61997TJ0613(01)_EN
Parties
Grounds
Operative part
Parties
In Case T‑613/97,
Union française de l’express (UFEX),
established in Roissy-en-France (France),
DHL International SA,
established in Roissy-en-France,
Federal express international (France) SNC,
established in Gennevilliers (France),
CRIE SA,
established in Asnières (France),
represented by É. Morgan de Rivery and J. Derenne, lawyers,
applicants,
v
Commission of the European Communities,
represented by G. Rozet and D. Triantafyllou, acting as Agents, with an address for service in Luxembourg,
defendant,
supported by
French Republic,
represented by G. de Bergues, R. Abraham and F. Million, acting as Agents, with an address for service in Luxembourg,
by
Chronopost SA, established in Issy-les-Moulineaux (France), represented by V. Bouaziz Torron and D. Berlin, lawyers,
and by
La Poste, established in Paris (France), represented by H. Lehman, lawyer, with an address for service in Luxembourg,
interveners,
APPLICATION for annulment of Commission Decision 98/365/EC of 1 October 1997 concerning alleged State aid granted by France to SFMI-Chronopost (OJ 1998 L 164, p. 37),
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber, Extended Composition),
composed of M. Jaeger, President, V. Tiili, J. Azizi, E. Cremona and O. Czúcz, Judges,
Registrar: K. Andová, Administrator,
having regard to the judgment of the Court of Justice of 3 July 2003,
having regard to the written procedure following referral of the case back to the Court of First Instance and further to the hearing on 15 June 2005,
gives the following
Judgment
Grounds
1. This judgment is given following referral of the case back to the Court of First Instance by judgment of the Court of Justice in Joined Cases C‑83/01 P, C‑93/01 P and C‑94/01 P Chronopost and Others v UFEX and Others
[2003] ECR I‑6993 (‘the judgment on appeal’) setting aside the judgment of the Court of First Instance in Case T‑613/97 UFEX and Others v Commission
[2000] ECR II‑4055 (‘the judgment of the Court of First Instance’).
Background to the dispute
2. The French Post Office (‘La Poste’), which operates as a legal monopoly in the ordinary mail sector, was an integral part of the French State administration until the end of 1990. Since 1 January 1991, it has been a legal entity governed by public law by virtue of Law 90-568 of 2 July 1990 on the organisation of the public post and telecommunications service (JORF of 8 July 1990, p. 8069; ‘Law 90‑568’). That law authorises it to perform certain activities open to competition, and particularly express delivery services.
3. The Société française de messagerie internationale (‘SFMI’) is a company incorporated under private law which has been entrusted with the management of La Poste’s express delivery service since the end of 1985. SFMI was formed with a share capital of FRF 10 million (approximately EUR 1 524 490) held as to 66% by Sofipost, a holding company wholly owned by La Poste, and as to 34% by TAT Express, a subsidiary of the airline Transport aérien transrégional (‘TAT’).
4. The detailed conditions for the operation and marketing of the express delivery service provided by SFMI under the name of EMS/Chronopost were set out in an order from the French Ministry of Posts and Telecommunications of 19 August 1986. According to that order, La Poste was to provide SFMI with logistical and commercial assistance. The contractual relations between La Poste and SFMI were governed by agreements, the first of which dates from 1986.
5. In 1992 the structure of the express delivery business carried out by SFMI changed. Sofipost and TAT set up a new company, Chronopost SA, in which their respective holdings were still 66 and 34%. Chronopost, which had exclusive access to La Poste’s network until 1 January 1995, concentrated on domestic express deliveries. SFMI was acquired by GD Express Worldwide France, the subsidiary of an international common operator whose participants are the Australian company TNT and the post offices of five countries, a concentration which was authorised by a Commission decision of 2 December 1991 (Case IV/M.102 – TNT/Canada Post, DBP Postdienst, La Poste, PTT Poste and Sweden Post) (OJ 1991 C 322, p. 19). SFMI retained the international express delivery business, using Chronopost as an agent and service provider in the handling of its international dispatches in France (‘SFMI-Chronopost’).
6. Syndicat français de l’express international (SFEI), now known as Union française de l’express (UFEX), of which the three other applicants are members, is a trade association established under French law, grouping together almost all the companies offering express delivery services competing with SFMI‑Chronopost.
7. On 21 December 1990 SFEI lodged a complaint with the Commission alleging principally that the logistical and commercial assistance provided by La Poste to SFMI constituted State aid within the meaning of Article 92 of the EC Treaty (now, after amendment, Article 87 EC). In particular, SFEI complained that the remuneration paid by SFMI for the assistance provided by La Poste was not in accordance with normal market conditions. It alleged that the difference between the market price for the purchase of such services and the price actually paid by SFMI constituted State aid. An economic study carried out by Braxton, a consultancy firm, at SFEI’s request, was appended to the complaint in order to demonstrate the value of the amount of aid during the period from 1986 to 1989.
8. By letter of 10 March 1992, the Commission notified SFEI of its decision to take no action on the complaint. On 16 May 1992 SFEI together with other undertakings lodged an action with the Court of Justice for annulment of that decision. The Court ruled that it was not necessary to proceed to judgment (order of 18 November 1992 in Case C‑222/92 SFEI and Others v Commission, not published in the ECR) in the light of the Commission decision of 9 July 1992 to withdraw the decision of 10 March 1992.
9. At the Commission’s request, the French Republic provided information by letter of 21 January, by fax of 3 May and by letter of 18 June 1993.
10. On 16 June 1993 SFEI and other undertakings brought an action before the Tribunal de commerce de Paris (Paris Commercial Court) against SFMI, Chronopost, La Poste and others. A second study by Braxton was attached to the application, updating the information contained in the first study and evaluating the amount of the aid up to the end of 1991. In a judgment of 5 January 1994, the Tribunal de commerce de Paris referred several questions to the Court of Justice for a preliminary ruling on the interpretation of Article 92 of the Treaty and Article 93 of the EC Treaty (now Article 88 EC), one of which sought clarification of the concept of State aid in the circumstances of the present case. The French Government lodged, as an annex to its observations of 10 May 1994, an economic study by Ernst & Young. In Case C‑39/94 SFEI and Others [1996] ECR I‑3547 (‘the SFEI
judgment’), the Court ruled that ‘the provision of logistical and commercial assistance by a public undertaking to its subsidiaries, which are governed by private law and carry on an activity open to free competition, is capable of constituting State aid within the meaning of Article 92 of the Treaty if the remuneration received in return is less than that which would have been demanded under normal market conditions’ (paragraph 62).
11. In the meantime, by a letter from the Commission dated 20 March 1996, the French Republic was notified of the initiation of the procedure under Article 93(2) of the EC Treaty. On 30 May 1996 the French Republic sent the Commission its comments in this regard.
12. On 17 July 1996 the Commission published in the Official Journal of the European Communities
a notice on the initiation of the procedure under Article 93(2) of the EC Treaty regarding aid allegedly granted by France to SFMI‑Chronopost (OJ 1996 C 206, p. 3).
13. On 17 August 1996 SFEI submitted its observations to the Commission in response to that notice. It attached to its observations another economic study by Bain & Co. In addition, SFEI extended its complaint of 21 December 1990 to cover a number of additional points, including the use of La Poste’s brand image, privileged access to the air waves of Radio France, customs and tax privileges and La Poste’s investment in dispatching platforms.
14. The Commission passed SFEI’s comments to the French Republic in September 1996. In reply, the French Republic addressed a letter to the Commission, attaching to it an economic study by Deloitte Touche Tohmatsu, a consultancy company (the ‘Deloitte report’).
15. By letter of 7 November 1996, SFEI pressed the Commission to be given a hearing on all aspects of the file. Accordingly, it asked for disclosure of the replies which the French Government had already sent to the Commission and which were not yet in its possession (namely the letters of 21 January and 18 June 1993) and, as and when it arrived, any additional material provided by the French Government to the Commission.
16. By letter of 13 November 1996, the Commission refused SFEI access to the abovementioned items in the file.
17. On 21 April 1997 SFEI addressed another letter to the Commission, asking for information about the exact progress of the examination of the case and, in particular, requesting the Commission to inform it of the French Government’s replies to the letter initiating the procedure and to its comments of 17 August 1996 and also to inform it of the Commission’s position and intentions. On 30 April 1997 the Commission refused to disclose the documents in its possession on the grounds that they were strictly confidential.
18. On 1 October 1997 the Commission adopted Decision 98/365/EC concerning alleged State aid granted by France to SFMI-Chronopost (OJ 1998 L 164, p. 37;
the ‘contested decision’), which was notified to SFEI by letter dated 22 October 1997.
19. In the contested decision, the Commission stated that it was necessary to distinguish between two sets of measures. The first set is the provision by La Poste of (i) logistical assistance, which consists in making available to SFMI-Chronopost the use of the postal infrastructure for the collection, sorting, transport and delivery of its dispatches, and (ii) commercial assistance, which consists in SFMI-Chronopost’s access to La Poste’s customers and enjoyment of its goodwill. The second set is made up of individual measures, such as privileged access to Radio France and tax and customs privileges.
20. The Commission considered that the relevant question was ‘whether the terms of the transaction between [La Poste] and SFMI-Chronopost [were] comparable to those of an equivalent transaction between a private parent company, which may very well be a monopoly (for instance, because of the ownership of exclusive rights), and its subsidiary’. According to the Commission, there was no financial advantage if the internal prices at which products and services were provided between companies belonging to the same group were ‘full-cost prices (total costs plus a mark-up to remunerate equity capital investment)’.
21. In this regard, the Commission noted that the payments made by SFMI‑Chronopost did not cover total costs over the first two years of operation, but covered all costs other than central and local offices’ overheads. It considered, first, that it was not abnormal that payments made by a new undertaking, that is to say, SFMI-Chronopost, covered only variable costs in the start-up period. Secondly, in the Commission’s opinion, the French Republic had been able to show that as from 1988 the remuneration paid by SFMI-Chronopost covered all the costs incurred by La Poste, plus a return on the equity capital invested by the latter. Furthermore, the Commission calculated that the internal rate of return (‘the IRR’) of La Poste’s investment as a shareholder was well in excess of the cost of the company’s equity in 1986, that is to say, the normal rate of return that a private investor would require under similar circumstances. Consequently, La Poste provided logistical and commercial assistance to its subsidiary under normal business conditions and that assistance therefore did not constitute State aid.
