OPINION OF ADVOCATE GENERAL
MENGOZZI

delivered on 23 February 2010 ¹(1)

Case C‑290/07 P

European Commission

v

Scott SA

(Appeals – State aid – Aid granted by the French authorities to Scott Paper – Land at a preferential price and application of the water treatment levy at a preferential rate for the purposes of the construction of a manufacturing plant for the production of paper for household use)

I –  Introduction

1.        This is not the first time that the Court has been called upon to give a decision on matters concerning State aid said to have been granted by France to Scott, a company engaged in the manufacture of paper for household use. It is not the first time, nor will it be the last. Whatever the outcome of the present case, at least two other cases, still pending, concern the same matter. I shall touch upon those cases below.

2.        The facts are by now familiar to the Court and date from 1987. That was the year in which the French authorities sold a plot of land to a private company – Scott – for a price which, according to the Commission, was below the market value. The land was used as the site for a paper manufacturing plant. In 1996 Scott was purchased by another company – the Kimberly-Clark Corporation – which closed down the plant and then sold it in 1998, together with the land on which it stood, to another company – Procter & Gamble.

3.        In relation to those events, the Commission adopted Decision 2002/14/EC of 12 July 2000 on the State aid granted by France to Scott Paper SA Kimberly‑Clark (2) (‘the contested decision’).

4.        The enacting terms of the contested decision provide as follows:

‘Article 1

The state aid in the form of a preferential land price and a preferential rate of water treatment levy granted by France to Scott and amounting, in the case of the land price, to FRF 39,58 million (EUR 6,03 million) or, at present value, FRF 80,77 million (EUR 12,3 million) and, in the case of the second advantage, to a value which the French authorities will have to calculate using a method worked out by the Commission is incompatible with the common market.

Article 2

1.      France shall take all necessary measures to recover from the beneficiary the aid referred to in Article 1 and already made available to it unlawfully.

2.      Recovery shall be effected without delay and in accordance with the procedures of national law, provided that they allow the immediate and effective execution of this Decision. The aid to be recovered shall include interest from the date on which it was made available to the beneficiary until the date of its recovery. Interest shall be calculated on the basis of the reference rate used for calculating the grant equivalent of regional aid.

Article 3

France shall inform the Commission, within two months of notification of this decision, of the measures taken to comply with it.

Article 4

This Decision is addressed to the French Republic.’

5.        Two parallel actions were brought against the contested decision before the Court of First Instance (now ‘the General Court’). The first action, brought by the Département du Loiret (the region of France in which the land concerned by the contested decision is located) and registered as Case T‑369/00, culminated in annulment of the contested decision ‘in so far as it concerns the aid granted in the form of a preferential price for the property referred to in Article 1’. (3) Specifically, the judgment of the General Court annulled the contested decision in its entirety (in so far as it related to the preferential price for the land) because of an error made by the Commission in its calculation of the interest to be applied when the aid was recovered. The Commission appealed against that judgment, whereupon the Court of Justice, while confirming that the reasoning followed by the General Court in relation to the calculation of the interest had been correct, held that that unlawful aspect of the contested decision did not constitute sufficient grounds for annulling the act in its entirety, but only for annulling the specific part which relates to the interest. As a consequence, the judgment at first instance was set aside and the case is now again pending before the General Court. (4)

6.        The second action against the contested decision, which is the action at issue in the present case, was brought by Scott Paper SA (‘Scott’), the company which benefited from the measures which the Commission has categorised as State aid. That action, which was registered as Case T‑366/00, culminated in a judgment (‘the judgment under appeal’) – delivered on 29 March 2007, the same day as the judgment which brought Case T‑369/00 to a close – by which only Article 2 of the contested decision was annulled, and only ‘to the extent that it concerns the aid granted in the form of a preferential price for the property referred to in Article 1’.

7.        It should be noted for the sake of completeness that the series of events under consideration has also given rise to other cases before the Court. First of all, in Case C‑276/03 P, (5) the Court endorsed the reasoning of the General Court in two interlocutory judgments by which it dismissed preliminary objections to the effect that recovery of the aid was time-barred. (6) Then, by judgment of October 2006, the Court of Justice found against France for failing to carry out recovery of the aid by the specified deadline. (7) Lastly, the Court has not yet disposed of Case C‑210/09, which concerns a reference from the Cour administrative d’appel de Nantes (Administrative Court of Appeal, Nantes) for a preliminary ruling in the context of proceedings concerning recovery of the aid in question.

II –  The judgment under appeal

8.        In support of its action in Case T‑366/00, Scott put forward four pleas in law: (i) breach of procedural rights; (ii) breach of the principle of equal treatment; (iii) breach of the principle of the protection of legitimate expectations; and (iv) erroneous assessment of the aid. (8)

9.        First, the General Court considered the preliminary objection of inadmissibility raised by the Commission in relation to some of the annexes to Scott’s application initiating proceedings: according to the Commission, since those documents formed no part of the file relating to the administrative procedure, they could not validly be appended to the application.

10.      In that connection, the General Court observed that the real issue was not whether such documents could validly be produced as annexes to the application, but rather whether those documents could be taken into consideration by the Court for the purposes of assessing the lawfulness of the contested decision. After ruling out that possibility in relation to three of the four documents in question, the General Court gave consideration to a letter sent to the Commission by Scott’s lawyer on 24 December 1999. The Commission had refused to take that letter into account because it came from a third party and had been lodged after the expiry of the deadline set in the decision launching the formal investigation.

11.      The General Court set out a number of considerations on the subject of that letter, focussing on the role of the aid recipient in the procedure for reviewing State aid. There is no need to rehearse those considerations here, since they form the substance of a number of the Commission’s grounds of appeal and will therefore be discussed at later stage in this Opinion. For the moment, it is merely necessary to point out that the General Court found that the Commission should not have refused to place the letter on the administrative file and accordingly took the contents of that letter into account for the purposes of assessing the lawfulness of the contested decision.

12.      And yet it is unclear what conclusions the General Court actually drew from its consideration of the letter, or on what basis. In the first place, there is no indication in the judgment under appeal that Scott put forward the fact that its letter had not been taken into account as a ground for annulment. (9) Secondly, the considerations which led the General Court to annul the contested decision related to the assessments made by the Commission, not the procedure followed. Furthermore, it is clear from the judgment under appeal that the assessments and references made in the letter from Scott which the Commission had refused to take into account were reproduced in a letter to the Commission from the French Government, dated 21 February 2000, and thus, in any event, were placed on the administrative file. (10)

13.      The text of the judgment under appeal suggests that, according to the General Court, the fact that the Commission should have accepted Scott’s letter of 24 December 1999 in evidence means that it is legitimate to use the contents of that letter for the purposes of assessing the lawfulness of the contested decision. On the other hand, as was noted in point 12 above, the General Court remarked that, in essence, the arguments set out in that letter became part of the case-file because they were subsequently presented by France. I must confess that, to my mind, this line of reasoning raises a number of difficulties. I shall deal with those in detail later, when discussing the grounds for annulment relating to the role attributable to the recipient of the aid.

14.      After making those introductory remarks, the General Court moved straight on to consider the fourth plea in law, by which it was alleged that the Commission had erred in its assessment of how much the aid was worth.

15.      In that connection, the General Court found that the Commission had been wrong in seeking to determine the value of the land sold to Scott by reference to the costs incurred by the French authorities in purchasing and improving the land. According to the Court, costs are not really ‘the best proof’ of the value. (11) However, even if it were supposed that reliance on the costs-based method was valid, the Commission made a number of mistakes in its calculations. Some of those mistakes ultimately worked in Scott’s favour, suggesting costs lower than those actually incurred, while others suggested the reverse; moreover, the Commission did not sufficiently take into account a number of factors on the basis of which it could have arrived at a reliable valuation of the land. As a consequence, the determination of the value of the land in the contested decision is ‘vitiated by errors’. (12)

16.      Thus, the General Court criticised the Commission’s decision not to take account, in its assessment, of a number of land valuations – carried out by the French tax authorities, the Galtier firm of consultants and the ‘Commissaire aux apports’ appointed by the President of the Tribunal de commerce de Nanterre (Nanterre Commercial Court) – and for not regarding as relevant even the price for which Scott sold the land to Procter & Gamble in 1998. Even though they do not in themselves prove that the Commission’s valuation was wrong, all those factors – which are referred to both in Scott’s letter of 24 December 1999 and in the letter of the French Government of 21 February 2000 – should, according to the General Court, have been taken into consideration, by asking the parties to produce the full text of the valuations referred to, for instance, or by using the services of an independent expert. (13)

17.      Lastly, the General Court found fault with the Commission for failing, when faced with lack of cooperation on the part of a Member State, to exercise its power to direct that Member State to provide specific information instead of first adopting a decision based on the information available. (14) The general request to France to provide all ‘documents, information and useful data in order to allow the Commission to examine the compatibility’ of the aid with the common market was too vague and did not satisfy the requirements laid down in Article 10(3) of Regulation No 659/1999. (15)

18.      The General Court concluded that the ‘significant uncertainty’ concerning the value of the land sold to Scott meant that the Commission had not carried out a sufficiently detailed examination. The General Court therefore annulled Article 2 of the contested decision in so far as it concerned aid granted in the form of a preferential price for the land. (16)

III –  The implications of the ruling of the General Court and the consistency of the reasoning

19.      The first problem which must be addressed in the present case does not concern the Commission’s grounds of appeal, but rather the overall consistency of the reasoning in the judgment handed down by the General Court.

