Judgment of the General Court (Eighth Chamber) of 16 September 2013 — Orange v Commission

(Case T‑258/10)

‛State Aid — Compensation for public service costs in connection with a very high speed broadband electronic communications network in the Hauts-de-Seine department — Decision finding no State aid — Failure to initiate the formal investigation procedure — Serious difficulties — Altmark judgment — Service of general economic interest — Market failure — Overcompensation’

1. State aid — Planned aid — Examination by the Commission — Preliminary review and main review — Aid incompatible with the internal market — Difficulties of assessment — Commission’s duty to initiate the main review procedure — Serious difficulties — Concept — Objective nature — Burden of proof — Circumstances enabling the existence of such difficulties to be determined (Arts 87(1) EC and 88(2) and (3) EC; Council Regulation No 659/1999, Art. 4(4)) (see paras 30-38, 63-67, 85, 88)

2. State aid — Planned aid — Examination by the Commission — Preliminary phase — Duration — Maximum period of two months — Calculation of the duration of the preliminary examination as from receipt of full notification — Concept of full notification (Art. 88(2) and (3) EC; Council Regulation No 659/1999, Arts 2(2), and 4(1) and (5)) (see paras 42-53, 60)

3. Judicial proceedings — Introduction of new pleas during the proceedings — Plea based on matters revealed during the proceedings — Amplification of a plea set out in the application initiating proceedings and having a close link with the latter — Admissibility (Rules of Procedure of the General Court, Art. 48(2)) (see paras 55-57)

4. State aid — Planned aid — Examination by the Commission — Preliminary review and main review — Obligation of the Commission to open the main procedure where there are serious difficulties — Request for additional information not in itself revealing the existence of serious difficulties (Art. 88(2) and (3) EC) (see paras 70-79)

5. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Decision of the Commission finding no State aid — Action brought by the parties concerned within the meaning of Article 88(2) EC — Identification of the subject-matter of the action — Action designed to safeguard the procedural rights of the persons concerned — Pleas concerning the assessment of the information and evidence available to the Commission — Admissibility (Arts 88(2) EC and 263, fourth para., TFEU; Rules of Procedure of the General Court, Art. 44(1)(c); Council Regulation No 659/1999, Arts 1(h), 4(3), and 6(1)) (see para. 87)

6. State aid — Examination by the Commission — Establishment of a framework for aids in a given sector — Rules applicable to the high-speed electronic communications sector laid down by the Commission in guidelines — Applicability of those guidelines as from the first day following that of their publication — Publication the same day as that on which the contested decision was adopted — Inapplicability of the guidelines to that decision (Art. 88(1) EC; Commission Notice 2009/C 235/07, points 3, 7, 59 and 80) (see paras 96, 108)

7. State aid — Concept — Measures designed to compensate for the cost of public service missions undertaken by an undertaking — Not included — Conditions set out in the Altmark judgment (Arts 86(2) EC and 87(1) EC) (see paras 105-107, 194, 202, 203)

8. Competition — Undertakings entrusted with the operation of services of general economic interest — Definition of services of general economic interest — Member States’ discretion — Limits — Control by the Commission and by the EU judicature limited to cases of obvious error (Arts 86(2) EC and 87(1) EC; Commission Notices 2001/C 17/04, point 22, and 2009/C 235/07, points 24 to 26 and 59) (see paras 116-120, 195)

9. State aid — Concept — Criterion for appraisal — Weakening of the market — Relevance to classification of a service as being one of general economic interest — Time for assessment (Arts 86(2) EC and 87(1) EC; Commission Notices 2001/C 17/04, point 14, and 2009/C 235/07, points 24, 77 and 78) (see paras 149-153, 163)

Re:

APPLICATION for annulment of Commission Decision C(2009) 7426 final of 30 September 2009 concerning the compensation for public service costs for the establishment and operation of a very high speed broadband electronic communications network in the Hauts-de-Seine department (State Aid N 331/2008 — France).

Operative part

The Court:

1. Dismisses the action;

2. Orders Orange to bear its own costs and to pay those incurred by the European Commission;