C-367/95

II — Community rules on State aid I - 1731

III — The legal nature of the contested Commission decision I - 1733

IV — Breach of the obligation to state reasons laid down in Article 190 of the Treaty I - 1738

1. Scope of the obligation to state reasons I - 1738 (1) Secondment of administrative staff I - 1741

(2) Placing of premises at Sécuriposťs disposal I - 1742 (3) Maintenance of vehicles I - 1743 (4) Loan of FF 15 000 000 I - 1744 (5) Prices charged by Sécuripost to the post office I - 1744

2. Procedural aspects I - 1746

OPINION OF MR LENZ — CASE C-367/95 P

the French post office (hereinafter 'the post 4. On 30 September 1987 a framework office') had granted to an undertaking in its agreement was concluded between the Min- group. ister of Posts and Telecommunications and Sécuripost.

2. The facts at the origin of the decision are described as follows in the contested judg- 5. At the end of 1987, Sofipost advanced the ment: sum of FF 5 000 000 to Sécuripost. That loan was converted into capital during the first half of 1988.

' 1 . Until 1987, the French post office (here- inafter "the post office") undertook, through its internal departments, the transportation of its own moneys and valuables. In 1986 the 6. On 1 January 1988 Sofipost increased the post office decided to carry on certain of its capital of Sécuripost by means, first, of the activities through the intermediary of com- subscription of the net value of the money mercial companies. O n 16 December 1986 transportation business transferred by the the Société Holding des Filiales de la Poste post office to its subsidiary, estimated at ("Sofipost"), controlled as to 99% by the F F 19 225 000, and, second, of a contribution French State, was accordingly set up. in cash of FF 9 775 000.

2. O n 16 April 1987 Sofipost formed Sécuri- 7. During the course of 1989, Sofipost post SA ("Sécuripost"), which it controls as granted Sécuripost a second loan of to 99.92%. The object of that company is the F F 15 000 000, at an interest rate correspond- secure transportation of moneys, the provi- ing to half a percentage point over the bank sion of caretaking and protection services, base rate.' 2 and surveillance. The post office seconded over 220 officials to Sécuripost.

4. The present proceedings only concern the request based on Articles 92 and 93 of the 8. On 5 February 1992 the Commission Treaty. adopted a decision in which it stated that whilst its findings had revealed that 'Sécuri- post certainly received support from the par- ent company and from the State when it was set up and started operating in the market, it cannot be said that there has been a grant of 5. O n 14 March 1990 the Commission State aid within the meaning of Article 92(1) invited the French Government to comment of the Treaty'. In that regard, the Commis- on the complaint. The French Government sion informed the complainants, in particu- replied by letter of 3 May 1990. lar, that 'the French authorities have formally denied the existence of any circumstances giving rise, prima facie, to aid falling within Article 92(1) — as evidenced, in so far as may be necessary, by the documentary evi- dence adduced in support'. 4 6. On 28 June 1991 the Commission informed the complainants that their com- plaint raised 'a number of important points of principle calling, in this instance, for an in-depth examination by the relevant Com- mission departments'.

9. O n 13 April 1992 the complainants brought an action pursuant to Article 173 of the Treaty for the annulment of that decision. Those proceedings became devoid 7. O n 9 October 1991 the Commission of purpose when the Commission withdrew again informed the complainants that the its decision of 5 February 1992 on 22 June matter raised by them appeared 'particularly 1992. complex, necessitating extensive technical analysis of the voluminous documentation produced both by the complainants and by 3 — Judgment cited in footnote 1, paragraphs 9 to 12. the French authorities ... It has not been pos- 4 — Judgment cited in footnote 1, paragraph 13. The Court of First Instance described the measure in question as a sible to complete the inquiry into the matter 'decision rejecting the applicants' complaints' (ibid.).

