OPINION OF ADVOCATE GENERAL

JÄÄSKINEN

delivered on 2 December 2010 ( )

Case C‑148/09 P

Kingdom of Belgium

v

Deutsche Post,

DHL International

(Appeal – Action for annulment – State aid – Commission decision not to raise objections under Article 88(3) EC – Reclassification of the subject-matter of the appeal – Concept of ‘serious difficulties’)

1. By the present appeal, the Belgian Government, supported by the European Commission, seeks to set aside the judgment of the General Court of the European Communities (now ‘the General Court’) of 10 February 2009 in Case T‑388/03 Deutsche Post and DHL International v Commission [2009] ECR II-199 (‘the judgment under appeal’) annulling the Commission’s decision of 23 July 2003 not to raise objections, following the preliminary investigation procedure provided for in Article 88(3) EC, to several measures taken by the Belgian authorities in favour of La Poste SA, the Belgian public postal undertaking (C(2003) 2508 final, ‘the contested decision’).

2. The main question raised by the present case concerns the extent of the General Court’s power to reclassify the subject‑matter of the dispute before it. The Court of Justice is also requested to rule on the interpretation of the concept of ‘serious difficulties’ which may lead to the initiation by the Commission of the formal investigation procedure under Article 88(2) EC.

I – Facts of the dispute

3. La Poste SA (‘La Poste’) became a public limited company in 1992, but remains the operator of the universal postal service in Belgium and has to meet specific obligations in regard to services of general economic interest (‘SGEIs’). The detailed rules for compensating the additional net cost of SGEIs are determined in the management contract concluded with the Belgian State.

4. The express parcels sector accounts for 4% of the turnover of La Poste, which corresponds to an 18% market share in this sector. Deutsche Post AG (‘Deutsche Post’) and its Belgian subsidiary DHL International hold a 35% to 45% share of that market.

5. By letter of 3 December 2002, the Belgian authorities notified the Commission of a proposed increase in the capital of La Poste in the amount of EUR 297.5 million.

6. According to the Belgian Government, the recapitalisation reflected the perspective of a private investor in the market economy and therefore entailed no element of State aid.

7. On examination of the measure, it appeared that six previous measures that had not been notified relating to performance of SGEI tasks had to be scrutinised because, according to the Commission, they affected the lawfulness of the capital increase notified. The measures were: an exemption from payment of corporation tax; cancellation of a provision for pensions of EUR 100 million in 1997; the possibility of receiving a State guarantee for loans taken out; an exemption from property tax on buildings used in order to provide public services; overcompensation for financial services of general interest during the first management agreement (1992 to 1997); and two non-notified increases in capital in 1997 totalling EUR 62 million.

8. On 22 July 2003, Deutsche Post and DHL International asked the Commission for information on the status of the investigation procedure in respect of the notified measure with a view to their possible participation in it.

9. On 23 July 2003, believing that the capital increase notified as well as other measures discussed did not constitute State aid, the Commission adopted the contested decision following the preliminary examination procedure provided for in Article 88(3) EC.

II – Procedure before the General Court and the judgment under appeal

10. On 27 November 2003, Deutsche Post and DHL International brought an action for annulment against the contested decision.

11. The Commission raised before the General Court an objection of inadmissibility on the basis that the applicants at first instance lacked standing to act and had no legal interest in the outcome of the case. In regard to admissibility, the General Court conducted a review first of the applicants’ standing to bring proceedings and then of their interest in doing so. Following that analysis, the General Court rejected the objection of inadmissibility submitted by the Commission, taking the view, in paragraph 57 of the judgment under appeal, that the applicants did have standing to bring proceedings in order to safeguard their procedural guarantees. In paragraphs 61 to 64, the General Court found that in their capacity of parties concerned within the meaning of Article 88(2) EC, the applicants had a legal interest in bringing proceedings.

12. On the substance, after noting that the concept of ‘serious difficulties’ was an objective one, the General Court identified, in paragraphs 96 to 107 of the judgment under appeal, the set of indicators establishing such serious difficulties, on the basis of the duration and circumstances of the preliminary examination, the inadequate and incomplete nature of the examination and the content of the contested decision.

13. The General Court concluded, in paragraph 106 of the judgment under appeal, that the procedure conducted by the Commission considerably exceeded what is normally required for an initial examination under Article 88(3) EC.

14. The General Court then found that the Commission’s examination of the second measure in favour of La Poste, that is to say, cancellation of the provision for pensions, was inadequate, as the Commission did not have available to it the information needed in order to assess the advantage procured by the free provision of buildings by the Belgian State.

15. Finally after noting that, in accordance with the judgment in Altmark Trans and Regierungspräsidium Magdeburg, ( ) delivered after the adoption of the contested decision, the Commission had to determine whether the SGEI costs offset by the State were equivalent to or lower than those of an average well-managed company (the ‘benchmarking’ criterion), the General Court found that there had been no such determination in the present case. It therefore concluded that the examination of the measure notified was incomplete.

