OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 30 September 2010 ( )

Case C‑239/09

SEYDALAND Vereinigte Agrarbetriebe GmbH & Co. KG

v

BVVG Bodenverwertungs- und -verwaltungs GmbH

(Reference for a preliminary ruling from the Landgericht Berlin)

(State aid – Privatisation programme for agricultural land in the ‘new Länder’ in Germany – Calculation of market value)

I – Introduction

1. In the present case, the Landgericht Berlin asks the Court of Justice whether a national provision, which lays down various methods for calculating the market value of agricultural land in the ‘new Länder’ which is the subject of privatisation, is consistent with Article 87 EC (Article 107 TFEU).

2. The question requires, first, a determination of what the methods, for which the disputed provision provides, actually are, as there is no agreement on that point in the case-file. Thereafter, it is necessary to ascertain whether those methods allow, in practice, the actual market value of the privatised land to be determined. That latter aspect is essential in order to guarantee that in the transactions in question the maximum amount of aid which land purchasers may receive under European Union law (35% of the market value) is not exceeded.

3. As will be seen, the technical nature of the case and the fact that certain essential aspects are undefined mean, in my view, that the Court of Justice must give a conditional and dynamic answer to the question referred, dependent upon, first, various assessments of facts which are likely to change over time and, second, the referring court’s interpretation of national law, which is fundamental for the specific use of the disputed provision in each instance.

II – Legal framework

A – Rules of European Union law on State aid

4. On 10 July 1997, the Commission published a Communication on State aid elements in sales of land and buildings by public authorities (‘the Communication’) ( ) with the aim of clarifying its policy in that area and thus reducing the number of cases to be examined.

5. The first subparagraph of Title II, point 2(a), of the Communication states that, if public authorities intend not to use the public, open and unconditional bidding procedure (which assumes a sale at market value and includes, therefore, no element of State aid), ‘an independent evaluation should be carried out 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 granting State aid’. The fifth subparagraph of Title II, point 2(a), states ‘“market value” means the price at which land and buildings could be sold under private contract between a willing seller and an arm’s length buyer on the date of valuation, it being assumed that the property is publicly exposed to the market, that market conditions permit orderly disposal and that a normal period, having regard to the nature of the property, is available for the negotiation of the sale’.

6. Regulation (EC) No 950/97 on improving the efficiency of agricultural structures ( ) contains a number of specific provisions on aid in the context of agricultural policy. Article 7(2)(b) provides that the total value of the aid, expressed as a percentage of the amount of the investment, is not to exceed 35% for investments in fixed assets in areas which are not less favoured. That regulation was repealed and replaced by Regulation (EC) No 1257/1999, ( ) Article 7(2) of which provides that ‘[t]he total amount of support, expressed as a percentage of the volume of eligible investment, is limited to a maximum of 40% …’

B – German law

7. The rules governing the programme for acquisition of agricultural land in the new Länder are contained in a law of 27 September 1994 (Ausgleichsleistungsgesetz – AusglLeistG; ‘Indemnification and Compensation Act’), ( ) which was implemented, in that regard, by an Order of 20 December 1995 (Flächenerwerbsverordnung; ‘Land Purchase Order’). ( )

8. Under Paragraph 3(7) of the Indemnification and Compensation Act, the value of agricultural land is calculated by reducing the market value by 35%.

9. Paragraph 5(1) of the Land Purchase Order, in the version applicable to the present case, provides:

‘The market value of agricultural land under the first and sixth sentences of Paragraph 3(7) … of the Indemnification and Compensation Act shall be determined in accordance with the Land Valuation Order [Wertermittlungsverordnung] of 6 December 1988 (BGBl. I, p. 2209) … Where there are regional reference valuations [regionale Wertansätze] of arable and pasture land, the value shall be determined according to them. The regional reference valuations shall be published by the Federal Finance Minister in the Federal Gazette [Bundesanzeiger]. The potential purchaser or the Privatisation Authority may seek a determination of the market value which differs from those reference valuations by means of an expert report prepared by the competent regional valuation committee, established under Paragraph 192 of the Federal Law on Construction [Bundesbaugesetz], where there is genuine evidence that the regional reference valuations are not a suitable basis for determining market value.’ ( )

C – The Commission’s decisions concerning the German land privatisation system

10. Following a first decision, in which the Commission declared that the aid scheme established by the German land privatisation programme was, in part, incompatible with the common market, ( ) the German authorities introduced a number of regulatory amendments, such that the German rules, in the terms set out above, were declared compatible with Article 87 EC in a further Commission decision of 22 December 1999. ( )

III – The dispute in the main proceedings and the question referred

11. BVVG (Bodenverwertungs- und -verwaltungs GmbH, ‘BVVG’), the defendant in the main proceedings, is a wholly‑owned subsidiary of the Bundesanstalt für vereinigungsbedingte Sonderaufgaben, the federal body responsible for special tasks connected with German reunification. That body instructed BVVG to carry out the privatisation of certain agricultural and forestry land.

