62023CC0632
OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 27 March 2025 (
1
)
Case C‑632/23
European Commission
v
Republic of Bulgaria
(Failure of a Member State to fulfil obligations – State aid – Aid declared unlawful and incompatible with the internal market – Second subparagraph of Article 108(2) TFEU – Decision (EU) 2015/456 – State aid granted during swaps of forest land – Obligation of recovery – Duty to provide information – Failure to implement within the prescribed period – Appointment of an independent expert for the purposes of determining the amounts of aid to be recovered – Lack of independence of that expert)
I. Introduction
1.
By the present action for failure to fulfil obligations, brought under the second subparagraph of Article 108(2) TFEU, the European Commission requests that the Court declare that, by failing to adopt within the prescribed period all the measures necessary to implement Decision (EU) 2015/456 on the aid scheme implemented by the Republic of Bulgaria in the context of swaps of forest land, (
2
) the Republic of Bulgaria has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Articles 4 to 6 of that decision.
2.
More specifically, the Commission complains that the Republic of Bulgaria failed to take, within the period of 12 months following the date of notification of Decision 2015/456, namely before 5 September 2015, all the measures necessary in order, first, to recover all the State aid granted to undertakings in the context of the swap of publicly owned forest land in return for privately owned forest land in the period from 1 January 2007 to 27 January 2009, which was declared unlawful and incompatible with the internal market by that decision and, secondly, to fulfil its obligations to provide information to the Commission.
3.
In support of its action, the Commission puts forward three partially overlapping complaints, alleging, first, the failure to implement Decision 2015/456 within the period prescribed, secondly, a very limited recovery of the State aid concerned and, thirdly, the lack of circumstances establishing that it was absolutely impossible to implement that decision.
4.
As requested by the Court, this Opinion shall focus on the analysis of the first part of the Commission’s second complaint, which consists, in essence, of three arguments against the Republic of Bulgaria, alleging, first, that that Member State made an unjustified choice to use an independent expert to evaluate the market prices of the swapped plots for the purposes of determining the amounts of aid to be recovered in accordance with recital 176 of Decision 2015/456, secondly, the lack of independence of the appointed expert and, thirdly, breach of the duty of sincere cooperation on account of failure to disclose to the Commission the information that the appointed expert was a public undertaking.
II. Legal framework
A.
Regulation (EC) No 659/1999
5.
Regulation (EC) No 659/1999 laying down detailed rules for the application of Article [108 TFEU], (
3
) which was replaced by Regulation (EU) 2015/1589, (
4
) remains applicable to the present dispute given the date of the facts of the case.
6.
Recital 13 of Regulation No 659/1999 stated:
‘Whereas in cases of unlawful aid which is not compatible with the common market, effective competition should be restored; whereas for this purpose it is necessary that the aid, including interest, be recovered without delay; whereas it is appropriate that recovery be effected in accordance with the procedures of national law; whereas the application of those procedures should not, by preventing the immediate and effective execution of the Commission decision, impede the restoration of effective competition; whereas to achieve this result, Member States should take all necessary measures ensuring the effectiveness of the Commission decision.’
7.
Article 14 of that regulation, entitled ‘Recovery of aid’, provided, in paragraph 3:
‘Without prejudice to any order of the Court … pursuant to Article [278 TFEU], recovery shall be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of the Commission’s decision. To this effect and in the event of a procedure before national courts, the Member States concerned shall take all necessary steps which are available in their respective legal systems, including provisional measures, without prejudice to [EU] law.’
8.
Article 23 of that regulation, entitled ‘Non-compliance with decisions and judgments’, provided, in paragraph 1:
‘Where the Member State concerned does not comply with conditional or negative decisions, in particular in cases referred to in Article 14, the Commission may refer the matter to the Court … direct in accordance with Article [108(2) TFEU].’
B.
Decision 2015/456
9.
In accordance with recitals 44, 118 to 121, 146 and 172 to 177 of Decision 2015/456:
‘(44)
The Commission also set out its preliminary view in the opening decision on how the advantage arising from the contested swap transactions should be quantified, should those swaps be found to give rise to State aid:
(i)
the difference between the real market price of privately owned forest plot 1 and the administrative price for plot 1, determined in line with the prescriptions of the Regulation on basic prices,
(ii)
the difference between the real market price of publicly owned forest plot 2 and the administrative price for plot 2, determined in line with the prescriptions of the Regulation on basic prices.
The State aid amount involved in the swap transactions would then be equal to the value of (ii) less the value of (i).
Any monetary compensation resulting from the difference in the administrative prices of two plots being the object of the swap transaction paid by one party to another shall also be taken into account while calculating the potential State aid element involved in the transaction.
…
(118)
In subsequent submissions, in response to requests for information, the Bulgarian authorities provided market prices – both for the privately owned and publicly owned forest land – for all the swap transactions carried out during the period under review …
(119)
In their submission of 19 November 2013 …, however, the Bulgarian authorities indicated that there were some problems regarding the reliability of data they provided. In particular, for the purposes of the formula provided in recital 44, the Bulgarian authorities provided fair market prices for 82 … plots concerned by the contested swap transactions. For the remaining plots, they provided the market values on a best-effort basis, indicating that they might not necessarily represent fair market values. For the remaining publicly owned plots concerned, the Bulgarian authorities explained that the prices they quoted as market prices were actually the mean of prices for various types of forest transactions. Hence they do not necessarily represent a fair market value, because they are not equal to average prices of fully analogous transactions.
(120)
Similarly, for the remaining privately owned plots that were not yet the subject of an evaluation by an independent expert, the Bulgarian authorities indicated that in certain cases the prices quoted in sales certificates, which were used by the authorities as a proxy for the provided market values of these plots, were close or equal to the so-called tax values. The tax value of a plot is not its market value, but the minimum price that has to be paid in real estate transactions, i.e. the market value of the plot concerned would in principle be higher.
(121)
Notwithstanding the foregoing, the Bulgarian authorities stressed that the data they provided on market prices are the best estimates they can obtain, as: (i) there are no specific rules in Bulgaria for determining market prices for forest plots through valuation; (ii) it would take a lot of time to carry out a valuation, by an independent expert valuator, about what the market prices of the plots concerned would have been at the time of the swap; and (iii) such an evaluation would be a very costly process. Additionally, the Bulgarian authorities stated that the prices provided are anyway closer to fair market prices than they would be to the administrative prices.
…
(146)
The Bulgarian authorities indicated some problems with the reliability of the data they could provide on market prices … At the same time, however, they indicated that the information provided contains best estimates of market prices … The Commission considers those data to be sufficiently reliable estimates of the real (i.e. “fair”) market value of the plots concerned.
…
(172)
The Commission is not legally required to fix the exact amount to be recovered, especially where it lacks the necessary data to do so. Instead, it is sufficient for the Commission’s decision to include information enabling the Member State to determine the recoverable amount without overmuch difficulty …
(173)
… the Commission considers that the following methodology should be used as a starting point by the Member State to determine the amount of incompatible aid to be recovered from each beneficiary:
(i)
determine the difference between the real market price of the privately owned plot of forest land and the administrative price for that plot, determined in line with the prescriptions of the Regulation on basic prices; and
(ii)
determine the difference between the real market price of the publicly owned plot of forest land and the administrative price for that plot, determined in line with the prescriptions of the Regulation on basic prices.
The initial amount of State aid received as a result of the swap transaction is equal to the value of (ii) less the value of (i).
A correction to this initial amount should be made for those cases where a publicly owned plot of land of a superior administrative value was swapped with a privately owned plot of land of an inferior administrative value. According to the Bulgarian authorities, in those cases the beneficiary had to pay compensation to the State to cover the difference in value between the plots in those cases. Consequently, the initial amount of aid should be decreased by the amount of compensation paid by the beneficiary to the Bulgarian authorities. The resulting amount should then be recovered by the Bulgarian authorities from that beneficiary to account for the advantage obtained as a result of the swap transaction.