22. With regard to the second category, that is to say, the various individual measures, the Commission considered that SFMI‑Chronopost derived no advantage from the customs clearance procedure, stamp duty, payroll tax or the periods allowed for payment. The use of La Poste’s vehicles as advertising media should, in the opinion of the Commission, be regarded as normal commercial assistance between a parent company and its subsidiary, and SFMI‑Chronopost enjoyed no preferential treatment for advertising on Radio France. The Commission also maintained that it had been able to establish that the commitments made by La Poste when the common operator was authorised by the Commission decision of 2 December 1991 did not constitute State aid.
23. In Article 1 of the contested decision, the Commission states as follows:
‘The logistical and commercial assistance provided by [La Poste] to its subsidiary SFMI‑Chronopost, the other financial transactions between those two companies, the relationship between SFMI‑Chronopost and Radio France, the customs arrangements applicable to [La Poste] and SFMI‑Chronopost, the system of payroll tax and stamp duty applicable to [La Poste] and its … investment in the dispatching platforms do not constitute State aid to SFMI‑Chronopost.’
24. On 2 December 1997 SFEI gave the Commission formal notice to send it, before 17 December 1997, the fax of 3 May 1993, the note of 30 May 1996 and the Deloitte report, all of which are mentioned in the contested decision. On the same day the applicants also requested the French Ministry of the Economy, Finance and Industry to send them the Deloitte report. On 9 December 1997 they made the same request to the Commission for access to administrative documents.
25. By letter of 15 December 1997, the Commission rejected SFEI’s request, citing the code of conduct concerning public access to Council and Commission documents (OJ 1993 L 340, p. 41). It stated that if the application relates to a document held by an institution but written by a natural or legal person or a Member State, the application must be sent directly to the author. It also invoked the exceptions for protection of commercial and industrial secrecy and protection of confidentiality.
26. The applicants brought the present action by application lodged at the Registry of the Court of First Instance on 30 December 1997.
27. On 12 March 1998 the applicants made an interlocutory application for the production of documents, seeking disclosure by the Commission of the documents mentioned in the decision to which they had not had access before its adoption, that is to say, the fax of 3 May 1993, the note of 30 May 1996, the note in response to SFEI’s observations of August 1996 and the Deloitte report, which had all been sent to the Commission by the French Government. By letter dated 7 May 1998, the Court of First Instance requested the Commission to produce the last two documents. These documents were sent on 26 May 1998.
28. By application lodged with the Registry on 2 June 1998, the French Republic applied to intervene in support of the defendant. By applications lodged with the Registry on 5 June 1998, Chronopost and La Poste also applied to intervene.
29. By orders of the President of the Fourth Chamber, Extended Composition, of the Court of First Instance of 7 July 1998, the French Republic, Chronopost and La Poste were given leave to intervene in support of the defendant.
30. On 23 July 1998 the applicants lodged with the Registry of the Court of First Instance a second interlocutory application for the production of documents. By letter of 10 November 1998, the Court of First Instance notified the applicants of its decision not to accede to their request at that stage.
31. In their reply, the applicants requested that all the documents listed in Annex 10 to the reply be treated as confidential and that only the Court of First Instance have access to these documents. By letters of 5 January and 10 February 1999, the applicants specified that this request related only to La Poste and Chronopost. By order of the President of the Fourth Chamber, Extended Composition, of the Court of First Instance of 5 March 1999, the application for confidential treatment of certain information with regard to La Poste and Chronopost was granted.
32. The applicants relied on four pleas for annulme nt in support of their application alleging, first, ‘infringement of the rights of the defence, in particular the right of access to the file’; second, ‘an inadequate statement of reasons’; third, ‘errors of fact and manifest errors of assessment’; and, fourth, ‘error in applying the concept of State aid’. The fourth plea was in two parts, alleging that the Commission misapplied the concept of State aid, first in failing to take account of normal market conditions when analysing the remuneration for the assistance provided by La Poste to SFMI‑Chronopost, and second in holding that this concept did not cover various measures from which SFMI‑Chronopost was alleged to have benefited.
33. The Court of First Instance partially annulled Article 1 of the contested decision by upholding the first part of the fourth plea. Of the applicants’ other pleas and arguments, the Court of First Instance considered only the first plea, alleging infringement of the rights of the defence, and the arguments expounded in connection with the third plea, alleging errors of fact and manifest errors of assessment, which were not indissociable from those already examined in connection with the fourth plea. In both cases, the allegations made by the applicants were rejected.
34. By applications lodged at the Court Registry on 19 and 23 February 2001 respectively, Chronopost, La Poste and the French Republic appealed against that judgment pursuant to Article 56 of the Statute of the Court of Justice.
35. In support of their appeal, Chronopost, La Poste and the French Republic relied on several pleas, the first of which alleged infringement of Article 92(1) of the Treaty as a result of an incorrect interpretation of the concept of ‘normal market conditions’.
36. By its judgment of 3 July 2003, the Court of Justice, upholding the first plea, set aside the judgment of the Court of First Instance, referred the case back to the Court of First Instance, and reserved the costs.
Procedure following referral of the case back to the Court of First Instance
37. The case was allocated to the Fourth Chamber (Extended Composition) of the Court of First Instance. Upon a change in composition of the Chambers of the Court pursuant to the Court’s decision of 13 September 2004 (OJ 2004 C 251, p. 12), the Judge-Rapporteur was transferred to the Third Chamber (Extended Composition), to which the present case was then allocated.
38. Pursuant to Article 119(1) of the Rules of Procedure of the Court of First Instance, the applicants and the defendant lodged written observations. In accordance with Article 119(3) of the Rules of Procedure, the applicants and the defendant were allowed to lodge supplementary written observations. The written observations of the interveners were lodged after the supplementary observations of the main parties, pursuant to Article 119(1) of the Rules of Procedure.
39. Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Third Chamber, Extended Composition) decided to open the oral procedure and, by way of measures of organisation of procedure as provided for in Article 64 of the Rules of Procedure, requested the parties to produce certain documents and to reply in writing to questions. The parties complied within the time‑limit laid down.
40. The parties presented oral argument and their replies to the Court’s questions at the hearing on 15 June 2005. At the end of that hearing, the Commission and La Poste were requested to lodge certain documents. In addition, a time-limit was set for the other parties to submit their observations on those documents. The applicants lodged their observations within the time‑limit laid down.
41. The oral procedure was closed on 23 August 2005.
42. By letters lodged on 30 September and 4 October 2005, Chronopost and La Poste sought permission to lodge a response to the documents produced by the applicants following the Court’s request at the hearing.
43. By order of 27 October 2005, the Court of First Instance (Third Chamber, Extended Composition) decided to reopen the oral procedure in accordance with Article 62 of the Rules of Procedure.
44. The Court of First Instance also adopted a measure of organisation of procedure under Article 64 of the Rules of Procedure by which it placed on the file the observations lodged by Chronopost and La Poste on 30 September and 4 October 2005 respectively. The observations of the other parties were also placed on the file.
45. The oral procedure was then closed once more on 19 December 2005.
Forms of order sought by the parties following referral of the case back to the Court of First Instance
46. The applicants claim that the Court of First Instance should:
– annul the contested decision;
– order the defendant to pay the costs of the proceedings in Case T‑613/97;
– order the French Republic, Chronopost and La Poste jointly and severally to pay the costs of the proceedings in Joined Cases C‑83/01 P, C‑93/01 P and C‑94/01 P and in Case T‑613/97 following referral of the case back to the Court of First Instance.
47. The Commission, supported by the French Republic and La Poste, contends that the Court should:
– dismiss the application;
– order the applicants to pay the costs at both instances.
48. Chronopost contends that the Court should:
– dismiss the application principally as inadmissible and, in the alternative, as unfounded;
– order the applicants to pay the costs at both instances.
Law
1. Preliminary observations
49. Following the judgment on appeal and the referral of this case back to the Court of First Instance, the applicants essentially maintain the second, third and fourth pleas raised during the proceedings which gave rise to the judgment of the Court of First Instance, namely the plea alleging breach of the obligation to state reasons, the plea alleging errors of fact and manifest errors of assessment when analysing the remuneration for the assistance provided by La Poste, and the plea alleging an error in applying the concept of State aid. The last plea is subdivided into two parts, alleging (i) error in applying the concept of normal market conditions as construed in the judgment on appeal and (ii) failure to take into account certain aspects of the concept of State aid.
50. As a preliminary point, it should be recalled that the Court of Justice set aside the judgment of the Court of First Instance for error of law in the application of Article 92(1) of the Treaty. According to the Court of Justice, that error lies in the findings of the Court of First Instance that the Commission should have examined, in its analysis of whether or not the logistical and commercial assistance provided by La Poste to SFMI‑Chronopost constituted State aid, whether La Poste’s full costs for the provision of that logistical assistance took account of the factors which an undertaking acting under normal market conditions would have to have taken into consideration when fixing the remuneration for the services provided. The Court of First Instance had inferred from those findings that the Commission should at least have checked that the payment received in return by La Poste was comparable to that demanded by a private holding company or a private group of undertakings not operating in a reserved sector, pursuing a structural policy – whether general or sectoral – and guided by long-term prospects. The Court of Justice found that that assessment, vitiated by an error of law, failed to take account of the fact that an undertaking such as La Poste is in a situation which is very different from that of a private undertaking acting under normal market conditions and stated the following in this regard (paragraphs 34 to 40 of the judgment on appeal):
‘34 La Poste is entrusted with a service of general economic interest within the meaning of Article 90(2) of the EC Treaty (now Article 86(2) EC) (Case C‑320/91 Corbeau
[1993] ECR I‑2533, paragraph 15). Such a service essentially consists in the obligation to collect, carry and deliver mail for the benefit of all users throughout the territory of the Member State concerned, at uniform tariffs and on similar conditions as to quality.
35 To that end, La Poste had to acquire, or was afforded, substantial infrastructures and resources (the “postal network”), enabling it to provide the basic postal service to all users, even in sparsely populated areas where the tariffs did not cover the cost of providing the service in question.
