Seydaland Vereinigte Agrarbetriebe GmbH & Co. KG v BVVG Bodenverwertungs- und -verwaltungs GmbH.
Date: 2010-12-16
26. In that regard, it should be borne in mind that, according to settled case‑law, the procedure laid down in Article 267 TFEU is based on a clear separation of functions between national courts and tribunals and the Court of Justice, and the latter is empowered to rule only on the interpretation or the validity of the acts of the European Union referred to in that article, and not on the interpretation of national laws (see, inter alia, Case C‑220/05 Auroux and Others [2007] ECR I‑385, paragraph 25, and Case C‑515/08 Dos Santos Palhota and Others [2010] ECR I‑0000, paragraph 18).
27. However, with regard to the need to provide the national court with an answer which will be of use to it and enable it to determine the case before it, the Court may have to reformulate the questions referred to it (Case C‑286/05 Haug [2006] ECR I‑4121, paragraph 17, and Case C‑420/06 Jager [2008] ECR I‑1315, paragraph 46).
30. That being made clear, it should be borne in mind that, according to settled case‑law of the Court, the notion of aid 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 (see, inter alia, Case C‑156/98 Germany v Commission [2000] ECR I‑6857, paragraph 25; Joined Cases C‑341/06 P and C‑342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I‑4777, paragraph 123; and Case C‑169/08 Presidente del Consiglio dei Ministri [2009] ECR I‑10821, paragraph 56).
31. It cannot therefore, as a rule, be precluded that a sale of public land at a price lower than the market value might constitute State aid.
32. However, it must also be pointed out that, in the context of the common agricultural policy, any sale of public land at a price lower than the market value need not necessarily be considered to be contrary to the EC Treaty. In the context of the wide discretion which it enjoys where the common agricultural policy is concerned (Case 139/79 Maizena v Council [1980] ECR 3393, paragraph 23, and Case C‑365/08 Agrana Zucker [2010] ECR I‑0000, paragraph 30), the European Union legislature adopted new rules specifically concerning the grant of aid in the area of agricultural policy, including, in particular, aid for investment in agricultural holdings, first, by means of Regulation No 950/97, applicable ratione temporis  to the dispute in the main proceedings, and subsequently repealed by Regulation No 1257/1999.
34. Furthermore, in relation to the sale by public authorities of land or buildings to an undertaking or to an individual involved in an economic activity, such as agriculture or forestry, it must be pointed out that the Court has held that such a sale may include elements of State aid, in particular where it is not made at market value, that is to say, where it is not sold at the price which a private investor, operating in normal competitive conditions, would have been able to fix (see, to that effect, Case C‑290/07 P Commission v Scott [2010] ECR I‑0000, paragraph 68).
35. It follows from the foregoing considerations that, where the national law establishes rules for calculating the market value of land for their sale by public authorities, the application of those rules must, in order to comply with Article 87 EC, lead in all cases to a price as close as possible to the market value. As that market value is theoretical, except in the case of sales accepting the highest bid, a margin for variation on the price obtained as compared with the theoretical price must be tolerated, as the Commission correctly states in Title II, point 2(b), of the Communication.
39. In that regard, it must be stated that, while it is clear that the best bid or an expert report are likely to provide prices corresponding to actual market values, as the Commission states in Title II, points 1 and 2(a), of the Communication, it cannot be ruled out that other methods may also achieve the same result.
43. In those circumstances, it must be held, as the Advocate General stated in point 47 of his Opinion, that in cases in which the method based on the regional reference valuations does not include a mechanism for updating those valuations which would allow the selling price of the land to reflect in so far possible, the market value of that land, especially when prices are rising sharply, that method is not suitable for reflecting the actual market prices in question. As that assessment requires an interpretation of national law, it is for the referring court to carry it out.
49. In the third place, in so far as it can be assumed, as the German Government does, that Paragraph 5(1) of the FlErwV provides for a third calculation method in that it refers to the Land Valuation Order of 6 December 1988, it must be borne in mind, first, that it is for the referring court to determine, in the cases before it, what the correct interpretation of national law is (Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli [2010] ECR I‑0000, paragraph 49).
50. Second, the principle that national law must be interpreted in conformity with EU law – which is inherent in the Treaty system in that it enables the national court to ensure, for matters within its jurisdiction, the full effectiveness of EU law when it determines the dispute before it (see, to that effect, Case C‑160/01 Mau [2003] ECR I‑4791, paragraph 34) – requires the national court to consider national law as a whole in order to assess to what extent it may be applied so as not to produce a result contrary to that sought by EU law (see, to that effect, Case C‑131/97 Carbonari and Others [1999] ECR I‑1103, paragraphs 49 and 50, and Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraph 115).
52. In addition, it must also be observed that, even if the referring court were to find that Paragraph 5(1) of the FlErwV is consistent with Article 87 EC, it cannot be ruled out that, in certain instances, the method laid down in that provision of national law may lead to a result far removed from market value. In such circumstances, pursuant to the obligation on all the organs of the State, including the national courts and administrative authorities, to set aside a rule of national law which is contrary to EU law, those courts or administrative authorities which are responsible for the application of that rule are required to disapply the provision of national law in question (see, to that effect, Case 103/88 Costanzo [1989] ECR 1839, paragraph 31, and Case C‑198/01 CIF [2003] ECR I‑8055, paragraphs 48 and 49).
53. In that respect, the national court must bear in mind that that implies, if the circumstances so require, the obligation to take all appropriate measures to enable EU law to be fully applied (see, to that effect, Case 48/71 Commission v Italy [1972] ECR 529, paragraph 7, and CIF , paragraph 49).