(174)
For the determination of the market prices of [the] plots concerned, the economic value of that land at the moment of the swap should be fully reflected. …
(175)
The Commission notes that the information on the administrative prices used in the swap transactions as well as the market prices of all plots concerned by those transactions at the moment of the swaps are already in the possession of the Bulgarian authorities …, so that the Bulgarian authorities should not encounter overmuch difficulty in determining the recoverable amounts on the basis of the methodology described in recital 173 …
(176)
However, in cases where the Bulgarian authorities can raise legitimate concerns that that methodology cannot be implemented or leads to an amount that manifestly does not adequately reflect the amount of State aid received by the beneficiary, it may decide to carry out an evaluation of the market prices of the swapped plots at the time of the transaction by using an independent expert, qualified to perform such valuations, and chosen through an open public tender procedure. When establishing the procedure for choosing that expert, even in cases where the contract does not exceed the thresholds of the Union public procurement directives, the principles of transparency and equal treatment should be respected. In particular, the tender procedure should be: (i) adequately advertised; (ii) based on objective selection criteria known in advance; and (iii) include the information that, after the pre-selection stage, the final decision will be taken under the participation of representatives of the Commission’s services. In those exceptional cases, the Bulgarian authorities must: (i) indicate the plot(s) concerned; (ii) indicate the justification for the need of an independent expert evaluation in that particular case; and (iii) submit to the Commission a proposal for an independent expert (selected by public tender) to be agreed on by both the Commission and the Republic of Bulgaria.
(177)
Finally, since the purpose of recovery is to restore the status quo ante as existed prior to [the] date on which the swap transaction was carried out, the Commission considers that, in light of the exceptional nature of swap agreements in relation to forest land that has not been commercially exploited, the Republic of Bulgaria would comply with its obligation to recover the unlawfully implemented aid by undoing the contested swap transactions by swapping back the plots concerned. …’
10.
Articles 1 and 4 to 6 of the operative part of that decision read as follows:
‘Article 1
The State aid, granted to undertakings in the context of swap transactions of publicly owned forest land in return for privately owned forest land in the period from 1 January 2007 until 27 January 2009, unlawfully put into effect by the Republic of Bulgaria in breach of Article 108(3) [TFEU], is incompatible with the internal market.
…
Article 4
1.   The Republic of Bulgaria shall recover the incompatible aid granted under the swap transactions referred to in Article 1 from the beneficiaries.
2.   By way of derogation from paragraph 1, the incompatible aid may be recovered from the beneficiaries by undoing the swap transactions, in cases where no material alterations have been made to both the publicly owned and privately owned forest land concerned by the transaction since the date of that transaction.
…
Article 5
1.   Recovery of the aid granted under the scheme referred to in Article 1 shall be immediate and effective.
2.   The Republic of Bulgaria shall ensure that this Decision is fully implemented within 12 months following the date of notification of this Decision.
Article 6
…
3. Within 12 months following notification of this Decision, the Republic of Bulgaria shall submit documents demonstrating that the aid has fully been recovered from the beneficiaries concerned.
4. The Republic of Bulgaria shall keep the Commission informed of the progress of the national measures taken to implement this Decision until the recovery of the aid granted under the swap transactions referred to in Article 1 has been completed by submitting reports on a two-monthly basis. It shall immediately submit, on simple request by the Commission, information on the measures already taken and planned to comply with this Decision. It shall also provide detailed information concerning the amounts of aid and recovery interest already recovered from the beneficiaries.’
III. The background to the dispute and the pre-litigation procedure
A.
Factual background
11.
In 1947, forest land in the Republic of Bulgaria was nationalised. After 2000, the Republic of Bulgaria began to return that land to its former private owners. It is apparent from the documents before the Court that, following an amendment to the Law on Forests, (
5
) which entered into force on 22 February 2002, swaps of privatised forest land with publicly owned forest land from the State forest fund were made possible. The prices of the land swapped were determined on the basis of criteria laid down in Bulgarian legislation which entered into force on 18 November 2003. (
6
)
12.
Since a ban on swaps of forest land came into force on 27 January 2009, the period under review for the disputed swap transactions was from 1 January 2007 (that is to say the date of the Republic of Bulgaria’s accession to the European Union) until 27 January 2009. (
7
)
13.
Following a complaint lodged in 2008 alleging unlawful State aid in connection with land swaps, the Commission notified the Republic of Bulgaria by letter of 29 June 2011 of its decision to initiate the formal investigation procedure laid down in Article 108(2) TFEU in respect of the contested swap transactions.
14.
By Decision 2015/456, the Commission found that the Republic of Bulgaria had failed to fulfil its obligation under Article 108(3) TFEU by granting State aid that was unlawful and incompatible with the internal market to undertakings in the context of the swap of at least two plots of publicly owned forest land in return for privately owned forest land in the period from 1 January 2007 until 27 January 2009, which concerned a total of 132 swap transactions.
15.
In that regard, the Commission took the view that the swap transactions carried out by the Republic of Bulgaria during the period under review constituted State aid within the meaning of Article 107(1) TFEU where the persons involved in the swaps were undertakings, within the meaning of that provision, and the value of the forest land in that Member State did not reflect the market value, (
8
) provided that it was not de minimis aid within the meaning of Regulation (EU) No 1407/2013. (
9
)
16.
On 5 November 2014, the Republic of Bulgaria decided not to bring an action for annulment of Decision 2015/456.
B.
Pre-litigation procedure
17.
Following the adoption of Decision 2015/456, the Bulgarian authorities and the Commission’s services exchanged extensive correspondence concerning its implementation. For the purposes of this targeted Opinion, the following discussion will focus exclusively on the correspondence relating to the appointment of the independent expert.
18.
On 7 October 2014, at their first meeting with the Commission’s services after the adoption of Decision 2015/456, the Bulgarian authorities informed that institution that they had decided to recover the incompatible aid but without making use of the possibility provided for in Article 4(2) of the operative part and recital 177 of Decision 2015/456, namely undoing the swap transactions in cases where no material alterations have been made to the forest land concerned by the transaction since the date of that transaction. By contrast, they undertook to recover the aid in all cases where the amount exceeded the de minimis ceiling. To that end, the Bulgarian authorities stated that they would carry out an evaluation of the market prices of the swapped land, with the assistance of an independent expert, in accordance with recital 176 of that decision. At that meeting, the Commission did not object to the Bulgarian authorities’ choice to use that independent expert.
19.
By email of 17 October 2014, the Bulgarian authorities sent the Commission a list identifying 78 forest land swap transactions which fell under the de minimis rules.
20.
By email of 22 October 2014, the Commission’s services informed the Bulgarian authorities that that list had been ‘drawn up correctly’.
21.
On 26 November 2014, the Bulgarian Ministry of Agriculture, Food and Forestry approved the list of swap transactions that exceeded the de minimis ceiling and for which it was necessary to carry out an independent expert evaluation of the market prices of the forest plots at the time of the swap.
22.
The tendering procedure for the selection of the independent expert took place from 2014 to 2017, during which numerous calls for tenders were launched, since certain procedural difficulties prevented the first calls for tenders from being successful. (
10
)
23.
By letter of 16 October 2017, the Bulgarian authorities informed the Commission of the outcome of the final tendering procedure, stating that the expert selected was Agrolesproekt EOOD and that it would perform the contract by using two qualified experts who were registered with the Bulgarian Chamber of Independent Appraisers and who were authorised to value plots of land in forest areas. In addition, that letter stated that, in accordance with the requirements imposed on tenderers in the tender documentation, a declaration had been made in respect of the two valuers, stating, inter alia, that they had not participated in the composition of the committees confirming the evaluation reports for the period from 1 January 2007 until 27 January 2009, covered by Decision 2015/456. (
11
) That letter contained no information on the ownership structure of Agrolesproekt and, in particular, on the fact that it was wholly owned by the Bulgarian State.
