations provided by the applicant. It took the view that those valuations were not conclusive. According to the Commission, they reached different conclusions regarding the value of the software and were unfounded (see paragraphs 52 to 77 of the contested decision).
15      It was in the light of the considerations set out in paragraphs 12 to 14 above that the Commission concluded that it had not been established that TUD had granted DS an advantage within the meaning of Article 107(1) TFEU and, accordingly, that the conditions laid down by the licence agreement had not implied a grant of State aid (see paragraphs 77 and 78 of the contested decision).
Procedure and forms of order sought by the parties
16      By application lodged at the Registry of the Court on 9 September 2011, the applicant brought the present action.
17      By documents lodged at the Court Registry on 23 December 2011, the Kingdom of the Netherlands and TUD applied for leave to intervene in support of the form of order sought by the Commission.
18      By orders of 28 February 2012, the President of the Eighth Chamber of the General Court granted the Kingdom of the Netherlands and TUD leave to intervene in support of the form of order sought by the Commission.
19      By decision of the President of the General Court, the present case was assigned to a new Judge-Rapporteur sitting in the Fifth Chamber.
20      On hearing the report of the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral procedure.
21      The oral arguments of the parties were heard, and their replies to the questions asked by the Court given, at the hearing of 8 January 2014.
22      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
23      The Commission contends that the Court should:
–        dismiss the action as inadmissible in part and unfounded in part or, alternatively, dismiss the action as unfounded;
–        order the applicant to pay the costs.
24      In support of the form of order sought by the Commission, the Kingdom of the Netherlands claims that the Court should:
–        dismiss the action as inadmissible or as unfounded;
–        order the applicant to pay the costs.
25      In support of the form of order sought by the Commission, TUD claims that the Court should:
–        dismiss the action as inadmissible in part and unfounded in part or, alternatively, dismiss the action as unfounded;
–        order the applicant to pay the costs.
Law
26      In support of its action, the applicant puts forward five pleas in law. The first plea alleges infringement of Article 108(2) TFEU and of Article 4 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 140, p. 1), in so far as the Commission should have initiated the formal investigation procedure. The second plea, which the applicant raises in the alternative, alleges infringement of the applicant’s right to be adequately associated with the procedure during the preliminary examination stage. The third plea alleges infringement of Article 107(1) TFEU inasmuch as the Commission erred in finding that no advantage had been granted to DS. The fourth plea alleges infringement of the obligation to order the submission of an independent assessment report relating to the advantage granted by the measure at issue. The fifth plea, alleging a failure to state reasons resulting from ‘non sequiturs, contradictions and failures to address evidence’, leading the Commission to rule out the existence of an advantage in the third plea.
Admissibility
27      The Commission, supported by the Kingdom of the Netherlands and by TUD, raises two pleas of inadmissibility. According to the first plea of inadmissibility, the applicant does not have legal standing to bring proceedings. According to the second plea of inadmissibility, the five pleas in law raised by the applicant are inadmissible.
28      The applicant contests those two pleas of inadmissibility.
The applicant’s standing to bring proceedings
29      The Commission, supported by the Kingdom of the Netherlands and by TUD, claims that, although the applicant is a person concerned within the meaning of Article 108(2) TFEU, it has legal standing to challenge the contested decision only in order to safeguard its procedural rights under that provision. However, since the applicant has not demonstrated that its market position was significantly affected by the measure at issue, it may not challenge the merits of the contested decision.
30      The applicant states in reply, essentially, that, first, as a competitor of the beneficiary of the aid, it has the right to challenge the contested decision in so far as the Commission infringed its procedural rights by failing to initiate the formal investigation procedure and that, secondly, it also has the right to challenge the merits of the contested decision in so far as the granting of the measure at issue substantially affected its market position.
31      Under the fourth paragraph of Article 263 TFEU, any natural or legal person may institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and which does not entail implementing measures.
32      According to settled case-law, persons other than those to whom a decision is addressed may claim to be individually concerned within the meaning of the fourth paragraph of Article 263 TFEU only if that decision affects them by virtue of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and thus distinguishes them individually just as in the case of the person addressed (Case 25/62 Plaumann v Commission [1963] ECR 95, at p. 107; Case C‑198/91 Cook v Commission [1993] ECR I‑2487, paragraph 20; Case C‑225/91 Matra v Commission [1993] ECR I‑3203, paragraph 14).
33      That would be the case, in particular, where the applicant’s market position is significantly affected by the aid to which the decision at issue relates (see Case C‑487/06 P British Aggregates v Commission [2008] ECR I‑10515, paragraph 30 and the case-law cited). It is for the applicant, therefore, to adduce pertinent reasons to show that the Commission’s decision may adversely affect its legitimate interests by seriously jeopardising its position on the market in question (see, to that effect, Case C‑525/04 P Spain v Lenzing [2007] ECR I‑9947, paragraph 41 and the case-law cited).
34      With regard to the determination of a significant effect on the position of a company on the market in question, it is apparent from the case-law that the mere fact that a measure may exercise an influence on the competitive relationships existing on the relevant market, and that the undertaking concerned was in a competitive relationship with the addressee of that measure, cannot in any event suffice for that undertaking to be regarded as being individually concerned by that measure (see British Aggregates Association v Commission, paragraph 33 above, paragraph 47 and the case-law cited; order in Case T‑344/10 UPS Europe and United Parcel Service Deutschland v Commission [2012] not published in the ECR, paragraph 47).
35      An undertaking cannot rely solely on its status as a competitor of the undertaking in receipt of aid but must additionally show that its circumstances distinguish it individually just as in the case of the person addressed by such a decision (British Aggregates Association v Commission, paragraph 33 above, paragraph 48 and the case-law cited; order in UPS Europe and United Parcel Service Deutschland v Commission, paragraph 34 above, paragraph 48).
36      First, in that regard, it is important to recall that demonstrating a significant adverse effect on a competitor’s position on the market cannot simply be a matter of the existence of certain factors indicating a decline in its commercial or financial performance (see judgment in British Aggregates Association v Commission, paragraph 33 above, paragraph 53 and the case-law cited; order in UPS Europe and United Parcel Service Deutschland v Commission, paragraph 34 above, paragraph 49).
37      Next, the existence of a significant effect on the position of an applicant on the market does not depend directly on the amount of the aid, but on the magnitude of the prejudice which that aid may have on that position. That adverse effect may vary, in respect of aid of a similar amount, in the light of criteria such as the size of the market concerned, the specific nature of the aid, the length of the period for which it was granted, whether the activity affected is the applicant’s main or ancillary activity and the possibilities which the applicant has to circumvent the negative effects of the aid (see, to that effect, order in UPS Europe and United Parcel Service Deutschland v Commission, paragraph 34 above, paragraph 58).
