Chronopost SA and La Poste v Union française de l’express (UFEX) and Others.
Date: 2008-07-01
44. The right to a fair trial, which derives inter alia from Article 6(1) of the ECHR, constitutes a fundamental right which the European Union respects as a general principle under Article 6(2) EU (Case C‑305/05 Ordre des barreaux francophones et germanophone and Others  [2007] ECR I‑5305, paragraph 29).
45. That right to a fair trial means that everyone must be entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Such a right is applicable in the context of proceedings brought against a Commission decision (see, to that effect, Case C‑185/95 P Baustahlgewebe  v Commission  [1998] ECR I‑8417, paragraph 21).
46. The guarantees of access to an independent and impartial tribunal, and in particular those which determine what constitutes a tribunal and how it is composed, represent the cornerstone of the right to a fair trial. That right means that every court is obliged to check whether, in its composition, it constitutes such an independent and impartial tribunal, where this is disputed on a ground that does not immediately appear to be manifestly devoid of merit. That check is necessary for the confidence which the courts must inspire in those subject to their jurisdiction (see, to that effect, Eur. Court HR, Remli v. France , judgment of 23 April 1996, Reports of Judgments and Decisions  1996‑II, p. 574, §48). In that respect, such a check is an essential procedural requirement, compliance with which is a matter of public policy.
48. In other words, a ground of appeal alleging an irregularity in the composition of the Court of First Instance, such as that which is now before the Court of Justice, must be regarded as involving a matter of public policy which must be raised by the Court of its own motion (see, on the raising of matters of public policy by the Court of its own motion, in particular, Case C‑367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I‑1719, paragraph 67).
49. Consideration of such a plea may therefore take place at any stage in the proceedings (see, to that effect, Case C‑166/95 P Commission  v Daffix  [1997] ECR I‑983, paragraph 25).
53. It must be observed, first of all, that the fact that the same Judge in the two successive formations was entrusted with the duties of Judge-Rapporteur is, by itself, irrelevant to the assessment of compliance with the requirement of impartiality, since those duties are performed in a collegiate formation of the Court.
54. Second, there are two aspects to the requirement of impartiality: (i) the members of the tribunal themselves must be subjectively impartial, that is, none of its members must show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary; and (ii) the tribunal must be objectively impartial, that is to say, it must offer guarantees sufficient to exclude any legitimate doubt in this respect (see, to that effect, in particular, Eur. Court HR, Fey v. Austria , judgment of 24 February 1993, Series A no. 255-A, p. 12, §28; Findlay v. United Kingdom , judgment of 25 February 1997, Reports of Judgments and Decisions  1997-I, p. 281, §73; and Forum Maritime S.A. v. Roumanie , judgment of 4 October 2007, nos. 63610/00 and 38692/05, not yet published in the Reports of Judgments and Decisions ).
56. Furthermore, the fact that the same Judge sits in two Chambers hearing and determining the same case in succession, cannot, by itself, give rise to doubt as to the impartiality of the Court of First Instance in the absence of any other objective evidence.
57. In that respect, it is not apparent that the referral of the case back to a Chamber with an entirely different composition from that which first heard and determined the case must, or can, under Community law, be regarded as a general obligation.
58. Moreover, the Court of Human Rights considered that it cannot be stated as a general rule resulting from the obligation to be impartial that a court quashing an administrative or judicial decision is bound to send the case back to a different judicial authority or to a differently composed branch of that authority (see, in particular, Eur. Court HR, Ringeisen v. Austria , judgment of 16 July 1971, Series A no. 13, §97, and Diennet v. France , judgment of 26 September 1995, Series A no. 325‑A, §37).
60. In those circumstances, it has not been established in the present case that the composition of the Chamber which delivered the judgment under appeal was unlawful merely as a result of the presence in that Chamber of a member of the Court of First Instance who had already sat in the Chamber which previously heard and determined the case.
67. An intervener has no standing to raise a plea of inadmissibility not set out in the form of order sought by the defendant (see Case C‑313/90 CIRFS and Others  v Commission [1993] ECR I‑1125, paragraphs 21 and 22; Case C-225/91 Matra  v Commission  [1993] ECR I‑3203, paragraphs 11 and 12; and Case C‑13/00 Commission  v Ireland  [2002] ECR I‑2943, paragraph 5).
69. The plea of inadmissibility thus raised by La Poste, and which, as the Advocate General noted at point 65 of her Opinion, did not concern an issue of public policy, was therefore itself inadmissible. Accordingly, even if the Court of First Instance had been required to address that plea, it would equally but necessarily have had to conclude that it was inadmissible. Therefore, its failure to give a ruling was of no consequence as regards the rights of La Poste, which is therefore not justified in relying on that omission in order to challenge the lawfulness of the judgment under appeal.
75. Furthermore, as the Court of First Instance correctly stated in paragraph 51 of the judgment under appeal, the pleas alleging errors of fact and manifest errors of assessment are indissociable, in the present case, from the plea alleging an error in applying the concept of State aid. Accordingly, the Court of First Instance was entitled to express the arguments of UFEX and Others concerning the Postadex transfer in different terms as supporting the plea alleging an error in applying the concept of State aid (see, on the possibility of expressing a plea in different terms, Case C‑316/97 P Parliament  v Gaspari  [1998] ECR I‑7597, paragraph 21).
