Comunidad Autónoma del País Vasco and Others v European Commission.
Date: 2017-12-20
44


It must be borne in mind that classification as ‘State aid’ requires all the conditions laid down in Article 107(1) TFEU to be satisfied. Thus, for the purpose of a classification as State aid, that provision presupposes in particular that there is an advantage conferred on an undertaking (see, to that effect, judgment of 22 October 2015, EasyPay and Finance Engineering, C‑185/14, EU:C:2015:716, paragraphs 35 and 36 and the case-law cited).
45


In that regard, according to settled case-law of the Court, a State measure regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them is not caught by Article 107(1) TFEU (judgment of 22 October 2015, EasyPay and Finance Engineering, C‑185/14, EU:C:2015:716, paragraph 45 and the case-law cited).
46


However, for such compensation to escape classification as State aid in a particular case, the conditions laid down in paragraphs 88 to 93 of the judgment of 24 July 2003, Altmark (C‑280/00, EU:C:2003:415), must be satisfied.
48


It follows that a State measure which does not comply with one or more of the conditions laid down in the foregoing paragraph may be regarded as State aid within the meaning of Article 107(1) TFEU (see, to that effect, judgment of 24 July 2003, Altmark, C‑280/00, EU:C:2003:415, paragraph 94).
55


As regards the relationship between the conditions laid down in the judgment of 24 July 2003, Altmark (C‑280/00, EU:C:2003:415) and the examination of an aid measure under Article 106(2) TFEU, it follows from the Court’s case-law that verification of the conditions laid down in that case-law occurs upstream, that is to say in the examination of the issue of whether the measure at issue must be characterised as State aid. That issue must be resolved before the one which consists in examining, where necessary, if incompatible aid is nevertheless necessary to the performance of the tasks assigned to the recipient of the measure at issue, under Article 106(2) TFEU (see, to that effect, judgment of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 34).
56


Since the conditions laid down in the judgment of 24 July 2003, Altmark (C‑280/00, EU:C:2003:415), and those necessary for the application of Article 106(2) TFEU thus generally pursue different objectives, the Court held that, in order to assess an aid measure under Article 106(2) TFEU, the Commission is not required to examine whether the second and third conditions laid down by the judgment of 24 July 2003, Altmark (C‑280/00, EU:C:2003:415), are satisfied (see, to that effect, judgment of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 33). It is nevertheless the case that, as the Advocate General emphasised in point 97 of his Opinion, the first Altmark condition, according to which the recipient undertaking must actually be required to discharge public service obligations which must be clearly defined, also applies where the derogation laid down in Article 106(2) TFEU has been invoked (see, to that effect, judgments of 21 March 1974, BRT and Société belge des auteurs, compositeurs et éditeurs, 127/73, EU:C:1974:25, paragraph 22, and of 11 April 1989, Saeed Flugreisen and Silver Line Reisebüro, 66/86, EU:C:1989:140, paragraph 56).
69


In the second place, as regards the substance, it should be borne in mind that the Member States are entitled, while complying with EU law, to define the scope and the organisation of their SGEIs, and may take into account, in particular, objectives pertaining to their national policy (see, to that effect, judgment of 21 December 2011, ENEL, C‑242/10, EU:C:2011:861, paragraph 50 and the case-law cited).
70


In that respect, the Member States enjoy a wide discretion (see, to that effect, judgment of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 88), which may be called into question by the Commission only in the event of a manifest error (see, to that effect, judgment of 18 February 2016, Germany v Commission, C‑446/14 P, not published, EU:C:2016:97, paragraph 44).
71


However, as the General Court correctly held — in paragraph 51 of the judgment in Case T‑462/13 (EU:T:2015:902), paragraph 51 of the judgment in Case T‑465/13 (EU:T:2015:900), paragraph 98 of the judgment in Case T‑487/13 (EU:T:2015:899) and paragraph 80 of the judgment in Case T‑541/13 (EU:T:2015:898) — the Member States’ power to define SGEIs is not unlimited.
72


It follows from paragraph 89 of the judgment of 24 July 2003, Altmark (C‑280/00, EU:C:2003:415), that, in that respect, the first Altmark condition is essentially intended to determine whether, first, the recipient undertaking actually has public service obligations to discharge and, secondly, whether those obligations are clearly defined in national law.
73


As the Advocate General pointed out, in essence, in points 112 and 114 to 117 of his Opinion, that condition is designed to ensure transparency and legal certainty, and thus requires that minimum criteria be met in relation to the existence of one or more acts of public authority defining, in a sufficiently precise manner, at least the nature, duration and scope of the public service obligations imposed on the undertakings entrusted with the performance of those obligations. In the absence of a clear definition of such objective criteria, it is not possible to verify whether a particular activity may be covered by the concept of an SGEI.
75


That conclusion is not called into question by the appellants’ argument that it is common ground that there is a market failure on the market concerned and that the service at issue is an activity that could be characterised as an SGEI. As the Advocate General noted in point 122 of his Opinion, those circumstances are not relevant for the purposes of determining whether the undertakings concerned were actually entrusted with discharging public service obligations by a public act and whether those obligations were clearly defined in that act.
97


It should be noted, first of all, that the Court of Justice has consistently held that where the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, solely to review the legal characterisation of those facts and the conclusions in law drawn from them. The appraisal of the facts by the General Court does not therefore constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (see, inter alia, judgment of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraph 43 and the case-law cited).
98


Thus, with respect to the assessment, in the context of an appeal, of the General Court’s determinations on national law, the Court of Justice has jurisdiction only to determine whether that law was distorted (judgment of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraph 44 and the case-law cited).
99


In that respect, a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, inter alia, order of 9 March 2017, Simet v Commission, C‑232/16 P, not published, EU:C:2017:200, paragraph 58 and the case-law cited).
110


It must be borne in mind that it is for the General Court alone to assess the evidence adduced before it. Although it must observe the general principles and the rules of procedure relating to the burden of proof and the taking of evidence and not distort the clear sense of the evidence, the General Court cannot be required to give express reasons for its assessment of the value of each piece of evidence presented to it, in particular where it considers that that evidence is unimportant or irrelevant to the outcome of the dispute (see, to that effect, judgment of 15 June 2000, Dorsch Consult v Council and Commission, C‑237/98 P, EU:C:2000:321, paragraphs 50 and 51).