38      Finally, without prejudice to the foregoing, it must be pointed out that where the Commission adopts a decision, in accordance with Article 4(3) of Regulation No 659/1999, finding that the measure is compatible with the internal market, it also, by implication, refuses to initiate the formal investigation procedure laid down in Article 108(2) TFEU and Article 6(1) of Regulation No 659/1999 (judgment of 24 January 2013 in Case C‑646/11 P 3F v Commission, not published in the ECR, paragraph 26). The interested parties, who are, according to Article 1(h) of Regulation No 659/1999, any persons, undertakings or associations whose interests might be affected by the granting of aid, in particular undertakings competing with the beneficiaries of that aid and who are entitled to the guarantees afforded by the formal examination procedure, may secure compliance therewith only if they are able to challenge that decision before the European Union courts. In those circumstances, their action may seek only to safeguard the procedural rights available to them under Article 108(2) TFEU and Article 6(1) of Regulation No 659/1999 (British Aggregates v Commission, paragraph 33 above, paragraph 28).
39      In the light of the provisions and case-law set out in paragraphs 31 to 38 above, the Court considers it appropriate to examine, prior to the issue of whether the competitive position of the applicant has been significantly affected by the measure at issue and therefore has legal standing to challenge the merits of the contested decision, the issue of whether it is an interested party within the meaning of Article 1(h) of Regulation No 659/1999 and therefore has standing to safeguard its procedural rights.
40      In the first place, as regards the question whether the applicant is an interested party within the meaning of Article 108(2) TFEU and Article 1(h) of Regulation No 659/1999, it should be noted that it is common ground that the contested decision was adopted at the end of the preliminary investigation phase and that the Commission concluded that no State aid was granted. Accordingly, it must be held, in accordance with the case-law set out in paragraph 38 above, that the Commission, by that decision, implicitly refused to initiate the formal investigation procedure.
41      Furthermore, it is undisputed that the applicant is a competitor of DS, which is the beneficiary of the measure at issue, for ship design and loading software (see paragraphs 1 and 2 above). Therefore, the applicant must be regarded as, in accordance with the case-law cited in paragraph 38 above, an interested party within the meaning of Article 108(2) TFEU and Article 1(h) of Regulation No 659/1999.
42      In those circumstances, it is to be held that, as the applicant contends and as the Commission and the Kingdom of the Netherlands acknowledge, it has legal standing to challenge the contested decision in so far as, by its action, it seeks to safeguard its procedural rights.
43      In the second place, as regards the question whether, in addition to its capacity to act in order to safeguard its procedural rights, the applicant may challenge, by its action, the merits of the contested decision, it should be noted, first, that the applicant has not provided the Court with the main information relating to the structure of the relevant market establishing its competitive position in that market. In particular, the applicant has not provided information about the relevant geographic market, its share of that market and the share of its competitors and any shift in market shares since the measure at issue was granted.
44      It should be pointed out, secondly, that the applicant has not provided the Court with any evidence which could lead to the conclusion that the grant of the measure at issue had significantly affected its competitive position given, in particular, the specific nature of that measure, the length of the period for which it was granted and any circumstances making it impossible to circumvent the adverse effects of that measure.
45      In those circumstances, it is to be found that the applicant has not established that its competitive position was significantly affected within the meaning of the case-law set out in paragraph 33 above.
46      The six arguments which the applicant raises in that regard cannot invalidate the finding set out in paragraph 45 above.
47      First, the applicant argued, in response to oral questions from the Court, that, in order to determine whether its competitive position had been significantly affected, it was not necessary to identify the relevant market, but it sufficed to establish the ‘competitive constraints involved’. That claim must be rejected as unfounded. In accordance with the case-law set out in paragraph 34 above, it is only if the competitive position of the applicant had been significantly affected in the relevant market that the applicant would have legal standing to institute proceedings. Accordingly, the Court can determine whether the applicant has been affected in this way only if the applicant provides useful information on the relevant market that has allegedly been adversely affected.
48      Second, the applicant refers to the fact that it is ‘a close’ or ‘a very close’ competitor of DS. According to the applicant, such a finding, which should be as relevant in State aid law as it is in competition law, stems from the fact that those companies sell to the same customers and their software has common functionalities.
49      In that regard, it is sufficient to note that, although the fact that the applicant and DS sell to the same customers and the products they market have similarities that contribute to establishing that they are competitors on the product market at issue, the proof of the existence of that competitive relationship does not, as is apparent from the case-law cited in paragraph 35 above, on its own establish that the competitive position of the applicant had been significantly affected by the measure at issue.
50      Third, the applicant claims that the fact that it has 80% of the market share in the Netherlands and that it has a large number of contact points demonstrates that its competitive position on the market is affected. On the one hand, it should be noted in that regard that neither the Commission, which does not dispute that the applicant has such a market share in that state, nor the applicant argues that the territory of the Netherlands is the relevant geographic market in which it is necessary to assess the distortion of competition that the measure at issue generates and, consequently, the possible effect on the competitive position of the applicant.
51      On the other hand, it is clear that, as the Commission pointed out in reply to the Court’s oral questions, several factors in the case-file before the Court demonstrate that the relevant geographic market is not the territory of the Netherlands. First of all, it should be noted that, in its observations submitted to the Commission on 31 May and 1 September 2010, the applicant considered that the relevant geographic market for the software in question was worldwide. Next, it is also apparent from those observations the applicant’s customers, which are shipyards and universities, are, as the applicant acknowledged in reply to the questions put by the Court at the hearing, situated not only in Europe but also in the rest of the world, such as Canada, the United States, in particular Hawaii, and in Australia, that the software in question can be purchased directly on the Internet and that it is, as the applicant stated at the hearing in reply to the questions put to it by the Court, marketed in English.
52      In those circumstances, the fact put forward by the applicant that it has 80% of market share in the territory of a single Member State does not prove that its competitive position was significantly affected in the relevant market.