16. Consequently, the General Court annulled the contested decision on the basis of the second, fourth and seventh pleas in law.

III – The appeal

17. In its appeal, the Kingdom of Belgium, supported by the Commission, requests the Court to set aside the judgment under appeal and to order the applicants at first instance to pay the costs. The Belgian Government deploys three pleas in support of its appeal.

18. In its reply, while responding to these three pleas, the Commission deploys a ‘self-standing’ plea based on the inadmissibility of the action before the General Court. ( )

19. Deutsche Post and DHL International contend that the appeal should be dismissed and that the Kingdom of Belgium and the Commission should be ordered to pay the costs.

IV – The self-standing ground of appeal raised by the Commission

20. Having regard to the crucial nature of this ground of appeal, I propose that the Court should examine it first of all.

A – Arguments of the parties

21. According to the Commission, the General Court infringed Article 230(4) EC by declaring the applicants’ action at first instance admissible on the ground that they relied on the safeguarding of procedural guarantees conferred by Article 88(2) EC. The Commission submits that it is clear that the application before the General Court did not contain the alleged second plea based on the safeguarding of procedural rights. The Commission is therefore criticising the General Court for reclassifying an application brought before it.

22. The Commission stresses that the issue of the safeguarding of procedural rights was mentioned once only, in point 17 of the application, in the passage devoted to the admissibility of pleas already set out and directed against the substance of the decision. It was not therefore, according to the Commission, a distinct plea.

23. The applicants at first instance raise the inadmissibility of the Commission’s self-standing ground of appeal, as a supplementary plea within the meaning of Article 117(2) of the Rules of Procedure of the Court, originating from an intervener. In addition, in the applicants’ view, the Commission is mistaken in considering that the plea concerning the safeguarding of procedural rights was not relied on at first instance. They list, in this connection, the various passages in their application that refer to this issue and conclude, therefore, that the General Court did not err in law in its classification of the arguments in question.

B – Assessment

1. Observations on the admissibility of the ground of appeal

24. As a preliminary matter, I would observe, as regards raising matters of its own motion, that it is settled law that the Court may raise of its own motion any question on the admissibility of an appeal against a decision of the General Court. ( )

25. As regards the admissibility of an action for annulment brought before the General Court, the Court, when hearing an appeal under Article 56 of its Statute, is required to rule, if need be of its own motion, on the public policy plea based on non-compliance with the condition laid down in Article 230(4) EC, according to which a claimant may seek annulment of a decision not addressed to him only if he is directly and individually concerned by it. ( )

26. The pleas that may, if appropriate, be raised of the Court’s own motion may be raised at any stage in the proceedings. ( ) Thus, a plea that may be raised of the Court’s own motion may either be put forward by the parties or raised by the Court.

27. However, in the present case, I am of the opinion that the admissibility of the Commission’s self-standing ground of appeal may be based on application mutatis mutandis of the principles governing the introduction of a cross-appeal. It is clear from Article 115 of the Rules of Procedure of the Court that any party to the proceedings before the General Court may lodge a response within two months from service of the notice of appeal. In this connection, it is to be noted that the Commission was the defendant before the General Court.

28. Moreover, according to the case-law, the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union does not prevent an intervener from using arguments other than those used by the party it supports, provided the intervener seeks to support the form of order sought by that party. ( ) As to the pleas that may be raised, no distinction is drawn between the parties having the right to lodge a response, who are subject in the same manner to the requirements of Articles 115 and 116 of the Rules of Procedure of the Court. An intervener enjoying the right to lodge a response under Article 115 of the Rules of Procedure of the Court must, in the absence of any express limitation, be allowed to raise pleas concerning any point of law on which the judgment under appeal is founded. ( )

29. A fortiori the Commission must be acknowledged as enjoying such a right in its capacity as defendant at first instance and party to the appeal proceedings before the Court.

30. Accordingly, the Commission’s self-standing ground of appeal must be declared admissible.

2. Substance

31. This ground of appeal raises important questions as to the extent of the prerogatives of the General Court in the interpretation of the pleas submitted to it. The answer is closely linked to the issue of the prohibition on reclassifying the subject matter of an action in accordance with the judgment in Stadtwerke Schwäbisch Hall and Others v Commission, an issue with which I have already dealt in my Opinion in Commission v Kronoply and Kronotex, in which I invited the Court to follow its judgments in Cook v Commission and Matra v Commission ( ) but to refine the detailed rules governing their application. ( )

32. Those judgments relate to cases in which the Commission, without opening the procedure under Article 88(2) EC, finds, on the basis of Article 88(3) EC, that the measure notified does not constitute State aid or that a State aid is compatible with the common market. Thus, the persons, undertakings or associations likely to be affected in their interests by the grant of aid, in particular competing undertakings and professional organisations, which, as concerned parties, enjoy procedural guarantees when the procedure under Article 88(2) EC is implemented, are allowed to bring an action for annulment of the decision making such a finding.