12. By contract dated 18 December 2007, BVVG sold various agricultural land, which had been owned by the German Democratic Republic, to Seydaland. The total purchase price was EUR 245 907.91, of which agricultural land accounted for EUR 210 810.18.

13. Seydaland brought an action against BVVG before the Landgericht Berlin on the grounds that the selling price was excessive, as it had been calculated pursuant to an unlawful procedure. In its view, if the regional reference valuations had been used, the total price would have been only EUR 146 850.24. According to the defendant, however, a sale at that price would have constituted State aid contrary to Article 87 EC.

14. Taking the view that the outcome of the case depended on whether Paragraph 5 of the Land Purchase Order infringed Article 87 EC, the Landgericht Berlin referred the following question to the Court of Justice for a preliminary ruling:

‘Do the second and fourth sentences of Paragraph 5(1) ( ) of the … [Land Purchase Order], passed in application of the first sentence of Paragraph 4(3) of the … [Indemnification and Compensation Act], infringe Article 87 EC?’

IV – Proceedings before the Court of Justice

15. The order for reference was received at the Registry of the Court on 1 July 2009.

16. Seydaland, BVVG, the Commission and the German Government lodged written observations.

17. On 30 April 2010, the Court of Justice sent the German Government two questions for written reply concerning the valuation committee provided for under Paragraph 192 of the Federal Law on Construction: first, it inquired about the rules for the appointment of its members and the rules of procedure applied by that committee when it intervened in the context of privatisation of agricultural land pursuant to Paragraph 5 of the Land Purchase Order; second, it inquired whether, in assessing the market value of land in that context, the committee was bound by the regional reference valuations or whether, on the contrary, it enjoyed a certain discretion. The German Government replied to both questions in a document lodged on 28 May 2010. In relation to the composition of the valuation committee, it confirmed, in summary, that its members had to be specialists in the field and be independent (their main job, for example, cannot be to assess the land of the local body involved) and that the rules for their appointment were governed by the individual Länder. As regards the second question, the German Government stated that the valuation committees are unrestricted and independent and that they are in no way bound by any regional reference valuations, although there are certain parameters which may be taken into account. As a first step they determine the parameters that must be taken into account when assessing the land in question and then they decide on the weight which must be attached to those parameters.

V – The reference for a preliminary ruling – reformulation

A – The dispute in the main proceedings: defining the positions

18. In the dispute in the main proceedings, the Landgericht Berlin will have to determine whether, in the transaction concluded with Seydaland, BVVG, the company responsible for the privatisation of agricultural land in the former German Democratic Republic, acted in accordance with the law.

19. In those terms, the case turns on a central aspect of that privatisation scheme, namely, the method for calculating the market value which must serve as the basis for determining the selling price of that land.

20. It is not in dispute that, under European Union law (‘EU law’), the maximum level of aid which the purchaser may receive is 35% of the market value of the land purchased. ( ) Having regard to the above, Paragraph 3(7) of the German Indemnification and Compensation Act established that the value of agricultural land should be calculated by reducing the market value by the maximum 35%.

21. The differences in opinion arise in relation to determining which calculation method must be used in a case such as the present to obtain, reconciling the requirements of the national law with those of the Treaties, the actual market value of the land which is the subject of privatisation.

22. Seydaland considers that, in the light of Paragraph 5 of the German Land Purchase Order, BVVG ought to have determined the selling price of the land, either on the basis of the officially published regional reference valuations, or by having recourse to a valuation committee under Paragraph 192 of the Federal Law on Construction. By choosing a third way, not expressly provided for in Paragraph 5, which entails determining the purchase price on the basis of the prevailing market situation pursuant to its own calculation method, the defendant acted unlawfully.