53      Fourth, the applicant submits that the measure at issue, which it estimates to have a total value, over a period of five years, of between EUR 1.1 and 2.5 million, is not insignificant to the extent that it exceeds the de minimis threshold of EUR 200 000 over three years provided for in Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles [107 TFEU] and [108 TFEU] of the Treaty to de minimis aid (OJ 2006 L 379, p. 5), and that it is, in any event, an advantage for DS. First of all, it should be observed that, in its pleadings, the applicant merely submits, on that specific point, that its competitive position was ‘affected’ by the measure at issue, but not that it was ‘significantly affected’ within the meaning of the case-law set out in paragraph 33 above. Next, and in any event, it should be stated that the fact that the amount of the measure at issue exceeds the de minimis threshold does not establish the reasons why the granting of such an amount to DS would significantly affect the applicant. In accordance with the case-law cited in paragraph 37 above, the finding of a significant effect on the competitive position of an applicant does not directly depend on the amount of aid, but on the magnitude of the prejudice to its competitive position.
54      Fifth, the applicant notes that it has lost many customers to DS and, therefore, market share. On the one hand, it should be noted in that regard that, as the Commission points out, the applicant merely refers to the loss of three customers even though it is clear from its observations, lodged with the Commission on 1 September 2010, that it had at least one hundred customers. The information that it had lost three customers is not sufficient, on its own, to establish that it had been significantly affected by the granting of the measure at issue. Moreover, and in any event, the applicant has not provided, particularly in reply to the oral questions put by the Court, any information which leads to the conclusion that the loss of those customers was a direct consequence, not of the normal course of trade, but of the granting of the measure at issue.
55      Sixth, the applicant observes, on the one hand, that there is a significant gap between the prices of the software offered by it and by DS, resulting from the fact that it must recover all the development costs that DS is not required to bear and, on the other, that its turnover initially grew less rapidly from the date when the measure at issue was granted in 2007 and then decreased until 2010. It must therefore be stated that, by these observations, the applicant submits, in essence, that the decline in its turnover is due to the fact that DS is able to offer, as a result of the measure at issue, software at prices that are significantly lower than those of the applicant.
56      It is admittedly true that, as the applicant claims, its turnover from the sale of its Pias software for ship design, which competes with Delftship, decreased from 2007 onwards, which is the year in which DS started marketing its software. However, the fact remains that, according to information also provided by the applicant, the turnover relating to the ship loading software Locopias, which competes with Delftload, as well as its overall turnover, continued to grow, on average, between 2007 and 2010. In those circumstances, it should be noted that, even if there was a price difference as great as the applicant claims between software sold by it and that sold by DS, such a difference would not, in any case, lead to the conclusion that its competitive position had been significantly affected by the measure at issue, given the rise, on average, of the applicant’s total turnover. Moreover, it should be noted in that regard that the applicant has not adduced any evidence to support its claim that its overall turnover would have increased more significantly if the measure at issue had not been granted to DS.
57      Therefore, the applicant’s arguments, set out in paragraph 56 above, concerning its turnover and the gap between the software prices charged by DS and those charged by the applicant, do not prove that the measure at issue significantly affected its competitive position.
58      It follows from the above considerations that the applicant has not established that its competitive position was significantly affected by the measure at issue.
59      In those circumstances, it must be held, on the one hand, that in so far as the applicant is an interested party within the meaning of Article 108(2) TFEU and Article 1(h) of Regulation No 659/1999, it has legal standing to challenge the contested decision in order to safeguard its procedural rights and, on the other, that the applicant does not, however, have legal standing to challenge the merits of the decision.
60      The plea of inadmissibility raised by the Commission, by which it argued that the competitive position of the applicant was not significantly affected by the measure must, therefore, be upheld.
Admissibility of the pleas in law raised by the applicant, in view of its legal standing to bring proceedings
61      The Commission considers that none of the five pleas in law raised by the applicant is admissible. On the one hand, in that its second, third, fourth and fifth pleas relate only to the substance of the contested decision, those pleas are inadmissible. On the other, in that its first plea, which concerns an infringement of its procedural rights, the applicant merely refers to the third plea, that first plea is likewise inadmissible. Moreover, the arguments raised by the applicant in the context of the first plea, as developed in the reply are, in any event, inadmissible, for they were raised out of time.
62      The applicant does not accept the Commission’s line of argument.
63      First, it should be recalled that, according to the case-law, where an applicant alleges an infringement of his procedural rights on the ground that the Commission did not initiate the formal investigation procedure, he may invoke any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should have raised doubts as to classification of the measure notified as State aid and its compatibility with the Treaty. The use of such arguments cannot, however, have the consequence of changing the subject-matter of the action or altering the conditions of its admissibility. On the contrary, the existence of doubts concerning that classification or that compatibility with the internal market is precisely the evidence that must be adduced in order to show that the Commission was required to initiate the formal investigation procedure (see Case T‑304/08 Smurfit Kappa Group v Commission [2012] ECR I‑0000, paragraph 52 and the case-law cited and Case T‑79/10 Colt Télécommunications France v Commission, not published in the ECR, paragraph 84).
64      That proof may be furnished by reference to a body of consistent evidence: the question whether or not a doubt exists requires investigation both of the circumstances in which the decision not to raise objections was adopted and of its content, comparing the assessments upon which the Commission relied in that decision with the information available to it when it ruled on the classification and on the compatibility of the aid in question with the internal market (see 3F v Commission, paragraph 38 above, paragraph 31 and the case-law cited). The applicant bears the burden of proving that such a doubt exists (Case T‑73/98 Prayon-Rupel v Commission [2001] ECR II‑8677, paragraph 49; Case T‑36/06 Bundsverband deutscher Banken v Commission [2010] ECR II‑537, paragraph 127; and Colt Télécommunications France v Commission, paragraph 63 above, paragraph 37).
65      Next, it is important to bear in mind that it is apparent from the case-law that, in so far as an applicant raises a plea by which it seeks to defend its procedural rights, the General Court cannot be criticised for taking into account the arguments raised in other pleas of the application which seek to show that the Commission should have had doubts as to the classification of the measures at issue as State aid or as to their compatibility with the internal market (see, to that effect, Case C‑83/09 P Commission v Kronoply and Kronotex [2011] ECR I‑4441, paragraphs 56 to 58, and Case C‑148/09 P Belgium v Deutsche Post and DHL International [2011] ECR I‑8573, paragraphs 64 to 66).
66      It is in the light of the case-law cited in paragraphs 63 to 65 above that it must be considered whether, as the Commission claims, the five pleas that the applicant relies on in support of its application, and which are set out in paragraph 26 above, are admissible.
67      The Court considers it appropriate to examine the admissibility of the five pleas raised in an order that differs, in part, from the order in which they were raised.
68      In the first place, as regards the first and third pleas, it should be noted that, in the first, the applicant submits that the Commission ought to have experienced serious difficulties justifying the initiation of the formal investigation procedure. In support of the first plea, the applicant explicitly refers to the arguments it raised in the third plea, in which it argues that the Commission erred in finding that an advantage had not been granted to DS.