36 Because of the characteristics of the service which the La Poste network must be able to ensure, the creation and maintenance of that network are not in line with a purely commercial approach. As was recalled in paragraph 22 above, UFEX and Others have indeed accepted that a network such as that available to SFMI‑Chronopost is clearly not a market network. Therefore that network would never have been created by a private undertaking.
37 Moreover, the provision of logistical and commercial assistance is inseparably linked to the La Poste network, since it consists precisely in making available that network which has no equivalent on the market.
38 Accordingly, in the absence of any possibility of comparing the situation of La Poste with that of a private group of undertakings not operating in a reserved sector, “normal market conditions”, which are necessarily hypothetical, must be assessed by reference to the objective and verifiable elements which are available.
39 In the present case, the costs borne by La Poste in respect of the provision to its subsidiary of logistical and commercial assistance can constitute such objective and verifiable elements.
40 On that basis, there is no question of State aid to SFMI‑Chronopost if, first, it is established that the price charged properly covers all the additional, variable costs incurred in providing the logistical and commercial assistance, an appropriate contribution to the fixed costs arising from use of the postal network and an adequate return on the capital investment in so far as it is used for SFMI-Chronopost’s competitive activity and if, second, there is nothing to suggest that those elements have been underestimated or fixed in an arbitrary fashion.’
51. In the light of those assessments of the Court of Justice, the Court of First Instance considers it necessary to examine, first of all, the plea alleging breach of the obligation to state reasons. The pleas alleging errors of fact and manifest errors of assessment, as well as misapplication of the concept of State aid, which are indissociable, will then be examined together.
2. The plea alleging breach of the obligation to state reasons
Arguments of the parties
52. The applicants complain that, in the contested decision, the Commission merely referred to the economic reports which formed its basis, without specifying the evidence in those reports which led it to conclude that SFMI‑Chronopost had not benefited from any aid, and which was capable of review by the Community judicature.
53. The applicants contend, first, that it cannot be disputed that the contested decision is primarily based on the findings of the Deloitte report which the Commission refused to send them and which alone could explain the wording of the contested decision. The Deloitte report, which is an essential element of the statement of reasons of the contested decision, should have been sent to the applicants at the latest at the same time as the decision adversely affecting them, in order to enable them to exercise their rights.
54. Second, the applicants observe that the statement of reasons concerning the logistical assistance is inadequate. The Commission does not state in the contested decision how the ‘full costs’ are distributed for all the services characterising the express delivery business. The Commission’s statement of reasons on that point is manifestly inadequate to enable it to be understood by the applicants and reviewed by the Court of First Instance, in that it fails to mention the facts which led the Commission to find that ‘the cumulative remuneration paid by SFMI-Chronopost for [La Poste’s] logistical support was higher than the total operating costs incurred over the period 1986 to 1995’ and could not therefore lead to the conclusion that there had been aid.
55. Third, the applicants submit that the statement of reasons regarding the commercial assistance is inadequate. The Commission fails to show what part of the ‘full costs’ corresponds to commercial assistance expenses, or what that part remunerates as a specific service in terms of commercial assistance. Moreover, such review is difficult in the absence of any definition of the term ‘marketing costs’. In addition, the applicants submit that the Commission responded only with vague criticisms to the very detailed assessments provided by them regarding the costs of promoting SFMI’s products and the value of the use of La Poste’s brand image.
56. The applicants submit that the Commission should have included in the contested decision the tables received from the French Government giving a breakdown of the costs and could not justify the absence of reasoning by the concern not to make the contested decision longer or on grounds of commercial secrecy. They observe that the reference period for the initial complaint (1986‑90) was already ‘a long time ago in business terms’. Consequently, the Commission’s assessment was abstract and the statement of reasons was inadequate.
57. Fourth, the applicants observe that there is a contradiction in the grounds of the contested decision equivalent to an absence of reasoning in respect of the so-called ‘backward projection’ method. The Commission explains, first, that the price of logistical assistance is calculated by multiplying the number of items handled or their weight by the unit price of the different operations, but goes on to note that La Poste did not have analytical accounting until 1992.
58. The applicants also submit that the statement of reasons for the contested decision must be assessed by reference to the circumstances of each case which, in the present case, warrant a particularly detailed statement of reasons. Those circumstances are as follows: failure to notify, an excessively long administrative procedure (decision taken 81 months after the initial complaint was lodged), the considerable difficulties recognised by the Commission, in particular as to whether the measures complained of could be categorised as State aid, the fact that the Commission recognised that there had probably been aid, the withdrawal of a first rejection decision after it had been the subject of an action for annulment, the complete lack of diligence on the part of the Commission for three years (between the withdrawal of its decision on 9 July 1992 and the public hearing before the Court of Justice in the SFEI judgment, on 24 October 1995), the existence of the SFEI
judgment giving guidelines, the refusal to allow access to the case‑file, even without items in it which might have been confidential, and the entry of the disputed measures in the register for non‑notified aid. Lastly, the applicants add that they sent the Commission increasingly detailed economic studies.
59. The Commission submits that the contested decision indicated (at point D.1) the manner in which the ‘full costs’ were distributed, contrary to what the applicants claim. It observes that the method followed by La Poste, and accepted by the Commission, is described in its different stages in the decision, together with the result of that method, that is to say the cover rate of the ‘total costs’ incurred by La Poste during the different years. The Commission contends that it is sufficient, for the purposes of reviewing whether there has been aid, to refer to the method followed and the results obtained without reproducing accompanying tables which would make the text of the Commission’s decision excessively long. It adds that the case-law does not require that the statement of reasons go into all the relevant facts and points of law, in particular where technical choices are involved.
60. The Commission observes that the breakdown of those full costs was made available to it by the French authorities on 30 May 1996. That breakdown essentially distinguishes, with slight variations depending on the year, between the various transactions of the post offices, sorting centres and employees of La Poste. Those tables always concern the full costs and compare those costs with the unit price of subcontracting for each service, in order to establish an annual cover rate. Those data are business secrets in so far as they disclose the cost structure and financial flows between a parent company and a subsidiary.
61. Chronopost states that the Commission’s obligation to state reasons in respect of a complainant consists in setting out why the facts and points of law put forward in the complaint have failed to demonstrate the existence of State aid. However, a specific statement of reasons cannot be required either for each of the technical choices made or for matters which are manifestly irrelevant or insignificant or plainly of secondary importance.
62. Chronopost submits that the statement of reasons for the contested decision is adequate. It states that the Commission is not required to include in the contested decision all the analytical accounting calculations. Chronopost also states that the alleged absence of reasoning in the contested decision has not been found either by the Court of First Instance or by the Court of Justice, even though lack of reasoning is a public policy issue that the Court may raise of its own motion. Contrary to the conclusion which the applicants draw from the case-law, it is sufficient that the Commission state which calculations it used.
Findings of the Court
Summary of the case‑law concerning the statement of reasons
63. The statement of reasons required by Article 190 of the EC Treaty (now Article 253 EC) must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C‑367/95 P Commission v Sytraval and Brink’s France
[1998] ECR I‑1719, paragraph 63, and the case‑law cited).
64. As regards, more particularly, a Commission decision finding that no State aid as alleged by a complainant exists, the Commission must at least provide the complainant with an adequate explanation of the reasons for which the facts and points of law put forward in the complaint have failed to demonstrate the existence of State aid. The Commission is not required, however, to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance ( Commission v Sytraval and Brink’s France, paragraph 64).
65. Furthermore, where the Commission has a power of assessment in order to carry out its duties, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case and to state sufficient reasons for its decisions (Case C‑269/90 Technische Universität München
[1991] ECR I‑5469, paragraph 14).
66. In addition, even if, in stating the reasons for the decisions which it takes to enforce the rules on competition, the Commission is not required to discuss all the issues of fact and law and the considerations which have led it to adopt its decision, it is none the less required under Article 190 of the Treaty to set out at least the facts and considerations having decisive importance in the context of the decision in order to make clear to the Court and the persons concerned the circumstances in which it has applied the Treaty (see, to that effect, Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others v Commission
[1998] ECR II‑3141, paragraph 95, and the case-law cited).
67. It is also clear from the case-law that, other than in exceptional circumstances, the statement of reasons must be contained in the decision itself, and it is not sufficient for it to be explained subsequently for the first time before the Court (see Case T‑295/94 Buchmann v Commission
[1998] ECR II‑813, paragraph 171, and European Night Services and Others v Commission, paragraph 95, and the case‑law cited). The statement of reasons must in principle be notified to the person concerned at the same time as the decision adversely affecting him. A failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the Community judicature (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 463). Accordingly, when a Commission decision applying Article 92 of the Treaty suffers from serious omissions, the Commission may not remedy that defect by adducing for the first time before the Court figures and other analytical data from which it may be concluded that its application of Article 92 of the Treaty was correct, unless none of the parties had challenged the analytical data in question during the prior administrative procedure (see, to that effect, European Night Services and Others v Commission, paragraph 96).
68. It follows that arguments presented by the Commission’s agents before the Court of First Instance cannot make good the insufficiency of a contested decision’s reasoning (see Case T‑93/02 Confédération nationale du Crédit mutuel v Commission
[2005] ECR II‑143, paragraph 126, and the case-law cited).
69. The operative part and the grounds of a decision – which must state reasons under Article 190 of the Treaty – constitute an indivisible whole, with the result that it is for the College of Commissioners alone, in accordance with the principle of collegiate responsibility, to adopt both the one and the other, any alteration to the statement of reasons going beyond simple corrections of spelling or grammar being the exclusive province of that college (see Confédération nationale du Crédit mutuel v Commission, paragraph 124, referring to Case C‑137/92 P Commission v BASF and Others
[1994] ECR I‑2555, paragraphs 66 to 68).
70. It must be borne in mind, in this respect, that the Community judicature is required, in an action for annulment under Article 173 of the EC Treaty (now Article 230 EC), to confine itself to a review of the legality of the contested act. Consequently, it is not the task of the Court of First Instance to remedy any absence of reasoning or to supplement that reasoning of the Commission by adding to it or substituting for it elements which are not in the contested decision itself.
71. It is therefore necessary to consider whether the contested decision, which is based on complex economic assessments, was taken in compliance with the principles just stated. In particular, on the basis of the case-law cited in paragraphs 66 to 70 above, the Commission’s compliance with the obligation to state reasons must be examined solely in the light of the grounds set out in the text of the contested decision itself.
