European Commission v French Republic and Orange.
Date: 2016-11-30
79


It should be borne in mind that the obligation laid down in Article 296 TFEU to state adequate reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 146 and the case-law cited).
80


According to the settled case-law of the Court, the duty incumbent upon the General Court under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union to state reasons for its judgments does not require the General Court 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 understand the grounds of the General Court’s judgment and provides the Court of Justice with sufficient information to exercise its powers of review on appeal (judgment of 8 March 2016, Greece v Commission, C‑431/14 P, EU:C:2016:145, paragraph 38).
87


According to the Court’s settled case-law, State aid, as defined in the FEU Treaty, is a legal concept which must be interpreted on the basis of objective factors. For that reason, the EU Courts must in principle, having regard both to the specific features of the case before them 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 107(1) TFEU (judgment of 21 June 2012, BNP Paribas and BNL v Commission, C‑452/10 P, EU:C:2012:366, paragraph 100).
88


The Court of Justice has nevertheless held that judicial review is limited with regard to whether a measure comes within the scope of Article 107(1) TFEU, in a case where the appraisals by the Commission are technical or complex in nature (judgment of 21 June 2012, BNP Paribas and BNL v Commission, C‑452/10 P, EU:C:2012:366, paragraph 103).
89


Where, in order to determine whether a measure comes within the scope of Article 107(1) TFEU, the Commission must apply the prudent private investor criterion in a market economy, as a rule, the application of that test requires the Commission to make a complex economic assessment (see, to that effect, judgment of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 68).
91


They further point out that, even if the review to be conducted by the General Court on that point had to be limited, as alleged by the Commission, that fact does not mean that the General Court must refrain from reviewing the Commission’s legal classification of information of an economic nature. Although the General Court must not substitute its own economic assessment for that of the Commission, it is apparent from now well-settled case-law that not only must the EU judicature establish, among other things, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 46).
97


It follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts (judgments of 6 April 2006, General Motors v Commission, C‑551/03 P, EU:C:2006:229, paragraph 51, and of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 179).
98


Therefore, the appraisal of the facts by the General Court 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 (judgments of 18 May 2006, Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, C‑397/03 P, EU:C:2006:328, paragraph 85, and of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 180).
99


Where an appellant alleges distortion of the evidence by the General Court, he must, pursuant to Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 168(1)(d) of its Rules of Procedure, indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his view, led to such distortion (judgment of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraph 16 and the case-law cited). In addition, according to the Court of Justice’s settled case-law, that distortion must be obvious from the documents in the Court’s file, without any need to carry out a new assessment of the facts and the evidence (judgment of 27 October 2011, Austria v Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 59 and the case-law cited).
130


In the first place, in so far as the Commission argues, under the second to fifth parts, that the advantage identified by Bouygues extends to the declarations from July 2002, it should be noted that that argument comes up against the Court of Justice’s own interpretation of the decision at issue, set out in paragraphs 70 to 75 and 126 to 129 of Bouygues.
131


In those paragraphs, the Court of Justice held that the advantage identified by that decision arose solely from the announcement of 4 December 2002, together with the shareholder loan offer. Conversely, it is implicitly but necessarily apparent from paragraphs 132, 134, 136 and 139 of that judgment that the Court of Justice did not intend to extend that advantage to the declarations from July 2002, as they only form part of the context of the aid measure thus identified.
132


Accordingly, as the Commission’s argument is based on an incorrect reading of Bouygues and does not reflect the very content of the decision at issue, it must be rejected as ineffective ab initio (see, to that effect, Bouygues, paragraph 79).
139


First of all, it is apparent from the judgment of 5 June 2012, Commission v EDF (C‑124/10 P, EU:C:2012:318, paragraph 85) that factors arising after the measure at issue is adopted cannot be taken into account for the assessment of the prudent private investor criterion.
140


Next, it is apparent from that same judgment that that assessment must be made in relation to the information that was available at the time when the decision to make the investment was taken (judgment of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 105).
141


In that regard, the Court of Justice observed that the time when the decision to make the investment was taken and the time when the measure was granted will not necessarily be the same, as the decision could be taken well before the measure is granted (see, to that effect, judgment of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 105).