69      In that regard, on the one hand, it is necessary to reject the Commission’s argument that the first plea is inadmissible on the ground that the applicant did not sufficiently clarify the serious difficulties that the Commission allegedly encountered. It is clearly apparent from the first plea, in conjunction with the third plea, which the applicant explicitly refers to, that the latter claims that the Commission ought to have had doubts when analysing whether there was an advantage which constituted a serious difficulty that justified the initiation of the formal investigation procedure.
70      On the other hand, in so far as the Commission contends that the arguments raised by the applicant in the first plea of the reply are inadmissible, it is clear from Article 48(2) of the Rules of Procedure of the General Court that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. However, a plea or an argument which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the application and which is closely connected therewith must be declared admissible (see Case T‑422/07 Djebel — SGPS v Commission [2012], not published in the ECR, paragraphs 142 and 143 and the case-law cited). In the present case, it is important to note that, in the reply, the applicant’s arguments that the Commission made no counterfactual analysis of the facts of the case by the Commission, and that relating to the difficulties inherent in the question whether the royalty rate provided in the licence agreement amounted to a market price, constitute an amplification of the arguments developed in the third plea of the application. It must be noted, however, that the argument developed in the reply and at the hearing regarding the duration of the administrative procedure is unrelated to the line of argument developed in the application. In those circumstances, the plea of inadmissibility raised by the Commission, to the effect that all the arguments advanced by the applicant in the first plea of the reply are inadmissible, because raised out of time, must be rejected as unfounded, except as regards the arguments put forward by the applicant in the reply concerning the duration of the administrative procedure.
71      It follows from the considerations set out in paragraphs 69 and 70 above that the first plea and the third plea which supports it are admissible, with the exception of the arguments put forward by the applicant in the reply concerning the duration of the administrative procedure, which is inadmissible in so far as it is out of time.
72      In the second plea, as regards the fourth plea, it should be stated that, to the extent that the applicant argues in it that the Commission could not conclude that no advantage had been granted without having first ordered an independent valuation of the measure at issue, the arguments raised in that plea, like those raised in the third plea, support the first plea. In those circumstances, the fourth plea, which must be read in conjunction with the first plea, must be considered admissible.
73      In the third place, as regards the second plea, the applicant submits that it was not adequately associated with the procedure during the preliminary investigation stage. In that regard, it should be noted that that plea, although it does not seek a declaration that the Commission ought to have had doubts as to the existence of an advantage which warranted the initiation of the formal investigation, it does, however, seek annulment of the contested decision in that as the Commission infringed the applicant’s right to be adequately associated with the procedure during the preliminary investigation phase, as the Court of Justice acknowledged in Case C‑521/06 P Athinaïki Techniki v Commission [2008] ECR I‑5829, paragraph 38. It must, therefore, be regarded as admissible.
74      Fourthly, as regards the fifth plea, the applicant alleges infringement of the obligation to state reasons for the contested decision resulting from ‘the non sequiturs, contradictions and failures to address evidence adduced by [the applicant], as evidenced in the third plea’. In that regard, it should be noted that, in that plea, the applicant does not clearly and precisely identify the reasons why it considers that the Commission’s analysis concerning the non-existence of an advantage granted to DS is not, or is not sufficiently, reasoned while, at the same time, in its third plea it contests the validity of the evidence which led the Commission to conclude that no advantage was granted. Moreover, it is clearly apparent from paragraphs 45 to 76 of the contested decision, as summarised in paragraph 14 above and developed in paragraphs 104 to 109 below, that the Commission stated in the contested decision the reasons why it had considered that the contested measure did not grant any advantage to DS. In those circumstances, the fifth plea must be regarded as inadmissible in so far as it does not comply with the requirements of Article 44(1) of the Rules of Procedure and, moreover, unfounded in so far as the Commission’s reasons for the contested decision meet the requisite legal standard on that point. That plea must, therefore, be rejected.
75      In the light of all the considerations set out in paragraphs 68 to 74 above, the Commission’s second objection to admissibility must be upheld in so far as the arguments relating to the duration of the administrative procedure developed by the applicant in the first plea of the reply and in the fifth plea are inadmissible and, secondly, however, the second objection must be rejected as to the remainder, since the first plea, with the exception of the arguments relating to the duration of the administrative procedure developed by the applicant in the first plea of the reply, and the second, third and fourth pleas are admissible.
Substance
76      The Court considers that it is appropriate, for reasons of legal logic, to examine first of all the second plea, which the applicant puts forward in the alternative, and then the first plea (with the exception of the argument relating to the duration of the administrative procedure developed by the applicant in the first plea of the reply, which is inadmissible), together with the third and fourth pleas.
The second plea in law, alleging infringement of the applicant’s right to be adequately associated with the procedure during the preliminary examination stage
77      The applicant claims, in essence, that its right to be adequately associated with the procedure, as recognised in Athinaïki Techniki v Commission, paragraph 73 above, paragraph 38, has been infringed. The Commission ought to have given it the opportunity of replying to the arguments put forward by the Kingdom of the Netherlands in its second reply to the requests for information from the Commission and to those stated in the contested decision which the applicant had not encountered before.
78      The Commission contests that line of argument.
79      It is apparent from the case-law that, although the parties concerned may not rely on rights of the defence in the preliminary examination stage, they do, however, have the right to be adequately associated with that procedure, taking into account the circumstances of the case (Athinaïki Techniki v Commission, paragraph 73 above, paragraph 38).
80      In the present case, it is undisputed that, during the preliminary stage leading to the adoption of the contested decision, as is apparent from paragraphs 3 to 9 of that decision, the Commission invited the applicant, on 29 May 2009, to submit its observations on the information that had been provided to it by the Kingdom of the Netherlands on 13 May 2009. Furthermore, the Commission, which had requested additional information from the Kingdom of the Netherlands on 17 July 2009, and received it on 20 November 2009, informed the applicant on 31 May 2010 of its interim findings, according to which, on basis of all the information considered, it took the view at that stage that there was no State aid. Finally, the Commission took into account in the contested decision, as is apparent from paragraph 75 of that decision, the observations submitted to it by the applicant on 1 September 2010, noting, in particular, that the valuation of the aid that the applicant had given to it on that date provided no grounds for concluding that State aid had been granted.