20.      As we have seen, in fact, the General Court found that the Commission had made a number of errors in its assessment of the value of the land sold to Scott by the French authorities: as a consequence, those errors affect the estimate of how much the State aid was worth. On the other hand, the possibility cannot be discounted, on the basis of the reasoning followed by the General Court, that a fresh valuation of the land might lead the very existence of aid to be ruled out: obviously, if the price for which the land was sold to Scott did indeed reflect the market price, there would have been no State aid.

21.      Nevertheless, after setting out those considerations regarding the assessment of how much the aid was worth, the General Court annulled Article 2 of the contested decision.

22.      The enacting terms of the contested decision are set out above. As has been noted – and as is typical, moreover, of this type of decision on State aid matters – Article 2 of the decision provides that the aid is to be recovered and specifies how that is to be done. The conclusion that the aid is incompatible with the common market, as well as the finding regarding the value of the aid, is set out in Article 1 of the decision, which was not annulled.

23.      Thus the judgment under appeal is unusual, to say the least. In that judgment, after pursuing a line of reasoning which ought logically to have led to the annulment of Article 1 of the contested decision, or even of the decision in its entirety, the General Court chose instead to annul Article 2, which merely orders recovery of the aid.

24.      It is not clear why this happened; (17) nor is it clear what the consequences are.

25.      So far as the reasons for annulling only Article 2 of the contested decision are concerned, the judgment states that Scott’s application sought precisely that – annulment of Article 2 – and no more. (18) Accordingly, the reasoning followed by the General Court can be summarised as follows: the flaws in the contested decision would justify annulment of that decision in its entirety; however, only annulment of Article 2 has been applied for; Article 2 must therefore be annulled.

26.      But there are two problems with this.

27.      In the first place, it is apparent from the documents placed before the General Court in that case that Scott’s application for annulment concerned the whole of the contested decision, not just Article 2. Scott itself has confirmed that in the application initiating proceedings it sought annulment of the decision in its entirety. It should be noted, however, that Scott has not appealed against the judgment of the General Court, so it seems to be satisfied with the outcome. (19) Accordingly, the fact that the General Court upheld Scott’s initial claims only in part does not of itself raise any problems and it would have been up to Scott, if dissatisfied in that respect, to challenge the judgment at first instance by means of a cross-appeal.

28.      The second problem is more serious, however, and concerns the practical consequences of the judgment under appeal. As we have seen, that judgment annulled only Article 2 of the contested decision. By contrast, Article 1, which states that the aid is incompatible with the common market and defines the size of the aid, remains ‘intact’ in that it is not touched by the operative part of the judgment. It is unclear, at this point, what the Commission has to do in order to comply with the judgment under appeal. True, one of the things it must do is to correct Article 2, which the General Court annulled. But in what terms could it re-frame that provision? What guidance is there to follow? As noted above, the judgment of the General Court focussed entirely on the valuation of the land, that is to say, on an element which is reflected in Article 1 of the decision, not in Article 2.

29.      Thus we find ourselves in a blind alley. From a strictly formal point of view, for the Commission to comply with the operative part of the judgment under appeal, it would arguably be enough at this stage for it to adopt a new decision consisting solely in a fresh instruction to the French authorities to secure recovery of the aid. What is paradoxical, however, is that there is nothing to stop the ‘new’ Article 2 from being framed in terms identical to those in the contested decision, because, although the judgment of the General Court annulled Article 2 of the contested decision, it gave no indication of the criteria by reference to which that provision should be re-drafted. The only changes to be reflected in the ‘new’ Article 2 are those necessitated by the outcome of the parallel case (T‑369/00 and, subsequently, C‑295/07 P), in which – as was noted above – fault was found with the method used by the Commission in order to calculate the interest payable in connection with the recovery of the aid.

30.      To sum up, then, the present proceedings concern an appeal against a judgment of the General Court which: (a) pursues a line of argument by which it finds fault with part of a Commission decision; (b) nevertheless does not annul that part of the decision, but another part altogether; (c) in all likelihood cannot, in consequence, have any significant practical effect; (d) has not been appealed against on that particular point.

31.      To my mind, at this point it has to be asked whether such a situation must be passively accepted, given that the subject-matter of appeal proceedings brought against a judgment of the General Court is defined by the pleas in law put forward by the parties, or whether, on the contrary, the Court of Justice possesses the requisite means of addressing this problem. In other words, the question that has to be answered is whether the Court may of its own motion point to a flaw in the reasoning of a judgment of the General Court in which the grounds stated are plainly inconsistent with the operative part.

32.      To my knowledge, there have not been any cases so far in which this particular problem has been addressed. What is more, the problem concerning the jurisdiction of the Courts of the European Union (‘Courts of the Union’) to raise matters of their own motion is notoriously delicate.

33.      The Court of Justice has consistently held that, where a flaw is such that it can be raised by the Court of its own motion, it has a general right to do so at any stage in the proceedings. (20) Consequently, there are no doubts as to the fact that a flaw which can be raised by the Courts of their own motion can either be relied on by the parties and/or raised for the first time by the Court of Justice in appeal proceedings, even if it has not been addressed by the General Court.

34.      Furthermore, the Court of Justice has asserted its own jurisdiction to raise of its own motion, in its appellate capacity vis-à-vis a judgment of the General Court, any lack of interest in bringing proceedings – even a lack that has manifested itself after the judgment at first instance – on the part of the appellant. (21) More generally, the Court of Justice has jurisdiction to consider of its own motion any issue relating to the admissibility of an appeal against a judgment of the General Court. (22)

35.      The present case, however, does not fit either of those sets of circumstances. In the first place, the flaw could not have been raised by the General Court: the flaw here concerns the judgment at first instance itself. In the second place, the problem here clearly does not concern the admissibility of the appeal.

36.      It should be pointed out, however, that the Court of Justice has not ruled out the possibility of raising of its own motion flaws in a judgment of the General Court which have implications for the public interest: specifically, this happened with regard to the question of the correctness of the composition of the formation of the General Court which delivered the judgment. (23)

37.      Moreover, the case-law of the Court has recognised, in matters concerning administrative measures, that it may of its motion raise certain flaws which are comparable, in abstract terms, with the flaw which marks the judgment under appeal. I am referring, in particular, to shortcomings in the statement of reasons which prevent the Courts of the Union from exercising in full their jurisdiction to review the lawfulness of a measure. The Court has consistently held that the lack of a statement of reasons or the inadequacy of the reasons stated for a measure are points which may be raised by the Court of its own motion: the duty to state reasons was not laid down solely in the interests of the addressees of the act, but also in order to enable the measure itself to undergo review by the Courts. (24) Obviously, for the Courts to be able to exercise their powers of review, they must be able to understand in full the reasons underlying the impugned act. If those reasons are inadequate or lacking altogether, review is impossible.

38.      However, even in the case of a flaw which can be raised by the Court of its own motion, there must have been an exchange of arguments on the subject, in the course of which the parties have had an opportunity to state a position. (25) In the present case, the parties had the opportunity to express their point of view – both in writing, following a specific request to that effect from the Court, and orally at the hearing – on the problem concerning the apparent lack of logical cohesion between the grounds stated and the operative part of the judgment of the General Court.

39.      It is my understanding that no situation has yet arisen in which the Court of Justice has raised of its own motion a flaw in the grounds stated for a judgment of the General Court. We must therefore ask ourselves whether that is possible.

40.      Clearly, if ‘flaw in the grounds stated’ is taken to mean just any error of law on the part of the General Court, the answer must be negative. As a rule, it is the unsuccessful party which must shoulder the burden of bringing an appeal before the Court of Justice. For that matter, that is also the position with respect to measures adopted by the administration: the party which must appeal the measure is the party which has an interest in doing so, by setting out the reasons which can lead the Courts of the Union to annul it.

41.      In the present case, however, the flaw is not just any flaw. The flaw in the judgment of the General Court is an error in law, the implications of which, for all intents and purposes, prevent the Court of Justice from exercising in full its appellate jurisdiction, since the operative part of that judgment does not reflect the grounds set out beforehand. To my mind, the Court of Justice, faced with a situation of that kind, has the authority to adopt the same approach as it uses in relation to administrative measures, that is to say, to set aside of its own motion a judgment under appeal which is based on grounds which do not enable it to exercise its appellate jurisdiction.

42.      The natural objection which can be raised against such a view is the fact that, as a general rule, proceedings before the Courts of the Union are characterised by the principle that the subject-matter of a dispute is delimited by the applications lodged by the parties. However, in the present case, there are two arguments which can be raised against that objection.