24.
By letter of 26 October 2017, the Commission informed the Republic of Bulgaria, first, that it had taken note of the selection of Agrolesproekt and of the fact that the contract would be implemented by the two experts, and, secondly, that, on the basis of the information available, the proposed selection satisfied the criteria for the use of independent and sufficiently qualified experts who had not previously participated in the swap transactions covered by Decision 2015/456. Next, it requested that the Bulgarian authorities provide it with the evaluation reports as soon as the experts had completed them.
25.
On 7 November 2017, the Bulgarian authorities and Agrolesproekt signed a contract for the provision of the service of calculating the market price of the land swapped.
26.
By letter of 8 June 2018, in response to the letter of 26 October 2017, the Republic of Bulgaria informed the Commission that Agrolesproekt had drawn up a report on the work carried out, which had been submitted to the contracting authority, which had approved it, following the assessment of the Executive Forest Agency’s Board of Experts, which had unanimously found that the evaluation reports had been drawn up in accordance with the technical specifications of the contract and the methodology laid down in the tender specifications.
27.
By letter of 29 June 2018, the Commission asked the Republic of Bulgaria to provide it with information concerning the performance of the task of valuing forest properties.
28.
By letter of 4 September 2018, the Bulgarian authorities submitted their reports on the evaluation of the market prices of the swapped land. On the basis of those reports, a positive amount of aid was found in respect of 103 of the 132 swap transactions concerned by Decision 2015/456. (
12
)
29.
By letter of 22 October 2018, in response to the letter of 4 September 2018, the Commission informed the Bulgarian authorities that it had taken note of the information provided and confirmed the conclusion that an advantage had been identified with regard to the beneficiaries who had been parties to the 103 swap transactions (out of a total of 132).
30.
In November 2018, according to the Commission, the Bulgarian authorities stated that the amounts to be recovered amounted to approximately EUR 40 million.
31.
In 2020, the Commission received a complaint alleging that the amount to be recovered amounted to more than EUR 500 million and expressing doubts as to the method for calculating the aid that was applied by those authorities in the context of the recovery.
32.
By letter of 15 May 2020, the Commission, in the light of those doubts, asked the Republic of Bulgaria for a number of clarifications concerning Agrolesproekt’s activities, in particular its ownership structure, the application of the criterion of the independence of the expert in the tendering procedure and the remuneration of the two experts Agrolesproekt had used. (
13
)
33.
By letter of 10 July 2020, the Republic of Bulgaria replied, explaining that Agrolesproekt was a company wholly owned by the Bulgarian State whose main activity consisted of providing services related to forestry and logging, and that the management functions were carried out by the Minister for Agriculture, Food and Forestry.
34.
By letter of 22 September 2020, the Commission, taking the view that the information provided by the Bulgarian authorities did not dispel the serious doubts expressed as to whether the recovery decision had been implemented fully, (
14
) asked those authorities to re-examine all of the individual evaluation reports drawn up by Agrolesproekt in order to determine the market prices according to the correct method and calculate without delay the correct amounts of State aid to be recovered.
35.
By letter of 2 November 2020, those authorities informed the Commission that numerous actions had been brought before the national courts against the recovery orders issued and that there was no legal or legislative mechanism for reopening or terminating ongoing court proceedings.
36.
By letter of 19 April 2021, the Commission informed the Bulgarian authorities that the fact that Agrolesproekt was a ‘public undertaking’, within the meaning of Article 2(b) of Directive 2006/111/EC, (
15
) prevented it from carrying out an evaluation of the market prices of the swapped plots at the time of the transaction. Therefore, according to the Commission, the expert report produced by Agrolesproekt, on which the Bulgarian authorities had based the measures taken to implement the State aid recovery decision, could not be relied on for the implementation of Decision 2015/456. Consequently, the Commission asked those authorities to examine the possibility of launching a new public procurement procedure to appoint an independent expert, in accordance with recital 176 of that decision. (
16
)
37.
By letter of 11 May 2021, the Bulgarian authorities replied to that letter by defending the choice to use Agrolesproekt as the expert, emphasising, inter alia, that that choice had been made by means of a public procedure that was sufficiently transparent, competitive, open and unconditional, in accordance with recital 176 of that decision, and on the basis of the criterion of the lowest tender. In addition, they stated that that undertaking did not receive funding for its activities from the State budget, municipalities or other authorising administrations, its income coming from its main activity, namely the production of forestry plans and inventories of forest areas under contracts concluded following participation in open procedures under the Zakon za obshtestvenite porachki (Law on public procurement). (
17
) Lastly, numerous proceedings challenging the amount of aid to be recovered are pending before the national courts and, in some of those proceedings, legal experts have determined a market price similar to or lower than that established by that undertaking.
38.
By letter of 20 June 2022, the Commission requested further information regarding the independence of Agrolesproekt. The Commission stressed the need for transparency in the following areas: (a) the undertaking’s main activity, the services offered and a list of its main customers; (b) its commercial policy and decision-making procedures; (c) the other entities or interested entities controlling or influencing the activity of that undertaking; and (d) detailed sources of income and the proportion of public financing or contracts awarded by the State in the turnover of that undertaking, as well as the audited accounts for the period 2017 to 2021.
39.
By letter of 12 July 2022, the Republic of Bulgaria reiterated the comments made in its letter of 11 May 2021, while stating that, out of a total of 102 cases in which the grant of State aid had been identified, 66 sets of court proceedings had so far been initiated concerning the recovery of that aid and that, in 10 cases, the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria) had annulled the contested recovery orders. The Bulgarian authorities stated that they had sent 21 recovery orders, 10 of which had been paid and 5 of which gave rise to the undoing of the swap transaction.
40.
In the context of an action brought against such an order for the recovery of aid in the context of a land swap, questions were referred by the Administrativen sad Varna (Administrative Court, Varna, Bulgaria) to the Court for a preliminary ruling on the interpretation of the concept of ‘undertaking’ within the meaning of Article 107 TFEU and on the method of calculating the market price of the land swapped. (
18
)
41.
In those circumstances, the Commission decided to bring the present action.
IV. Procedure before the Court and forms of order sought
42.
The Commission requests that the Court declare that, by failing to adopt within the prescribed period all the measures necessary to recover from the beneficiaries of the State aid declared unlawful and incompatible with the internal market by Decision 2015/456, the Republic of Bulgaria has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Articles 4 to 6 of that decision, and order that Member State to pay the costs.
43.
The Republic of Bulgaria contends that the action should be dismissed in its entirety as unfounded and that the Commission should be ordered to pay the costs.
44.
The parties presented oral argument and answered the questions put by the Court at the hearing on 8 January 2025.
V. Analysis
45.
In support of its action, the Commission puts forward three partially overlapping complaints, alleging, first, the failure to implement Decision 2015/456 within the period prescribed, secondly, a very limited recovery of the State aid concerned and, thirdly, the lack of circumstances establishing that it was absolutely impossible to implement that decision.
46.
The second complaint consists of two parts which concern, respectively, the two main causes which, according to the Commission, prevented the effective implementation of Decision 2015/456, namely, first, the unjustified appointment of an expert to determine the amount of aid to be recovered which did not satisfy the requirements of independence laid down in recital 176 of that decision and, secondly, the application, by that expert, of an erroneous calculation method which did not reflect the real market price.
47.
In accordance with the Court’s request, this Opinion will focus on the first part of the second complaint, (
19
) which consists, in essence, of three arguments raised by the Commission alleging, first, that the Republic of Bulgaria made an unjustified choice to use an independent expert (B), secondly, the lack of independence of the appointed expert (C) and, thirdly, breach of the duty of sincere cooperation on account of failure to disclose to the Commission the information that the appointed expert was a public undertaking (D). (
20
) However, in order to gain a better understanding of those different arguments, I consider it useful briefly to recall the principles relating to the obligation to recover State aid that has been declared unlawful (A).