23. In contrast, BVVG contends that, at the time when the sale was completed, the regional reference valuations were out of step, since they had not been able to adapt quickly enough to the new situation on the market in the new Länder, which was characterised by an extraordinary rise in the price of agricultural land. ( ) Those reference valuations did not reflect the prevailing market situation, but rather they reflected lower prices corresponding to the prices of one or two years earlier. Accordingly, if it had calculated the price using the regional reference valuations, it would have obtained a value lower than the market value and, once the 35% reduction had been applied, it would have granted unlawful State aid.

24. Moreover, the Federal Ministry of Finance itself had been aware of that situation when, on 10 July 2007, it instructed BVVG to examine the regional reference valuations published in the Federal Gazette (Bundesanzeiger), so that if they varied by more than 20% from the average values used in comparable market transactions, they could be ignored as a basis for determining market value.

25. According to the defendant’s calculations, that was what occurred in the present case. On that ground, and given the difficulties which would be involved in seeking an individual valuation for each sale in such an extensive privatisation programme, BVVG used a new collection of reference values that it had drawn up itself from data obtained from other recent land sales, and from data from the very valuation committee established under Paragraph 192 of the Federal Law on Construction.

26. In their observations submitted to the Court of Justice, BVVG and the German Government contend that the actions of BVVG were lawful from the point of view of EU law, inasmuch as determining a genuine and actual market value is an inescapable requirement under EU law (in particular, under Article 87 EC and the Commission’s Communication of 1997). Furthermore, they also maintain that the actions were lawful as regards domestic law, asserting that Paragraph 5(1) of the Land Purchase Order does not prohibit the use of a valuation method different from the two for which it expressly provides.

27. However, in the order for reference, the Landgericht Berlin does not call into question, even indirectly, the lawfulness of BVVG’s actions in the present case. What the referring court wishes to know is whether ‘the second and fourth sentences of Paragraph 5(1)’ of the Land Purchase Order are, in principle, consistent with Article 87 EC.

28. It is, therefore, not a question of determining whether the calculation method used in the present case by BVVG allows the market value of the land to be obtained (that does not appear to be in dispute), but rather whether the other methods expressly provided for in Paragraph 5 would also have allowed such a value to be obtained. Only if the answer to that question is in the affirmative, can that provision be held to be consistent with EU law. ( )

29. However, before carrying out that analysis it is necessary to reformulate the question.

B – Reformulating the question

30. In the first place, it should be borne in mind that the Landgericht Berlin refers only to the second and fourth sentences of Paragraph 5(1), which, in the version in force at the time the contract was entered into, expressly referred to two calculation methods: regional reference valuations and the valuation committee under Paragraph 192 of the Federal Law on Construction, respectively.

31. In principle, therefore, the Landgericht Berlin excluded from the question referred the first sentence of Paragraph 5, which provides that ‘the market value of agricultural land … shall be determined in accordance with the Wertermittlungsverordnung [Land Valuation Order] of 6 December 1988’. The German Government, none the less, maintains that that part of the provision is indispensable for a proper interpretation of Paragraph 5, and is the most important sentence for ensuring its full compatibility with EU law. In order, therefore, to provide a useful reply to the national court, I take the view that it is appropriate to include all of Paragraph 5(1) of the Land Purchase Order in the analysis.

32. In the second place, it should be recalled that the Court of Justice, in the context of a reference for a preliminary ruling, cannot adjudicate directly on whether a provision of national law is consistent with EU law. Reference to Paragraph 5 of the Land Purchase Order must, accordingly, be made indirectly.

33. In the light of all of the foregoing, I consider that the question referred can be properly reformulated as follows:

‘Is a national rule such as that laid down Paragraph 5(1) of the Flächenerwerbsverordnung contrary to Article 87 EC?’

VI – Analysis

A – Whether the calculation methods laid down in Paragraph 5(1) allow the actual market value to be obtained

34. As was stated above, assessing whether Paragraph 5 of the Land Purchase Order is consistent with Article 87 EC requires a determination of whether the calculation methods in that provision are suitable for determining the actual market value of the agricultural land. Only in the event of a reply in the affirmative can it be ensured that the price set will not be so low as to imply that the purchaser had been granted State aid.