33. The admissibility of such an action, in accordance with Cook v Commission and Matra v Commission, therefore depends on the nature of the pleas on the one hand, and the status of the applicant, on the other. The admissibility criteria are assessed differently, depending on whether the applicant is challenging the Commission’s decision on its substance or seeking to safeguard the procedural safeguards it enjoys. Following Commission v Aktionsgemeinschaft Recht und Eigentum, that clear distinction determines the conditions governing examination of admissibility. ( )

34. In the present case, in order to address the ground of appeal in question, the application lodged at first instance must be compared with the interpretation of it by the General Court in the judgment under appeal.

35. In paragraph 36 of the judgment, the General Court reviewed the case-law relied on by the parties regarding the status of competitors of the recipient of an aid measure who may challenge the decision adopted following the preliminary examination procedure. ( )

36. In paragraph 45 of the judgment, the General Court set out all the pleas raised before it, stating that the second plea was expressly based on an infringement of Article 88(3) EC. ( )

37. However, it is apparent from the application at first instance that the applicants defined the subject-matter of the dispute by raising the pleas set out at points 3 and 4 of the document.

38. Thus, in point 3 of the application, the applicants at first instance first of all raised the infringement of rights of the defence resulting from the removal, in the non-confidential version of the decision, of information that in their view was essential.

39. In point 4 of the application, the applicants at first instance criticised the Commission for not classifying the following measures as aid: first, exemption of La Poste from corporation tax; secondly, cancellation of the provision for pensions; and thirdly, the opportunity for La Poste to benefit from a State guarantee for the loans. Finally, also in point 4 of the application, the applicants at first instance called into question the method and content of the calculation carried out by the Commission of the balance between the financial benefits accruing to La Poste and the costs of the SGEIs, since the Commission did not take into account the measures described above. Finally, the applicants at first instance criticised the Commission for deducting on a flat-rate basis from any compensation the additional net costs intended for the provision of the SGEIs without checking whether the compensation was specifically for the period during which costs had been incurred.

40. It is therefore clear that none of these pleas expressly refers to the infringement of the rights conferred by Article 88(2) EC.

41. Certainly, in a part of their pleadings relating to the admissibility of the application to the General Court in its entirety, in particular in point 17 of the application, the applicants at first instance cited the case-law on compliance with procedural guarantees. However, none of the pleas described above refers expressly to the infringement of procedural safeguards within the meaning of Cook v Commission and Matra v Commission. It seems therefore that the applicants at first instance cited the case-law relating to conditions governing admissibility without distinguishing between substantive conditions of admissibility and the conditions governing admissibility in relation to safeguarding procedural rights.

42. In addition, it is true that in point 22 of the application, which relates to the first plea on infringement of the rights of the defence, the applicants at first instance argue that ‘[i]n the context of an appropriate examination, the Commission ought to have initiated the main investigation procedure provided for under Article 88(2) EC. Since it did not do so, its decision is unlawful’. However, this assertion is not enough by itself to constitute a separate plea. It is, moreover, in a part of the application at first instance dealing with whether the action is well founded.

43. Finally, in point 14 of the application, the applicants at first instance point out that they applied to the Commission to be considered concerned parties within the meaning of Articles 1(h) and 20 of Regulation (EC) No 659/1999. ( )

44. However, these elements cannot be equated with an actual plea.

45. In the light of the foregoing, the Commission’s criticisms of the General Court’s reasoning must be regarded as well founded, since the General Court seems to have extracted from the application before it elements enabling it to construct a separate plea, referred to as the ‘second plea’, on the basis of fragmentary particulars contained in several parts of the application.

46. In this connection, I note that, according to Stadtwerke Schwäbisch Hall and Others v Commission, the Court of Justice found that, where the forms of order sought before the General Court and all the pleas raised in support of them sought annulment of the contested decision on the merits, the General Court erred in law by reclassifying the subject-matter of the action before it and consequently forming the view, wrongly, that the applicants were seeking observance of procedural guarantees which should have been available to them.

47. In the present case, the General Court reclassified the subject-matter of the action in breach of the abovementioned case-law, which constitutes an error of law. In doing so, the General Court exceeded its powers, given that it is bound, in accordance with that case-law, by the subject-matter of the dispute as stated in the application brought before it.

48. Since it is clear from the foregoing considerations that no plea seeking to safeguard procedural guarantees was expressly put forward by the applicants at first instance and that the General Court held, in paragraphs 47 and 51 of the judgment under appeal, that the applicants did not meet the Plaumann v Commission ( ) criteria, I consider that the General Court should have declared inadmissible the pleas relating to substance. However, the General Court limited itself, in paragraphs 67 and 68 of the judgment under appeal, to regarding as inadmissible the pleas seeking a ruling on the existence of State aid or on its compatibility with the common market and the plea relating to infringement of the rights of the defence.

49. Therefore, I propose that the Court should uphold the ground of appeal raised by the Commission, and consequently set aside the judgment of the General Court in that it reclassified the subject-matter of the dispute before it, without it being necessary to examine the other grounds of the principal appeal.