A.
The obligation to recover unlawful aid
48.
First of all, as the Court has repeatedly held, the recovery of unlawful aid is the logical consequence of a finding that it is unlawful. The Member State to which a decision requiring recovery of unlawful aid is addressed is therefore obliged under Article 288 TFEU to take all measures necessary to ensure implementation of that decision. It must succeed in actually recovering the sums owed in order to eliminate the distortion of competition caused by the advantage procured by that aid in terms of competition. (
21
)
49.
Next, under Article 14(3) of Regulation No 659/1999, (
22
) which was applicable at the time when Decision 2015/456 was adopted, the recovery of aid declared unlawful and incompatible with the internal market by a decision of the Commission must, as is also apparent from recital 13 of that regulation, be effected ‘without delay and in accordance with the procedures under the national law of the Member State concerned’, provided that they allow the immediate and effective execution of that decision, a condition which reflects the requirements of the principle of effectiveness. (
23
)
50.
Thus, recovery must be effected without delay and, more specifically, within the period provided for by the Commission decision, adopted under Article 108(2) TFEU, ordering the recovery of State aid or, where appropriate, within the period subsequently prescribed by the Commission. Recovery out of time, after the period prescribed, cannot satisfy the requirements of the FEU Treaty. (
24
)
51.
Lastly, in that regard, the Court has consistently held that, with the exception of cases in which a recovery decision has been annulled pursuant to Article 263 TFEU, the only defence available to a Member State in opposing an action for failure to fulfil obligations brought by the Commission under Article 108(2) TFEU is to plead that it was absolutely impossible for it to implement the decision of which it was an addressee. (
25
) That situation is however the subject of a restrictive analysis. The condition that it be absolutely impossible to implement a decision is not fulfilled where the defendant Member State merely informs the Commission of the legal, political or practical difficulties involved in implementing the decision, without taking any real steps to recover the aid from the undertakings concerned, and without proposing to the Commission any alternative arrangements for implementing the decision which could have enabled those difficulties to be overcome. (
26
)
52.
It is in the light of those principles that the present action for failure to fulfil obligations must be examined, in order to ascertain whether, first, the Republic of Bulgaria duly ensured recovery of the aid within the period prescribed by Decision 2015/456 (first and second complaints) and, secondly, if not, whether that Member State may legitimately rely on reasons amounting to an absolute impossibility to implement that decision (third complaint). (
27
)
B.
The choice to use an independent expert
53.
By its first argument developed in the context of the first part of the second complaint, the Commission criticises the Republic of Bulgaria for having decided to have recourse to an independent expert to carry out an evaluation of the market prices of the swapped plots for the purposes of determining the amounts of State aid to be recovered, whereas, as is apparent from recitals 146 and 175 of Decision 2015/456, at the time of the adoption of that decision, the Bulgarian authorities already had, inter alia, the market prices at the time of the swaps of all of the land concerned by the transactions. According to the Commission, that fact should have enabled the exact amount of aid to be recovered to be determined in accordance with the methodology described in recital 173 of that decision, without having to appoint an expert. In accordance with recital 176 of that decision, the possibility of recourse to an independent expert was provided for only if the methodology described in recital 173 thereof could not be implemented or would have led to an amount that does not adequately reflect the amount of State aid received by the beneficiary. Neither of those two grounds justifying recourse to an independent expert arose in the present case. Accordingly, the Bulgarian authorities’ decision to recalculate the market prices in respect of all of the 132 swap transactions covered by Decision 2015/456 by using an independent expert led to a considerable additional delay and unjustifiably complicated the recovery process.
54.
The Republic of Bulgaria submits that the conditions for the application of recital 176 of Decision 2015/456 were met since the market values used to establish the aid in the context of the adoption of that decision did not necessarily reflect the fair market values of the forest plots concerned. The Bulgarian authorities state that they indicated, as early as the administrative phase, that there were ‘some problems’ regarding the reliability of data they provided, as was acknowledged by the Commission itself in recital 119 of that decision, those values being determined, inter alia, on the basis of unreliable tax estimates.
55.
For the following reasons, in my view, the Commission cannot criticise the Republic of Bulgaria for having used an independent expert.
56.
In the first place, I would point out that the possibility of establishing the calculation method on the basis of an independent expert report was expressly provided for in Decision 2015/456 itself. Recital 176 of that decision provided for recourse to an independent expert ‘in cases where the Bulgarian authorities can raise legitimate concerns that [the methodology described in recital 173] cannot be implemented or leads to an amount that manifestly does not adequately reflect the amount of State aid received by the beneficiary’. (
28
) The fact that that possibility is expressly provided for in that decision necessarily implies that the Commission was aware of the fact that, at the time the decision was adopted, there was a possibility that the aid could not be recovered almost automatically on the basis of the market price values of the land that had been communicated during the administrative procedure. Moreover, the Commission acknowledged in its written observations that, in practice, determining the market value of a plot of land may present certain difficulties, which may be exacerbated due to the small number of comparable transactions, and that there are a priori several possible methods for determining the market value of a plot of land.
57.
In the second place, the unreliability of the market prices of the forest plots communicated by the Bulgarian authorities had been duly noted by those authorities, well before the adoption of Decision 2015/456, as early as the administrative stage, in their observations of 19 November 2013, and, in response to a request for information, in the form of a table sent by email on 21 January 2014. This was expressly stated by the Commission in recital 119 of that decision. As the Republic of Bulgaria explained in its written observations, that unreliability was due, inter alia, to the lack of a sufficient number of similar transactions on the restricted market of land located in forest areas, and to the specific national feature that the vast majority of the notarial deeds used by the Bulgarian authorities reflected the tax assessments of assets which did not sufficiently represent the real market price. In addition to those difficulties identified, as is apparent from recital 121 of that decision, the Bulgarian authorities stressed that the data they provided on market prices were ‘the best estimates they can obtain’, (
29
) given that: ‘(i) there are no specific rules in Bulgaria for determining market prices for forest plots through valuation; (ii) it would take a lot of time to carry out a valuation, by an independent expert valuator, about what the market prices of the plots concerned would have been at the time of the swap; and (iii) such an evaluation would be a very costly process’. Accordingly, the Commission could not have been unaware of the fact that the prices communicated were ‘estimates’, nor could it have peremptorily asserted that, at the time of the adoption of that decision, those authorities had all the data necessary to determine the amount of the aid to be recovered.
58.
In the third place, having regard to the foregoing, I note that the use of an independent expert with specialist qualifications was both permitted and necessary in order to remedy the unreliability of the data initially communicated by the Republic of Bulgaria to the Commission. As that Member State points out, without precisely establishing the market prices of the land, it would have been impossible to apply adequately the methodology to which the Commission refers in recital 173 of Decision 2015/456, since the market price of the land was an integral part of the mathematical equation referred to in that recital.
59.
In the fourth and last place, that understanding also appears to be the Commission’s initial approach. As the Commission confirmed at the hearing, it accepted the Bulgarian authorities’ choice to use an expert during their meeting on 7 October 2014, namely the first meeting with those authorities after the adoption of Decision 2015/456. (
30
) By accepting that choice, the Commission also implicitly accepted the practical consequences arising from it. It had to have been fully aware that such a choice would necessarily have led to a slowdown in the procedure for recovering the aid, in particular since, in accordance with recital 176 of that decision, the expert had to be appointed by means of a tender procedure. If the Commission was of the opinion that there was no reason to have recourse to the methodology provided for in that recital, it should have objected to it from the outset, in particular at the first meeting referred to above, and not 10 years later, in an action for failure to fulfil obligations. Moreover, as is clear from points 18 to 29 of this Opinion, all of the measures taken by the Republic of Bulgaria between the adoption of Decision 2015/456 and the production of the independent expert’s report were in consultation with the Commission’s services, which never raised any objections, at least in writing, to the initial decision to use that expert. As is clear from point 29 of this Opinion, even after completion of the work carried out by that expert and the transmission of the evaluation reports covering all 132 swap transactions, the Commission did not raise any objections or make any proposals for new or additional measures in relation to the valuation of the land.