35. For the purposes of that analysis, certain considerations seem appropriate.

36. It is hardly necessary to point out that obtaining the market value of that land is relevant on account of the fact that Germany has chosen to apply, to that value, the maximum reduction permitted, namely 35% of that value, to the selling price. ( ) Had Germany chosen to apply a significantly lower reduction, the risk that an incorrect determination of the market value would immediately result in unlawful State aid would have been considerably lower. In contrast, where – as in this case – the Member State chooses to make the maximum reduction which it is entitled to make, every assessment of the market value of the land, in respect of which it can be reasonably stated that it does not reflect the market value because it is too low, results in unlawful aid.

37. It is clear that no method is infallible in assessing, ex ante, actual market value and it is also clear that not all possible methods are equally suitable. In the original version of the provision in dispute, Germany rejected both open bidding and individual reference valuations, choosing two procedures, a principal procedure which entailed applying the so‑called regional reference valuations, and another alternative procedure which involved assessment by a valuation committee which, at least in part, also appeared to be guided by its own tables of values.

38. Of course, the best way to obtain market value consists in submitting the transaction to an open and unconditional public bidding procedure. Thus, the Commission Communication of 10 July 1997 assumes that sales by bidding procedure are always concluded at market value and consequently do not contain State aid. If there is no bidding procedure, however, the Communication clearly indicates its preference for an individual valuation of the asset, based on ‘generally accepted market indicators and valuation standards’.

39. Therefore, the mere fact that Paragraph 5 of the Land Purchase Order does not provide for a bidding procedure in those cases – which would be difficult to implement in respect of such an extensive privatisation programme – does not imply that that paragraph is incompatible with EU law.

40. In addition, the use of tables of values or reference valuations also does not constitute, in my opinion, a decisive factor per se for finding that the calculation method in question is unsuitable for determining market value: the Commission’s own Communication refers, as has been noted, to the use of ‘market indicators’ and ‘generally accepted … valuation standards’. However, the notion that those indicators or criteria must be the most up‑to‑date possible to prevent them losing their validity and being out of step with new market circumstances underpins the Communication. ( ) The risk that those indicators or criteria are out of step is undoubtedly greater in the event that prices are rising sharply as in the present case.

41. Lastly, the greater or lesser likelihood of a particular procedure for calculating market value achieving its objective clearly has consequences as regards whether it complies with EU law. However, where the question is phrased in terms of a general and abstract opinion on a given procedure – as is the case here – it is necessary to find a certain level of ‘improbability’ that the result – namely, the market value – can be obtained, before that procedure can be declared contrary to EU law.

42. That said, the fact that the ‘improbability’ may not be assessed in general terms does not mean that each and every application of the provision in question complies with EU law. It follows that the answer which the Court of Justice gives in this case will not resolve all the issues with which the national court is faced regarding the application of that provision. On the contrary, it will be for the national court to assess whether or not, in the particular circumstances of the case, there has been a grant of unlawful State aid.

43. With that in mind and from that dynamic perspective, it is necessary to analyse the two calculation methods expressly laid down in Paragraph 5 of the Land Purchase Order.

1. The calculation method based on ‘regional reference valuations’ (regionale Wertansätze)

44. The weakness of any such reference valuations – the point is barely touched upon – is that they possibly, indeed foreseeably, become out of date, that is to say, that they do not respond to developments in the market. In short, they are rigid in the face of an essentially fluctuating phenomenon. That is why the possibility of ‘updating’ those values is of critical importance, despite the fact that it can never be regarded as certain that such updating will be sufficient.

45. The case‑file offers hardly any concrete details on how those regional reference valuations are reached ( ) or, even more importantly, details on how often and how quickly they are updated (which might depend on the Land).

46. Seydaland submits a letter from the Regional Surveyor’s Office (Landesamt für Vermessung) for the Land of Saxony-Anhalt which states that the real estate reference values (Bodenrichtwerte) under Paragraph 196 of the Federal Law on Construction, on which the regional reference valuations are based, are updated regularly (at least once a year). Even if that were confirmed, that fact would reflect the situation in that Land only.

47. Moreover, it has hardly been mentioned in the proceedings that, at the time when the contract in question was entered into, the officially published tables did not reflect the actual market value. From a dynamic perspective, therefore, it can be concluded that those regional reference valuations could not correspond to market value, if they are not updated on a sufficiently regular basis, especially where prices are rising.

2. The calculation entrusted to a ‘valuation committee’ (Gutachtersausschuss)

48. Paragraph 5 of the Land Purchase Order itself appears to resolve the aforementioned difficulty by providing for the possibility, in such cases, of replacing the calculation based on regional reference valuations – the primary source to be used – with the involvement of the competent regional valuation committee which compiles a report on market value pursuant to Paragraph 192 of the Federal Law on Construction.