The scope of the review of compliance with the obligation to state reasons in this case
72. The Court of First Instance is required to consider whether the Commission has complied with its obligation to state reasons under Article 190 of the Treaty as regards its finding that SFMI‑Chronopost has received no State aid. In the light of the principles outlined by the Court of Justice in its judgment, set out in paragraph 50 above, that implies in particular an examination of the adequacy of the statement of reasons in the contested decision as regards (i) the issue whether the price charged to SFMI‑Chronopost covers, first, all the additional, variable costs incurred in providing the logistical and commercial assistance, second, an appropriate contribution to the fixed costs arising from use of the postal network and, third, an adequate return on the capital investment in so far as it is used for SFMI‑Chronopost’s competitive activity, and (ii) whether or not there is evidence that those elements have been underestimated or fixed arbitrarily.
73. In this respect, the Court of First Instance considers that, although the reasons for which the Commission rejected the method for calculating the costs proposed by the applicants are clear from the grounds set out in recitals 49 to 56 of the contested decision, that statement of reasons must also contain a sufficient explanation of how the Commission, when using the so-called ‘full‑cost’ method, calculated and assessed La Poste’s costs – including the costs recognised as relevant in this respect by the Court of Justice in its judgment on appeal – and of the price charged to SFMI‑Chronopost in this connection, in order to enable the Court of First Instance to exercise its power of review of the legality of the Commission’s assessment of whether there had been State aid. In that context, it is necessary to reject Chronopost’s argument that the contested decision contains an adequate statement of reasons as neither the Court of First Instance nor the Court of Justice raised the issue of the absence of reasoning, which constitutes a public policy issue. Neither the Court of First Instance nor the Court of Justice was required to raise the issue of the absence of reasoning in this respect, as the Court of First Instance annulled the contested decision only for error of law in the application of Article 92 of the Treaty (paragraphs 64 to 79 of the judgment of the Court of First Instance) and the review by the Court of Justice was limited to the legality of the assessment of the Court of First Instance in support of that finding (paragraphs 31 to 42 of the judgment on appeal).
74. The Court of First Instance therefore deems it necessary to consider whether the Commission provided an adequate statement of reasons for its assessment, first, as regards the coverage of the additional, variable costs incurred in providing the logistical and commercial assistance, second, regarding the appropriate contribution to the fixed costs arising from use of the postal network and, third, as regards the adequate return on the capital investment.
The contested decision’s statement of reasons concerning the additional, variable costs incurred in providing the logistical and commercial assistance
75. Concerning the additional, variable costs incurred by La Poste in providing the logistical and commercial assistance to SFMI‑Chronopost, the 33rd recital of the contested decision states as follows:
‘To calculate the total cost of the assistance to SFMI-Chronopost, [La Poste] calculates first the direct operating costs before central and local offices’ overheads on the basis of the production range (chain of elementary operations) of the services provided and the actual traffic volumes. The central and local offices’ overheads are then allocated in proportion to the operating costs of each service.
As regards the production range, [La Poste] did not have an analytical accounting system which enabled it to calculate the real costs incurred in providing the logistical assistance to SFMI-Chronopost. Until 1992 those costs were calculated on the basis of approximations. The services provided to SFMI-Chronopost were divided into elementary operations, which before 1992 had not been timed. To establish those costs [La Poste] compared the corresponding services to similar existing postal services, whose operations had already been timed and valued (such as the deposit of a registered letter). In 1992 those operations were timed and valued, account being taken of the actual traffic volumes of the express courier activity. This has enabled [La Poste] to assess the actual cost of the logistical assistance.’
76. In this connection, the Commission found, in the 57th recital of the contested decision, as follows:
‘The Commission considers that internal prices at which products and services are transacted between companies belonging to the same group do not involve any financial advantage whatsoever if they are full-cost prices (total costs plus a mark-up to remunerate equity capital investment). In this case payments made by SFMI‑Chronopost did not cover total costs over the first two years of operation, but covered total costs before central and local offices’ overheads. The Commission considers that this situation is not abnormal since revenues from the operations of a new firm belonging to a group of companies may cover only variable costs in the start-up period. Once the undertaking has stabilised its position on the market, the revenues generated by it must be in excess of variable costs so as to make a contribution to the fixed costs of the group. Over the first two years (1986 to 1987) of operation payment made by SFMI‑Chronopost covered not only variable costs, but also some fixed costs (such as buildings and vehicles). France has shown that as from 1988 the remuneration paid by SFMI‑Chronopost for the assistance covers all the costs incurred by [La Poste], plus a contribution by way of interest on its equity capital. Therefore, the logistical and commercial assistance was provided by [La Poste] to its subsidiary under normal business conditions and did not constitute State aid.’
77. Those grounds do not sufficiently indicate the precise scope that the Commission intends to confer on the economic and accounting concepts used for that purpose, or the precise nature of the costs examined by the Commission to show that there had been no State aid, in order to enable the Court of First Instance to perform its review on whether those costs actually correspond to the additional, variable costs incurred in providing the logistical and commercial assistance within the meaning of the judgment on appeal.
78. As regards the concept of direct operating costs referred to in the 33rd recital of the contested decision, the Commission merely stated, in its letter of 27 May 2005, in reply to a written question from the Court of First Instance, that it was referring to attributable costs. The Commission added in that letter that, within La Poste, those attributable costs also included a part of the fixed costs, before central and local offices’ overheads.
79. Having regard to contested decision alone, it is not possible to ascertain what the direct operating costs were or what the costs are which, in La Poste’s accounts, are directly attributable to the various activities. The attributable costs vary in the different undertakings according to the accounting system used.
80. The Court of First Instance considers, for the sake of completeness, that that question is also not clarified by the Commission’s pleadings submitted during the proceedings, which the Court of First Instance cannot, in any event, take into account when examining the statement of reasons for the contested decision in itself (see paragraphs 66 to 70 above). In its pleadings the Commission explains that, on the basis of the analytical accounts which contain an appropriate separation of the various items, the procedure followed in the contested decision was intended to group the various expenses (purchases of goods and services from outside, personnel, depreciation and maintenance of fixed assets) according to whether they were operational in nature (office, transport, delivery, sorting or financial activities) – in respect of direct costs (variable, that is to say attributable to an item handled, and fixed) – or structural (regional or national administrative structures for mail or financial services, common structures) – in respect of indirect costs (entirely fixed). Subsequently, the indirect (fixed) charges of the structures (both the shared charge and those specific to mail or financial services) were allocated to the ‘mail’ activities in proportion to the (direct) operating costs entailed by each of those activities. Thus, for the four ‘mail’ activities (collection, delivery, sorting and transport), the indirect costs (charges of non-operational structures including also central and local advertising and commercial expenses) were allocated in proportion to the costs directly entailed by each of those activities. The cost of the different work units (minute of work or number of tonnes transported) is calculated by dividing the actual full cost of each activity by the exact number of timed minutes of work (or number of tonnes transported). By multiplying that unit cost by the time spent on the services provided to SFMI‑Chronopost (or by the weight transported), it is possible to determine the overall cost of the services provided by La Poste to its subsidiary.
81. The Court of First Instance considers that those explanations merely reinforce the conclusion that the statement of reasons for the contested decision is in itself far too general to enable the Court to review the legality of the Commission’s assessment of whether all the costs incurred by La Poste in providing the logistical and commercial assistance to SFMI‑Chronopost were covered. The inadequacy of the statement of reasons is reinforced by the fact that, in the contested decision, the Commission uses different economic and accounting concepts in an imprecise manner. The wording of the 57th recital of the contested decision, according to which ‘[o]ver the first two years (1986 to 1987) of operation payment made by SFMI-Chronopost covered not only variable costs, but also some fixed costs (such as buildings and vehicles)’ does not make it possible to determine exactly what were those ‘some fixed costs’ which SFMI‑Chronopost allegedly covered.
82. Furthermore, the contested decision contains no explanation as to how the services provided to SFMI-Chronopost were divided into elementary operations or how La Poste compared those services to existing postal services of a similar nature. Given that the services provided to SFMI‑Chronopost had not been timed before 1992 and that, until 1992, the actual costs incurred by La Poste in providing the logistical and commercial assistance to SFMI-Chronopost were calculated on the basis of approximations, it was necessary to explain in the contested decision the manner in which that comparison had been performed so that the addressee of the contested decision, other interested parties and the Court of First Instance could review whether or not there were any factual errors or errors of assessment in that procedure.
83. Precise explanations were particularly necessary in order to be able to verify the manner in which the commercial assistance provided by La Poste to SFMI‑Chronopost was taken into account in the full costs. In the same way that the services provided to SFMI‑Chronopost, which were linked to a certain product, were, according to the Commission, isolated from the other activities of La Poste, it was necessary to provide reasons for the costs associated with the commercial assistance and the amount thereof. It is not at all clear from the explanations in the contested decision how such assistance was taken into account when calculating the full costs.
84. It was therefore necessary to include in the contested decision an appropriate statement of reasons in this connection and, at the very least, a general summary of the analytical accounting calculations in relation to the services provided to SFMI‑Chronopost, the confidential data having possibly been deleted.
85. It follows from all the foregoing that the contested decision does not contain an adequate statement of reasons for the Commission’s assessment as regards the additional, variable costs incurred in providing the logistical and commercial assistance.
The statement of reasons regarding the appropriate contribution to the fixed costs arising from use of the postal network
86. As regards the contribution to the fixed costs arising from use of the postal network, the 33rd recital of the contested decision states that ‘[t]he central and local offices’ overheads are … allocated in proportion to the operating costs of each service’.
87. It should be noted that, on the basis of the contested decision alone, it is not possible to determine which types of costs are included in those central and local offices’ overheads. In particular, the Court of First Instance is unable to ascertain whether, in the Commission’s opinion, a part of the central and local offices’ overheads constitutes costs which could be categorised as fixed costs arising from use of the postal network which should therefore have been taken into account for the purposes of calculating the price to be charged to SFMI‑Chronopost. That categorisation is of particular importance given that the Commission also found in the contested decision that La Poste’s central and local offices’ overheads were not covered 100% by the remuneration paid by SFMI‑Chronopost during 1986 and 1987. On the contrary, according to the 33rd recital of the contested decision, the cover rate of the full costs was only 70.3% for 1986 and 84.3% for 1987.