43.      In the first place, the Court has stated on a number of occasions that it is the subject-matter of the applications lodged by the parties, not their arguments, which constitutes the only limit on the jurisdiction of the Courts of the Union to adjudicate. (26) In the present case, there is no question but that the Commission seeks the setting aside of the judgment under appeal.

44.      In the second place, there do not appear to me to be any grounds for drawing a distinction between, on the one hand, the approach that the Court of Justice may adopt with regard to judgments of the General Court and, on the other, the approach which the Court of Justice adopts – and which it has consistently adopted ever since its inception – with regard to administrative measures. Even with regard to such acts, deference is accorded as a general rule to the principle that the Courts of the Union can annul only to the extent that the measure has been challenged before them, with specific reasons put forward to support the claim that the measure is unlawful. And yet, according to the case-law, certain flaws can be raised of the Courts’ own motion (provided, of course, that an action has been brought, given that no other mechanisms exist by means of which judicial proceedings can be initiated before the Courts of the Union).

45.      I would therefore conclude these introductory remarks by stating that, in my view, the Court of Justice may, if seised of an appeal against a judgment of the General Court, raise of its own motion a flaw in the grounds of that judgment which prevents the Court of Justice from exercising in full its appellate jurisdiction in relation to the judgment under appeal. (27) Accordingly, to my way of thinking, the judgment under appeal in the present case should be set aside on those grounds alone.

46.      That said, I shall now turn to consider the Commission’s grounds of appeal.

IV –  The appeal brought by the Commission

47.      In support of its appeal, the Commission has put forward as many as 15 pleas in law, many of which are, if the truth be told, repetitive or at least rather similar to one another. For the purposes of my analysis, I shall divide the grounds of appeal into two main groups: (i) those relating to the role of the aid recipient and (ii) those relating to the General Court’s review of the assessment made in the contested decision as to how much the aid was worth.

A –    The grounds of appeal relating to the role of the aid recipient

1.      Introductory remarks

48.      The first four grounds of appeal relied upon by the Commission concern the problem of the role to be attributed, in procedures for the review of State aid, to the recipient of the aid in question.

49.      As I remarked above, it is not clear what purpose is served in the judgment under appeal by the section concerning the role of the recipient. It is my belief that, in reality, the statements made by the General Court must be categorised, in relation to the conclusions ultimately reached by that court, as mere obiter dicta. The annulment ruling made by the General Court is in fact based on the errors made by the Commission in assigning a value to the land sold to Scott by the French authorities. Furthermore, the essential factors set out in the letter of Scott that the Commission refused to take into account were taken up by the French Government and placed on the administrative file. (28)

50.      In consequence, the grounds of appeal which refer to the role of the recipient should be declared ineffective ab initio.

51.      In any case, in the event that the Court does not agree with that approach or agrees with the approach but nevertheless wishes to give some guidance in the matter, I shall now make a number of observations on this point.

2.      Some general remarks on the role of the recipient of State aid

52.      The problem of the role to be attributed to the recipient of State aid is complex and controversial. On that issue, the fairly consistent and strict case-law of the Court of Justice is coming into confrontation with case-law of the General Court which is rather less precise and marked by oscillation and uncertainty. The unique nature of the situation perhaps explains the General Court’s insistence on that point in the judgment under appeal. It is possible that the General Court is tacitly asking the Court of Justice to reconsider its own case-law in this regard. To my mind, it cannot be ruled out that the Court of Justice may in the future have to reconsider its own utterances regarding the role of the aid recipient. However, for the reasons that I shall try to explain below, I do not believe that this is the right time to do so.

53.      The Court of Justice has consistently held that the procedure for the review of State aid essentially involves the Commission and the Member State, with no particular role reserved for the aid recipient. (29) The Member State has genuine rights of defence in the context of that procedure, and breach of those rights can cause the Commission’s decision to be annulled where it is possible to establish that, but for that irregularity, the outcome of the proceedings could have been different. (30)

54.      However, the role of the aid recipients is quite different. Article 1 of Regulation No 659/1999 – a regulation which in essence codified the case-law of the Court of Justice in this area (31) – merely places the recipient of the aid in the general category of ‘interested parties’ who have a right under Article 6(1) of that regulation to submit comments following the decision to initiate the formal investigation procedure, within a period which is not normally to exceed one month. Thus no provision is made for the aid recipient to have any additional rights of defence or the right to participate in the procedure conducted by the Commission.

55.      There is no doubt that that general approach is markedly formalistic, a fact which has attracted considerable criticism in academic writings. Specifically, it is artificial and not always realistic to take as a premiss – which seems implicit in this interpretation of the State aid procedure – the idea that the interests of the State which granted the aid are the same as the interests of the aid recipient. Plainly, the situation cannot be viewed in the same way by the State, which at most can be ordered to recover the aid paid, as by an undertaking, which, if the aid has to be recovered, could risk liquidation. Moreover, aid is not necessarily granted by the national government of the State, it can be granted by some regional or peripheral manifestation of State power: in such cases, it is not necessarily true that the interests of the central government, which alone has the right to participate in the procedure, are the same as those of the local body.

56.      Precisely because of the limits of that strict case-law, the General Court has attempted on a number of occasions to extend the scope of recognised protection to cover the recipients of the aid. One such attempt was made by playing on the duty to ensure the effectiveness of the right to be heard as conferred on the aid recipient (in common with all the other interested parties) under Regulation No 659/1999, (32) or by recognising that the aid recipient has the right to plead, by way of a legal flaw, failure by the Commission to hear the views of the Member State concerned. (33)

57.      The judgment under appeal belongs, therefore, to this ‘progressive’ trend in the case-law of the General Court.

58.      It is my firm belief that, as regards the problem concerning the role to be attributed to aid recipients, we can – and, perhaps, we must – avoid taking a Manichaean or dualistic approach, whereby two radically conflicting schools of thought – one which denies that the aid recipient has any role at all and the other which places the aid recipient on the same level as the interested Member State – remain at odds, with no prospect of mutual accommodation.

59.      Specifically, it seems to me that a middle way between the opposing positions could be mapped by reference to the principle of good administration.

60.      That principle came into being, as we know, through the case-law and has only recently been accorded a measure of ‘consolidation’ in Article 41 of the Charter of Fundamental Rights. Even though the parameters of the principle of good administration remain somewhat vague, there is no doubt now that it must be regarded as one of the fundamental principles of European Union law. (34)

61.      In particular, that principle can be identified, whether or not it is expressly referred to, as the mainspring for a number of statements in the case-law. I am thinking, for example, of cases in which the administrative authorities have been required to consider of their own initiative, for the purposes of undertaking a ‘diligent and impartial’ examination of a complaint, a number of matters not expressly raised by the complainant; (35) or of cases in which an obligation has been laid down to hear the individual adversely concerned by a measure, even if no such right to be heard is provided for under the applicable legislation; (36) or, lastly, of cases in which it has been stated that the Commission is under a duty to examine diligently all the information with which it has been provided in the context of a procedure. (37)

62.      For its part, the Charter of Fundamental Rights mentions, as essential implications of the principle of good administration, the right of every person to be heard, before any measure is taken which would affect him adversely; the right of a person to have access to his file; and the obligation of the administration to give reasons for its decisions. Moreover, that list is not exhaustive, its non-finite character being emphasised by the wording ‘[t]his right includes’. (38)

63.      It seems to me that, as regards State aid, the principle of good administration – albeit not requiring the aid recipient to be accorded the formal status of party to the procedure for the review of State aid – precludes the Commission from systematically refusing, unrelentingly and without exception, any information provided by the aid recipient where this has been received after the deadline for the submission of comments by interested parties.

64.      In fact, it must not be forgotten that the procedure for the review of State aid is an administrative procedure, as distinct from judicial proceedings; also, the role of the recipient in such a procedure is essentially that of a source of information for the Commission. Accordingly, while the comments submitted by the recipient before the deadline initially fixed for those purposes must be accepted and taken into consideration by the Commission, comments provided subsequently by the recipient or by any other individual may be covered by an obligation on the part of the administrative authorities to undertake an examination, if the principle of good administration so requires. That is the case, inter alia, where the information in question is of real use to the administration for the purposes of clarifying or supplementing what it already knows, provided that the administrative procedure is still at a stage where the information can be taken into account without the adoption of the final decision being delayed.

65.      Nevertheless, the administration is not under an obligation to take an express position on the comments submitted by the recipient (or by any other person) after the deadline initially fixed. Accordingly, the Commission will not necessarily have to state the reasons which may have led it to decide not to take that information into consideration.

66.      Consonant with those observations, it is appropriate also from the point of view of judicial protection to make an important qualification: it will be for the party which has provided the information to discharge, where necessary, the burden of proving that they should have been taken into consideration by the administration.

67.      In the light of all those preliminary remarks, we can finally move on to examine in detail the grounds of appeal.