50. In addition, I believe that the Court could also determine the dispute without referring the case back to the General Court, by dismissing the action at first instance as inadmissible in its entirety.

51. However, should the Court opt for another solution, I propose to analyse, in the alternative, the arguments of the principal appeal lodged by the Belgian Government.

V – Second ground of the principal appeal

52. Since this ground of appeal is closely linked to the preceding one, I propose to examine it before the other grounds of the main appeal.

A – Arguments of the parties

53. The Belgian Government argues that the General Court erred in law by declaring the fourth and seventh pleas in the application at first instance admissible, even though by these pleas the applicants called in question the substance of the contested decision.

54. For its part, the Commission argues that the General Court, in the judgment under appeal, conducted an analysis of the substance of the contested decision.

55. According to the applicants at first instance, the General Court merely took into account all relevant elements in order to assess the possible presence of serious difficulties.

B – Appraisal

56. As a preliminary point, I emphasise that the reply to be given to the present ground is dependent on the reply that the Court will provide, first, in the case of Commission v Kronoply and Kronotex, to the question of the validity of the Cook v Commission and Matra v Commission line of case‑law and, secondly, to the Commission’s self-standing ground raised in the present appeal.

57. First of all, with particular regard to the seventh plea raised by the applicants at first instance before the General Court, I observe that, in their application, they made no mention of the question of the relevance of Altmark Trans and Regierungspräsidium Magdeburg. It was only in response to the pleadings of the Commission that this issue was raised. ( ) So the General Court considered this plea, in paragraphs 70 to 73 of the judgment under appeal, in the light of the case-law to the effect that a submission which may be regarded as amplifying a submission made previously, directly or by implication, in the original application must be considered admissible. ( ) However, if the General Court had considered that the question of the examination of the criteria defined in Altmark Trans and Regierungspräsidium Magdeburg could not be attached to the plea set out in the application, this issue would have been liable to constitute a new plea whose production is prohibited, pursuant to Article 48(2) of the Rules of Procedure of the General Court, unless such a plea is based on elements of law and fact which come to light in the course of the procedure.

58. In this connection, I note that in paragraph 73 of the judgment under appeal, the General Court found that the seventh plea of the application at first instance was closely linked with the second plea, alleging infringement of the provisions of Article 88(3) EC. However, in view of the fact that I hold the view that the second plea, as defined by the General Court as the procedural plea, is non-existent, I propose that the General Court should be found to have erred in law in judging that the seventh plea was an amplification of a hypothetical second plea, where that seventh plea ought to have been adjudged inadmissible. However, should the Court not follow such a radical proposal, the issue calls for the following observations on my part.

59. In paragraph 45 of the judgment under appeal, the General Court set out the pleas in support of the action, noting that the fourth plea concerned the examination by the Commission of the measures concerning the cancellation of a provision, while the seventh plea concerned a failure to verify the cost at which the SGEIs were provided under the criteria laid down in Altmark Trans and Regierungspräsidium Magdeburg.

60. Thus, at first sight, and provided the General Court has properly identified and described the pleas in question, it should be noted that the abovementioned pleas concern the merits. According to Cook v Commission and Matra v Commission, which are still relevant, the General Court was therefore required to examine whether the applicants were in a particular situation within the meaning of Plaumann v Commission. The General Court indeed rightly found, in paragraphs 47 and 51 of the judgment under appeal, that the evidence adduced by the parties was not of such a nature as to demonstrate that their competitive position, compared to that of La Poste’s other competitors, was substantially affected.

61. In contrast, after finding in paragraph 52 of the judgment under appeal that the applicants at first instance had the status of concerned parties for the purposes of Article 88(2) EC, the General Court proceeded to analyse the issue of the safeguarding of procedural rights in response to a so-called second plea in the application.

62. After identifying, in paragraph 55 of the judgment under appeal, the second plea as a plea explicitly challenging the infringement of procedural rights, the General Court found, in paragraph 56 of the judgment, that the third, fourth, fifth and seventh pleas provided evidence in support of the second plea. It therefore concluded, in paragraph 57 of the judgment under appeal, that the applicants at first instance had standing to bring proceedings.

63. Thus, the admissibility of the fourth and seventh pleas was linked by the General Court to the admissibility of the second plea concerning the protection of procedural safeguards, which, if it existed, would have been governed by more flexible criteria of admissibility under Cook v Commission and Matra v Commission.

64. That approach by the General Court constitutes a twofold error of law.

65. In the first place, it is clear that the General Court used the arguments raised in support of the fourth and seventh pleas on the merits in the context of the analysis of the second plea, which I consider to be non-existent.

66. Moreover, even assuming that this second plea was actually raised before the General Court, such an approach seems to me open to criticism. In the context of an application for annulment of a decision of the Commission, it is for the applicant to delineate the dispute and clearly identify the arguments intended to show that there are serious difficulties in regard to the application of Article 88(3) EC, warranting initiation of the formal investigation procedure by the Commission. Thus, in formulating a ‘procedural’ plea, the applicant may refer to the facts which form part of the substance. However, in my opinion, it is not for the General Court to substitute itself for the parties by searching the application for elements liable to substantiate the plea of infringement of procedural rights. ( ) Thus, in so far as no specific arguments were raised in its support, the second plea before the General Court, on the assumption that it was put forward, should have been declared inadmissible.