88. In particular, the Commission did not determine in a precise manner what, in its view, were the fixed costs arising from use of La Poste’s network by SFMI‑Chronopost. In particular, the contested decision does not specify whether there are fixed costs other than the central and local offices’ overheads which should have been regarded as fixed costs arising from use of the postal network and which, necessarily, did not fall within the category of additional, variable costs incurred in providing the logistical and commercial assistance to SFMI‑Chronopost. Consequently, the Court of First Instance is not in a position to verify whether that contribution to the fixed costs was made correctly in the light of the requirements laid down by the Court of Justice in its judgment.
89. Consequently, in those circumstances, the contested decision does not contain an adequate statement of reasons inasmuch as it does not enable the Court of First Instance to verify, first, whether the central and local offices’ overheads include fixed costs arising from use of the postal network and, second, whether there were other fixed costs of La Poste associated with using the postal network that the price charged to SFMI‑Chronopost should have covered in accordance with the requirements laid down by the Court of Justice in the judgment on appeal.
The statement of reasons concerning the adequate return on the capital investment
90. As regards the return on the capital investment, the Commission states in the 57th recital of the contested decision that ‘France has shown that as from 1988 the remuneration paid by SFMI-Chronopost for the assistance covers all the costs incurred by [La Poste], plus a contribution by way of interest on its equity capital’. However, the contested decision does not state what contribution SFMI‑Chronopost made to remunerate La Poste’s capital investment.
91. Admittedly, it is clear from the contested decision that the Commission calculated the IRR. However, the contested decision does not specify whether that calculation of the IRR was performed in order to show that the private investor test was satisfied and/or in order to calculate the return on the capital investment. In this connection, it is merely stated in the 58th recital of the contested decision that ‘[t]he Commission has also considered whether [La Poste’s] behaviour as a shareholder of SFMI-Chronopost was commercially justified under the market economy investor principle …’ and that ‘[t]o assess whether [La Poste] has behaved like a market economy investor the Commission has to look at the return to the parent company in terms of dividends distributed and capital growth’.
92. In addition, even assuming that the calculation of the IRR, as reproduced in the contested decision, served to verify the return on the capital investment used for SFMI-Chronopost’s competitive activity, the contested decision does not identify the capital which the Commission considers to have been actually used for that activity in finding that there was no State aid. In this connection, the Commission merely asserts, in the 59th recital of the contested decision, that ‘[t]o work out the IRR the Commission has taken into account on the one hand the equity injection by [La Poste] in 1986, and on the other hand the dividends distributed by SFMI-Chronopost over the period 1986 to 1991, and the value of that company in 1991’. The Commission adds in the 62nd recital of the contested decision that it ‘has worked out the IRR and compared it with SFMI-Chronopost’s cost of equity in 1986 (13.65%) the year when the company was incorporated and started its operations. This has permitted it to verify whether the profitability of the whole capital venture has been adequate’, concluding that ‘[t]he IRR calculated by the Commission is largely in excess of the cost of equity in 1986’ and that ‘[t]herefore no State aid was involved in the financial transactions between [La Poste] and its subsidiary over the years 1986 to 1991’. Thus, the contested decision merely states, on the one hand, that the Commission has taken into account the equity injection by [La Poste] in 1986 and, on the other hand, the financial transactions between [La Poste] and its subsidiary over the years 1986 to 1991, and the Commission does not identify sufficiently precisely which financial transactions are involved.
93. Moreover, even assuming that the IRR reflects sufficiently precisely the return on the capital investment used for SFMI‑Chronopost’s competitive activity, the Court of First Instance is not, in any event, in a position to review whether that possible return on the equity capital investment was appropriate for the purposes of paragraph 40 of the judgment on appeal, given that the detailed calculation of the IRR is not apparent from the contested decision.
The statement of reasons regarding the coverage of costs in general
94. The findings of the Commission set out in the 57th recital of the contested decision, according to which ‘[o]ver the first two years (1986 to 1987) of operation payment made by SFMI‑Chronopost covered not only variable costs, but also some fixed costs (such as buildings and vehicles)’ and ‘France has shown that as from 1988 the remuneration paid by SFMI-Chronopost for the assistance covers all the costs incurred by [La Poste] plus a contribution by way of interest on its equity capital’ are merely peremptory assertions. The contested decision contains neither a detailed examination of the distinct steps taken to calculate the remuneration of the assistance in question or the infrastructure costs attributable to that assistance, nor of the data relating to the analysis of the relevant costs. In this respect, the Commission merely asserts that La Poste’s full costs were covered by the remuneration by SFMI‑Chronopost, without however specifying the figures and calculations on which it bases its analysis and findings.
95. In those circumstances, the Court of First Instance is unable to review whether the method used and the stages of the analysis followed by the Commission are free from error and compatible with the principles laid down by the Court of Justice for determining the existence or absence of State aid.
The need for a detailed statement of reasons
96. In addition, it should be borne in mind that the scope of the obligation to provide a statement of reasons must be assessed by reference to the circumstances of each case which could, in an appropriate case, justify a more detailed statement of reasons.
97. In the present case, the circumstances justifying a more detailed statement of reasons lie in the fact that, first, this was one of the first decisions dealing with the complex question, in the context of the application of the provisions on State aid, of the calculation of the costs of a parent company operating in a reserved market and providing logistical and commercial assistance to a subsidiary which does not operate in a reserved market. Second, the withdrawal of the Commission’s first rejection decision of 10 March 1992 following the lodging of an action for annulment and the SFEI
judgment of the Court of Justice should have led the Commission to reason its approach even more diligently and precisely in relation to the disputed points. Lastly, the fact that the applicants submitted several economic studies during the administrative procedure should also have led the Commission to prepare a thorough statement of reasons while responding to the essential arguments of the applicants, as substantiated by those economic studies.
98. In those circumstances, the Court of First Instance considers that the statement of reasons for the contested decision, which is limited to a very general explanation of the method followed by the Commission for assessing the costs and of the final result obtained, without however allocating with the necessary precision the various costs of La Poste incurred in providing the logistical and commercial assistance to SFMI‑Chronopost and the fixed costs arising from use of the postal network, and without specifying the return on the capital investment, fails to satisfy the requirements of Article 190 of the Treaty.
99. As for the Commission’s argument that the data relating to those calculations are commercially secret, it is sufficient to note that the Commission could have explained in more detail the methods followed and the calculations used without disclosing any commercial secrets. That possibility is moreover confirmed by the explanations provided by the Commission during the proceedings, in particular in its pleadings and in its replies to the oral and written questions of the Court of First Instance. In any event, the Commission could have provided expurgated data and non-confidential versions of those analyses.
100. Consequently, it must be held that the contested decision does not enable the Court of First Instance to verify the existence and amount of the various costs which fall within the concept of full costs as defined by the Commission in the contested decision. Accordingly, the statement of reasons for the contested decision does not enable the Court of First Instance to review the legality of the Commission’s assessment in this regard and its compatibility with the requirements laid down by the Court of Justice in its judgment on appeal in order to find that there had been no State aid.
101. It follows that the contested decision must be annulled for defective reasoning in so far as it concludes that the logistical and commercial assistance provided by La Poste to SFMI‑Chronopost does not constitute State aid.
3. The plea alleging error in applying the concept of State aid
Preliminary remarks
102. In the light of the foregoing, it is not possible to consider the arguments advanced by the applicants in the first part of the fourth plea, relating to the alleged lack of coverage of SFMI‑Chronopost’s costs, the underestimation and arbitrary nature of certain elements found by the Commission, errors in the accounting adjustments in Annex 4 to the Deloitte report, the abnormally high level of the IRR, or the causes of SFMI‑Chronopost’s profitability.
103. The other arguments that the applicants raised in the first part of the fourth plea, namely the alleged manifest errors relating to the so‑called linear ‘backward projection’ method and the absence of analytical accounts at the relevant time, will be dealt with below.
Error in applying the concept of normal market conditions
The recourse to the backward projection method
– Arguments of the parties
104. The applicants submit that, given that there were no analytical accounts at La Poste in 1992, the backward projection method for the calculations concerning the years 1986 to 1992 was not justified. The applicants state that the Commission was aware that there were no analytical accounts before the adoption of the contested decision. The applicants observe in this respect that in 1996 the French Competition Council had already held that La Poste’s accounts did not make it possible to apportion the network expenses. Consequently, the applicants submit that the Commission should have refused to accept a method for assessing La Poste’s costs based on such accounts.
105. The applicants infer from this that it was impossible for the Commission to allocate La Poste’s subcontracting operating costs.
106. The applicants draw attention to three errors. First, the total unit cost of production of the express delivery activities is not constant and decreases significantly when the volume of production increases. The method chosen by the Commission fails to take account of increasing returns of scale. Consequently, that method results in an underestimation of the costs from which SFMI‑Chronopost benefited during the initial period, especially as they were a type of service which, at the outset, entailed significant fixed costs. The applicants submit in this connection that the choice of the linear backward projection method led to a threefold reduction in the costs.
107. Second, the ‘deflator’ chosen, namely the growth rate of the wage bill, is inappropriate from an economic point of view. The applicants submit that the evolution of the wage bill cannot be used to ‘deflate’ La Poste’s costs, since the cost of handling an SFMI‑Chronopost dispatch does not depend on a change in the number of La Poste employees. Significant recruitment could have been carried out for cyclical economic reasons or for other activities which are unrelated to those of SFMI‑Chronopost. In order to work out the cost of a single activity (the subcontracting in respect of SFMI‑Chronopost), it is the rate of increase of the cost of a minute of work in post offices and sorting centres which should have been used. According to the applicants, the use of ‘point 539’, namely the rate of increase of the cost of a minute of work, would thus have been more appropriate.
108. Third, the applicants submit that the Commission should have used the invoices based on the transfer price scales instead of the backward projection method. The applicants state that using the backward projection method is not justified since, from 1986 onwards, La Poste and SFMI‑Chronopost had entered into contracts which set out in a precise manner a method for establishing the full costs of subcontracting and that those full costs were actually implemented.
109. In those circumstances, the applicants submit that they have adduced evidence of the existence of an alternative and more precise method than the backward projection method.