49. The involvement of the valuation committees could be a more flexible instrument, better able to adapt to rapid fluctuations in prices. However, no unanimous opinion on that point emerges from the case‑file.

50. The Landgericht Berlin, on the one hand, confirms that the committees do not calculate the market value ‘according to the prevailing market situation, but rather according to a compilation of selling prices, which the valuation committee maintains pursuant to Paragraph 195 of the Federal Law on Construction and which may be several years old’. The valuation committees also work, in short, with pre‑determined tables which are likely to present the same difficulties as the regional reference valuations as regards being out of step. ( )

51. As against that, however, the German Government maintains that the members of the valuation committee are not bound by any reference valuation, and that they may adapt their decision as to the value in the light of other factors. In particular, under the first sentence of Paragraph 5 of the Land Purchase Order, the valuation committee may – according to the German Government ( ) – apply different and more flexible assessment methods. That possibility will, however, be considered below.

52. Even having regard to those favourable indications, a finding that that second calculation method is consistent with Article 87 EC can be made only subject to the proviso that, in practice, it makes it possible to obtain a suitable result. Once again, it will be for the national court to assess whether or not the indicators or tables which the valuation committee uses, or must use, are sufficiently up‑to‑date, and whether that committee has sufficient freedom, if the need arises, to depart from those pre‑determined values.

B – Whether Paragraph 5(1) provides for other alternative calculation methods

53. Even though it may be concluded that the two calculation methods examined above do not guarantee a sufficiently accurate assessment of market value, Paragraph 5(1) of the Land Purchase Order could still be consistent with EU law, if it were possible to interpret it as not preventing the use of an alternative mechanism for determining that market value (for example, that used by BVVG).

54. It is not clear from the case‑file whether that alternative calculation method is an implicit possibility under Paragraph 5, or whether it was necessary to disapply Paragraph 5 in order to achieve a result which respected the requirements of Article 87 EC.

55. The referring court and the Commission work on the premiss that Paragraph 5(1) allows only for two methods of calculating market value. The German Government, by contrast, maintains that that provision leaves open the possibility that other calculation methods may be used by referring, in its first sentence, to the general provisions of the Land Valuation Order (Wertermittlungsverordnung), which contains three additional valuation methods. BVVG, for its part, adds that, in any event, Paragraph 5 does not exclude recourse to an individual valuation of the land carried out by an expert, in accordance with the general rules which govern civil disputes (Paragraph 404(2) of the Zivilprozessordnung (Code of Civil Procedure)).

56. On the other hand, the new version of Paragraph 5(1) of the Land Purchase Order, which entered into force on 11 July 2009, expressly provides for the possibility of having recourse to an approved expert to assess market value, who must also take account of ‘how prices have developed recently in the context of bidding procedures for comparable land’. ( )

57. The decision whether to favour one or the other of the two possible interpretations of the disputed provision, although it may be essential to reply to the question referred as it was formulated, is not one for the Court of Justice, but rather must be made by the referring national court.

58. Irrespective of the foregoing, it must be noted that case‑law has consistently held that the national court must interpret the national law which it has to apply, as far as is at all possible, in a manner which accords with the requirements of EU law. ( ) As has been explained, the German Government and BVVG propose an interpretation of Paragraph 5 of the Land Purchase Order which complies with those requirements, but it is the Landgericht Berlin which must determine whether or not such an interpretation is possible.

VII – Conclusion

59. In accordance with the foregoing considerations, I propose that the Court of Justice reply to the question referred by the Landgericht Berlin as follows:

(1) Procedures for determining the market value of agricultural land such as those laid down in Paragraph 5(1) of the German Land Purchase Order of 20 December 1995 are not contrary to Article 87 EC, in so far as:

(a) the reference valuations, detailed as the primary source for determining value, are updated as regularly as is required by market developments, or

(b) where, in the alternative, the independent valuation committee is involved, it is not necessarily bound by assessment criteria which are likely to be out of step due to market developments.

It is for the national court to determine, case‑by‑case, whether the conditions laid down in (a) and (b) above are met.

2. The issue whether or not a national rule, such as that contained in the Land Purchase Order, allows recourse to other criteria for determining value, different from those expressly laid down in the relevant provision, where that may be relevant in the light of the foregoing, must be resolved by the national court in accordance with an interpretation consistent with European Union law.