67. In the second place, since the fourth and seventh pleas of the application were substantive, and having regard to the reasoning of the General Court in paragraphs 47 and 51 of the judgment under appeal, according to which the applicants at first instance had not established that their competitive position on the market had been substantially affected, the fourth and seventh pleas in the application should have been declared inadmissible in accordance with the relevant case-law, that is to say Cook v Commission and Matra v Commission.

68. Therefore, I propose that the Court should rule that the General Court erred in law, and consequently uphold the second ground of the principal appeal. On the basis of this ground of appeal, the Court will be obliged to annul the General Court’s judgment in its entirety and to give final judgment on the dispute by declaring the application at first instance inadmissible.

VI – The first ground of the principal appeal

A – Arguments of the parties

69. The Belgian Government argues that the General Court incorrectly classified certain circumstances of the preliminary examination procedure as objective and coherent indicators of ‘serious difficulties’ requiring the initiation of the formal investigation procedure referred to in Article 88(2).

70. As regards the circumstances in which the examination procedure was conducted, the two-month reference period accepted by the General Court is, according to the Belgian Government, only indicative, so that exceeding it cannot automatically mean that the Commission has met with serious difficulties. Thus, a period of seven months cannot be said manifestly to exceed the period of time within which the Commission should in principle complete its preliminary examination. The Commission adds that, in the specific circumstances of the case, the duration of the preliminary examination was not excessive.

71. Moreover, according to the Belgian Government, the extent of the substantive and/or temporal parameters of the examination procedure does not necessarily reflect serious difficulties on the merits. The General Court failed to identify a link in concreto between, on one hand, the vast field of investigation involved in the examination of the notified aid and its apparent complexity and, on the other hand, the presence of serious difficulties. According to the Commission, factual difficulties do not necessarily entail serious difficulties.

72. Finally, the Belgian Government stresses that the hesitation about the legal basis demonstrates the number of options available to the Commission for closing the file rather than serious difficulties.

73. With regard to the content of the contested decision, the Belgian Government considers that, in its analysis of the adequacy of the examination of the aid notified, the General Court comes to a different result on the substance from that reached by the Commission. However, such a difference cannot be used to support a conclusion that there were serious difficulties. Moreover, the Commission stresses that consideration of the ‘benchmarking’ criterion based on Altmark Trans and Regierungspräsidium Magdeburg is not relevant in the context of review of the safeguarding of the procedural guarantees provided for in Article 88(2).

74. In general, the applicants at first instance consider that the examination procedures used by the Commission in the context of privatisation of State postal undertakings are traditionally conducted by the Commission under the formal investigation procedure. Such operations are characterised by a complex factual context necessarily implying serious difficulties.

75. In particular, the applicants at first instance point out, first of all, that, during the examination procedure, the Commission itself highlighted the complexity of the file submitted to it. Next, the Belgian Government has failed to reply to the General Court’s findings that the Commission did not have available to it all the factual information necessary to examine the assignment of real property and the cancellation of pension provisions. Finally, the applicants underline the importance of ‘benchmarking’ SGEI costs under the fourth criterion laid down in Altmark Trans and Regierungspräsidium Magdeburg.

B – Assessment

76. As a preliminary point, it should be recalled that, although the Court is not competent to decide, in the framework of an appeal, on matters of fact, it is competent, under Article 225 EC, to review the legal classification of the facts and the legal conclusions drawn from them by the General Court. ( ) Thus, the Court may rule on the concept of ‘serious difficulties’, as interpreted by the General Court on the basis of the factual evidence adduced before it.

77. According to the Court’s case-law, State aid, as defined in the EC Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the European Union judicature must as a matter of principle, having regard both to the specific features of the case before it and to the complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 87(1) EC. ( )

78. Under the first sentence of Article 88(3) EC, the Commission is to be notified of any plans to grant or alter aid before those plans are implemented. The Commission then conducts an initial review of the planned aid. If at the end of that review it considers a plan to be incompatible with the common market, it must without delay initiate the procedure under the first paragraph of Article 88(2) EC. ( )

79. It is important to emphasise that the Commission is required to determine, in accordance with the circumstances of fact and law specific to the case, whether the difficulties encountered in the consideration of the compatibility of the aid necessitate initiation of this procedure. In its assessment, first, the Commission is required to comply with the requirements relating to the limitation of its power to decide on the compatibility of aid only to measures not raising serious difficulties, with the result that this criterion is exclusive in nature. ( ) Secondly, when it encounters serious difficulties, the Commission has no discretion in regard to initiating the formal investigation procedure. ( ) Thirdly, the concept of serious difficulties is objective. ( ) Finally, the review of lawfulness by the General Court as to the existence of serious difficulties by its nature goes beyond the search for a manifest error of assessment. ( )

