Bouygues SA and Bouygues Télécom SA v Commission of the European Communities.
Date: 2009-04-02
35. In that regard, it should be noted that the Court may of its own motion, or on a proposal of the Advocate General, or at the request of the parties order the reopening of the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it has insufficient information or that the case should be settled on the basis of an argument that has not been debated between the parties (see, inter alia, the order in Case C‑17/98 Emesa Sugar  [2000] ECR I-665, paragraph 18; Case C‑181/02 P Commission  v Kvaerner Warnow Werft  [2004] ECR I‑5703, paragraph 25; and Case C‑284/06 Burda  [2008] ECR I‑0000, paragraph 37).
42. It should be noted first of all that the duty incumbent upon the Court of First Instance under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice to state reasons for its judgments does not require the Court of First Instance to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the measures in question were taken and provides the Court of Justice with sufficient material for it to exercise its powers of review (Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients  v Commission  [2006] ECR I‑4429, paragraph 60, and Case C‑3/06 P Groupe Danone  v Commission  [2007] ECR I‑1331, paragraph 46).
61. With regard to the merits of this ground, it should be borne in mind that, according to settled case-law, the procedure under Article 88(2) EC is essential whenever the Commission has serious difficulties in determining whether aid is compatible with the common market. The Commission may therefore restrict itself to the preliminary examination under Article 88(3) EC when taking a decision in favour of aid only if it is able to satisfy itself after the preliminary examination that the aid is compatible with the common market. If, on the other hand, the initial examination leads the Commission to the opposite conclusion or if it does not enable it to overcome all the difficulties involved in determining whether the aid is compatible with the common market, the Commission is under a duty to obtain all the requisite opinions and for that purpose to initiate the procedure provided for in Article 88(2) EC (see, inter alia, Case C‑198/91 Cook  v Commission  [1993] ECR I‑2487, paragraph 29; Case C‑367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I‑1719, paragraph 39; and Case C‑521/06 P Athinaïki Techniki  v Commission  [2008] ECR I‑0000, paragraph 34).
63. That approach is justified in view of the fact that, as the Advocate General remarked in points 208 and 214 of her Opinion, the concept of serious difficulties is an objective one and 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 (see, in that regard, Cook  v Commission , paragraphs 30 and 31).
86. It follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Court’s Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (order in Case C‑488/01 P Martinez  v Parliament  [2003] ECR I‑13355, paragraph 40, and Case C‑227/04 P Lindorfer  v Council  [2007] ECR I‑6767, paragraph 45 and the case-law cited therein).
101. It should be pointed out that, according to settled case-law, categorisation as aid requires that all the conditions set out in Article 87(1) EC be fulfilled (see Case C‑345/02 Pearle and Others  [2004] ECR I‑7139, paragraph 32 and the case-law cited therein).
102. Article 87(1) EC lays down four cumulative conditions: (i) there must be an intervention by the State or through State resources; (ii) the intervention must be liable to affect trade between Member States; (iii) it must confer an advantage on the recipient; (iv) it must distort or threaten to distort competition ( Pearle and Others , paragraph 33 and the case-law cited therein).
112. It should be borne in mind that, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C‑210/98 P Salzgitter  v Commission  [2000] ECR I‑5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see, in particular, the judgment in Case C‑41/00 P Interporc  v Commission  [2003] ECR I‑2125, paragraph 17, and the order in Martinez  v Parliament , paragraph 39).
114. With regard to the merits of that argument, it should be pointed out, as the appellants rightly indicate, that it is also settled law that discrimination can arise only through the ap plication of different rules to comparable situations or the application of the same rule to different situations (Case C‑279/93 Schumacker  [1995] ECR I‑225, paragraph 30, and Case C‑341/05 Laval un Partneri  [2007] ECR I‑11767, paragraph 115).
118. As the Court of First Instance rightly pointed out in paragraphs 100 and 110 of the judgment under appeal, although it is true that a licence has an economic value, that value depends on the time when each of the operators concerned entered the market (see also Case C‑462/99 Connect Austria  [2003] ECR I‑5197, paragraph 93).
124. With regard, next, to the alleged existence of a principle of inviolability of the criteria for the award of licences, it should be borne in mind that – contrary to the assertions of the appellants – in paragraph 60 of its judgment in Case C‑324/98 Telaustria and Telefonadress  [2000] ECR I‑10745, the Court of Justice merely confirmed that contracting authorities are required to comply with the principle of non-discrimination even where they conclude contracts which are outside the scope of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84), without in any way establishing the existence of a principle of inviolability.
125. On the other hand, as the Advocate General remarked in point 192 of her Opinion, it is apparent from Article 11(2) of Directive 97/13 that the amount of the charges must reflect the need to foster the development of innovative services and competition. It is common ground in the present case that if the French authorities had not aligned the UMTS fees, they would have run the serious risk of Orange and SFR withdrawing their applications. Thus, it was precisely in order to ensure the development of competition that the fees due from the first two licence holders were amended to bring them into line with those charged to Bouygues Télécom.
137. It should be recalled that it follows from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that an appeal lies on a point of law only. Accordingly, the Court of First Instance has sole jurisdiction to find and appraise the facts, except in a case where the factual inaccuracy of its findings arises from evidence adduced before it. The appraisal of the facts by the Court of First Instance does not 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 (Case C‑53/92 P Hilti  v Commission  [1994] ECR I‑667, paragraph 42; Joined Cases C‑280/99 P to C‑282/99 P Moccia Irme and Others  v Commission  [2001] ECR I‑4717, paragraph 78; and Case C‑362/05 P Wunenburger  v Commission  [2007] ECR I‑4333, paragraph 66).
148. It should be borne in mind that complaints directed against a ground included in the judgment purely for the sake of completeness cannot lead to the judgment being set aside and are therefore nugatory (see, in particular, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others  v Commission  [2005] ECR I‑5425, paragraph 148 and the case-law cited therein).