88. It is settled case-law that the statement of reasons required by Article 190 of the EC Treaty (now Article 253 EC) must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Community court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular, the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Commission  v Sytraval and Brink’s France , paragraph 63 and the case-law cited, and Case C‑501/00 Spain v Commission [2004] ECR I‑6717, paragraph 73).
89. As regards, more particularly, a Commission decision finding that no State aid as alleged by a complainant exists, it must be noted that the Commission must at least provide the complainant with an adequate explanation of the reasons for which the facts and points of law put forward in the complaint have failed to demonstrate the existence of State aid. The Commission is not required, however, to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance ( Commission  v Sytraval and Brink’s France , paragraph 64).
90. It must also be observed that the lawfulness of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted (Case C‑197/99 P Belgium  v Commission  [2003] ECR I‑8461, paragraph 86 and the case-law cited).
95. Moreover, while it is true that the contested decision was adopted after the Commission’s withdrawal of an earlier decision of 10 March 1992 to take no action on the complaint of UFEX and Others, a decision which was the subject of an action for annulment, that withdrawal did not imply any change in the scope of the Commission’s obligation to state reasons. The concept of State aid must be applied to an objective situation, which must be appraised on the date on which the Commission takes its decision (Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187  v Commission  [2006] ECR I‑5479, paragraph 137). The reasons why the Commission made a different assessment of the situation in question in a previous decision cannot therefore have any effect on the assessment of the legality of the contested decision.
108. As regards the economic and accounting concepts used by the Commission, the nature of costs examined and the components of the financial calculations undertaken, these undeniably concern complex technical appraisals. Since the contested decision clearly disclosed the Commission’s reasoning, enabling the substance of that decision to be challenged subsequently before the competent court, it would be excessive to require a specific statement of reasons for each of the technical choices or each of the figures on which that reasoning is based (see, by analogy, in respect of measures of general application, in particular, Joined Cases C‑154/04 and C‑155/04 Alliance for Natural Health and Others  [2005] ECR I‑6451, paragraph 134).
121. At the outset, it must be recalled that, according to settled case-law, classification as ‘State aid’ for the purposes of Article 92(1) of the Treaty requires that all the conditions set out in that provision are fulfilled (see Case C‑142/87 Belgium  v Commission  (‘Tubemeuse’) [1990] ECR I‑959, paragraph 25; Joined Cases C‑278/92 to C‑280/92 Spain v Commission  [1994] ECR I‑4103, paragraph 20; Case C‑482/99 France v Commission  [2002] ECR I‑4397, paragraph 68; and Case C‑280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I‑7747, paragraph 74).
122. First, there must be intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer an advantage on the recipient. Fourth, it must distort or threaten to distort competition (see, in particular, Case C‑451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I‑2941, paragraph 56).
123. Furthermore, the Court has consistently held that the agreed benefits may include not only positive benefits such as subsidies, loans or direct investment in the capital of undertakings, but also interventions which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which therefore, without being subsidies in the strict sense of the word, are of the same character and have the same effect. The supply of goods or services on preferential terms is one of the indirect advantages which have the same effects as subsidies (see to that effect, in particular, Case C‑126/01 GEMO  [2003] ECR I‑13769, paragraphs 28 and 29).
125. Such a line of reasoning suggests that La Poste split from Postadex for no consideration, as though the activity transferred had been privatised without any remuneration.
129. In addition, such classification as ‘State aid’ could be accepted only if the transfer of the Postadex client base, as such, fulfilled all the conditions referred to in Article 92(1) of the Treaty, as recalled in paragraph 122 of this judgment, those conditions being cumulative conditions (see, to that effect, Case C‑237/04 Enirisorse  [2006] ECR I‑2843, paragraph 50).
141. At the outset, it must be borne in mind that State aid, as defined in the Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the Community judicature must in principle, having regard both to the specific features of the case before it and to the technical or complex nature of the Commission’s assessments, carry out a comprehensive review as to whether a measure falls within the scope of Article 92(1) of the Treaty (Case C‑83/98 P France  v Ladbroke Racing and Commission  [2000] ECR I‑3271, paragraph 25).
143. Since a complex economic appraisal is involved here, it should also be noted that, according to settled case-law, in reviewing an act of the Commission which has necessitated such an appraisal, the Court must confine itself to verifying whether the Commission complied with the relevant rules governing procedure and the statement of reasons, whether the facts on which the contested finding was based have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers (see, to that effect, Case C‑56/93 Belgium  v Commission  [1996] ECR I‑723, paragraph 11, and Joined Cases C‑328/99 and C‑399/00 Italy and SIM 2 Multimedia v Commission  [2003] ECR I‑4035, paragraph 39).
144. In addition, since, as has been stated in paragraph 95 of the present judgment, the concept of State aid must be applied to an objective situation appraised on the date on which the Commission takes its decision, it is the appraisals carried out on that date which must be taken into account in the conduct of the review referred to above.