60.
It follows from the foregoing that, in my view, the Commission’s first argument put forward in the context of the first part of the second complaint must be rejected as unfounded.
C.
The lack of independence of the appointed expert
61.
By its second argument raised in the context of the first part of the second complaint, the Commission submits that the expert appointed by the Republic of Bulgaria, namely an undertaking which, at the time of its selection, was wholly owned by the Bulgarian State and which was under the control of the same authority as that which had initially granted the aid at issue, namely the Ministry of Agriculture, Food and Forestry, did not satisfy the requirements of independence laid down in recital 176 of Decision 2015/456. More specifically, following the request for information of 20 June 2022, (
31
) and on the basis of the responses provided by the Republic of Bulgaria on 12 July 2022, (
32
) the Commission took the view that there was clearly a lack of functional and economic independence between Agrolesproekt and that ministry which vitiated the procedure for recovery of the aid and, therefore, the effective implementation of its decision.
62.
First, as regards functional independence, the Commission claims that Agrolesproekt’s articles of association, activity reports and annual accounts indicate, in essence, that the rights of the Bulgarian State, as the sole owner of the capital of that undertaking, were exercised by the Minister for Agriculture, Food and Forestry, and that there was therefore a direct relationship of subordination between that undertaking and the public entity which granted the aid. (
33
) At the hearing, the Commission stated that that organic link constitutes a problem for objective independence, since Agrolesproekt had to be regarded as acting under the supervision of the Bulgarian State and as an emanation of the aid provider. In that respect, in the Commission’s view, the conflict of interest is obvious, since Agrolesproekt’s management functions are carried out by a State authority which has infringed EU law; it would thus be ‘futile to deny the influence of that authority on the undertaking’s decision-making process’. Secondly, as regards economic independence, also according to the Commission, a number of factors support the lack of economic independence of that undertaking, such as, inter alia, the fact that its activity depended entirely on public funding, since all of the contracts performed by Agrolesproekt were awarded through public sector tendering procedures. Moreover, the Republic of Bulgaria has not provided details as to the identity of the various contracting entities in the public sector.
63.
The Republic of Bulgaria contests that argument, submitting, in essence, that the fact that Agrolesproekt was a public entity was not capable of affecting its independence in the task entrusted to it, since, in particular, in order to evaluate the market prices of the swapped plots and to determine the amounts of aid to be recovered, that undertaking had called on two experts who were registered with the Bulgarian Chamber of Independent Appraisers and authorised to value plots of land in forest areas, and whose independence could not be called into question.
64.
In that regard, it should be pointed out at the outset that Decision 2015/456, and in particular recital 176 thereof merely (i) states that the Bulgarian authorities could carry out the evaluation of the market prices of the plots covered by that decision ‘by using an independent expert, qualified to perform such valuations, and chosen through an open public tender procedure’ and (ii) sets out the various stages of the procedure for the selection of that expert. While that provision provides that the expert must be ‘independent’, ‘qualified’ and ‘chosen through an open public tender procedure’, it does not, however, contain any express indication as to the legal status or ownership of that expert and, in particular, the fact that he or she could not be a public undertaking.
65.
Accordingly, it must be ascertained whether, despite the absence of any such indication in Decision 2015/456, the Bulgarian authorities were nevertheless supposed to know that the appointment of a public entity as an expert was, in itself, incompatible with the requirement for the expert to be independent.
66.
For the following reasons, I am of the opinion that that was not the case here.
67.
In the first place, I would point out that such a principle, according to which public entities must be excluded from tenders concerning expert tasks, is not apparent either from the EU rules on public procurement, or from the more specific legislation on State aid.
68.
First, as regards the rules on public procurement, it follows from Article 2(1)(10) of Directive 2014/24/EU, (
34
) read in conjunction with recital 14 thereof, that ‘economic operator’ must be interpreted broadly so as to include not only natural or legal persons, but also any public entity which, inter alia, offers the relevant provision of services on the market, irrespective of the legal form under which it has chosen to operate. Accordingly, the Court has held that the fact that an economic operator may enjoy an unfair advantage because it receives public finance or State aid cannot justify, a priori and without further consideration, exclusion from a public tendering procedure. (
35
) The Court has held that one of the primary objectives of EU rules on public procurement is to attain the widest possible opening-up to competition and that it is the concern of EU law to ensure the widest possible participation by tenderers in a call for tenders not only from the point of view of the interest in the free movement of goods and services but also the interest of the contracting authority concerned itself, which will thus have greater choice as to the most advantageous tender which is most suitable for the needs of the public authority in question. (
36
)
69.
Secondly, as regards the more specific rules on State aid, the Commission Communication of 10 July 1997 on State aid elements in sales of land and buildings by public authorities (‘the 1997 Communication’), (
37
) which was applicable on the date of adoption of Decision 2015/456 and during the first three calls for tenders launched by the Bulgarian authorities to select the independent expert, (
38
) provided expressly for the possibility for public officers or employees to participate in an independent expert report. More specifically, that communication stated, in point 2(a), under Title II (‘Principles’), that, if public authorities intend not to sell land and buildings through an unconditional bidding procedure, (
39
) they may carry out an evaluation by one or more independent asset valuers prior to the sale negotiations in order to establish the market value on the basis of generally accepted market indicators and valuation standards. The market price thus established is the minimum purchase price that can be agreed without it being classified as State aid. In that regard, the fourth paragraph of that provision stated that, in addition to professional qualifications, (
40
) that expert had to be ‘independent in the carrying out of his tasks’, which implied that ‘public authorities should not be entitled to issue orders as regards the result of the valuation. State valuation offices and public officers or employees are to be regarded as independent provided that undue influence on their findings is effectively excluded’. (
41
)
70.
It should be noted that, the 1997 Communication was not applicable to the procedure for selecting Agrolesproekt: it was not applicable to it ratione materiae, since, first, that communication concerned ‘sales’ of publicly owned land and buildings and not ‘swaps’ (
42
) and, secondly, it concerned the valuation of land or buildings in the context of the classification of aid and not of its recovery; it was not applicable to it ratione temporis either, since that communication was no longer in force at the time when Agrolesproekt was proposed to the Commission’s services for approval. (
43
) However, that communication remains relevant for the purposes of the present analysis, in particular in so far as it establishes the principle that State valuation offices are perfectly capable of carrying out valuations in the context of the implementation of State aid rules, without it being presumed that they are not acting independently. Indeed, it should be pointed out that no provision of the Commission Notice on the notion of State aid as referred to in Article 107(1) [TFEU], which replaced the 1997 Communication, excludes the possibility of having recourse to independent experts that are public bodies, while the possibility of having recourse to independent experts remains valid. (
44
)
71.
That finding cannot be invalidated by the Commission’s argument that the context of the present case relates not to the initial valuation, by an expert, of land intended for sale, in the context of which State valuation offices may, in accordance with the 1997 Communication, carry out independent valuations, but to the recovery of aid that is unlawful and incompatible with the internal market, which would have required special precautions.
72.