15. O n the same day the Commission — again represented by its Member responsible 12. O n 26 March 1993 the French Govern­ for competition matters — sent the com­ ment authorised Sofipost to transfer Sécuri- plainants a detailed letter setting out its po­ p o s ť s property to the private sector. On 22 sition on the arguments which they had put April 1993 the complainants submitted a fur­ forward and explaining that the investigation ther supplement to their complaint. The which it had carried out provided no Commission informed the complainants on 5 grounds for concluding that in this case any May 1993 that it had decided to divide the State aid within the meaning of Article 92 of investigation into the matter into two parts, the Treaty existed. The complainants' claims dealing respectively with the situation before to that effect had therefore to be rejected. and after the privatisation. The Commission therefore decided to close the investigation initiated following the com­ plaint. At the same time, however, it pointed out that that decision did not extend to the measures taken since 1992 in the context of the privatisation of Sécuripost. 7 13. O n 11 October 1993 the complainants called on the Commission, pursuant to Article 175 of the Treaty, to adopt a decision in response to their complaint submitted o n 4 September 1989. 5

16. The complainants thereupon brought an action before the Court of First Instance, which, they claimed, should 'annul the

14. O n 31 December 1993 the Commission — represented by its Member responsible 6 — The Commission also pointed out that the investigation of for competition matters — sent the French the complaint alleging an infringement of Article 90 in con­ junction with Article 86 of the Treaty was continuing. 7 — In this letter, too, the Commission went on to say that the decision was without prejudice to the complaint alleging an infringement of Article 90 in conjunction with Article 86 of 5 — Judgment cited in footnote 1, paragraphs 14 to 21. the Treaty.

17. The applicants relied on four pleas in support of their action: 18. The Court of first Instance considered it appropriate, in the light of the documents in the case, 'focus its examination on the third and fourth pleas jointly, alleging infringe- ment of Article 190 of the Treaty and mani- fest error of assessment'. 10 'The first plea is based on infringement of Article 93(2) of the Treaty, in that the Com- mission wrongly decided, having regard to the circumstances of the case, not to initiate the procedure provided for by that provi- sion. The second plea alleges breach of the 19. In that regard, the Court considered that applicants' right to a fair hearing, in that the the contested measure was a decision 'reject- Commission referred in its decision — ing the applicants' request for a declaration which adversely affected the applicants — to by the Commission that the French Republic documents which were not communicated to had infringed Articles 92 and 93 of the them, such as the observations of the French Treaty by granting aid to Sécuripost'. 11 Government. The third plea alleges infringe- ment of Article 190 of the EC Treaty, in that the Commission failed to respond in the contested decision to the objections raised by the applicants in their complaint concern- ing the grant of aid in the form of (1) the 20. In examining the scope of the obligation secondment to Sécuripost of administrative to state the reasons laid down in Article 190 staff of the post office, (2) the placing at the of the Treaty, the Court pointed out that the disposal of Sécuripost of post office pre- judicial review which such a statement of mises, (3) the supply of fuel and maintenance reasons must allow was not, in the present for vehicles on excessively favourable terms case, 'a review of the question whether there and (4) the loan of FF 15 000 000 granted by has been a manifest error of assessment, Sofipost to Sécuripost at a preferential rate. similar to a review of the exercise by the The fourth plea alleges the existence of mani- Commission of its exclusive power to exam- fest errors of assessment concerning (1) the ine the compatibility of national measures way in which the decision dealt with the increase of FF 9 775 000 in the capital of 9 — Judgment cited in footnote 1 above, paragraph 31. The fig- ures in brackets have been added in the interest of clarity. 10 — Judgment cited in footnote 1, paragraph 32. 8 — The actual wording of the form of order sought in the appli- 11 — Judgment cited in footnote 1, paragraph 22. The wording is cation, as stated in the contested judgment, cited in footnote virtually identical to the wording in paragraph 1 of the 1 above, paragraph 28. operative part of the judgment.

22. As regards (1) the administrative staff seconded by the post office, the Court of 21. Such review must also have regard to the First Instance held that the Commission, in context within which the decision was its decision, had completely failed to examine adopted. In that regard, the Court of First the special advantage criticised by the com­ Instance emphasised four points. First, the plainants arising from the fact that the offi­ Commission had needed over 51 months in cials in question might, where necessary, be which to deal with the complaint submitted reassigned to the department originally on 4 September 1989. During that period the employing them without Sécuripost having Commission had adopted two decisions (the to pay any compensation for redundancy or decision of 5 February 1992 and the con­ dismissal whatever. Moreover, the Commis­ tested decision), at an interval of more than sion had established that Sécuripost did not 22 months. Secondly, the Commission had pay any contributions to unemployment stated in its correspondence with the com­ insurance funds in respect of these employ­ plainants that their complaint raised a num­ ees, but had not provided the slightest expla­ ber of important points of principle calling nation as to why that was not to be regarded for an in-depth examination and extensive as State aid. That constituted an infringement technical analysis. Thirdly, it was established of Article 190. 14 that the Commission had withdrawn its ini­ tial decision of 5 February 1992 following the complainants' action for its annulment, although that action merely repeated the various objections already put forward, 23. As regards (2) the placing of premises at without raising any new objections. Sécuriposťs disposal, the Court of First Fourthly and finally, the Court of First Instance noted that the Commission had Instance observed that the Commission had merely stated that the premises had not been entered the measures complained of in the placed at Sécuriposťs disposal free of charge register of unnotified aids. Furthermore, in — as claimed in the complaint — but that its letter of 31 December 1993 to the French Sécuripost had been required to pay rent. Government the Commission expressed its The Commission had provided no details regret that no advance notice had been given regarding the amount of the rent, however, pursuant to Article 93(3) of the Treaty in and had failed to compare it with what com­ relation to any of those measures. The Court petitors had to pay in a comparable situation. of First Instance concluded that '[i]n the That constituted a failure to state reasons. light of the foregoing findings, it is necessary