110. As regards the Commission’s assertion that the argument relating to the linear backward projection method is a new ground of challenge, the applicants contend that the content of the concept of ‘normal market conditions’ has been changed by the interpretation in the judgment on appeal, and not by the applicants’ plea in law. They submit that their plea has also always related to the issue whether La Poste’s costs for the provision of the logistical assistance had been covered. A new formulation of one of the arguments that they have put forward ever since the application is admissible. The applicants have merely changed the presentation of the pleas in order to take account of the judgment on appeal.
111. The applicants add that they had no means of knowing the details of the backward projection method on the basis of the contested decision since they had access to the Deloitte report only following the measures of organisation of procedure taken by the Court of First Instance and that, therefore, it was only in the reply that they were able to state their arguments on the backward projection method.
112. The Commission considers, principally, that the criticism concerning the linear nature of the backward projection method which, according to the applicants, should have taken account of the economies of scale, constitutes a new ground of challenge which must therefore be dismissed as inadmissible.
113. In the alternative, the Commission asserts that the reasoning relating to the economies of scale makes sense only if the undertaking had started to establish its network ex novo . SFMI‑Chronopost is merely the product of the diversification of La Poste which thus achieves, because of its network, economies of scale efficiently, by carrying out an activity which is very similar to its main business. It observes that in 1992 the ratio of transactions of Chronopost to those of La Poste was in the order of 1:3 000.
114. The Commission concedes that it was only from 1992 onwards that all the mail transactions were accurately timed in a uniform manner and that reliable accounts, with a more sophisticated calculation of the cost of ‘work units’ at the same time that the costs were incurred, came into existence at La Poste. It states that that is why it had to endorse the backward projection method proposed by the experts in respect of the previous years’ transactions. It asserts that that method was based on reliable data for 1992 and was applied to SFMI‑Chronopost’s past transactions, which had appeared each year in the accounts dating back to 1986 and had been checked by the auditors.
115. It submits that the recourse by the Commission to such a type of ‘all-embracing’ methodology was endorsed in principle in Case T‑106/95 FFSA and Others v Commission
[1997] ECR II‑229, paragraph 103 et seq., as was the accounting data on the basis of which it was applied.
116. The Commission, supported by the French Republic, maintains that the applicants have not adduced evidence, first, of the existence of an alternative and more precise method and, second, that the Commission has based its decision on materially incorrect facts or has exceeded its discretion in the matter.
117. As regards the data provided for 1992, the Commission states that the French authorities sent, on 24 May 1996, the adjustment for 1992 and the calculations relating to the period 1986 to 1991, which were from then on based on the ‘backward projected’ actual rates and unit costs for 1992, as well as the calculations relating to the period 1993 to 1995, which were based on the analytical accounting data of the relevant year.
118. The Commission observes that the Court of Justice stated in its judgment that ‘normal market conditions’ must be assessed by reference to the objective and verifiable elements which are available. The Commission infers from this that, given that the accounts which existed in 1992 were the only ones available, it had no reason to call in question those data in the absence of other more accurate data.
119. As for the ‘deflator’ used for the backward projection, namely the evolution of the wage bill, the Commission asserts that it was used as an indicator of the evolution of costs because it was deemed to be the most representative of La Poste’s total costs in order to make it possible to actualise the costs since 1992, the wage bill representing approximately 75% of La Poste’s costs. The Commission submits that the applicants were unable to put forward a more appropriate indicator for the period under consideration. Point 539 was not a sufficiently complete indicator, because there are two points 539, one for offices and one for sorting, in addition to which there is the ‘statistique 742’ in respect of the delivery and cost of the weight transported. The Commission asserts that the fact that it opted for a more general ‘deflator’ cannot amount to a manifest error of assessment. It further states that the applicants have not even attempted to demonstrate that the alternative method would result in increased costs for the period 1986 to 1992.
120. The Commission observes that the tariff agreements concluded between La Poste and SFMI are entirely inappropriate for establishing the full costs, since their aim is to establish the remuneration of the operations and La Poste’s commercial fee. The Commission contends that the full costs which were actually incurred had to be calculated differently in order then to be compared with the remuneration paid in order to determine whether or not there was aid.
121. The French Republic states that La Poste was required to provide accounts applicable to commercial undertakings only from 1991, as part of the general reform implemented by Law 90‑568. It adds that La Poste developed sufficiently accurate and uniform methods for calculating the costs which, from 1992 onwards, enabled it to refine the assessment of the actual costs borne as a result of the activities of its subsidiary. It therefore submits that the method used by the Commission in the contested decision was based on the most reliable elements of the cost analysis, while taking due account of the specific situation of an undertaking such as La Poste.
– Findings of the Court
122. As a preliminary point, it is necessary to examine the Commission’s assertion that the applicants’ ground of challenge concerning the backward projection method is new and therefore inadmissible.
123. The first paragraph of Article 48(2) of the Rules of Procedure provides that no new plea in law may be introduced in the course of the proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.
124. In the present case, it is sufficient to note that the applicants had already criticised, in paragraphs 212 to 220 of their application, the backward projection method which led to the costs for the period 1986 to 1991 being estimated on the basis of the costs for 1992. In particular, the applicants asserted that ‘backward projection … presuppos[ed] that the costs and prices of subcontracting evolve[d] in a constant and parallel manner’. Thus, by clarifying their arguments on the linear nature of the backward projection, the applicants have not raised a new or separate plea in law, but have expanded their reasoning set out in the application in this regard.
125. It must also be borne in mind that the applicants had to bring their action without having had access either to the Deloitte report or to the replies of the French Government. Those documents were sent to the applicants only following the measures of organisation of procedure taken in May 1998.
126. In this respect, it should be observed that the contested decision contained only a cursory explanation of the backward projection method, since only the 33rd and 43rd recitals of the contested decision give an explanation of that method. It is not unequivocally apparent from those recitals that the backward projection was linear.
127. In those circumstances, the applicants cannot be criticised for not objecting in detail to the linearity of the backward projection method in their application. It follows that the argument relating to the linearity of the backward projection method is admissible.
128. As regards the merits, it must be remembered that the assessment by the Commission of the question how La Poste’s costs incurred in providing the logistical and commercial assistance to its subsidiary are calculated in the absence of analytical accounts involves a complex economic appraisal. When the Commission adopts a measure involving a complex economic appraisal, it enjoys a wide discretion, and judicial review of that measure, even though it is in principle a ‘comprehensive’ review of whether a measure falls within the scope of Article 92(1) of the Treaty, is limited to verifying whether the Commission complied with the relevant rules governing procedure and the statement of reasons, whether the facts on which the contested finding was based have been accurately stated and whether there has been any manifest error of assessment of those facts or a misuse of powers. In particular, the Court is not entitled to substitute its own economic assessment for that of the author of the decision (Joined Cases T‑126/96 and T‑127/96 BFM and EFIM v Commission
[1998] ECR II‑3437, paragraph 81; Case T‑296/97 Alitalia v Commission
[2000] ECR II‑3871, paragraph 105; and Joined Cases T‑228/99 and T‑233/99 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission
[2003] ECR II‑435, paragraph 282).
129. First of all, the backward linear projection method consisted, in the present case, in deflating the cost of each product by using, as base year, the cost corresponding to 1992 and, as deflator, the rate of growth of the wage bill and then multiplying the deflated cost thus obtained by the volume of activity for the given product for the year in question.
130. The applicants object to the linear nature of the backward projection essentially on the ground that that method fails to take account of increasing returns of scale. The applicants submit that the total unit cost of production of express delivery activities should decrease significantly when the volume of production increases.
131. That line of reasoning refers to the case of a private undertaking commencing its business activities and, in particular, to the situation where that undertaking sets up its network ex novo . It does not apply to the setting‑up of a new activity which represents only a small part of a business activity which already exists and in respect of which most of the fixed costs have already been borne. In a sector such as that concerned in the present case, where the fixed costs are very significant but stem from the very existence of La Poste’s network and are independent of the business activity of the subsidiary, the applicants’ argument cannot be upheld.
132. In addition, the Commission’s explanations – according to which, in particular, as the proportion of transactions in respect of SFMI‑Chronopost was marginal in comparison with La Poste’s overall trade, it is not possible to achieve real economies of scale – are not contradicted by the applicants.
133. In those circumstances, it must be held that the applicants have failed to demonstrate that there was a manifest error of assessment in the choice of the linear backward projection method.
134. As regards the applicants’ objections concerning the choice of year from which the backward projection method was applied, it must be recalled that, until 1991, La Poste was part of the French administration and was under no obligation to keep analytical accounts. It was only after the entry into force of Law 90‑568 that La Poste’s accounting obligations were brought into line with those of a private undertaking.
135. Furthermore, as regards the choice of 1992 as the starting point for the backward projection of costs, the Commission stated, without being contradicted by the applicants, that it was only from 1992 that accurate timing of transactions and analytical accounts made it possible to calculate exactly the costs of services in respect of SFMI‑Chronopost.
136. The Commission had to remedy the absence of analytical accounts at La Poste before 1992. Since the accounts for 1992 were the first to be prepared in accordance with the analytical accounting system, the Commission was entitled to refer to them, especially since, as the Court of Justice pointed out in its judgment, ‘normal market conditions’ must be assessed by reference to the objective and verifiable elements which are available. The applicants have indeed not been able to demonstrate that there were other more accurate data.
137. Moreover, the fact that the Commission remedied the absence of analytical accounts at La Poste before 1992 by using the backward projection method falls within the wide discretion which it enjoys in that area.
138. In the light of the foregoing, it must be held that the applicants have failed to show that there was a manifest error of assessment in the choice of the year on the basis of which the backward projection was applied.
139. As regards the arguments that the applicants derive from the report of the French Court of Auditors, it must be pointed out that the applicants have failed to demonstrate which objective criteria the Commission should have used instead of La Poste’s 1992 accounts. Thus, even assuming that La Poste’s accounts in 1992 were not analytical, it is not possible to establish that the Commission made a manifest error of assessment, given that the Commission was properly entitled to use La Poste’s accounts, which were the only ones which made it possible to assess the support in question in relation to the actual costs for the purposes of the judgment on appeal.
140. As regards the deflator chosen, that is the rate of growth of the wage bill, the Commission explained that, since that bill corresponds to all the salaries and employers’ social security contributions, it was a logical choice, given that salaries account for 75% of the costs of La Poste’s operating network.