First of all, I find it difficult to share a vision of the criterion of independence which varies according to the administrative stage in question. An accredited independent expert, whether a public or a private body, must be presumed to act independently, whether in the context of evaluating the sale of land in order to assess the existence of aid (upstream) or in the context of assessing the value of land to recover aid (downstream). Moreover, from a theoretical point of view, I find it difficult to understand how the risk of a possible State influence would change depending on whether the evaluation concerns the existence of aid or its recovery. For example, if the objective pursued by such an influence is to minimise the amount of aid so that it can be classified as ‘de minimis’, the risks remain the same whether at the stage of classification or recovery of the aid. This is true even if, as the Commission submits, there is a convergence of the interests of the authority granting the aid and those of the beneficiaries. (
45
) Finally, a principle according to which, in essence, a Member State is presumed to act unlawfully by influencing an expert where that expert is a public undertaking would, in my view, run counter to the principle of sincere cooperation enshrined in Article 4(3) TEU and the principle of mutual trust between the Member States and the EU institutions, and cannot therefore be justified.
73.
In the second place, having regard to the finding made above that, on the basis of EU law, public entities cannot be excluded from calls for tenders concerning valuations carried out in the context of the recovery of State aid, if the Commission was of the view that, in the present case, the land swap was a sensitive subject and that there was a real risk of influence on the part of the body which granted the aid in respect of the entity which conducted that evaluation (or which selected independent experts), it should have expressly provided, in recital 176 of Decision 2015/456, that the independent experts should have been appointed by an ‘independent body’. (
46
) However, in the absence of such a statement, the Republic of Bulgaria was not expected to know that the appointment of Agrolesproekt was in itself contrary to the requirements of independence laid down in recital 176 of that decision.
74.
In the third place, it is apparent from the file submitted to the Court that no other evidence arising from the various exchanges between the parties gave rise to any obligation on the part of the Bulgarian authorities (or legitimate expectation on the part of the Commission) that the independent expert appointed should not be a public entity. On the contrary, in the administrative procedure leading to the adoption of Decision 2015/456, the Commission had accepted without objection, for the purposes of determining the existence of aid, the prices determined by experts who were themselves part of the Ministry of Agriculture, Food and Forestry. Similarly, as the Republic of Bulgaria stated, even after the adoption of that decision, the Commission did not dispute the objectivity of the report on the valuations concerning ‘de minimis’ transactions, even though that report had been drawn up by officials from the same ministry. (
47
) Lastly, the question of the independence of the experts was also expressly raised during the discussions concerning the first tendering procedure, which was terminated, inter alia, on the ground that the approved valuer had previously taken a position on the evaluation reports drawn up for the purposes of determining the aid. (
48
) Even in that context, the Commission did not take that opportunity to express its concerns about the alleged risk arising from the possible appointment of a public undertaking as an independent expert.
75.
In the fourth and last place, the Commission was in any event unable to demonstrate the existence of any influence exercised by the Bulgarian authorities over Agrolesproekt’s expert report. In that regard, I would point out that, if the criteria used to assess the independence of the courts are taken as a starting point, the requirement of independence is comprised of two distinct aspects: objective independence and subjective independence. (
49
) The Commission submits that, in the present case, those two aspects are lacking.
76.
First, as regards objective independence, this presumes that the expert exercises his or her duties wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever. The expert is thus protected against external intervention or pressure liable to jeopardise the independence of his or her expert report. (
50
)
77.
In that regard, as is clear from point 62 of this Opinion, the Commission has reservations concerning both the functional independence and the economic independence of Agrolesproekt from the Ministry of Agriculture, Food and Forestry.
78.
In the first place, as regards functional independence, in my view, first of all, Agrolesproekt’s independence cannot be called into question merely because that undertaking was appointed by the authority which granted the aid in question. On the contrary, I am inclined to take the view that, since it is common ground between the parties that the two experts used by that undertaking were registered with the Bulgarian Chamber of Independent Appraisers, they carried out their activities in accordance with high ethical and professional standards of independence when drawing up the evaluation reports. (
51
) In that sense, it must be presumed that they enjoy sufficient objective independence. That presumption applies in particular in so far as it is not clear how the fact that the expert’s representative is the abovementioned ministry is in itself relevant. As confirmed by the Republic of Bulgaria, those two experts have no direct relationship with the Bulgarian State: they are not officials of the ministry or of any other public body, or even of Agrolesproekt, and they were recruited only to carry out the specific tasks assigned to them. Moreover, the Commission has not called into question the professional qualities of the two experts appointed by Agrolesproekt or their ability to carry out the appraisal entrusted to them. It even admitted, at the hearing, that if those two experts had been selected directly by the Bulgarian authorities, without Agrolesproekt’s involvement, the condition of independence, for the purposes of recital 176 of Decision 2015/456, would have been satisfied.
79.
Next, I am of the opinion that that presumption cannot be rebutted by a mere assertion based on the fact that ‘it would be futile to deny the influence of [the ministry] on the undertaking’s decision-making process’. According to settled case-law of the Court, in proceedings for failure to fulfil obligations, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether there has indeed been an infringement, and the Commission may not rely on any presumption for that purpose. (
52
) Thus, it is for the Commission to prove the existence of a link between the public nature of Agrolesproekt and the quality or reliability of the evaluation reports in order to demonstrate that that undertaking does not satisfy the conditions for implementing the decision which are laid down in recital 176 of Decision 2015/456. As was pointed out at the hearing, the Commission did not provide any evidence of instructions given by the Bulgarian authorities to that undertaking or to the two appointed experts. Similarly, no material evidence to suggest that the experts were not free to carry out their duties in complete independence is apparent from the annual reports drawn up by that undertaking to which the Commission refers.
80.
In the second place, with regard to economic independence, while it is true that the remuneration of experts is likely to play a role in their objective independence, as the Republic of Bulgaria has stated, Agrolesproekt’s financing comes from the economic activity which it carries out. Thus, its income comes from its main activity, namely the drawing up of forestry plans and inventories of forest areas under contracts concluded following its participation in open procedures. That information is supported by the annual accounts for the financial years 2018 and 2019, which are published in the Commercial Registry, in which it is indeed stated that, during the accounting period in question, that undertaking generated its own revenue from contracts in the context of open procedures under the Law on public procurement.
81.
Accordingly, it seems to me that none of the evidence adduced by the Commission is capable of demonstrating that, in the present case, the objective independence of Agrolesproekt or of the two experts to which it had recourse was compromised.
82.
Secondly, as regards subjective independence, I would point out that this is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the content of the expert’s report. (
53
)
83.
In that regard, the Commission argued at the hearing that it had information to the effect that the two experts in question were not entirely free to perform their duties within the framework established by Agrolesproekt, that they had received information from the Bulgarian authorities and that that was apparent from the undertaking’s own reports.
84.
However, as has already been pointed out in points 78 to 80 of this Opinion, there does not appear to be any evidence in Agrolesproekt’s annual reports to suggest that the experts were not free to carry out their tasks. Those reports relate to forestry organisation projects in which Bulgarian State structures were involved. They are irrelevant to Agrolesproekt’s task of calculating the price of forest land. Moreover, it is apparent from the documents before the Court that the evaluation report as submitted by that undertaking was approved by the contracting authority, following the assessment by the Executive Forest Agency, without any intervention as to its content. (
54
)
85.
Having regard to the foregoing, and in particular the wording of recital 176 of Decision 2015/456, the relevant provisions of EU law, the lack of details provided by the Commission in the administrative procedure preceding and following the adoption of that decision and the lack of evidence capable of calling into question the objectivity of the expert report submitted by Agrolesproekt, it must be held that it has not been established that the Republic of Bulgaria infringed that decision by appointing an expert that did not meet the requirements of independence laid down in that recital.
86.
I therefore propose that the second argument put forward in the context of the first part of the second complaint be rejected as unfounded.
D.
Breach of the duty of sincere cooperation by the failure to disclose the public ownership structure of the appointed expert
87.