3.      The first ground of appeal, concerning the Commission’s refusal to place Scott’s letter of 24 December 1999 on the administrative file

a)      Arguments of the parties

68.      The Commission submits that the General Court erred in law by maintaining that Scott’s letter of 24 December 1999 should have been accepted and placed on the administrative file. Specifically, the General Court did not specify the legal rule which had allegedly been infringed. Only a breach of the essential procedural requirements for the purposes of Article 230 EC could have entailed annulment, but no such breach was relied on in Scott’s application, which means that the ruling of the General Court on that point was ultra petita. Furthermore, and most importantly, the Commission was not in breach of any essential procedural requirement since, in the context of the procedure for the review of State aid, Scott is a third party and had no right whatsoever to submit comments at such a late stage in the procedure. Lastly, the Commission observes that, in any case, the very same comments that Scott submitted in the letter which was refused were made later by France in its letter of 21 February 2000 and, as such, were placed on the administrative file.

69.      The Commission observes that the judgment of the General Court could have significant implications for the administrative practice consistently followed in State aid matters.

70.      Scott contends that the General Court did not impose any general obligation on the Commission and set out a series of considerations which were closely linked to the case before it and to the specific features of that case. The fact that Regulation No 659/1999 reserves no role for the recipient of the aid beyond the right to submit comments at the beginning of the administrative procedure does not mean – contrary to the assertions of the Commission – that any subsequent intervention by the recipient is forbidden. Specifically, Regulation No 659/1999 cannot preclude the application of the general principles which require the Commission to act with diligence and impartiality.

71.      The arguments put forward by the Département du Loiret are in substance equivalent to the contentions raised by Scott.

(a)      Appraisal

72.      The first ground of appeal is the one to which the Commission has paid most attention, devoting to it a considerable portion of its pleadings. Obviously, the Commission is planning to take a stand against any endorsement by the Court of Justice of the case-law developed by the General Court which inclines more favourably towards a reinforcement of the role of the recipient in the procedure for the review of State aid.

73.      It can safely be said, on the basis of the observations made above in the course of my general reflections on the role of the recipient, that where the recipient itself sends the Commission certain documents after the deadline agreed for the submission of its comments, the Commission may be under a duty – the basis for which is the principle of good administration – to take account of the contents of those documents. Subject, however, to the following conditions: (i) the documents must be of real use in plugging gaps in the Commission’s knowledge of the facts and (ii) the stage reached by the procedure must permit it. And, none the less, it must actually be shown that the documents in question are useful.

74.      And yet that is not the line of reasoning followed by the General Court.

75.      Without saying so in as many words, the General Court has first and foremost framed the question – correctly – not in terms of a breach of an essential procedural requirement, as the Commission would have it, but in terms of compliance with the principle of good administration. (39) On that basis, however, the General Court should have determined whether, in fact, the contents of the letter disclosed factors crucial to an understanding of the circumstances of the case. If the answer to that question had been affirmative, a finding could have been made that the Commission had a duty to take the information provided into account. Instead, the General Court did no more than reflect in general on the circumstances of the case, observing that they made it difficult to determine the facts, especially because of the lengthy period of time that had elapsed between the supposed grant of the aid and the procedure before the Commission. From that general finding, the General Court drew the inference that Scott’s letter should have been accepted by the Commission and placed on the administrative file.

76.      I find myself unable to concur with that line of reasoning. Admittedly, in some cases, the principle of good administration can – as has been observed and as the General Court has asserted – require the Commission to take into consideration documents which have been sent after the deadline and/or by persons with no specific right to do so. Nevertheless, for that to be the case, the genuine usefulness of the information contained in those documents must first have been established. And yet, in the part of the judgment in which the Commission’s decision not to accept Scott’s letter of 24 December 1999 is addressed, the General Court did not even consider the contents of the letter.

77.      In consequence, the first ground of appeal must be upheld in so far as it alleges that the General Court erred in law in holding that the Commission was under a duty to accept the letter sent by Scott on 24 December 1999 and to place it on the administrative file.

4.      The second, third and fourth grounds of appeal, concerning the Commission’s alleged obligation to request additional information and/or to have recourse to an independent expert

78.      The second, third and fourth grounds of appeal can be considered together. By those pleas, the Commission challenges the statements made by the General Court to the effect that, in view of certain information contained, in particular, in Scott’s letter of 24 December 1999 and in the later letter from the French authorities of 21 February 2000, the Commission should have studied the case in greater depth and acquired additional information.

(b)      Arguments of the parties

79.      By its second ground of appeal, the Commission criticises the statements made by the General Court to the effect that the Commission should have asked the French authorities to provide additional information and explanations after those authorities – and, for that matter, Scott in its letter of 24 December 1999 – had referred to the fact that there had been two valuations (one contained in a professional report prepared by Galtier, a firm of consultants, and the other drawn up by the Commissaire aux apports) which had suggested that the land value at issue was lower than the Commission had estimated. (40)

80.      By its third ground of appeal, the Commission challenges instead the statement made by the General Court to the effect that the Commission should have asked Scott to explain the difference between the estimated cost (FRF 80 million) and the actual cost (FRF 140 million) of the improvement works carried out on that land on behalf of the French authorities before it was sold to Scott. That discrepancy, according to the General Court, should have led the Commission to suspect that the costs incurred by the public authorities in preparing the land do not necessarily reflect the value of that land. (41)

81.      Lastly, by its fourth ground of appeal, the Commission challenges the considerations set out by the General Court in relation to the option open to the Commission to have recourse to an independent expert in order to obtain a correct determination of the land value.

82.      These grounds of appeal, too, are based on the premiss that the Commission was under no obligation, from a procedural point of view, to ask for additional information, in particular from the French authorities, which it had already called upon to provide, inter alia, any information that could help in determining the value of the land. (42) The Commission maintains, however, that, in any event, account was taken in the contested decision of the valuations to which the General Court refers.

83.      Scott, on the other hand, points out that the General Court did not find that the Commission was in breach of an essential procedural requirement, and argues that the grounds of appeal should be rejected immediately for that reason alone. In any case, according to Scott, the General Court’s appraisal of the facts was based on a correct approach, since a number of the considerations contained in the letter of 24 December 1999 – but not reproduced in full in the letter from the French authorities of 21 February 2000 – should have compelled the Commission to reconsider its own assessments and to ask for fresh documentation.

(c)      Appraisal

84.      The second ground of appeal is closely related to the first and I believe that this ground, too, should be upheld.

85.      It should be noted that here, too, the Commission is really basing its arguments on what has been shown to be a false premiss, that is to say, on the idea that the General Court made a finding that the Commission was in breach of essential procedural requirements. In reality, it has already been observed that the sole point of reference which appears to have been used by the General Court is the principle of good administration.

86.      What is more, the objections of the Commission to the effect that, in the contested decision, it took account of the market values suggested in the letters of December 1999 and February 2000 rest on a somewhat flimsy basis. In actual fact, scant reference is made to those valuations in the contested decision, with little in the way of reasoned argument.

87.      That, however, is not the point. Both Scott’s letter and the letter from the French authorities, which arrived at an extremely advanced stage of the procedure, merely referred to the fact that other valuations existed (the valuations drawn up, respectively, by the tax authorities, the Galtier consultancy firm and the Commissaire des apports), which suggested a land value lower than the value which the Commission thought could validly be inferred from the evidence in its possession. No other document was appended, and there was simply a declaration of readiness, if necessary, to provide the Commission with the valuations in question.

88.      It does not appear to me that, on the basis of the principle of good administration, the Commission was required at that stage in the procedure to ask the French authorities to provide additional documents and details. It should be borne in mind that, twice already, the Commission had called upon the authorities in question to provide documents, and on one occasion its request was framed in the broadest terms. (43) On that occasion, the information referred to in the letters of December 1999 and February 2000 was not provided.

89.      In the same way, and for similar reasons, it cannot be held that the Commission had an obligation to take into consideration the contents of the letter sent by Scott in December 1999. To acknowledge such an obligation could well make the Commission a potential hostage to delaying tactics. If, for example, the letter had been accompanied by the full land valuation reports to which it referred, the conclusion could perhaps be different. However, the principle of good administration cannot, to my mind, be distended to the point of compelling the Commission, without any time restrictions, to make good omissions in the comments and documents which are sent to it.

90.      So far as the third ground of appeal is concerned, the same considerations apply as those set out in relation to the second ground of appeal. The Commission was under no obligation to ask Scott for additional information. For that matter, I am at a loss to understand why the Commission should have had to ask Scott for explanations regarding the fact that the estimated costs for the land improvement operations had been exceeded, given that those costs were borne by the French authorities.

91.      Accordingly, I conclude that the General Court erred in law in holding that the Commission should have asked the French authorities and/or Scott to provide additional information in relation to the land value. The second and third grounds of appeal should therefore be upheld.

92.      On the other hand, it does not seem to me possible to uphold the fourth ground of appeal, concerning the alleged obligation for the Commission to have recourse to an independent expert.

93.      At no point in the judgment under appeal, in fact, did the General Court state that the Commission should have used the services of an independent expert. The General Court simply pointed out that this was one of the options open to the Commission for the purposes of obtaining additional information.

94.      The fourth ground of appeal should therefore be rejected.

B –    The grounds of appeal relating to the General Court’s appraisal of the merits

1.      The sixth ground of appeal, according to which the General Court denied that the Commission enjoyed any measure of discretion

95.      The sixth ground of appeal brings us to the heart of the second fundamental problem facing the Court of Justice in the context of the present appeal. This problem concerns the type of review that the Courts of the Union have jurisdiction to undertake with regard to the lawfulness of Commission decisions on matters regarding State aid.