81      In those circumstances, it must be stated that the Commission fulfilled its obligation, as set out in paragraph 79 above, to associate the applicant adequately with the preliminary examination stage of the procedure. Before adopting the contested decision, the Commission not only communicated to the applicant, by letter of 31 March 2010, its provisional findings, but also took into account, in the contested decision, the main arguments subsequently raised by the applicant in its letters of 31 May and 1 September 2010, such as the last valuation of the advantage conferred by the measure at issue provided by the applicant on 1 September 2010, and which sought to establish the existence of an advantage granted, according to the applicant, to DS.
82      The argument that the applicant submits in that regard, that it is apparent from the judgment in Athinaïki Techniki v Commission, paragraph 73 above, paragraph 38, that the more a company is associated with the procedure, the more the Commission must use with caution in the contested decision factual information or assessments that the applicant has not had the opportunity to comment on, must be rejected as unfounded.
83      First, it should be noted that, although, in paragraph 38 of the judgment in Athinaïki Techniki v Commission, paragraph 73 above, the Court held that a complainant should be adequately associated with that procedure, taking into account the circumstances of the case, that does not mean, however, contrary to what the applicant claims, that it is for the Commission to make a ruling, in a decision not to initiate the formal investigation procedure, on all the observations that that complainant has submitted to it. Such a finding is reinforced by the fact that, where the Commission intends not to pursue a complaint, the Court held, in paragraph 39 of that judgment, that the obligation of the Commission vis-à-vis a complainant was limited to the duty to inform it of its provisional findings and obtain any observations.
84      Second, and in any event, it must be stated, in the present case, that even if the Commission did not reply to all the facts submitted to it by the applicant, or made certain legal assessments in the contested decision that it did not communicate to the applicant in advance, the fact remains that the Commission considered, in the context of the contested decision, the main arguments that the applicant had raised in order to establish the existence of State aid, in particular those relating to the question of whether the measure at issue granted an advantage to DS. In that regard, the fact that the applicant did not have, as it claims, the opportunity of commenting on the assessments of the Commission according to which TUD wanted to use Delftship rather than another programme or that it was unlikely that a competitor other than DS had an interest in acquiring that software, does not affect the finding that the applicant had the opportunity of submitting its observations on the main reasons why the Commission considered that the contested measure did not confer an advantage on DS, taking into account, inter alia, the amounts DS had to pay TUD for the licences.
85      In the light of the foregoing considerations, the second plea must be rejected as unfounded.
The first, third and fourth pleas in law, alleging doubts that the Commission ought to have had when assessing the non-existence of an advantage granted to DS
86      It is apparent from the first, third and fourth pleas in law, read together, that the applicant puts forward three main heads of claim. In the first place, the applicant considers that the Commission erred in law by not presuming that an advantage had been conferred in the absence of a tender procedure or a valuation ordered in advance. Such a presumption is included in the rules laid down in the XXIII Report on Competition Policy (‘the XXIII Report’) and also in the Communication on State aid elements in sales of land and buildings by public authorities (OJ 1997 C 209, p. 3,) and in the RDI Framework. Moreover, presumptions exist in other areas of competition law, such as the presumption that a parent company exercises a decisive influence over its wholly-owned subsidiary and the presumption of the effect on intra-Community trade or of distortion of competition if certain conditions have been satisfied.
87      In the second place, the applicant first considers that the Commission committed several errors of assessment by taking the view that TUD had acted as a private investor in conducting exclusive negotiations with DS. At the outset, it claims, the Commission wrongly took the view that the circumstances of the case made it necessary for the Delftship software licence to be granted on the basis of exclusive negotiations between TUD and DS. Next, the applicant disputes the Commission’s assessment that the choice of DS was justified because of its specific skills in developing the Delftship software. Finally, the Commission’s assertion that no company was interested in a licence is, it is alleged, speculative. Second, contrary to what the Commission held, the Delftship software source code was ready to be marketed at the time it was frozen on 31 October 2006. Third, the Commission wrongly took into account the 2 — 6% range indicated by the Netherlands authorities to justify the market conformity of the royalty payable by DS to TUD. Fourth, the applicant considers that the Commission should have pointed out that the valuations provided by the applicant all indicated that the measure at issue granted an advantage to DS.
88      In the third place, the applicant submits that the Commission was required to order the Kingdom of the Netherlands to provide an independent valuation relating to the advantage conferred on DS by the granting of the measure at issue. That obligation stems from the Commission’s right, established in Article 10 of Regulation No 659/1999, to obtain information from Member States and is in accordance with the principles laid down in the XXIII Report.
89      The Council, supported by the Kingdom of the Netherlands and by TUD, disputes the applicant’s arguments.
90      The Court has consistently held that categorisation as State aid within the meaning of Article 107(1) TFEU requires all the conditions set out in that provision to be satisfied. Thus, for a measure to be classified as State aid, first, there must be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer an advantage on the recipient; fourth, it must distort or threaten to distort competition (see Case C‑399/08 P Commission v Deutsche Post [2010] ECR I‑7831, paragraphs 38 and 39 and the case-law cited). Concerning the third of those conditions, according to settled case-law, measures which, whatever their form, 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 under normal market conditions are regarded as State aid (Commission v Deutsche Post paragraph 40 and case-law cited).
91      To determine whether the granting of a licence to exploit software by a public authority to a private entity conferred a benefit on the licensee and thus constitutes State aid, the Commission must apply the private investor test, so as to determine whether the royalties paid by the licensee corresponds to the price which a private investor, operating in normal competitive conditions, would have been able to obtain for the granting of that licence (see, by analogy, Case C‑290/07 P Commission v Scott [2010] ECR I‑7763, paragraph 68).
92      Where such a licence has been granted without a tendering procedure or a valuation by an independent expert, the Commission’s task must be deemed to have been complex and not to have led to anything but a rough estimate of the market value of that licence (see, to that effect and by analogy, Commission v Scott, paragraph 91 above, paragraph 70).
93      In that context, it should be recalled that the question whether the Commission misapplied the private investor test is not to be confused with the question whether there were doubts which required the formal investigation procedure to be initiated. The examination of the existence of doubts is designed not to determine whether the Commission correctly applied Article 107 TFEU, but to establish whether it had, at the time it adopted the contested decision, sufficiently full information to assess whether the measure at issue constituted a State aid (judgments of 28 March 2012 in Case T‑123/09 Ryanair v Commission, paragraph 129, and in Bundsverband deutscher Banken v Commission, paragraph 64 above, paragraph 129).
94      It is in the light of the case law set out in paragraphs 90 to 93 above that it is necessary to examine whether the three main objections that the applicant raises lead to the conclusion that the Commission ought to have had doubts as to whether an advantage had been granted to DS, given the terms of the licence agreement.