80. Thus, according to settled case-law, the Commission cannot limit itself to the preliminary procedure under Article 88(3) EC and take a favourable decision on aid unless it is in a position to reach the firm view, following an initial investigation, that the aid is compatible with the EC Treaty or that the notified measure does not constitute State aid. On the other hand, if the initial analysis results in the Commission taking the contrary view or does not enable all the difficulties raised by the assessment of the aid’s compatibility with the common market to be overcome, the Commission has a duty to gather all necessary views and to that end to initiate the procedure under Article 88(2) EC. ( )

81. The Commission enjoys a margin of discretion in evaluating the circumstances of the case in order to determine whether or not they present serious difficulties. ( ) On the other hand, the concept of serious difficulties is an objective one. Their existence must be sought not only in the circumstances in which the contested measure was adopted but also in the assessments upon which the Commission relied. ( )

82. In the present case, the Belgian Government strives to demonstrate that none of the indicators chosen supports a finding of serious difficulties. It refers to the duration of the procedure, the investigative scope of the original procedure, to hesitations as to the choice of the legal basis for the decision of the Commission, and to substantive elements of the contested decision.

83. I would recall that, although the Court has not precisely defined what elements are liable to constitute indicators of the existence of a serious difficulty, as Advocate General Trstenjak summarised in her Opinion, three types of indicators have been identified in the case-law. These can result, first, from the content of the discussions between the Commission and the Member State during the preliminary phase, secondly, from the time elapsed during the preliminary examination phase in the case at hand and, thirdly, from the assessments on the basis of which the Commission adopted a decision at the end of the preliminary phase. These appraisals may identify difficulties such as to justify opening the formal investigation phase. ( )

84. It is clear that, after rightly recalling the rules governing the procedure laid down in Article 88 EC, the General Court endeavoured, in paragraphs 96 to 110 of the judgment under appeal, to examine the circumstances of the case that might establish the existence of serious difficulties.

85. Thus the General Court pointed out, in paragraph 94 of the judgment under appeal, that the fact that the time spent considerably exceeds the time usually required for a preliminary examination under Article 88(3) EC of the Treaty may, with other factors, justify the conclusion that the Commission encountered serious difficulties of assessment necessitating initiation of the procedure under Article 88(2) EC. ( )

86. Thus in the view of the General Court the existence of serious difficulties is suggested by a set of indicators taken as a whole.

87. In this connection, I would like to emphasise a distinction that should be preserved in the present case between the concept of indicator and that of proof. Thus, the elements mentioned by the General Court consisting of a specific fact, event or circumstance must be interpreted as factors pointing in all likelihood to the veracity of an assertion, namely the presence of serious difficulties.

88. Those factors cannot however be considered as evidence, understood as elements of a demonstration leading to the establishment of the finding contended for, which it is for the General Court to make. The General Court is not therefore required to prove certain facts, but must be able to draw a logical and reasoned conclusion on the basis of the objective factors adduced before it.

89. In the judgment under appeal, the General Court first of all conducted an analysis of the difficulties connected with the duration and circumstances of the procedure in the present case. Then, in paragraphs 107 to 118, the General Court analysed the difficulties said to be demonstrated by the actual content of the Commission’s decision.

90. In the first place, I consider that assessment of the concept of ‘serious difficulties’ does not necessarily entail an analysis of other cases in order to identify the average duration of the preliminary examination where no difficulties arise for the Commission. An examination of the indicators of serious difficulties should rather be carried out on a case-by-case basis and, in particular, in the light of the nature of the measure before the Commission.

91. It is common ground that ordinary direct support will not involve the same length of examination as complex arrangements such as compensation for the provision of SGEIs. Thus, a mere nominal difference in duration cannot in itself constitute a decisive factor enabling the existence of serious difficulties to be established. However, as Advocate General Trstenjak noted, this aspect can constitute an indicator of serious difficulties.

92. In addition, the fixed deadline in relation to the ‘decision not to raise objections’ laid down by Article 4(3) of Regulation No 659/1999 for notified aid is two months. This period may be extended, pursuant to paragraph 5 of that article, by mutual consent or where the Commission needs additional information.

93. It is important, however, to mention that, according to the applicants at first instance, the examination procedures initiated by the Commission in connection with the privatisation of public sector undertakings are generally dealt with under a formal investigation procedure.

94. Secondly, as regards the relevance of the circumstances in which the preliminary examination procedure was conducted, which are analysed in paragraphs 99 to 105 of the judgment under appeal, I consider that requesting information from the Member State forms part of the Commission’s obligations of diligence under the procedure for the examination of the measures notified, so that, if the measure is particularly complex, the nature of these exchanges could reveal the existence of serious difficulties.

95. In the present case, the General Court stressed the magnitude of the field of investigation covered by the Commission. Yet that fact that the Commission was able, despite the complexity of the matter, in a relatively short time to examine a number of notified and non-notified measures spanning a period of years is evidence of the capability of its services, rather than of the existence of difficulties in examining the measure submitted.