(a)      Arguments of the parties

96.      The Commission maintains that the General Court erred in law in reviewing the contested decision in much greater depth and detail than was consistent with its jurisdiction. In particular, the General Court substituted itself for the Commission, by denying the Commission the measure of discretion which it falls properly to be accorded in this area. The review by the Courts of the Union of the legality of Commission decisions on matters concerning State aid must be confined to checking for the defects specified in Article 230 EC. For that matter, the Courts of the Union never have at their disposal all the evidence (documents and so on) that have been used by the Commission in order to arrive at its decision: in consequence, even from the point of view of practicality, it would be impossible for the Courts of the Union to substitute their own assessments for those made by the Commission.

97.      According to Scott, the ground of appeal is based on a misunderstanding of the judgment under appeal. The General Court did not substitute its own assessments for those of the Commission, but clearly indicated – in particular, in paragraph 100 of that judgment – that its aim was solely to determine whether the Commission had appraised all the evidence before it with the requisite diligence.

98.      Arguments analogous to those put forward by Scott have been submitted by the Département du Loiret.

(b)      Appraisal

99.      This ground of appeal concerns the limits of the jurisdiction of the Courts of the Union to review the legality of Commission decisions on State aid. A number of points have been firmly established by the relevant case-law, and they should be called back to mind.

100. First and foremost, ‘State aid’ is a legal concept and must be interpreted on the basis of objective factors. As a consequence, the Courts of the Union have, in principle, full jurisdiction when it comes to determining whether the measures under consideration constitute State aid. (44)

101. Nevertheless, there are two situations in which the Commission is recognised as enjoying a broader discretion. First of all, for assessing whether the aid is compatible with the common market within the meaning of Article 87(3) EC. In that context, the review undertaken by the Courts must be confined to determining whether the Commission’s decision is vitiated by manifest error or misuse of powers. (45)

102. The Commission is also recognised as enjoying a broader discretion in relation to the existence of aid (and, accordingly, in situations which fall within the scope of Article 87(1) EC), whenever the decision has necessitated a complex technical or economic assessment. In those cases, the review undertaken by the Courts is generally confined – alongside the need to make sure that there is no manifest error or misuse of powers – to verifying that the Commission has complied with the relevant rules governing procedure and the statement of reasons, and that the facts on which it has based its decision have been accurately stated. (46)

103. When appraising Commission decisions on State aid which contain complex economic assessments, the Courts of the Union are called upon to perform a delicate balancing act. On the one hand, the Court cannot substitute its own economic assessment for that of the Commission; but, on the other hand, it must check the interpretation that the Commission has placed on economic factors, which means, inter alia, that it must verify that the data used by the Commission for the purposes of assessing a complex situation actually support the conclusions that the Commission then reached. (47)

104. In the present case, the Commission had to try to determine the price that an ordinary economic operator would have been able to obtain, in 1987, by selling a plot of land for industrial use. Plainly, therefore, and the parties seem to agree on this point, the valuation that the Commission was required to make, many years after the material time, could be no more than a rough estimate. Furthermore, there is no doubt in my mind that the operation called for complex economic assessments. As a consequence, the General Court was called upon to carry out a review in respect of which, in principle, it enjoyed full jurisdiction, but in the course of which it could not have substituted its own independent assessment of the economic factors for that made by the Commission.

105. However, I do not believe that, in the case which concerns us here, the General Court substituted its own assessment for that of the Commission.

106. It should be observed, in fact, that when, in the judgment under appeal, the General Court considered the merits of the contested decision, it did not make an independent calculation of the value of the land. Instead, it merely stated that there was evidence to suggest that the Commission had not considered the matter in sufficient detail and that the land value might have been miscalculated. In particular, the General Court refers to the fact that the method which the Commission chose to use in order to determine the value of the land was based on the costs, as well as the fact that the Commission did not place any importance on certain information that had been placed on the administrative file, specifically the valuations referred to in the last letters sent by the French authorities.

107. The sixth ground of appeal should therefore be rejected.

2.      The seventh ground of appeal, according to which the General Court based its findings on speculation rather than proof

(a)      Arguments of the parties

108. By the seventh ground of appeal, the Commission submits that, even supposing that the General Court did not go beyond the limits of its jurisdiction to review the legality of measures, as indicated in the sixth ground of appeal, it nevertheless erred in that, instead of basing its decision on the evidence available in the context of the procedure, it based that decision on mere speculation. Specifically, the General Court erred in stating that the Commission should have taken account of the land valuations referred to in Scott’s letter of December 1999 and in the subsequent letter of February 2000 from the French authorities: in truth, those letters did not contain evidence, but only simple, unsubstantiated, statements.

109. According to Scott, the Commission is completely wrong. For all practical purposes, in fact, the statements in the letters from Scott and the French authorities constitute evidence. However, accepting that those statements are evidence is not the same thing as declaring them to be true: the General Court really did no more than criticise the fact that the Commission did not consider it necessary, on the basis of that information, to study the question in greater depth.

(b)      Appraisal

110. Two points must be made before the seventh ground of appeal is appraised.

111. First, according to settled case-law, the legality of the Commission’s decision falls to be reviewed by the Courts of the Union in the light of the information available to the Commission when the decision was adopted. (48)

112. Secondly, it should not be forgotten that, on the basis of the general principle laid down in Article 58 of the Statute of the Court of Justice, an appeal against a judgment of the General Court is limited to points of law. Unless the facts and evidence have been distorted, the Court of Justice cannot review the facts as found by the General Court. (49)

113. The ground of appeal relied upon by the Commission must be examined by reference to those firmly established points. Accordingly, it is necessary to determine first whether, in reviewing the legality of the Commission’s decision, the General Court took into consideration evidence which was not available to the Commission at the time when it took the contested decision. Secondly, however, it must be established that the Commission is not seeking to obtain from the Court of Justice a fresh assessment of the facts as found by the General Court.

114. The assessments on the basis of which the General Court found fault with the Commission’s decision are essentially twofold.

115. First, the General Court pointed out that there were a number of specific problems in the contested decision which cast doubt on its correctness and reliability. Specifically, not only had the Commission made genuine calculation errors – albeit errors which worked in Scott’s favour, since their correction led to an estimate of the market value of the land which was higher than the valuation figure arrived at by the Commission (50) – but it was also guilty of inaccuracies, specifically because, for the purposes of determining the market value of the land in 1987, it relied on the costs incurred, at various times, in purchasing parcels of that land. (51)

116. Secondly, the General Court found that the alternative land valuations referred to in the letter from the French authorities of 21 February 2000, together with the fact that in 1998 Scott sold the land to another private company for a price much lower than the value as assessed in the decision, should have compelled the Commission – on the basis of the principle which requires it to carry out a diligent and impartial examination of the facts – to consider the question of the land value in greater detail, for example by asking France for the professional valuations to which the French authorities had referred or by using the services of an independent expert. (52)

117. Turning now to consider the ground of appeal by reference to the two requirements referred to above: the General Court did not find fault with the Commission on the basis of factors which were not available to that institution at the time when the contested decision was adopted. All the criticisms made by the General Court are in fact based, as we have seen, on inaccuracies on the part of the Commission and on the weight – insufficient, according to the General Court –attributed to certain information contained, in particular, in the letter from the French authorities of 21 February 2000. That letter, it should be remembered, had been placed by the Commission on the administrative file.

118. It remains to be seen whether, by the ground of appeal in question, the Commission is really seeking a re-assessment by the Court of Justice of the facts as found by the General Court. The case-law of the Court of Justice inclines me towards a negative conclusion in this regard. The Court of Justice has held that the question whether, on the basis of certain findings as to the facts, the General Court properly concluded that there had been a breach of the duty of diligence and the duty to state reasons is a question of law which, as such, is amenable to review by the Court of Justice on appeal. (53)

119. It is my view that, in the present case, the General Court erred in law – as the Commission submits – in holding that the Commission must, on the basis of the most recent information provided, in particular, by the French authorities, reconsider its own assessment as to whether aid existed and, if so, in what amount.

120. It should be borne in mind that the General Court took issue with the Commission, in substance, for not pursuing new lines of investigation after receiving the land value estimates as they emerged from the valuations prepared by the Galtier consultancy firm and the Commissaire des apports. As I pointed out above, the letter from the French authorities – like the letter of December 1999 sent by Scott, for that matter – merely pointed out the existence of those valuations and the results arrived at. The precise contents of those assessments of the market value were not, however, disclosed.

121. The point has already been made above that, in those circumstances, such vague indications could not be enough to require the Commission, by dint of the principle of good administration, to take Scott’s letter into consideration. In the same way, and for the same reasons, it cannot be maintained that, on the basis of the contents of the letter from the French authorities of February 2000, the Commission should have re-opened the investigation stage of a procedure which by then had entered the home stretch.