By its third and final argument raised in the context of the first part of the second complaint, the Commission criticises the Bulgarian authorities for not having disclosed in good time – namely before the Commission approved the appointment of Agrolesproekt on 26 October 2017 (
55
) – the information that Agrolesproekt was a public undertaking and that its management functions were carried out by the Minister for Agriculture, Food and Forestry. That omission, which misled the Commission’s services, constituted a breach of the duty of sincere cooperation enshrined in Article 4(3) TEU. That information was not communicated to the Commission until two years later, namely on 10 July 2020. (
56
) At the hearing, the Commission explained that the Bulgarian authorities could not have been unaware of the importance and relevance of that information, relating to the control of that undertaking, with regard to the requirements of independence.
88.
The Republic of Bulgaria contends that that complaint should be rejected as unfounded.
89.
In that regard, it is sufficient to point out that, as is clear from points 67 to 72 of this Opinion, no element of EU law or of the Commission’s decision-making practice should have prompted the Republic of Bulgaria to communicate the information relating to the fact that the two independent experts had been appointed by Agrolesproekt, a public undertaking, controlled by the State, and in particular by the Ministry of Agriculture, Food and Forestry.
90.
In any event, as the Republic of Bulgaria rightly points out, if the Commission had wished to verify that information, it was promptly and widely available. The information relating to the management bodies and control of an undertaking’s capital is publicly accessible and available in the Commercial Registry, and therefore any interested party can have access to it quickly and free of charge should they deem it necessary in order to take a decision. (
57
)
91.
It follows that, in my view, no breach of the duty of sincere cooperation can be found as regards the Republic of Bulgaria and the third argument put forward in the context of the first part of the second complaint must also be rejected as unfounded.
VI. Conclusion
92.
In the light of the foregoing considerations, I propose that, should the Court consider it appropriate to rule on the first part of the second complaint, it should declare that the European Commission has not demonstrated that the Republic of Bulgaria has failed to fulfil its obligations under, inter alia, recital 176 of Decision (EU) 2015/456 of 5 September 2014 on the aid scheme No SA.26212 (11/C) (ex 11/NN – ex CP 176/A/08) and SA.26217 (11/C) (ex 11/NN – ex CP 176/B/08) implemented by the Republic of Bulgaria in the context of swaps of forest land.
(
1
)	Original language: French.
(
2
)	Decision of 5 September 2014 on the aid scheme No SA.26212 (11/C) (ex 11/NN – ex CP 176/A/08) and SA.26217 (11/C) (ex 11/NN – ex CP 176/B/08) implemented by the Republic of Bulgaria in the context of swaps of forest land (OJ 2015 L 80, p. 100).
(
3
)	Council Regulation of 22 March 1999 (OJ 1999 L 83, p. 1).
(
4
)	Council Regulation of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9).
(
5
)	The Zakon za gorite (Law on Forests, DV No 125 of 29 December 1997).
(
6
)	Namely the regulation on the calculation of basic prices, prices for land in excluded areas and creating rights of use and easements in respect of forests and forest land, adopted by Decree of the Council of Ministers No 252 of 6 November 2003 (DV No 101 of 18 November 2003, as amended by DV No 1 of 5 January 2007).
(
7
)	On 3 September 2009, a moratorium on the subsequent change of the designated use of swapped land was introduced.
(
8
)	In essence, if the publicly owned plot of forest land received in exchange is of a greater value than the plot of private forest land given in exchange. The Commission took the view that, by contrast, the decision by a public authority to change, as a result of the swap transaction, the designated use of a particular plot of land from forest land to land available for construction did not constitute State aid within the meaning of Article 107(1) TFEU.
(
9
)	Commission Regulation of 18 December 2013 on the application of Articles 107 and 108 [TFEU] to de minimis aid (OJ 2013 L 352, p. 1), which laid down those conditions.
(
10
)	It is apparent from the written observations submitted by the Republic of Bulgaria that the first call for tenders, which was announced on 18 December 2014, was terminated on the ground that it was found that the only tenderer which had participated in the call for tenders, first, had proposed an approved valuer who, during a previous period, namely during the period from 2003 to 2009, had participated as a member of a committee and, in that capacity, had taken a position on the evaluation reports drawn up and, secondly, had made a technical proposal which did not comply with the contracting authority’s specifications; the second call for tenders, which was announced on 20 March 2015, was terminated following a material change in circumstances and on account of the need to review the swap transactions and to change the number of assets to be valued in the specifications in order to re-examine all 132 transactions, and the third call for tenders, which was announced on 10 October 2016, was terminated on the proposal of the tender evaluation committee on account of reasoned findings concerning the two participants, according to which they did not satisfy the conditions previously set out in the tender documents.
(
11
)	It is apparent from that letter that the two experts held a certificate as chartered valuers and a master’s degree in the field of ‘forests’, demonstrated professional experience totalling 28 and 22 years respectively as forestry engineers and had produced, respectively, 722 and 53 expert reports on forest plots.
(
12
)	As regards the 29 other swap transactions, the alleged beneficiaries were said not to have received an advantage. According to the information provided by the Republic of Bulgaria, Agrolesproekt prepared 264 evaluation reports containing an evaluation of the market price of 2500 plots of land which were the subject of the 132 swap transactions. For each report, a table was drawn up showing the difference between the real market price and the administrative price applied in the land swap contracts.
(
13
)	In the present case, those clarifications concerned: first, the main activity of the valuer, the services he or she offers and the persons for whom they are intended; the ownership structure of the valuer, in particular whether they are State owned, attached to a public entity, privately owned or mixed; the identification of the persons or entities that own the valuer and the identification of the persons or entities that have a decisive influence on the valuer’s activities; secondly, the valuer’s sources of income, in particular whether and to what extent they depend on public funding or contracts awarded by the State, and, thirdly, the independent expert criterion when the tender was received from the valuer.
(
14
)	In particular, because of the inclusion of similar goods on the market at abnormally low prices (that is to say lower than the administrative prices previously applied), as well as prices declared solely for tax purposes.
(
15
)	Commission Directive of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (OJ 2006 L 318, p. 17).
(
16
)	In that letter, the Commission noted that the Bulgarian authorities had not replied to the questions sent to them in the letter of 15 May 2020 concerning Agrolesproekt’s sources of income, in particular whether and to what extent that income depended on public financing or contracts awarded by the State.
(
17
)	DV No 13 of 16 February 2016, as amended and supplemented on several occasions, most recently in DV No 11 of 6 February 2024.
(
18
)	That case gave rise to the judgment of 19 October 2023, Ministar na zemedelieto, hranite i gorite (C‑325/22, EU:C:2023:793), in which the Court held, inter alia, that Article 107(1) TFEU and Article 16(3) of Regulation 2015/1589 must be interpreted as not precluding the criteria for determining the amount of State aid received on the acquisition of land, in the context of a forest land swap, from being based on the average prices of registered property transactions relating to land with similar characteristics to that being valued and located close to it, in which at least one of the parties is a merchant, concluded within a period of 12 months prior to the valuation, provided that the application of such criteria is compatible with the Commission’s decision on the recovery of that aid and that they make it possible to determine the market value of that land at the time of the swap transaction.
(
19
)	While the Commission raises those arguments in the context of the second complaint, considerations relating to the choice and independence of the appointed expert are however intrinsically linked and also relevant for the purposes of analysing the first and third complaints.
(
20
)	In its reply, the Commission alleges two irregularities in connection with the organisation of the tendering procedure and relating to the selection of the independent expert, namely, first, the fact that the price initially proposed in the first call for tenders was too low to attract candidates, which was acknowledged by the Republic of Bulgaria and led it to increase the price in the second call for tenders, and, secondly, the fact that the requirement, laid down in the call for tenders, that the expert had to, first, update the administrative price and, secondly, incorporate administrative prices into the methodology for determining the market price, was liable to be misleading and, therefore, to lead to an incorrect implementation of Decision 2015/456. The Commission has put forward those complaints in support of the position that it cannot in any circumstances be held liable for irregularities relating to the organisation of the tendering procedure and the selection of the independent expert. In so far as those alleged irregularities were put forward for the first time in the reply, they cannot be regarded as independent complaints seeking a declaration that the Republic of Bulgaria has failed to fulfil its obligations (see, in that regard, Article 120 and Article 121(1) of the Rules of Procedure of the Court of Justice).