96. It certainly seems to me that the complexity of a dossier does not in itself point to the fact that the Commission is experiencing serious difficulties such as to lead it to open the procedure referred to in Article 88(2) EC. However, when that complexity goes hand in hand with a protracted examination procedure, these circumstances militate in favour of the existence of serious difficulties.

97. The most convincing item of evidence seems to me however to be that noted by the General Court in paragraph 102 of the judgment under appeal in regard to the assessment of measures examined by the Commission. In this connection, the General Court considered it apparent from the file that the Commission had stated on several occasions that it was necessary for the formal investigation procedure to be initiated. It seems to me difficult to reconcile the contention that there were no serious difficulties with such a conclusion, at the end of the preliminary procedure.

98. Thirdly, as regards the Commission’s hesitations as to the choice of legal basis, it seems to me that this factor is of a purely formal nature since the Commission hesitated between finding that there was no aid and adopting a decision declaring the measures examined under Article 88(3) EC to be compatible.

99. However, I note that the Commission linked the lawfulness of the measure notified to the lawfulness of the six non-notified measures adopted from 1992 to 1997. It thus seems to me difficult to deny that there were serious difficulties having regard to the uncertainty surrounding the classification of the measures offsetting SGEIs for the period which could justify the conclusion that the non-notified measures, which were therefore illegal, could come within the scope of Article 87(1) EC.

100. In its decision, the Commission argued that, as La Poste recorded a net loss, the measure providing for exemption from corporation tax procured neither any advantage nor any transfer of State resources for La Poste.

101. However, this non-notified measure was plainly evaluated after the tax years examined. The question that arises is therefore whether notifying and examining it beforehand could have altered the Commission’s conclusion on State aid. This raises a doubt which justifies considering that the Commission should have initiated the formal investigation procedure under Article 88(2) EC.

102. Fourthly, as regards the content of the contested decision, in the light of the matters set out in paragraphs 108 to 110 of the judgment under appeal, the General Court was entitled to take the view that the Commission adopted the contested decision without having available to it evidence enabling the existence of an advantage to be established.

103. Finally, as regards the failure to assess the level of the cost of the SGEIs in relation to the criteria established by the Court in Altmark Trans and Regierungspräsidium Magdeburg, I propose to consider this question outside the framework of this ground of appeal. It has already been examined in regard to admissibility, in the response to the second ground of the principal appeal. In contrast, on the merits, the question of the relevance of Altmark Trans and Regierungspräsidium Magdeburg for the purposes of assessing the lawfulness of the contested decision will be analysed in response to the third ground of the principal appeal.

104. Having regard to the foregoing, I am of the opinion that the General Court rightly acknowledged the existence of elements that should have led the Commission to initiate the formal investigation procedure under Article 88(2) EC. Nevertheless, I think that the General Court was entitled to take the view that the Commission ought to have initiated the formal procedure only in the light of all the difficulties the Commission encountered during examination of the measures in question. In isolation, none of the matters reviewed by the General Court seems to me sufficiently conclusive. This also appears to be the position of the General Court in paragraphs 98 and 99 of the judgment under appeal.

105. Therefore, and in the event that the Court does not follow my proposal for dealing with the Commission’s self-standing ground of appeal and with the second ground of the principal appeal, I propose that the Court should reject the first ground as unfounded.

VII – Third ground of the principal appeal

A – Preliminary observations

106. According to the General Court, the subject-matter of the seventh plea in the application at first instance was the issue of the Commission’s inadequate examination in the light of the criteria laid down in Altmark Trans and Regierungspräsidium Magdeburg. As I said above in response to the second ground of the principal appeal, the seventh plea ought to have been declared inadmissible. However, in the event that the Court does not follow this proposal, I propose to consider this ground on its merits.

B – Arguments of the parties

107. The Belgian Government and the Commission criticise the General Court for infringing the principle of legal certainty by retroactively applying the fourth criterion of Altmark Trans and Regierungspräsidium Magdeburg. The Belgian Government relies in this regard on the judgment in Sarrió v Commission, ( ) according to which the Commission must comply only with the case-law applicable at the time it adopts its decisions.

108. The applicants at first instance highlight the differences between the present case and the Sarrió v Commission case in order to challenge the relevance of the arguments advanced by the Belgian Government.

C – Assessment

109. In its plea, the Belgian Government is alleging an infringement by the General Court of the principle of legal certainty. However, in order to respond usefully to its concerns, it is appropriate briefly to rehearse the issue of the effects to be attached to the interpretative judgments that the Court delivers in preliminary-ruling proceedings, as well as the rules governing the temporal application of rules of law of the European Union.