122. As I have already pointed out, the situation could have been different if the French authorities had provided more solid evidence in support of those valuations: specifically, if they had appended all the assessments relating to those valuations, which would have been relatively easy, particularly in view of the fact that the valuation prepared by the Galtier consultancy had been directly commissioned by Scott.

123. Nevertheless, that was not done, and to impose on the Commission a further obligation to investigate in greater detail, at that stage in the procedure, would run the risk of legitimising the use of any number of delaying tactics in the course of the procedure for the review of State aid.

124. In other words, in the specific circumstances of the case, the Commission could properly close its investigation and take a decision on the basis of the information in its possession. In the same way, the legality of the decision must be reviewed by the Courts on the basis of the information available to the Commission at the time of its adoption. The seventh ground of appeal put forward by the Commission accordingly deserves to be upheld and is sufficient in itself to justify the setting aside of the judgment under appeal.

125. As regards the Commission’s use of the costs-based method, and the specific error pointed out in paragraphs 109 and 110 of the judgment under appeal, I shall address those points in greater detail in the course of considering the remaining grounds of appeal relied upon by the Commission.

3.      The eighth ground of appeal, relating to a reversal of the burden of proof

(a)      Arguments of the parties

126. The Commission submits that the General Court reversed the burden of proof in requiring the Commission to gather evidence which had not been provided by the parties, whose responsibility it was, according to the ground of appeal under consideration, to produce the evidence necessary to enable the Commission to take a decision to different effect.

127. Scott contends that the Commission misconstrued the judgment under appeal, in so far as the General Court simply stated the facts and pointed out that the Commission had failed to discharge its obligation to act with due diligence.

(b)      Appraisal

128. The ground of appeal is without foundation, and is based on a misinterpretation of the judgment under appeal.

129. Without touching upon the substantive aspects of the problem concerning the burden of proof in procedures relating to State aid, I would point out that the General Court did not require the Commission to seek out evidence in support of the position argued for by Scott and the French authorities. On the contrary, as we have seen, the General Court did no more than state that the body of evidence before the Commission was not enough to justify a decision like the decision ultimately adopted.

130. In other words, the General Court did not place any evidentiary burden on the Commission. Rather it held that, on the basis of the information which it had already received, the Commission should, in accordance with the principle of good administration, have gone further with its investigation.

131. It is my view, therefore, that the eighth ground of appeal put forward by the Commission should be rejected.

4.      The ninth and twelfth grounds of appeal, relating to the legitimacy of the Commission’s use of the costs-based method

(a)      Arguments of the parties

132. By the ninth and twelfth grounds of appeal, the Commission challenges two different aspects of the judgment under appeal.

133. First, the General Court erred, according to the Commission, in disapproving the Commission’s use of the costs-based method for calculating how much the aid was worth. On the contrary, the fact that there was to hand no valuation of the land dating from the time at which the aid was granted meant that it was quite proper and logical to use the costs-based method, which operates by reference to the costs actually incurred by the public authorities in carrying out the aid operation. Admittedly, the market price of an asset does not necessarily match the amount paid for that asset, but it must be borne in mind that, in the case under consideration, the development of the land was ‘tailored’ to Scott’s specific requirements, a fact which reduces the importance of the price that could have been fetched for that land on the open market.

134. Secondly, the Commission criticises the statements made by the General Court in relation to the usefulness, for the purposes of determining how much the aid was worth, of referring to the price for which the land was sold in 1998. That price – even if it reflected the market price current at the time – could not shed any light on the value of the aid 11 years previously. On the one hand, the household paper sector in 1987 was in full expansion, whereas in 1998 it was in serious difficulties, with an attendant reduction in the value of the land and the plant. On the other hand, assets of any kind tend to lose value over time and, accordingly, it is quite normal that, 11 years later, the aid granted to Scott had fallen in value.

135. According to Scott, the Commission’s plea is based on a misunderstanding of the judgment under appeal. It was not the position of the General Court that the Commission cannot use the costs-based method when seeking to determine how much aid is worth. Quite simply, in the circumstances of the case before it, the General Court found that the Commission was in breach of its duty to act with due diligence because it had failed to investigate the possible usefulness, for the purposes of determining the value of the aid, of the purchase price paid in 1998.

136. The Département du Loiret puts forward arguments similar to those relied upon by Scott, and adds that there is a basic flaw in the Commission’s reasoning. If, as the Commission maintains, the market value of the asset in 1998 is indeed irrelevant for the purposes of determining how much the aid was worth in 1987, by the same token there would be no point in trying – as the Commission nevertheless did – to determine the value of the aid on the basis of the average purchase price for the land in relation to three different stages, which in turn related to three different parcels of that land, in 1975, in 1984 and in 1987.

(b)      Appraisal

137. The ninth ground of appeal relied upon by the Commission – like the twelfth, which is broadly the same – takes issue with the fact that the General Court found that the Commission’s assessments of the value of the land sold to Scott in 1987 were inaccurate. This ground of appeal does not concern the observations made by the General Court on the need for the Commission to draw the proper inferences from the information contained in the last letters from Scott and the French authorities (those aspects were the focus of the seventh ground of appeal, which I have already discussed above). The present ground of appeal challenges instead the more general statements made by the General Court to the effect that, in order to assess the value of the aid, the Commission should have used more reliable methods than the method based on the costs incurred by the public authorities.

138. It should be noted that, as the General Court itself pointed out, in order to determine whether the sale of land by the public authorities to a private individual constitutes State aid, it is necessary to proceed by reference to the principle of the private investor operating in a market economy. (54) That is to say, it must be determined whether the price paid by the presumed recipient of the aid – in this case, Scott – is the price likely to have been paid if the seller of the land had been a private individual instead of a public authority.

139. As a rule, the private investor test is a complex economic assessment, for the purposes of which the Commission must be recognised as enjoying a broad measure of discretion. (55) In consequence, as I noted above, this is an area in which the jurisdiction of the Courts to review the legality of a measure is in principle confined to verifying that that there is no manifest error or misuse of powers, and that the Commission has complied with the relevant rules governing procedure, and that the facts on which it has based the contested administrative decision have been accurately stated. (56)

140. In my view, the review which, in the present case, the General Court sought to undertake in relation to the Commission’s decision went beyond those limits. It should be borne in mind that, at the time of the aid, the French authorities did not make any independent assessment of the value of the land; nor did they make the sale of that land conditional upon a prior competitive procedure, which could have established how much the prospective purchasers were prepared to pay. Furthermore, even during the procedure for verifying the existence of aid, the conduct of the French authorities and the alleged recipient displayed – as the Commission observed and as the General Court itself established – a marked lack of enthusiasm for cooperation and a tendency to suggest possible evidence, in a manner more vague than specific, during the last stage of the procedure, when the adoption of a final decision was imminent.

141. It is indeed possible that, in reality, the assessment of the land value carried out by the Commission in the contested decision was not perfectly accurate: the Commission itself has acknowledged this. The fact remains, however, that it has not been shown that the Commission made any manifest error and that, in its observations, the General Court – far from suggesting the existence of some such error or of a comparable breach of the relevant rules on the part of the Commission – merely pointed out a number of mistakes which, even if confirmed, would not be enough to justify annulment of the contested decision. I have in mind, in particular, the calculation error pointed out in paragraphs 109 to 111 of the judgment under appeal: that, moreover, was an error which worked in Scott’s favour, the suggestion being, when it was corrected, that the value of the land sold was, if anything, even higher (likewise, in consequence, the value of the aid). The fact that that mistake cannot of itself justify annulment obviously does not mean that the General Court could not take it into account (see, on that point, my analysis of the 10th ground of appeal).

142. It is therefore my view that the 9th and 12th grounds of appeal should also be upheld and that, as a consequence, the Court should set aside the judgment under appeal.

5.      The 10th, 13th and 14th grounds of appeal, relating to the Commission’s assessment of the value of the aid

(a)      Arguments of the parties

143. By its 10th ground of appeal, the Commission focuses on a number of specific aspects of the judgment under appeal which, again, are linked to the use of the costs-based method in order to determine how much the aid was worth. In particular, the Commission points out that the value that it assigned to the land – a little more than FRF 70 million – was in any event lower than the figure of FRF 80 million which, for the land improvement operations for which the public authorities were responsible, had been specified in the preliminary agreement drawn up in 1987 between Scott and the French authorities. The Commission maintains, moreover, that the General Court erred in holding that it could consider the calculation error in favour of Scott, pointed out in paragraphs 109 to 111 of the judgment under appeal, as one of the factors which militated in favour of annulling the contested decision.

144. The 13th ground of appeal reproduces arguments similar to those put forward in connection with the 10th ground of appeal, as well as in a number of others, claiming once again that the land valuation carried out by the Commission was so conservative that it is actually compatible with the values quoted in the documents referred to by Scott and the French authorities.

145. The 14th ground of appeal repeats, in the same way as the 13th, arguments raised in other pleas, concerning the discretion enjoyed by the Commission for the purposes of determining the value of aid.

146. Scott contends that it has already replied to the Commission’s arguments in the context of the preceding pleas, and states again that, in any event, the fundamental point on which the judgment under appeal turns is the fact that the Commission did not act with due diligence: in consequence, the various matters considered by the General Court should not be understood as autonomous grounds for annulment, but rather as evidence of that lack of diligence.