(
21
)	See judgments of 6 May 2015, Commission v Germany (C‑674/13, EU:C:2015:302, paragraphs 37 and 38 and the case-law cited), and of 12 May 2021, Commission v Greece (Aid to agricultural producers) (C‑11/20, EU:C:2021:380, paragraph 33 and the case-law cited).
(
22
)	That obligation also follows from Article 16(3) of Regulation 2015/1589, which replaced Regulation No 659/1999 (see, in that regard, judgment of 16 January 2025, Scai (C‑588/23, EU:C:2025:23, paragraph 39 and the case-law cited)).
(
23
)	See judgments of 6 May 2015, Commission v Germany (C‑674/13, EU:C:2015:302, paragraph 39 and the case-law cited), and of 12 May 2021, Commission v Greece (Aid to agricultural producers) (C‑11/20, EU:C:2021:380, paragraph 34 and the case-law cited).
(
24
)	See judgment of 13 October 2011, Commission v Italy (C‑454/09, EU:C:2011:650, paragraph 37 and the case-law cited).
(
25
)	See judgments of 11 September 2014, Commission v Germany (C‑527/12, EU:C:2014:2193, paragraph 48 and the case-law cited), and of 12 May 2021, Commission v Greece (Aid to agricultural producers) (C‑11/20, EU:C:2021:380, paragraph 40 and the case-law cited).
(
26
)	See judgment of 12 February 2015, Commission v France (C‑37/14, EU:C:2015:90, paragraph 65 and the case-law cited).
(
27
)	In particular, the fact that 66 out of a total of 102 beneficiaries are said to have challenged the recovery orders before the national courts, leading to further delays in the implementation of Decision 2015/456.
(
28
)	That possibility is consistent with the case-law of the Court, according to which the Commission is not required, when ordering the recovery of aid declared incompatible with the internal market, to fix the exact amount of the aid to be recovered, provided that its decision includes information enabling the recipient to work out himself, without overmuch difficulty, that amount (see judgments of 12 October 2000, Spain v Commission (C‑480/98, EU:C:2000:559, paragraph 25 and the case-law cited); of 20 March 2014, Rousse Industry v Commission (C‑271/13 P, EU:C:2014:175, paragraph 77 and the case-law cited); and of 6 May 2015, Commission v Germany (C‑674/13, EU:C:2015:302, paragraph 40 and the case-law cited)). By way of example, the Commission, when it is faced with an aid scheme, is generally not in a position to identify exactly the amount of aid received by individual recipients. Accordingly, the specific circumstances of one of the recipients of an aid scheme can be assessed only at the stage of recovery of the aid (see judgment of 13 February 2014, Mediaset (C‑69/13, EU:C:2014:71, paragraph 22 and the case-law cited)).
(
29
)	Emphasis added.
(
30
)	See point 18 of this Opinion.
(
31
)	See point 38 of this Opinion.
(
32
)	See point 39 of this Opinion.
(
33
)	The Commission stated, with reference to Agrolesproekt’s annual activity report for 2020, that it was apparent from that report that, in essence, the implementation of the undertaking’s various projects was controlled by an administrative structure of the Ministry of Agriculture, Food and Forestry.
(
34
)	Directive of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).
(
35
)	See, to that effect, judgment of 23 December 2009, CoNISMa (C‑305/08, EU:C:2009:807, paragraph 34 and the case-law cited).
(
36
)	See, to that effect, judgment of 23 December 2009, CoNISMa (C‑305/08, EU:C:2009:807, paragraph 37 and the case-law cited).
(
37
)	OJ 1997 C 209, p. 3.
(
38
)	See point 22 of this Opinion.
(
39
)	Namely, a procedure which is akin to a public sale at market value, and, therefore, does not involve State aid.
(
40
)	See the second and third subparagraphs of point 2(a), under Title II (‘Principles’), of the 1997 Communication.
(
41
)	Emphasis added.
(
42
)	Under Title I (‘Introduction’) of the 1997 Communication, the fourth paragraph states that ‘the guidance concerns only sales of publicly owned land and buildings. It does not concern the public acquisition of land and buildings or the letting or leasing of land and buildings by public authorities. Such transactions may also include State aid elements’.
(
43
)	See point 23 of this Opinion.
(
44
)	OJ 2016 C 262, p. 1. See, in that regard, paragraph 103 of and footnote 163 to the Notice on the notion of State aid, in addition to footnote 133, which merely states that ‘ex ante evaluations should be carried out with the support of experts with appropriate skills and experience. Such evaluations should always be based on objective criteria and should not be affected by policy considerations’.
(
45
)	As the Republic of Bulgaria rightly points out, a conflict of interest between the independent expert and the Member State can arise only in a situation where there is a possibility of deriving an unfair advantage. However, in the present case, neither the Republic of Bulgaria nor Agrolesproekt derive any advantage from the fact that the evaluation of the market prices was drawn up precisely by that commercial company.
(
46
)	See, to that effect, Commission Decision of 30 April 2008 on State aid C 56/06 (ex NN 77/06) implemented by [the Republic of Austria] for the privatisation of Bank Burgenland (notified under document number C(2008) 1625). In that case, the Commission explained that it had not received any information which enabled it finally to assess whether a certain measure constituted an advantage and that, therefore, the Republic of Austria was required to ‘provide an evaluation by an independent expert, appointed by an independent body, of the market value of the property of [Bank Burgenland]’s four real estate subsidiaries’ (see recital 172 of that decision) (emphasis added).
(
47
)	See points 19 and 20 of this Opinion.
(
48
)	See point 22 of this Opinion.
(
49
)	See, in that regard, Opinion of Advocate General Kokott in Governo della Repubblica italiana (Status of Italian magistrates) (C‑658/18, ‘the Opinion in Status of Italian magistrates, EU:C:2020:33, points 42 to 59 and the case-law cited).
(
50
)	See, by analogy, Opinion in Status of Italian magistrates (point 43 and the case-law cited).
(
51
)	In accordance with Article 18(6) of the Zakon za nezavisimite otseniteli (Law on independent appraisers, promulgated in DV No 98 of 14 November 2008, as amended and supplemented, most recently in DV No 19 of 8 March 2011), each independent appraiser is to ‘comply with the Code of Conduct for Independent Appraisers’.
(
52
)	See, inter alia, judgments of 12 February 2015, Commission v France (C‑37/14, EU:C:2015:90, paragraph 71 and the case-law cited), and of 21 December 2023, Commission v Denmark (Maximum parking time) (C‑167/22, EU:C:2023:1020, paragraph 47 and the case-law cited). According to that case-law, however, where it has been established that some or all of the aid in question has not been recovered, it is for the Member State in question to justify why recovery is not required in respect of certain beneficiaries.
(
53
)	See, by analogy, Opinion in Status of Italian magistrates (point 49 and the case-law cited).
(
54
)	See point 26 of this Opinion.
(
55
)	See point 24 of this Opinion.
(
56
)	See point 33 of this Opinion.
(
57
)	Moreover, it should be noted that, in recital 142 of Decision 2015/456, the Commission itself referred to information relating to the beneficiaries of the aid which came from the Bulgarian Commercial Registry (‘indeed, a number of beneficiaries … of the swap transactions have, amongst others, real estate, tourism, restaurant activities and afforestation listed as the economic sectors in which they operate in the Bulgarian Commercial Registry’) (emphasis added).