110. I would observe that the retrospective nature of case law (judge-made law) as a source of law is a classic aspect of legal thought and writing. ( )

111. In its case-law, the Court has expressly upheld the principle of the retroactive effect of its interpretative judgments under Article 234 EC. ( ) In principle, the interpretation given by the Court merely expresses the content of the applicable rule of European Union law ab initio. ( )

112. Thus the interpretation which the Court, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, gives to a rule of European Union law clarifies and defines, where necessary, the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule as thus interpreted may and must be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation, if in other respects the conditions are satisfied for bringing an action relating to the application of that rule before the courts having jurisdiction. ( )

113. However, the Court may exceptionally, taking into account the serious effects which its judgment might have as regards the past, find it necessary to limit for any person concerned the opportunity of relying on the interpretation of a provision it gives by way of preliminary ruling. ( )

114. The applicability of the criteria established in Altmark Trans and Regierungspräsidium Magdeburg was extensively analysed by the General Court in BUPA and Others v Commission. ( ) In that judgment, it was held that, in the absence of any temporal limitation, the principles outlined in Altmark Trans and Regierungspräsidium Magdeburg on the interpretation of Article 87(1) EC were fully applicable to the factual and legal situation of the case as it presented itself to the Commission when it adopted the contested decision, even though the judgment in question was delivered after the adoption of the decision of the Commission, which was not, therefore, in a position to be aware of the tenor of the judgment when it adopted its decision. ( )

115. I believe that in Altmark Trans and Regierungspräsidium Magdeburg the Court clarified the criteria applicable to administrative review of a measure liable to constitute State aid in the context of the provision of SGEIs. The Court thus interpreted a provision of European Union law, namely Article 86 EC, seeking to clarify the detailed terms of its interpretation and application.

116. The Court therefore confined itself to applying a rule in force; it did not create a new rule. In this connection, it should be noted that a judgment delivered by way of a preliminary ruling does not create or alter the law but is merely declaratory, which is why its effects date back, as a matter of principle, to the date of entry into force of the rule interpreted. ( )

117. Moreover, I consider that the legal order of the European Union affords no guarantee as to the infallibility of the Commission in the application of the rules of Union law. As the Commission has no interest other than that of preserving the lawfulness of European Union law, the fact that the Court provides it with material that is useful for the application of a disputed provision constitutes a useful source of information for the Commission in the exercise of its competence. The Commission is required to apply Union law objectively.

118. In the judgment under appeal, the General Court considers that the absence of a comprehensive review of the measure at issue in the light of one of the criteria established in Altmark Trans and Regierungspräsidium Magdeburg suggests that the Commission was experiencing serious difficulties. The Commission actually disregarded a rule of which it could not have been aware when it adopted the contested decision. ( )

119. The General Court’s reasoning in BUPA and Others v Commission thus differs slightly from its reasoning in the judgment under appeal. In the former case, taking into account its conclusion as to the applicability of the Altmark Trans and Regierungspräsidium Magdeburg criteria whose temporal scope was not limited by the Court, the General Court decided to examine whether the contested decision was compatible with the criteria defined in that judgment. It thus conducted a review of the lawfulness of the decision by applying the criteria defined in that judgment in accordance with the spirit and purpose prevailing at the time they were defined, in a manner adapted to the specific case before it.

120. Moreover, in Asklepios Kliniken v Commission, the General Court accepted, in connection with the assessment of the period for dealing with a complaint, that the Commission was legitimately entitled to defer examination of matters of fact raised by the complaint pending clarification of the legal framework within which the complaint was to be conducted, in view of the importance of the Altmark Trans and Regierungspräsidium Magdeburg case. The General Court therefore considered in substance that the Commission had not breached its obligations of diligence by awaiting the outcome of that case. ( )

121. Finally, while it is settled case-law that the lawfulness of a decision on State aid must be assessed on the basis of the information available to the Commission when it adopted the decision, ( ) it is necessary to reaffirm the fundamental difference between the facts available to the Commission and the interpretation of the law, namely the legislative reference framework which is the subject of interpretation by the European Union judicature. That framework forms part of the objective legality binding on the Commission.

122. Having regard to the foregoing, I believe that the interpretation by the Court of a provision in force must result in annulment of a Commission decision against which an action lies and which was adopted before the delivery of the Court’s judgment, where the Commission has failed to apply the criteria for administrative examination under the new interpretation, provided that the claimant has relied on the provision interpreted.

123. This is not therefore a criticism of the Commission for an error of law, but confirmation of its role as guardian of the treaties, subject to judicial review by the Court, in accordance with the principle of the rule of law set out in Article 2 of the Treaty on European Union.

124. Therefore, I propose that the third ground of the principal appeal should be rejected.

VIII – Conclusion

125. Having regard to the foregoing considerations I propose that the Court should:

– set aside in its entirety the judgment of the Court of First Instance of the European Communities of 10 February 2009 in Case T‑388/03 Deutsche Post and DHL International v Commission, either on the basis of the European Commission’s self-standing ground of appeal, or on the basis of the second ground of the principal appeal, and

– give final judgment in the case by declaring the application at first instance inadmissible in its entirety.

126. If, however, the Court were not to follow this proposal, I propose, in the alternative, that the Court should dismiss both the self‑standing ground of appeal and the principal appeal in its entirety.

127. As the decision on costs will be dependent on the solution adopted by the Court, I reserve my position in this regard.