(b)      Appraisal

147. As regards the first part of the 10th ground of appeal, it is my view – in line with my observations on the preceding pleas – that the arguments put forward by the Commission should be upheld. These arguments, too, concern a number of considerations on the part of the General Court which led to the annulment of a decision containing quite complex economic assessments, even though the General Court did not actually point out any manifest error or breach of the procedural rules in the reasons stated by the Commission.

148. On the other hand, there is no question of upholding the arguments put forward by the Commission concerning the use, by the General Court, of a calculation error made by the Commission which worked in the favour of Scott, the applicant. It should in fact be observed that, as Scott has correctly pointed out, the General Court did not use that finding as a basis for proceeding directly to annulment, but merely as evidence of the existence of a breach, on the part of the Commission, of its duty to act with due diligence. However much I disagree – as mentioned above – with the General Court’s finding that the Commission was not sufficiently diligent in the conduct of its investigation, the fact remains that the General Court cannot be criticised for using that calculation error in favour of Scott as one of the factors on which it based its own conclusions.

149. The 13th and 14th grounds of appeal, as I have already observed, do no more than re-state, in rather confused fashion, the observations and arguments put forward in the context of other pleas. Accordingly, they do not warrant, to my mind, either a specific analysis or, still less, to be upheld. The various parts of these pleas have already been discussed in the context of the grounds of appeal by which the arguments in question were put forward for the first time.

150. As for the Commission’s arguments in support of the 13th ground of appeal, which seek to demonstrate that its assessment of the land value was prudent and reasonable, these must be described – in so far as they do not call into doubt findings as to the facts on the part of the General Court – as simple arguments in support of the allegation, already put forward in the context of the 7th ground of appeal, that the General Court exceeded its jurisdiction to review the legality of acts of the institutions. I have already indicated that, to my mind, that allegation should be upheld, and it is not necessary, therefore, to address that point again.

151. The first part of the 10th ground of appeal should therefore be upheld, while the second part of that plea should be rejected. The 13th and 14th grounds of appeal should also be rejected.

6.      The eleventh ground of appeal, relating to the evidentiary value of the measure adopted by the City Council of Orleans

a)      Arguments of the parties

152. According to the Commission, the General Court erred in holding that, in assessing the value of the land sold to Scott, the Commission had placed undue importance on the value attributed to the land in May 1994 by the City Council of Orleans. On the contrary, that estimate was very reliable, and the Commission had been right to use it for the calculation of the aid.

153. Scott contends that it is unacquainted with the document to which the Commission is referring. In Scott’s copy of the minutes of the meeting on 27 May 1994 of the City Council of Orleans, there is no trace of the extracts cited by the Commission in its appeal.

b)      Appraisal

154. The Commission has indisputably made a number of drafting errors in setting out this ground of appeal. Indeed, not all the extracts cited by the Commission are to be found in the Court’s copy of the measure adopted by the City Council of Orleans, and the page numbers to which the Commission refers in that regard in its pleadings are mysterious. (57)

155. Nevertheless, over and above the numerous inaccuracies which are a feature of all the pleadings of the parties in the present case, the central point of the Commission’s plea remains.

156. In 1994, summarising the situation, at a time when the procedure for the review of State aid had not yet begun, the City Council of Orleans stated that the ‘initial value’ of the land was FRF 10.9 million, adding, moreover, that that estimate was very conservative.

157. The Commission used that information as a factor in calculating how much the State aid to Scott was worth, but – as the General Court pointed out in paragraphs 109 to 111 of the judgment under appeal – it made an error of interpretation which led it to reduce the cost per square metre, wholly to Scott’s advantage.

158. The General Court held that the Commission could not rely on that value, since paragraph 2.2 of the minutes of the meeting of the City Council of Orleans, in which that value is quoted, amounts to a ‘very brief summary without detailed explanation’. (58) The General Court added that, since the contractual terms of the purchase of the land by the French authorities were unknown, it was possible that the land was acquired as a result of a compulsory purchase order and that, as a consequence, the value quoted exceeded the true market value.

159. To my mind, the reasoning of the General Court is erroneous, and the Commission’s ground of appeal should be upheld.

160. As part of its assessment regarding the existence of aid, the Commission found itself – as we have seen – having to re-construct the value of a plot of land after an interval of many years, applying the private investor test in order to determine whether State aid was involved. Even leaving aside the recent discussion of the discretion which must be attributed to the Commission in just such a difficult situation, I believe that its conduct in the present case was entirely proper. Indeed, in circumstances such as those just described, use of a land valuation which was (i) prepared by one of the public authorities involved in the transaction and (ii) referred to in an official document seems to me to be a methodologically correct choice.

161. I would also regard as unfounded the objection of the General Court relating to the fact that the value indicated might not be credible if the public authorities had obtained the land by means of a compulsory purchase order. The basic idea of the General Court in that regard is that that particular form of purchase can be more costly than a purchase under normal market conditions, in that it may involve the payment of specific compensation to the owners.

162. It should be observed in this regard, first, that the compulsory purchase mechanism is inherently designed to favour the public wellbeing over private interests and unlikely to involve the payment to a property owner of sums significantly higher than the market value of the property to which the purchase order relates. If anything, the reverse is more likely.

163. Secondly, however, and this seems to me to be the crucial point, the City Council of Orleans did not mention the cost of the land, but only an estimate of its value. Furthermore, it should not be forgotten that that estimate was only one of the factors considered together in the Commission’s final decision on the aid.

164. In conclusion, the 11th ground of appeal put forward by the Commission is well founded and should be upheld.

7.      The 15th ground of appeal, alleging that the General Court distorted the facts and the evidence

165. By the 15th ground of appeal, the Commission submits that the General Court distorted the facts of the case.

166. In reality, this plea consists in no more that a few lines of text and does not disclose any new material as compared with the arguments put forward in the context of the other grounds of appeal.

167. It is clear that where a plea in law is framed in such a fashion, it cannot be upheld, since there is no argument to support it. This is all the more true in the case of alleged distortion, because an allegation of distortion must be substantiated by a considerable body of evidence, which identifies precisely the elements which were distorted and demonstrates the errors of assessment made by the General Court. (59)

C –    Other grounds of appeal

1.      The fifth ground of appeal, according to which the General Court ruled on the basis of factors on which Scott had not relied

a)      Arguments of the parties

168. The Commission submits that the General Court erred in law in agreeing to take into consideration (60) the ‘alternative’ land valuations, even though Scott had not specifically referred to those valuations in its application initiating proceedings.

169. According to Scott, there is no question of any error, given that, in its application initiating proceedings, it challenged the Commission’s assessment of how much the aid was worth and referred in particular to the letter of 24 December 1999, which was largely based on those alternative assessments as to the value of the land.

b)      Appraisal

170. The Commission’s ground of appeal cannot be upheld.

171. The application initiating the proceedings brought by Scott before the General Court contained specific criticisms of the land valuation carried out by the Commission, as compared with the valuation carried out by the French tax authorities, with reference to the letter of 24 December 1999 which the Commission – erroneously, according to Scott – had refused to take into account. (61)

172. Accordingly, faced with those criticisms of the contested decision, and given the production of the letter containing the references to the ‘alternative’ land valuations, the General Court was entitled to hold that it could undertake a review, in relation to the value of the land, on the basis of the evidence before it.

V –  Conclusion

173. To sum up, I therefore propose that the Court raise of its own motion the existence of a serious flaw in the reasoning of the judgment under appeal and, in consequence, set that judgment aside. In the alternative, I propose that the seventh, ninth, tenth (the first part only), eleventh and twelfth grounds of appeal put forward by the Commission be upheld and, in any case, that, as a consequence, the judgment under appeal be set aside in its entirety. In the lesser alternative, I consider the first, second and third grounds of appeal worthy of being upheld.

174. Since the General Court examined only one of the four pleas in law relied upon by Scott in support of its action, the state of the proceedings does not permit the Court of Justice to give final judgment in the matter. The case must therefore be referred back to the General Court for judgment.

175. In conclusion, I propose that the Court of Justice:

–        set aside the judgment under appeal;

–        refer the case back to the General Court;

–        order that the decision on costs be reserved.

---

1 – Original language: Italian.

---

2 – OJ 2002 L 12, p. 1.

---

3 – Case T‑369/00 Département du Loiret v Commission [2007] ECR II‑851.

---

4 – Case C‑295/07 P Commission v Département du Loiret [2008] ECR I‑0000.

---

5 – Case C‑276/03 P Scott v Commission [2005] ECR I‑8437.

---

6 – The two judgments in question, both delivered on 10 April 2003, are those in Case T‑369/00 Département du Loiret v Commission [2003] ECR II‑1789, against which no appeal has been brought, and in Case T‑366/00 Scott v Commission [2003] ECR II‑1763, which gave rise to the appeal cited in footnote 5 above.

---

7 – Case C‑232/05 Commission v France [2006] ECR I‑10071.

---

8 – Judgment under appeal, paragraph 37.