26. The Court of First Instance then pointed out that the complainants had criticised the Commission for having committed a mani­ fest error of assessment as regards the prices charged by Sécuripost to the post office. In that regard, the Commission, when making 24. As regards (3) the supply of fuel, the the abovementioned comparison between Commission had, according to the Court of those prices and the prices which Sécuripost First Instance, been 'right' to rely in its charged to a third party, had confined itself decision on the explanations given by the to 1993, without attempting to justify or French Government. However, the decision clarify its decision to do so. In the absence of was inadequately reasoned as regards the any details regarding the corresponding rates maintenance of Sécuriposťs vehicles, since for 1987 to 1992, the Court considered that the Commission merely referred to the it did not have at its disposal sufficient infor­ invoicing system applied in that regard, mation to review the validity of the con­ without examining 'whether or not the rates tested decision and that it 'was consequently charged disclosed the existence of State necessary for it to raise of its own motion 19 aid'. 16 the lack of reasons.

27. The Court of First Instance then referred 25. As regards (4) the loans granted by Sofi- to the difficulties which complainants fre­ post to Sécuripost, the Court of First quently experience in gathering evidence in Instance found that the Commission had been 'right' to rely on the explanations given by the French Government in so far as the 17 — These findings are surprising since, according to the content of the application described by the Court of First Instance (paragraph 31 of the judgment; see paragraph 17 above) that part of the Commission's decision nad not been contested. 15 — Judgment cited in footnote 1, paragraphs 64 to 66. 18 — Judgment cited in footnote 1, paragraphs 70 to 71. 16 — Judgment cited in footnote 1, paragraphs 67 to 69. 19 — Judgment cited in footnote 1, paragraph 73 to 75.

29. The Court of First Instance concluded from those considerations that the contested decision must be annulled, since the reasons 31. In examining the appeal, it is necessary stated '[did] not bear out the conclusion that to take account of the fact that the Court of the measures complained of by the appli- First Instance based the annulment of the cants did not constitute State aid within the Commission decision on a number of con- meaning of Article 92 of the Treaty'. 22 siderations. The appeal can therefore be allowed only if all those considerations prove to be defective in law and if the judg- ment of the Court of First Instance is not shown to be correct on other grounds. 30. The Commission lodged an appeal against that judgment, claiming that the 23 — It should be pointed out here and now that this application for costs cannot be reconciled with the application in respect of the merits of the case. Article 222 of the Rules of Procedure provides that in appeal proceedings the Court is 20 — Judgment cited in footnote 1, paragraph 77. to make a decision as to costs only where the appeal is 21 — Judgment cited in footnote 1, paragraph 78. unfounded or where the appeal is well founded and the 22 — Judgment cited in footnote 1, paragraph 80. Court itself gives final judgment in the case.

I-1730

COMMISSION v SYTRAVAL AND BRINK'S FRANCE

38 The Commission then conducts an initial review of the planned aid. If at the end of 36 That prohibition, as a matter of principle, that review it considers a plan to be incom- of State aids is neither absolute nor uncondi- patible with the common market, it must tional since paragraph (3) in particular of without delay initiate the consultative exami- Article 92 confers on the Commission a wide nation procedure under Article 93(2). It fol- discretion to allow aid by way of derogation lows from the last sentence of Article 93(3) from the general prohibition laid down in that throughout the preliminary period the paragraph (1) of that article. The determina- Member State concerned may not put the tion in such cases of the question whether a planned aid into effect. Where the consulta- tive examination procedure is initiated, that prohibition continues until the Commission reaches a decision on the compatibility of the 24 — Case C-39/94 SFEI and Others v La Poste and Others [1996] ECR I-3547. planned aid with the common market (see