–       The first head of claim, alleging an error of law concerning the finding that no advantage had been granted
95      The applicant claims, in essence, because there was no prior tendering procedure or valuation, the Commission was required to assume, in accordance with the rules of law cited in paragraph 86 above, that the measure at issue had granted an advantage to DS.
96      It should first be pointed out in that respect, on the one hand, that the communication on sales of public land and buildings referred to in paragraph 86 above provides, in the fourth paragraph of Section I, that it ‘concerns only sales of publicly owned land and buildings’ and, on the other, that it is apparent from the principles laid down in the XXIII Report that they only concern ‘company privatisation’. Those provisions do not, therefore, in any event, bind the Commission in cases of granting licences to exploit software such as the present.
97      Secondly, as regards the alleged infringement of the RDI Framework, it is to be stated that the applicant has not put forward any argument in that regard to challenge the three reasons given by the Commission, at paragraph 43 of the contested decision, indicating why the provisions of the RDI Framework did not bind the Commission in the present case, given the fact, in particular, that the measure at issue did not constitute ‘aid for research and development and innovation’ within the meaning of Section 2.1 of that framework. Moreover, and in any event, even if it must be considered appropriate to apply the principles of that framework to the facts of the present case, as the Commission did in paragraph 44 of the contested decision, it is clear that that framework does not provide that there are grounds for presuming that a measure confers an advantage on a company if there is no prior tendering procedure or assessment. As the Commission rightly pointed out in its pleadings, it merely indicated, in footnote No 29 of the RDI Framework, that there was a ‘compensation equivalent to the market price for the intellectual property rights’ where ‘the research organisation as seller negotiates in order to obtain the maximum benefit at the moment when the contract is concluded’. That framework does not provide that, if a licence is granted, it must be presumed that there is an advantage when there is no prior tendering procedure or independent economic assessment.
98      Finally, as regards the applicant’s argument that there are several other presumptions in competition law, such as the presumption relating to the exercise of decisive influence or presumptions regarding the effect on trade between Member States and distortion of competition, it should be stated, on the one hand, that such an argument does not alter the finding that the applicant has failed to identify any rule whatsoever requiring the Commission to presume that there exists an advantage in circumstances such as those in the case under consideration and, on the other, that the Court has acknowledged that, in any event, while it is clear that the best bid or an expert report are likely to provide prices corresponding to actual market values, it is not inconceivable that other methods may also achieve the same result (Case C‑239/09 Seydaland Vereinigte Agrarbetriebe [2010] ECR I‑13083, paragraph 39).
99      The applicant’s first head of claim must therefore be rejected.
–       The second head of claim, alleging errors of assessment in finding that no advantage was granted
100    The applicant challenges, in essence, the factual assessments on which the Commission relied to conclude that no advantage was granted to DS.
101    It is appropriate, first, to set out the findings which led the Commission to rule out the existence of any advantage granted to DS in order to examine whether the evidence adduced by the applicant demonstrates that the Commission should have entertained doubts about the existence of such an advantage.
102    In the first place, as regards the Commission’s conclusion that the measure at issue did not grant any advantage to the applicant, it is apparent from the contested decision that it is based on the four main considerations set out below.
103    First, the Commission found, in paragraphs 46 to 48 of the contested decision, that, as it had informed the Kingdom of the Netherlands, during the exclusive negotiations held between DS and TUD, the latter had managed to ‘improve its position’ in so far as it had obtained more favourable terms than those originally proposed. It noted in that regard that the royalty rate that had to be paid to TUD was not capped any more. It concluded in footnote No 12 of that decision that, according to the RDI Framework, TUD ‘appear[ed] therefore to have negotiated in order to derive maximum benefit from the conclusion of [the licence agreement] which, in principle, [could] be perceived as an indication of the fact that it [received] a royalty corresponding to the market price’.
104    Second, it is apparent from paragraph 49 of the contested decision that the Commission examined six observations made by the Kingdom of the Netherlands, from which it drew three main conclusions. At the outset it stated that, like the Kingdom of the Netherlands, it had no reason to doubt, given the skills acquired by the founders of DS in the development of the Delftship software, that DS was the company best qualified to continue developing that software and to adapt it to TUD’s needs. Next, the Commission found, in contrast to the Kingdom of the Netherlands, that the fact that DS had generated a turnover from 2007 onwards showed that the Delftship software could be put on the market relatively quickly after the licence had been granted. Such a finding is without prejudice to the fact that the increase in turnover in the following years shows that the marketing of that software initially required adjustments. Finally, like the Kingdom of the Netherlands, the Commission noted that, while it was true that TUD had not contacted any company to assess its possible interest in the grant of a licence for its Delftship software, no specific company had been identified by the applicant as likely to be interested in the exploitation of that software. According to the Commission, it was unlikely that competitors who already have such software would be interested and that companies that do not have it would have the know-how necessary for the further development of the software and to meet TUD’s needs.
105    Third, at paragraph 50 of the contested decision, the Commission considered, on the one hand, that the information reported by the Kingdom of the Netherlands, that TUD had applied, during the same period, for patent licences granted to start-ups, charges corresponding to that which was agreed in the present case showed, at the very least, that TUD had applied a much lower price to DS only in the context of granting other licences. It considered, on the other hand, that not only did the royalty rates mentioned in the last valuation provided by the applicant relate to other periods and universities other than Dutch universities, but also that the applicant had not established why they would apply to the Delftship software, taking into account its characteristics. Finally, the Commission stated that the Kingdom of the Netherlands had been unable to provide more accurate information in so far as companies wished to maintain the confidentiality of the conditions for granting a licence.
106    Fourth, the Commission described the content of the three valuations provided by the applicant and determined their value. At the outset, it noted, in paragraphs 65 and 66 of the contested decision, that those three valuations differed considerably in so far as the first stated that there was aid of EUR 711 125, the second did not provide any estimate of the value of the alleged aid, and the third estimated it at between EUR 1.1 and 2.5 million. Therefore, according to the Commission, none of those three valuations constituted solid evidence that an advantage had been granted to DS.
107    Next, the Commission found, in paragraph 67 of the contested decision, on the one hand, that the first valuation provided by the applicant was wrongly based on the subsequent market value of the software and, on the other, that that valuation, according to which royalties could be as much as 10% of the turnover realised, did not take into consideration the fact that TUD could have the Delftship software free of charge.