141. It is certainly true that the rate of growth of the wage bill is linked to the overall increase in personnel at La Poste and that the use of the unit cost of work would have been a better way of obtaining the cost of a single activity. As is apparent from the Deloitte report of 1996, if a cost is estimated at 100 in 1992 and the wage bill has increased by 5% between 1991 and 1992, the backward projected cost for 1991 is 95.2.
142. However, the applicants have not demonstrated that the Commission’s assertion that salaries constitute the main part of La Poste’s costs is incorrect and that, therefore, the Commission made a manifest error of assessment in selecting the wage bill as deflator. Nor have the applicants proved that the use of another deflator would have led to an increase in La Poste’s costs resulting from backward projection.
143. Furthermore, in response to the applicants’ assertions raised during the procedure before the Court of First Instance, La Poste produced two additional reports from Deloitte, namely a report from 1999 and a report from 2004, in which backward projection was calculated using point 539 (office) and the average cost of an employee. The results of those calculations, which are presented in Annex 4 to the 1999 report and on page 17 of the 2004 report, show that using those two weightings leads to a slight decrease in La Poste’s full costs for the period 1986 to 1992 compared with using the wage bill as deflator. Thus, those calculations show that the deflator proposed by the applicants would not lead to an increase in La Poste’s full costs for the provision of logistical and commercial assistance to its subsidiary.
144. Consequently, it must be concluded that the applicants have not succeeded in demonstrating that the backward projection would have led to different results – still less to results increasing La Poste’s costs – if the Commission had chosen another deflator. It follows that the applicants have failed to demonstrate that the Commission made a manifest error of assessment in its choice of deflator.
145. As regards the applicants’ arguments that the Commission should have used the existing agreements between La Poste and SFMI‑Chronopost instead of the backward projection method, it is sufficient to note, as the Commission does, that the agreements between La Poste and SFMI‑Chronopost are inappropriate for establishing the full costs, since their aim is to establish the remuneration of the operations and La Poste’s commercial fee. The Commission correctly states that a tariff agreement does not amount to analytical accounts and is therefore irrelevant for calculating the costs.
146. The applicants have therefore failed to explain how using those agreements could have led to a more accurate assessment of the costs incurred in providing the logistical and commercial assistance to SFMI‑Chronopost than using the backward projection method.
147. In the light of the foregoing, the first part of the fourth plea must be dismissed in so far as that part relates to the backward projection method.
Failure to take into account certain aspects of the concept of State aid
The transfer of Postadex
– Arguments of the parties
148. The applicants submit that the Commission erred in law in considering that the free transfer of Postadex forms part of the relationship between companies in the same group. First, the Commission was wrong to deem the free transfer of an intangible asset, such as goodwill, a normal act characteristic of a relationship between a parent company and its subsidiary. The applicants claim that as a general rule the transfer of an asset from a parent company to its subsidiary entails remuneration, takes the form of an injection of capital, or gives rise to a claim in favour of the parent company. It is rarely in the interest of a parent company to transfer an asset for no consideration.
149. They submit that if an independent expert had determined Postadex’s value, it would have estimated it at over FRF 38 million (approximately EUR 5 793 062). The last set of annual turnover figures for Postadex, at the time of the transfer, reflects that value.
150. The applicants state that if the Commission regards the estimated value of Postadex (FRF 38 million) as an injection of capital by La Poste in SFMI, TAT, with a subscription of FRF 3.4 million (EUR 518 326.66) out of the total capital of FRF 10 million (EUR 1 524 490.17), does not hold 34%, but only 7% of SFMI’s capital.
151. Second, the Commission did not take account of the fact that, unlike the situation of a private group, it was with the resources of a legal monopoly that La Poste was able to create, finance and develop the Postadex service, a service which did not belong to the reserved sector. In the present case, the Commission has contravened its decision‑making practice in the telecommunications sector. In this respect, the applicants refer to the guidelines on the application of EEC competition rules in the telecommunications sector (OJ 1991 C 233, p. 2). According to those guidelines, ‘[s]ubsidising activities under competition, whether concerning services or equipment, by allocating their costs to monopoly activities … is likely to distort competition in violation of Article 86’.
152. Third, the Commission errs in law in considering that, given that it does not entail any cash advantage for SFMI‑Chronopost, the transfer of Postadex does not represent State aid to SFMI‑Chronopost. In this regard, the applicants observe that the concept of State aid is defined on the basis of the effects of the disputed measure and not on the basis of the benefit conferred.
153. The Commission submits that the transfer of Postadex has not generated any costs for La Poste and that the judgment on appeal referred only to the remuneration intended to cover the costs.
154. The Commission contends that the transfer of Postadex to SFMI‑Chronopost is a logical corollary of the transfer of express delivery activities to a subsidiary within La Poste. In addition, the Commission asserts that the Postadex client base had no value in accounting terms and that it was impossible to measure the economic benefit which that element represented. For those reasons, the Commission submits that no State aid was involved.
155. In the alternative, the Commission observes that it accepted the estimate of FRF 38 million (approximately EUR 5 793 062) provided by the complainants for the transfer of Postadex in order to show that the internal rate of return remained higher than the capital cost.
156. The Commission contends that, given that the contribution of Postadex was consistent with the actual situation of the group and that La Poste received sufficient payment for it as an investor, it did not deem it necessary to make any estimates in comparison with that in the complaint.
157. The Commission adds that the alleged revaluation of TAT’s share in SFMI’s capital is a new ground of challenge which does not flow from the facts which have arisen during the proceedings, and which is therefore manifestly inadmissible. In the alternative, it claims that, in so far as the contested decision concerned whether or not there was a grant of State aid to SFMI‑Chronopost from La Poste, any aid to TAT should, in principle, be the subject of a fresh decision which has a different purpose from that of the contested decision.
– Findings of the Court
158. It is settled case‑law that, for the purposes of Article 92 of the Treaty, the concept of State aid has a very wide scope. The aim of that provision is to prevent trade between Member States from being affected by advantages granted by public authorities which, in various forms, distort or threaten to distort competition by favouring certain undertakings or certain products (Case 173/73 Italy v Commission
[1974] ECR 709, paragraph 26, and Case C‑387/92 Banco Exterior de España
[1994] ECR I‑877, paragraph 12). The concept of aid therefore covers not only positive benefits, such as subsidies, but also interventions which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect ( Banco Exterior de España, paragraph 13).
159. It should be observed that the supply of goods or services on preferential terms is one of the indirect advantages which have the same effects as subsidies (see Case C‑126/01 GEMO
[2003] ECR I‑13769, paragraph 29, and the case‑law cited).
160. Furthermore, according to settled case‑law, Article 92(1) of the Treaty does not distinguish between measures of State intervention by reference to their causes or their aims but defines them in relation to their effects (see GEMO, paragraph 34, and the case‑law cited).
161. The Commission states in essence that the transfer of Postadex has not generated any costs and that therefore no State aid is involved, given that the judgment on appeal referred only to the remuneration intended to cover the costs.
162. However, the Commission’s argument that the transfer of the Postadex client base was a logical corollary of a subsidiary being created and that, for this reason, it does not amount to State aid cannot be accepted.
163. It must be observed, first, that that transfer is a measure separate from the logistical and commercial assistance.
164. It is common ground that La Poste transferred to SFMI‑Chronopost the client base of its Postadex product for no consideration. It is clear from the Commission’s replies to the questions of the Court of First Instance that SFMI‑Chronopost did not make any payment whatsoever for the transfer of the Postadex client base.
165. The Postadex client base amounted to an intangible asset which had an economic value. In addition, it must be recalled that it was with the resources of a legal monopoly that La Poste was able to create the Postadex service. The transfer of such an intangible asset constitutes an advantage for the beneficiary.
166. Similarly, the decision to transfer Postadex to SFMI‑Chronopost can be attributed to the State. The detailed conditions for the operation and marketing of the express delivery service provided by SFMI under the name of EMS/Chronopost were set out in an order from the French Ministry of Posts and Telecommunications of 19 August 1986.
167. It must therefore be held that the transfer of Postadex to SFMI‑Chronopost constitutes State aid, given that La Poste received no consideration from SFMI‑Chronopost.
168. That finding cannot be invalidated by the Commission’s assertion that the Postadex client base had no value in accounting terms.
169. Even if it is an element which is difficult to quantify, that does not mean that it has no value. In this respect, it should be observed that the creation and marketing of address lists for certain activities constitute, in themselves, economic activities.
170. In the present case, it is undisputed, as is moreover clear from the letter of 21 January 1993 from the French authorities, that the client contracts for the Postadex service were transferred to SFMI. Furthermore, the report of the board of directors of SFMI of 12 May 1987 states that ‘Postadex’s activities were gradually transferred to Chronopost from 1 January to 30 June 1986’ and that it ‘could be considered that at that date the transfer had proceeded without any significant loss of customers’.
171. It follows that the Commission erred in law in taking the view that the transfer of the Postadex client base did not constitute State aid on the ground that it did not entail any cash advantage. Consequently, the contested decision must be annulled in so far as the Commission considered that the transfer of Postadex by La Poste to SFMI‑Chronopost did not constitute State aid.
La Poste’s brand image
– Arguments of the parties
172. The applicants submit that the Commission erred in law in taking the view that La Poste’s brand image did not constitute an element separate from the transfer of the Postadex service or from access to the network. The applicants state that La Poste’s brand image constitutes an intangible asset having economic value in itself, stemming from all the elements representing La Poste (yellow colour, logo and emblem). In this connection, the applicants state that the economic value of La Poste’s image constitutes a major competitive advantage which can be decisive in entering a market. Moreover, the applicants submit that once an undertaking has gained a significant market share on account of the advantage consisting in the brand image, that advantage is definitive.
173. The free transfer to SFMI‑Chronopost of La Poste’s brand image, which is of significant economic value and financed by the revenue deriving from the monopoly, thus constitutes State aid.
174. The applicants claim that, even if the use of La Poste’s brand image has not in itself cost La Poste anything, it is none the less necessary to take into account an ‘opportunity cost’. The applicants are of the opinion that the judgment on appeal refers to the actual costs only in so far as concerns access to a network that is not in line with a purely commercial approach. In a situation where La Poste allows its subsidiary to use, for example, its vehicles for advertising purposes, it should require remuneration.