---

9 – However, a brief perusal of the application initially lodged by Scott before the General Court suggests that that refusal was, in fact, used by the applicant as a basis for its first plea in law – not explicitly addressed by the General Court – alleging breach of procedural rights.

---

10 – Judgment under appeal, paragraph 128.

---

11 – Judgment under appeal, paragraph 106.

---

12 – Judgment under appeal, paragraph 123.

---

13 – Judgment under appeal, paragraph 137.

---

14 – Judgment under appeal, paragraph 151.

---

15 – Judgment under appeal, paragraph 154. The regulation in question is Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

---

16 – It should be noted that the contested Decision also concerns the aid granted in the form of the application of the water treatment levy at a preferential rate. The pleas relating to that part of the decision were withdrawn by the applicant, however, in the course of the proceedings before the General Court, following the resolution of the issues concerning whether the action was time‑barred. See the judgment under appeal, paragraph 31.

---

17 – It is interesting to note that, in a sort of curious parallelism, in the other judgment concerning the same series of events – delivered in Case T‑369/00 on the same day as the judgment under appeal (see footnote 3 above) – the General Court did exactly the reverse. In fact, as the Court of Justice found on appeal (see footnote 4 above), the General Court annulled the contested Decision in its entirety on the basis of a single ground (error in the calculation of the interest), which justified only annulment, in whole or in part, of Article 2 of the contested Decision.

---

18 – Judgment under appeal, paragraph 34.

---

19 – Nor should it be forgotten that the ‘parallel’ judgment in Case T‑369/00, delivered on the same day, had annulled the contested decision in its entirety. Accordingly, at least from a practical point of view, Scott had achieved everything that it had set out to obtain.

---

20 – Case C‑166/95 P Commission v Daffix [1997] ECR I‑983, paragraph 25.

---

21 – Case C‑19/93 P Rendo and Others v Commission [1995] ECR I‑3319, paragraph 13, and Case C‑535/06 P Moser Baer India v Council [2009] ECR‑0000, paragraph 24. Paragraph 46 of the judgment in Case C‑23/00 P Council v Boehringer [2002] ECR I‑1873 lends itself to the same interpretation.

---

22 – Judgment of 28 February 2008 in Case C‑17/07 P Neirinck v Commission, paragraph 38.

---

23 – Joined Cases C‑341/06 P and C‑342/06 P Chronopost v UFEX and Others [2008] ECR I‑4777, paragraphs 46 to 49.

---

24 – That line of reasoning is set out in Case 18/57 Nold v High Authority [1959] ECR 41, at p. 52. See, more recently, Commission v Daffix, cited in footnote 20 above, paragraph 24; Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 67; and Case C‑265/97 P VBA v Florimex and Others [2000] ECR I‑2061, paragraph 114.

---

25 – Case C‑89/08 P Commission v Ireland and Others [2009] ECR I‑0000, paragraphs 54 to 57, and Case C‑197/09 RX-II and M v EMEA [2009] ECR I‑0000, paragraph 57.

---

26 – Case C‑252/96 P Parliament v Gutiérrez de Quijano y Lloréns [1998] ECR I‑7421, paragraphs 29 to 34; the order of 27 September 2004 in Case C‑470/02 P UER v M6 and Others, paragraph 69; and the order of 13 June 2006 in Case C‑172/05 P Mancini v Commission, paragraph 41.

---

27 – See also my Opinion in Case C‑362/08 P Internationaler Hilfefonds v Commission, still pending (in particular, point 90 and footnote 23).

---

28 – Judgment under appeal, paragraph 128.

---

29 – Joined Cases C‑74/00 P and C‑75/00 P Falck andAcciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraphs 81 to 83, and Scott v Commission, cited in footnote 5 above, paragraph 33. See also the Opinion of Advocate General Jacobs in Scott v Commission (points 67 to 69).

---

30 – Case 234/84 Belgium v Commission [1986] ECR 2263, paragraphs 27 to 29, and Case C‑301/87 France v Commission [1990] ECR I‑307, paragraphs 29 and 30.

---

31 – See, in particular, the second recital in the preamble to that regulation.

---

32 – See Case T‑34/02 Le Levant 001 and Others v Commission [2006] ECR II‑267, paragraphs 91 to 96 and the order of the President of the General Court of 4 April 2002 in Case T‑198/01 R Technische Glaswerke Ilmenau v Commission ECR II‑2153, paragraph 85. It should also be noted that, in the judgment on the substance of Case T‑198/01 R, the General Court followed the classic line of authority in more orthodox fashion: see Case T‑198/01 Technische Glaswerke Ilmenau v Commission [2004] ECR II‑2717, paragraphs 191 to 195.

---

33 – Joined Cases T‑228/99 and T‑233/99 Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission [2003] ECR II‑435, paragraphs 131 to 143. What is more, on that occasion the General Court categorised the obligation to hear the views of the interested Member State as an essential procedural requirement, breach of which can be raised by the Court of its own motion.

---

34 – See, for example, Case C‑141/02 P Commission v T-Mobile Austria [2005] ECR I‑1283, paragraph 72. See also Case 179/82 Lucchini Siderurgica v Commission [1983] ECR 3083, paragraph 27, and Case C‑255/90 P Burban v Parliament [1992] ECR I‑2253.

---

35 – Commission v Sytraval and Brink’s France, cited in footnote 24 above, paragraph 62.

---

36 – Case C‑269/90 P Technische Universität München [1991] ECR I‑5469, paragraphs 23 to 25.

---

37 – Case C‑16/90 Nölle [1991] ECR I‑5163, paragraphs 13 and 30 to 32.

---

38 – Emphasis added.

---

39 – See the judgment under appeal, paragraph 56.

---

40 – See the judgment under appeal, paragraph 128.

---

41 – See the judgment under appeal, paragraph 121.

---

42 – See the judgment under appeal, paragraph 154.

---

43 – See the judgment under appeal, paragraphs 152 and 154.

---

44 – See, to that effect, Case C‑83/98 P France v Ladbroke Racing and Commission [2000] ECR I‑3271, paragraph 25, and Case C‑487/06 P British Aggregates v Commission [2008] ECR I‑0000, paragraph 111.

---

45 – Case C‑88/03 Portugal v Commission [2006] ECR I‑7115, paragraph 99; Case C‑66/02 Italy v Commission [2005] ECR I‑10901, paragraph 135; Case C‑456/00 France v Commission [2002] ECR I‑11949, paragraph 41; and Case C‑310/99 Italy v Commission [2002] ECR I‑2289, paragraph 46.

---

46 – British Aggregates v Commission, cited in footnote 44 above, paragraph 114; Joined Cases C‑328/99 and C‑399/00 Italy and SIM 2 Multimedia v Commission [2003] ECR I‑4035, paragraph 39; and Case C‑56/93 Belgium v Commission [1996] ECR I‑723, paragraph 11.

---

47 – An eloquent illustration of that potential ‘dilemma’ for the Courts of the Union can be seen, by way of example, in Case C‑525/04 P Spain v Lenzing [2007] ECR I‑9947, paragraphs 56 to 58 and the case-law cited therein.

---

48 – See, for example, Case C‑276/02 Spain v Commission [2004] ECR I‑8091, paragraph 31; Case C‑277/00 Germany v Commission [2004] ECR I‑3925, paragraph 39; Case C‑394/01 France v Commission [2002] ECR I‑8245, paragraph 34; Case C‑241/94 France v Commission [1996] ECR I‑4551, paragraph 33; and Case 234/84 Belgium v Commission [1986] ECR 2263, paragraph 16.

---

49 – See, by way of example: as regards State aid, Spain v Lenzing, cited in footnote 47 above (paragraph 54 and the case-law cited therein).

---

50 – Judgment under appeal, paragraphs 110 and 111.

---

51 – Judgment under appeal, paragraph 115.

---

52 – Judgment under appeal, paragraphs 124 to 142.

---

53 – Case C‑405/07 P Netherlands v Commission [2008] ECR I‑0000, paragraph 44 and the case-law cited therein.

---

54 – Judgment under appeal, paragraph 105.

---

55 – Italy and SIM 2 Multimedia v Commission, cited in footnote 46 above, paragraphs 38 and 39, and Belgium v Commission, cited in footnote 46 above, paragraphs 10 and 11. See also point 109 and footnote 35 of the Opinion of Advocate General Jacobs delivered on 27 October 2005 Case C‑222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I‑289.

---

56 – See point 102 of the present Opinion.

---

57 – In September 2007, the Commission lodged – at the same time as its application for leave to submit a reply – the document to which it referred in its appeal. The document in question contains the official minutes of the debate preceding the approval of the decision of the City Council in May 1994. It is not necessary, however, to address the problem of the admissibility of such a document, since it is merely accessory to the decision taken by the City Council, which the Commission has already lodged before the General Court.

---

58 – Judgment under appeal, paragraph 118.

---

59 – Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C 219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 50, and the order of 16 December 2004 in Case C‑222/03 P APOL and AIPO v Commission, paragraph 40.

---

60 – See the judgment under appeal, paragraphs 130 and 131.

---

61 – See the application initiating the proceedings brought by Scott before the General Court, points 9.3 and 9.4.