Kingdom of Spain v European Commission.
Date: 2018-09-20
48


Questions relating to the admissibility of the action for annulment brought before the General Court must be raised by the Court of Justice by its own motion (see, by analogy, judgment of 29 November 2007, Stadtwerke Schwäbisch Hall and Others v Commission, C‑176/06 P, not published, EU:C:2007:730, paragraph 18). In any case, the parties were invited to submit their observations on that question, which was raised by the Court of its own motion.
49


The Court has already ruled that the examination relating to compliance with Article 170(1) of the Rules of Procedure of the Court requires an assessment of the scope of the submissions made at first instance and the subject matter of the proceedings before the General Court (see, to that effect, judgment of 14 November 2017, British Airways v Commission, C‑122/16 P, EU:C:2017:861, paragraph 54).
52


It is settled case law of the Court of Justice that the forms of order sought by the parties may not, in principle, be altered. Article 86 of the Rules of Procedure of the General Court, on the modification of the application initiating proceedings, is a codification of pre-existing case-law on the admissible exceptions to the principle that the forms of order sought by the parties are unalterable (judgment of 9 November 2017, HX v Council, C‑423/16 P, EU:C:2017:848, paragraph 18 and the case-law cited).
62


However, it is clear from the case-law of the Court of Justice that an error of law committed by the General Court does not invalidate a judgment under appeal if its operative part is well founded on other legal grounds (see judgment of 21 September 2017, Easy Sanitary Solutions and EUIPO v Group Nivelles, C‑361/15 P and C‑405/15 P, EU:C:2017:720, paragraph 73 and the case-law cited).
75


As regards, in the first place, the alleged error committed by the General Court in its assessment of national law, it must be borne in mind that, according to settled case-law of the Court of Justice, where the General Court has determined or assessed the facts, the Court of Justice has sole jurisdiction under Article 256 TFEU to review their legal characterisation and the legal conclusions which were drawn from them. The assessment of the facts is not therefore, other than in cases where the evidence produced before the General Court has been distorted, a point of law which is subject, as such, to review by the Court of Justice. 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. 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 (judgment of 26 April 2018, Cellnex Telecom and Telecom Castilla-La Mancha v Commission, C‑91/17 P and C‑92/17 P, not published, EU:C:2018:284, paragraphs 67 to 69 and the case-law cited).
77


It must be held that it is not obvious from any of the elements adduced by the Kingdom of Spain that the General Court thereby distorted the content of Law 32/2003. In addition, in so far as that Member State criticises the General Court’s conclusion concerning the general nature of that law — namely that it could not be concluded from that law that undertakings operating a terrestrial network had been entrusted with clearly defined public service obligations, in accordance with the first Altmark condition — it must be held that, in the light of the ambiguous aspects of that law referred to in paragraph 76 of the present judgment, that conclusion is not vitiated by any error of law (see, to that effect, judgment of 26 April 2018, Cellnex Telecom and Telecom Castilla-La Mancha v Commission, C‑91/17 P and C‑92/17 P, not published, EU:C:2018:284, paragraphs 71 and 72).
80


Secondly, although the Kingdom of Spain’s submission must be understood as criticising the General Court for failing to state the reasons for which it did not refer to those elements of national law referred to in paragraph 78 of the present judgment, it should be remembered that it is for the General Court alone to assess the evidence produced 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 (judgment of 26 April 2018, Cellnex Telecom and Telecom Castilla-La Mancha v Commission, C‑91/17 P and C‑92/17 P, not published, EU:C:2018:284, paragraph 76 and the case-law cited).
84


Moreover, the existence of such a market failure is not, after all, relevant in determining whether the undertakings concerned were indeed entrusted with discharging public service obligations by a public act or whether those obligations were clearly defined in that act (see, to that effect, judgment of 20 December 2017, Comunidad Autónoma del País Vasco and Others v Commission, C‑66/16 P to C‑69/16 P, EU:C:2017:999, paragraph 75).
86


The Court of Justice in fact held that the first Altmark condition required it to be determined not only whether the beneficiary undertaking has indeed been entrusted with discharging public service obligations, but also whether those obligations are clearly defined in national law. 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 (judgment of 26 April 2018, Cellnex Telecom and Telecom Castilla-La Mancha v Commission, C‑91/17 P and C‑92/17 P, not published, EU:C:2018:284, paragraph 44 and the case-law cited).
95


Given that the present part of the second ground of appeal concerns an alleged error made by the General Court so far as concerns its examination of the fourth Altmark condition, it must be noted that, in view of the cumulative nature of the conditions arising from the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), even if the General Court erred in considering that one of those conditions was not satisfied, that could not bring about the setting aside of the judgment under appeal if the General Court also held, without erring in law, that another of those conditions was not satisfied (judgment of 20 December 2017, Spain v Commission, C‑81/16 P, EU:C:2017:1003), paragraph 57 and the case-law cited).
99


It is submitted that it is apparent from paragraphs 132 to 138 of the judgment under appeal, that the Commission took the view that that study failed to demonstrate any significant cost difference between those two platforms, and that the findings of that study were not reliable. In upholding the Commission’s assessment as to the failure to observe the principle of technological neutrality, the General Court failed to carry out its judicial review in accordance with the case-law arising from the judgment of 15 February 2005, Commission v Tetra Laval (C‑12/03 P, EU:C:2005:87, paragraph 39). In particular, the Kingdom of Spain submits, in essence, that the ‘failures’ in the 2008 comparative study, which the General Court identified in paragraphs 143, 145 and 148 of the judgment under appeal, derive in fact from the Commission’s flawed methodological premisses, which the General Court failed to verify. The Member State thereby takes the view that the approach adopted in that study was correct and that it was essential to understanding the reasons why the satellite platform was more expensive than the terrestrial, particularly on account of the presence of an existing terrestrial infrastructure.
103


According to settled case-law of the Court of Justice, appraisal of the facts and assessment of the evidence do not, save where the facts or evidence are distorted, constitute points of law subject, as such, to review by the Court of Justice on appeal (judgment of 20 December 2017, Comunidad Autónoma de Galiciaand Retegal v Commission, C‑70/16 P, EU:C:2017:1002, paragraph 47 and the case-law cited).
104


In any event, it is settled case-law of the Court that, in the context of the review conducted by the EU judicature of complex economic assessments made by the Commission in the field of State aid, it is not for that judicature to substitute its own economic assessment for that of the Commission. The EU Courts must, inter alia, establish not only 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 20 December 2017, Spain v Commission, C‑81/16 P, EU:C:2017:1003, paragraph 70 and the case-law cited).