175. The Commission submits that the brand image does not generate any cost or loss of revenue for La Poste which has not already been taken into account by the full‑cost method. It notes that the applicants continue to argue in terms not of costs but of ‘incremental’ benefits, seeking to determine the ‘correct’ remuneration of SFMI‑Chronopost’s activity. However, such an approach is not in line with the ‘full‑cost’ approach, which is an overall method which extends to taking account of depreciations and the maintenance of the premises of the parent company.
176. It adds that there is no market or interest either for the display space or the image of La Poste.
– Findings of the Court
177. Even if La Poste’s brand image is an intangible asset, that does not necessarily mean that its use is separate from the logistical and commercial assistance provided by La Poste to SFMI‑Chronopost. In the absence of evidence showing that the brand image flows from such a separate transfer, it must be held that the use of La Poste’s brand image results rather from the provision in itself of that logistical and commercial assistance and is ancillary to it. That finding is not called in question by the evidence provided by the applicants in Annex 4 to their written observations. The applicants refer only to La Poste’s advertising presenting Chronopost as one of its services and to SFMI‑Chronopost’s statements demonstrating its intention to ‘use La Poste’s contacts with large suppliers in order to be better placed to approach certain prospects’. On the contrary, that evidence confirms the ancillary nature of the use of La Poste’s brand image in relation to the logistical and commercial assistance that La Poste maintains it provided in return for payment which was at least equivalent to its full costs.
178. It follows that the Commission did not err in law in taking the view that the use of La Poste’s brand image by its subsidiary did not represent State aid separate from the remuneration of La Poste’s full costs. In this respect, it must however also be observed, having regard to the findings set out in paragraphs 72 to 85 above in the context of the assessment of the plea alleging breach of the obligation to state reasons, that it is not possible for the Court of First Instance to ascertain whether the conditions inherent in the concept of State aid have been fulfilled in respect of the provision of logistical and commercial assistance to SFMI‑Chronopost, including the use of La Poste’s brand image.
179. In the light of the foregoing, the second part of the fourth plea must be upheld as regards the transfer of the Postadex service and must be rejected to the extent that it relates to the use of La Poste’s brand image.
4. The plea alleging manifest errors of assessment and errors of fact
General remarks
180. Concerning the third plea, alleging manifest errors of assessment and errors of fact, some of the complaints raised as part of that plea were dismissed by the judgment of the Court of First Instance and were not the subject of the appeal before the Court of Justice. They are, in particular, the complaints relating to advertising on Radio France, to the customs clearance procedure for dispatches of SFMI-Chronopost and to stamp duty (judgment of the Court of First Instance, paragraphs 95 to 124). As regards the remaining arguments, it follows from paragraphs 92 and 93 of the judgment of the Court of First Instance and the applicants’ pleadings that they are the same as the pleas already examined in that judgment. That is explicitly clear from the applicants’ written observations (paragraph 84). The only part of this plea seeking annulment which has not been dealt with is that relating to the alleged advantage which SFMI‑Chronopost derives from La Poste’s exemption from value added tax (VAT) and its liability to a reduced rate of payroll tax.
Arguments of the parties
181. The applicants’ arguments are essentially that La Poste was liable to a uniform rate of payroll tax of 4.25% whereas the other undertakings paid an average rate of 9.15%. According to the applicants, that advantage was passed on to SFMI‑Chronopost because, even if SFMI‑Chronopost had paid La Poste’s full costs, those costs were lower than those which a normal undertaking would have had to bear.
182. The applicants dispute the Commission’s assessment that the advantage derived by La Poste from its liability to a reduced rate of payroll tax is more than offset by the disadvantage as a result of the VAT which it pays on its purchases. La Poste is not automatically subject to payroll tax in the same way as all other undertakings which were exempt from VAT on at least 90% of their turnover. The applicants state that the standard rate of payroll tax is 4.25%, but that that rate increases to 8.50% for the portion of individual annual salaries between FRF 40 780 (EUR 6 216.87) and FRF 81 490 (EUR 12 423.07), and to 13.60% for the portion of those salaries exceeding FRF 81 490 (EUR 12 423.07). However, until 1 September 1994, La Poste benefited from the application of a uniform rate of 4.25% on payroll tax calculated solely on the basis of remuneration (to the exclusion of bonuses and benefits in kind). The advantage of that reduced rate compared with an average rate weighted at 9.15% (depending on the structure of the wage bill) is therefore obvious. In those circumstances, there is no compensation for the exemption from VAT, but, on the contrary, the application of the reduced rate results in a loss of revenue for the State.
183. The applicants also draw attention to the lack of comparability and the lack of a common method for measuring the tax situation of La Poste with respect to payroll tax and VAT. Payroll tax is based on the wage bill of the undertaking, whereas the taxable amount for VAT purposes is composed of supplies of goods and services. Nor are the standard rate of VAT of 20.6% and the rates of payroll tax of 4.25, 8.50 or 13.60% comparable. Thus, the applicants dispute the extent of the cost to La Poste on account of its exemption from VAT.
184. The applicants also submit that the offsetting of a tax benefit by tax costs incurred does not change the State aid nature of that benefit. The Commission’s request to the French authorities to abolish it shows that it is a tax benefit. The applicants also observe that in the present case the ‘additional cost’ of the exemption from VAT which La Poste enjoys is not connected with a public service mission in relation to SFMI‑Chronopost’s activities, which are open to competition.
185. The Commission observes, first, that La Poste’s tax regime is more onerous than that of its competitors. That argument is confirmed by the information sent by the French authorities which evaluates the non-recoverable VAT paid by La Poste at FRF 274 million (EUR 41 771 030.72) and its payroll tax at FRF 74 million (EUR 11 281 227.28) in 1993, thus resulting in a total tax burden of FRF 352 million (EUR 53 662 054.07) for La Poste. Its competitors, who are not subject to payroll tax and can deduct the VAT that they pay, have no such equivalent burden.
186. Second, the alleged commercial advantage derived from the fact that La Poste’s customers do not have to pay VAT on its services is illusory. The Commission claims that La Poste’s exemption from VAT offsets the advantage which it enjoys concerning payroll tax. According to the information provided by the French authorities, the largest part of La Poste’s turnover (83.4%) is achieved with customers accountable for VAT, and who could therefore deduct the VAT that they pay to competitors of La Poste, but not the payroll tax charged to La Poste’s prices. That part of the final cost is much more onerous than the obligation to advance a recoverable amount of VAT, which constitutes a commercial disadvantage for La Poste.
187. The French Republic states that, contrary to what the applicants claim when they assert that ‘the ordinary rate of payroll tax results from precise statistical simulations by the French Government which make it possible to achieve equilibrium …’, the rates of payroll tax and the corresponding thresholds at which those rates are applied were not determined with the aim of achieving equilibrium with undertakings accountable for VAT. It adds that it is not possible to bring about such a solution in practice in view of the very different mechanisms of those two taxes. Moreover, in order to maintain economic equilibrium, each change to the rate of VAT would bring about a corresponding change to the rate of payroll tax, which is unrealistic.
188. In addition, the French Republic adopts the Commission’s line of argument that La Poste enjoys no competitive advantage in terms of exemption from VAT. It observes that payroll tax amounts to a charge which is in part final (deductible from the corporation tax base), whereas VAT is entirely deductible (tax on tax) and, as the case may be, recoverable. It concludes that La Poste’s charges are thus increased by the payment of payroll tax and by the fact that it is not entitled to deduct VAT paid on expenses.
Findings of the Court
189. The applicants assert in essence that even if it were sufficient to take into account only the full costs incurred by La Poste for the provision of logistical and commercial assistance to SFMI‑Chronopost, which they dispute, those costs are lower than those which a private undertaking would have borne, since La Poste is able to provide the same services at a lower cost, it being exempt from VAT and subject to a lower rate of payroll tax.
190. In this connection, it is sufficient to note that the Court of Justice requires only that the costs of a public undertaking be reimbursed by its subsidiary. Thus, the Court of Justice does not make any distinction as to whether those costs are less than the costs of an undertaking acting under normal market conditions. Consequently, in the light of the judgment on appeal, even if part of La Poste’s costs were subsidised by the tax measures of which the applicants complain, the examination of the existence of State aid is unaffected, given that, according to the Court of Justice, it is sufficient that the costs incurred in providing the logistical and commercial assistance were covered.
191. It follows that the third plea must be dismissed in so far as it alleges that SFMI‑Chronopost enjoyed an indirect advantage as a result of La Poste’s alleged tax advantages.
Costs
192. In the judgment of the Court of First Instance, the Commission was ordered to bear its own costs and 90% of the applicants’ costs. The interveners were ordered to bear their own costs.
193. In the judgment on appeal, the Court of Justice reserved the costs. It is therefore for the Court of First Instance to determine, in the present judgment, all the costs relating to the various proceedings, in accordance with Article 121 of the Rules of Procedure.
194. Under Article 87(3) of the Rules of Procedure, the Court of First Instance may order that the costs be shared or that each party bear its own costs where each party succeeds on some and fails on other heads. In the present case, the applicants’ form of order was granted for the most part in the proceedings following referral of the case back to this Court.
195. The Court considers it fair, having regard to the circumstances of the case, to order the Commission to bear its own costs and 75% of the applicants’ costs, apart from those caused by the interventions, before the Court of First Instance and the Court of Justice. The applicants shall bear the remainder of their own costs before the Court of First Instance and the Court of Justice.
196. The French Republic, Chronopost and La Poste, which intervened in the proceedings, shall bear their own costs before the Court of First Instance and the Court of Justice, pursuant to the first and third subparagraphs of Article 87(4) of the Rules of Procedure.
Operative part
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber, Extended Composition)
hereby:
1. Annuls Commission Decision 98/365/EC of 1 October 1997 concerning alleged State aid granted by France to SFMI‑Chronopost in so far as that decision finds that neither the logistical and commercial assistance provided by La Poste to its subsidiary, SFMI-Chronopost, nor the transfer of Postadex constitute State aid to SFMI-Chronopost;
2. Orders the Commission to bear its own costs and 75% of the applicants’ costs, apart from those caused by the interventions, before the Court of First Instance and the Court of Justice;
3. Orders the applicants to bear the remainder of their own costs before the Court of First Instance and the Court of Justice;
4. Orders the French Republic, Chronopost SA and La Poste to bear their own costs before the Court of First Instance and the Court of Justice.