108    Finally, as regards the second and third valuations, the Commission found that those were based on extremely optimistic and unlikely projections of the results that DS could obtain even though the market was very competitive. Among the errors that appeared in the second valuation, the Commission noted, in particular, that that estimate did not take into account either the value of DS making the software available to TUD or the value of the updates or the cost savings that the licence agreement allowed TUD to make. With regard to the third valuation, the Commission found, in paragraph 75 of the contested decision, that, like the second valuation, it was based on implausible, extremely optimistic projections, given the highly competitive market, and wrongly took into account the Delftload software, even though that software had been developed after the conclusion of the licence agreement. Moreover, the Commission noted that, in the third valuation, the applicant failed to explain why the net present value of the income that TUD received was less than its estimate of the net present value of Delftship.
109    It is apparent, therefore, from the findings set out in paragraphs 103 to 108 above, that the Commission took the view, in essence, (i) that the conduct and outcome of the negotiations between DS and TUD were ‘an indication of the fact that TUD [received] a royalty corresponding to the market price’ (see paragraph 103 above), (ii) that the decision by TUD to grant the licence to DS was appropriate, given the lack of companies able to continue exploiting Delftship, providing, in particular, the same technical services, and therefore generating revenue that was just as significant for TUD (see paragraph 104 above), (iii) that the rate of 5% of the turnover paid by way of royalties corresponded, according to the information available to the Commission, at the very least, to a percentage usually applied by TUD, during the same period, for patents granted to companies (see paragraph 105 above) and, (iv) that the three valuations provided by the applicant, which were contradictory and unsubstantiated, did not prove that the licence agreement had granted an advantage to DS (see paragraphs 106 to 108 above).
110    In the second place, in the light of the Commission’s findings above, it is appropriate to examine whether the applicant submits consistent evidence establishing that the Commission should have entertained doubts about granting an advantage to DS, so that it should have initiated the formal investigation procedure.
111    First, the applicant submits that the Commission committed an error of assessment in finding that TUD had acted as a private investor in spite of the fact that the licence agreement had been entered into at the conclusion of exclusive negotiations with DS. It puts forward three main arguments in that regard.
112    At the outset, the applicant submits that the Commission was wrong to consider that the circumstances of the present case required the granting of the Delftship software licence to be made on the basis of exclusive negotiations between TUD and DS. However, it must be noted that that argument is based on a misreading of the contested decision. As is apparent from paragraph 103 above, in the contested decision, the Commission merely examined whether TUD had improved its contractual position in that negotiation and noted that such an improvement could be seen as an indication that the royalty rates could correspond to a market price.
113    Next, the applicant challenges the Commission’s assessment that the choice of DS was justified because of its specific skills in developing the Delftship software. In that context, it raises three separate arguments. On the one hand, in so far as the applicant points out that TUD was not required to enter into a licence agreement with DS, for there was other ship design and loading software on the market that it could have acquired for research and teaching purposes, it must be held that that argument is ineffective. Even if TUD had had an interest in buying ship design software rather than entering into the licence agreement (under which it obtained that software free of charge in addition to the royalties provided for in that contract), such a finding would, in any event, have no influence on whether the Commission should have entertained doubts in determining whether an advantage was granted to DS as a result of the measure at issue.
114    On the other hand, in so far as the applicant points out not only that there are many professionals in that sector, but also that the Delftship software was written in Pascal programming language, which can be used easily by any programmer, it is important to state that, even if, as the applicant claims, the development of the Delftship software requires no specific programming skills, the fact remains that the applicant puts forward no argument or evidence to invalidate the Commission’s assessment that DS, the founders of which, it is undisputed, had developed the software in question within TUD for almost 10 years running from 1997, was the most competent company to continue to develop that software and to understand TUD’s specific needs.
115    Finally, in so far as the applicant maintains that the Commission considered, speculatively, that it was unlikely that companies other than DS were interested in entering into the licence agreement, it should be noted, however, that the applicant explicitly acknowledges in its pleadings that, as the Commission stated in the contested decision, it was likely that the competitors of DS would not be interested in the licence agreement, given the fact that they already had software competing with Delftship. Furthermore, the applicant puts forward no argument or evidence that might invalidate the Commission’s assessment that companies that do not have such software and that could have an interest in entering that contract do not, however, have skills equivalent to those of DS for developing that software and meeting the TUD’s needs.
116    In those circumstances, it must be stated that the three arguments raised by the applicant do not support the view that the exclusive negotiations that took place between DS and TUD should have led the Commission to entertain doubts about the existence of an advantage granted to DS.
117    Second, the applicant considers that the Commission committed an error of assessment of the facts in considering that the Delftship software was not readily marketable at the time when its source code was frozen.
118    At the outset, it is important to emphasise, as is apparent in paragraph 104 above, that, contrary to what the applicant maintains, the Commission did not take the view, in the contested decision, that the Delftship software was not readily exploitable when its source code was frozen, but merely noted in that regard that that was the position of the Kingdom of the Netherlands. Indeed, the Commission took the view, contrary to what the Kingdom of the Netherlands had argued in the observations it had submitted to the Commission, that the Delftship software was readily marketable, although adjustments were deemed necessary, which the rapid increase in turnover of DS after 2007 tended to demonstrate.
119    Next, in so far as the applicant considers that the Commission’s assessment that the fact that the Delftship software was readily marketable at the time when its source code was frozen would, in any event, only increase the amount of royalties TUD would receive constituted a ‘non sequitur’, that argument must be rejected as ineffective. In any event, it does not establish that the Commission should have entertained doubts as to the fact that the royalty rate agreed in the licence agreement did not constitute a market price.
120    In those circumstances, it must be stated that, contrary to what the applicant maintains, the fact that the Delftship software was, when its source code was frozen, readily marketable, even if adjustments were still necessary, does not lead to the conclusion that the Commission ought to have had doubts about the fact that the royalty rate agreed in the licence agreement did not constitute a market price.
121    Third, the applicant submits that the Commission wrongly took into account the range of 2 — 6% of turnover indicated by the Netherlands authorities in order to prove that the rate of the royalty payable to TUD was compatible with the market. In that regard, it puts forward two arguments.
122    The applicant’s first argument, that the analysis, which is intended to determine whether the price paid is that which a private investor would have offered, cannot be limited to a comparison with other transactions entered into by the same public body, must be rejected as unfounded. The applicant has not, indeed, established or claimed that the other licences granted by TUD were not granted under normal market conditions. It does not establish, therefore, that the royalties for the granting of those licences did not constitute relevant information in the present case. Moreover, and in any event, it is clear that the applicant does not dispute, as the Kingdom of the Netherlands informed the Commission, that the rate of 5% of the turnover to be paid to TUD as royalty is within the range of percentages charged by other Dutch universities. In that regard, it should be noted that the applicant has not put forward any argument, in particular at the hearing, to suggest that the royalty rates charged by American and British universities, and which may be up to 55%, would be applicable to software developed by a university such as TUD.
