Keywords
Summary

Keywords

1. Community law – Principles – Fundamental rights – Observance ensured by the Court – Account to be taken of the European Convention on Human Rights – Right of every person to fair hearing

(Art. 6(2) EU)

2. Procedure – Intervention – Plea of inadmissibility not raised by the defendant – Inadmissible

(Statute of the Court of Justice, Art. 40, fourth para.)

3. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision on the nature in terms of State aid of the provision by a parent company operating in a reserved market of logistical and commercial assistance to a subsidiary which does not operate in a reserved market

(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Arts 93 and 190 (now Arts 88 EC and 253 EC))

4. State aid – Meaning – Transfer to a private-law subsidiary not operating in a reserved market of the client base of a service established by its parent company which does operate in a reserved market

(EC Treaty , Art. 92(1) (now, after amendment, Art. 87(1) EC))

5. State aid – Meaning – Logistical and commercial assistance provided by an undertaking entrusted with a service of general economic interest to its subsidiary

(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC))

Summary

1. The right to a fair trial, which derives inter alia from Article 6(1) of the European Convention on Human Rights, constitutes a fundamental right which the European Union respects as a general principle under Article 6(2) EU and means that everyone must be entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

In the context of an appeal, a ground of appeal alleging an irregularity in the composition of the Court of First Instance must be regarded as involving a matter of public policy which must be raised by the Community judicature of its own motion.

The fact that the same Judge in two successive formations in respect of the same case was entrusted with the duties of Judge-Rapporteur is, by itself, irrelevant to the assessment of compliance with the requirement of impartiality, since those duties are performed in a collegiate formation of the Court.

Moreover, there are two aspects to the requirement of impartiality. First, the members of the court themselves must be subjectively impartial, that is, none of its members must show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary. Second, the court must be objectively impartial, that is to say, it must offer guarantees sufficient to exclude any legitimate doubt in this respect. In that regard, the fact that the same Judge sits in two Chambers hearing and determining the same case in succession, cannot, by itself, give rise to doubt as to the impartiality of the court in the absence of any other objective evidence.

(see paras 44-45, 48, 53-54, 56)

2. An intervener has no standing to raise a plea of inadmissibility not set out in the form of order sought by the defendant.

(see para. 67)

3. Where a Commission decision finds that no State aid as alleged by a complainant exists, the Commission must at least provide the complainant with an adequate explanation of the reasons for which the facts and points of law put forward in the complaint have failed to demonstrate the existence of State aid. The Commission is not required, however, to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance. Furthermore, the lawfulness of a decision concerning aid is to be assessed in the light of the information available to the Commission when the decision was adopted.

The fact that a Commission decision is one of the first dealing with the complex issue, in connection with State aid, of calculating the costs of the assistance provided by a parent company operating in a reserved market to its subsidiary which is not operating in such a market does not by itself justify a statement of reasons necessarily going into the detail of the calculation of those costs if the Commission takes the view that the complainant’s grounds in that regard are misconceived in terms of the principles on which they are based. Assuming that that approach by the Commission is itself incorrect, that fact could be relevant to the substance of the contested decision but not to its validity in procedural terms. The necessary correlation between the grounds relied on by the complainant and the statement of reasons for the Commission’s decision cannot mean that the Commission is obliged to reject each of the arguments put forward in support of those grounds. It is sufficient if it sets out the facts and the legal considerations of fundamental importance in the context of the decision. As regards the economic and accounting concepts used by the Commission, the nature of costs examined and the components of the financial calculations undertaken, which concern complex technical appraisals, since that decision clearly discloses the Commission’s reasoning, enabling the substance of that decision to be challenged subsequently before the competent court, it would be excessive to require a specific statement of reasons for each of the technical choices or each of the figures on which that reasoning is based.

(see paras 89-90, 94, 96, 108)

4. The concept of State aid covers not only positive benefits such as subsidies, loans or direct investment in the capital of undertakings, but also interventions which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which therefore, without being subsidies in the strict sense of the word, are of the same character and have the same effect. The supply of goods or services on preferential terms is one of the indirect advantages which have the same effects as subsidies.

However, in the context of the transfer to a private-law subsidiary of the client base of a service which does not belong to the reserved sector and which was established by its parent company operating in a reserved market, the legal and economic conditions of that transfer cannot be entirely disregarded where those conditions are, by themselves, capable of giving rise to a consideration in return for the benefit conferred by that transfer. In addition, such classification as ‘State aid’ can be accepted only if the transfer of the client base, as such, fulfils all the conditions referred to in Article 92(1) of the Treaty (now, after amendment, Article 87(1) EC). As regards the issue whether – under the fourth of those conditions – such a transfer distorts or threatens to distort competition, that could only be the case if, in particular, the transfer altered the structure of the market concerned and affected the situation of the competing undertakings already present on that market.

(see paras 123, 128-130)

5. Where there is a Commission decision which finds that the logistical and commercial assistance provided by an undertaking entrusted with a service of general economic interest to its subsidiary does not constitute State aid, the Community judicature must check whether the facts relied upon by the Commission are substantively accurate and whether they establish that all the conditions justifying the classification of ‘aid’ within the meaning of the Treaty are fulfilled. Since a complex economic appraisal is involved here, in reviewing an act of the Commission which has necessitated such an appraisal, the Court must confine itself to verifying whether the Commission complied with the relevant rules governing procedure and the statement of reasons, whether the facts on which the contested finding was based have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers. In addition, since the concept of State aid must be applied to an objective situation appraised on the date on which the Commission takes its decision, it is the appraisals carried out on that date which must be taken into account in the conduct of that review.

In the absence of any possibility of comparing the situation of an undertaking entrusted with a service of general economic interest with that of a private group of undertakings not operating in a reserved sector, ‘normal market conditions’, which are necessarily hypothetical, must be assessed by reference to the objective and verifiable elements that are available.

In those circumstances, the Commission was fully entitled to base its decision on the only data available to it at the time, namely data deriving from the report of a consultancy firm, from which it was possible to reconstruct the costs incurred by that undertaking. The use of those data could be open to criticism only if it was established that they were based on manifestly incorrect considerations.

(see paras 142-145, 148-149)