123    Next, the applicant considers that the royalty rate range of 2 — 6% of turnover, submitted by the Kingdom of the Netherlands, is not applicable in the present case because it refers to royalties for patents that represent ‘a technology in abstract terms, which yet has to be developed into a concrete product which can be commercialised’, whereas the DelftShip software was ready for commercialisation. However, it must be stated in that regard that, as is clear from the study provided by the Kingdom of the Netherlands to the Commission, not only is the range of royalty rates, from 2 to 6% of turnover, based on an analysis of royalties regarding intellectual property in the technology sectors, without any distinction, but also includes examples of royalties under patents that generate income immediately. In addition, the applicant puts forward no argument to show that the examples, provided by the Kingdom of the Netherlands, of grants of licences by TUD for patents to start-ups, such as DS, are not applicable in the present case.
124    In those circumstances, it must be stated that the applicant has not established that the Commission could not validly take the view, on the basis of the information provided by the Kingdom of the Netherlands, that the rate of 5% of turnover paid as royalty, provided in the licence agreement, constituted a market price that a private investor, under normal conditions of competition, would have set.
125    Fourth, the applicant considers that the Commission ought to have noted that the valuations provided by the applicant all indicated that the contested measure granted an advantage to DS. It puts forward three main arguments in that regard.
126    In the first of those arguments, the applicant submits that the Commission cannot validly criticise it for having provided valuations leading to different results. It noted, in that regard, that it is the only party that carried out or arranged to have carried out such valuations and that those three valuations are based on estimates and assumptions, since the persons who drew them up did not have DS’s confidential figures. All those valuations indicated that DS obtained an advantage.
127    In that regard, it suffices to state that, although the applicant’s arguments, set out in paragraph 126 above, can explain the differences between the three valuations it provided, they do not, however, in any event, invalidate the reasons, set out in paragraphs 107 and 108 above, why the Commission found that each of those valuations was unfounded.
128    Next, the applicant submits that the Commission took the view, wrongly, that DS’s estimated turnover, set out in the last valuation that the applicant provided to the Commission, would not be achieved owing to the fact that the market was saturated. In that regard, it must be noted that the applicant’s argument is based on the erroneous premise that the Commission considered that the market was saturated, even though it merely stated, in essence, in paragraph 75 of the contested decision, that the market was extremely competitive and that future estimates of the turnover of DS provided by the applicant were implausible, because too optimistic. It must be held that such an analysis is supported by the applicant itself in its pleadings. In addition to the fact that the applicant cites numerous competitors in the relevant market, it argues that the software marketed by DS does not have a competitive advantage, since the applicant considers that TUD could easily replace that software with its own. Those elements, put forward by the applicant itself, suggest therefore that the Commission did not err in considering that an overly optimistic assessment of the development of DS’s turnover is implausible.
129    Finally, it must be stated that the other arguments raised by the applicant, seeking only to challenge the Commission’s view that the applicant’s valuations do not establish that an advantage was granted to DS, are unconvincing. To the extent that none of those arguments is critical, in particular of the Commission’s view that the valuations provided by the applicant failed to take into account the cost savings that TUD made under the licence agreement, they do not, in any event, establish that the Commission wrongly took the view that such valuations were not justified. In that regard, it should be noted that even if, as the applicant contends, it were to be considered that it is customary for companies to make their software freely available to students, that would not, in any event, invalidate the finding that those valuations failed to take into account, for purposes of determining any advantage that may have been conferred on TUD, the cost savings that the latter made under the licence agreement. In those circumstances, the arguments raised by the applicant in that regard must be rejected.
130    In the light of the foregoing, all the arguments raised by the applicant to challenge the factual assessments on which the Commission relied to conclude that no advantage was granted to DS must be rejected.
131    The applicant’s second head of claim must therefore be rejected.
–       The third head of claim, alleging that there was no independent assessment finding that no advantage had been granted
132    The applicant submits that the Commission was required to order the Kingdom of the Netherlands to provide an independent assessment relating to the grant of the measure at issue. In its view, that obligation stems from the Commission’s right, established in Article 10 of Regulation No 659/1999, to obtain information from Member States and is in accordance with the principles laid down in the XXIII Report.
133    In that regard, it must be noted that neither Article 10 of Regulation No 659/1999, which provides, in essence, for the right of the Commission to request information from the Member State concerned by the alleged aid, nor the principles laid down in the XXIII Report, which exclusively concern the circumstances in which a company is privatised (see paragraph 96 above), required, in the present case, the Commission to order an independent economic assessment, since it considered, on the basis of the information it had gathered, that the grant of an advantage had to be excluded.
134    The applicant’s third head of claim must therefore be rejected.
135    In the light of all the foregoing considerations, the first, third and fourth pleas in law, read together, must be rejected and, consequently, the action must be dismissed in its entirety.
Costs
136    Under Article 87(2) of the Rules of Procedure, 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 applicant has been unsuccessful, it must be ordered to bear its own costs and, having regard to the forms of order sought by the Commission and by the Technische Universiteit Delft, to pay those incurred by those parties.
137    In accordance with Article 87(4) of the Rules of Procedure, Member States and institutions which have intervened in the proceedings are to bear their own costs. The Kingdom of the Netherlands must therefore bear its own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1.      Dismisses the action.
2.      Orders Scheepsbouwkundig Advies- en Rekencentrum (Sarc) BV to bear its own costs and pay those incurred by the European Commission and by the Technische Universiteit Delft.
3.      Orders the Kingdom of the Netherlands to bear its own costs.
Dittrich
Schwarcz
Tomljenović
Delivered in open court in Luxembourg on 12 June 2014.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought by the parties
Law
Admissibility
The applicant’s standing to bring proceedings
Admissibility of the pleas in law raised by the applicant, in view of its legal standing to bring proceedings
Substance
The second plea in law, alleging infringement of the applicant’s right to be adequately associated with the procedure during the preliminary examination stage
The first, third and fourth pleas in law, alleging doubts that the Commission ought to have had when assessing the non-existence of an advantage granted to DS
– The first head of claim, alleging an error of law concerning the finding that no advantage had been granted
– The second head of claim, alleging errors of assessment in finding that no advantage was granted
– The third head of claim, alleging that there was no independent assessment finding that no advantage had been granted
Costs
* Language of the case: English.