I - 1731

O P I N I O N OF MR LENZ — CASE C-367/95 P

Case C-47/91 Italy v Commission [1991] been implemented without having been noti- E C R I-4145, paragraph 24). However, if the fied to the Commission the persons con- Commission has not responded within two cerned are able to rely on that provision months of notification, the Member State before the national courts. 26 In such a case concerned may implement the plan after the national courts must guarantee to the informing the Commission (Case 120/73 persons concerned 'that all the necessary Lorenz v Germany [1973] ECR 1471, para- inferences will be drawn, in accordance with graph 4).' their national law, as regards the validity of measures giving effect to the aid, the recov- ery of financial support granted in disregard of that provision and possible interim mea- sures'. 27

34. The prohibition laid down in the third 26 — The same applies where an aid measure, although notified sentence of Article 93(3) has direct effect. to the Commission, has already been implemented during the preliminary suge or — where the Commission has ini- That means that where an aid measure has tiated a formal procedure — prior to the adoption of the final decision. 27 — Case C-354/90 Fédération Nationale du Commerce Extérieur des Produits Alimentaires et Syndicat National des Négociants et Transformateurs de Saumon v French State 25 — Case C-198/91 Cook v Commission [1993] ECR I-2487, [1991] ECR I-5505, paragraph 12. paragraph 29; cf. the earlier judgment in Case 84/82 Ger- 28 — See SFEI and Others, cited in footnote 24, paragraphs 49 to many v Commission [1984] 1415, paragraph 13. 51.

I-1732

COMMISSION v SYTRAVAL AND BRINK'S FRANCE

III — The legal nature of the contested Com- plaint submitted by a competitor of the mission decision undertaking in receipt of the aid.

38. The Commission claims that the decision at issue in the present case was contained in its letter to the French Republic- of 31 December 1993. The complainants were only 40. I shall begin by noting — as the Court informed that the decision had been adopted of First Instance did in its judgment 3 1— in the letter sent to them on the same day. that 'neither the Treaty nor Community leg- Referring to the Opinion of Advocate Gen- islation lays down the procedural system for eral Tesauro in Cook v Commission, 30 the dealing with complaints objecting to grants Commission considers that under the Article of State aid'. The Council has not yet made 93 procedure the only decision which it is use of its power under Article 94 of the empowered to take is a decision on the com- Treaty to 'make any appropriate regulations patibility of the aid with the Treaty. There is for the application of Articles 92 and 93'. In no place, on the other hand, for an indepen- that regard, this area of the law is distin- dent and separate decision rejecting a com- guished from that covered by Articles 85 and 86 of the Treaty. As we know, Regulation

29 — Sec paragraph 19 above. 30 — Opinion of 31 March 1993 in Case C-198/91, cited in foot- note 25 ([1993) ECR I-2502, at I-2509 et seq.). 31 — Judgment cited in footnote 1, paragraph 50.

I-1733

O P I N I O N OF MR LENZ — CASE C-367/95 P

35 — Case 323/82 Intermills v Commission [1984] ECR 3809, paragraph 16. 36 — Sec Case C-313/90 CIRFS and Others v Commission [1993] 32 — First Regulation implementing Articles 85 and 86 of the ECR I-1125, paragraphs 26 and 27, and Cook v Commis- Treaty (OJ, English Special Edition 1959-62, p. 87). sion, cited in footnote 25, paragraph 23. 33 — See, for example. Case C-282/95 P Guérin Automobiles v 37 — Cook v Commission, cited in footnote 25, paragraph 23, and Commission [1997] ECR I-1503, paragraph 36. Case C-225/91 Matra v Commission [1993] ECR I-3203, 34 — See paragraph 32 above. paragraph 17.

I - 1734

COMMISSION v SYTRAVAL A N D BRINK'S FRANCE

exists. 38 The Commission, too has taken this May 1985 constitutes a decision by the view in the present case. Commission rejecting the complaint relating to the aid granted to Quinn'. 41 In that judg- ment it observed that the objective of the complaint could only be the opening of the procedure provided for in Article 93(2). 42

38 — This view also forms the basis of the judgment of the Court of First Instance in Case T-471/93 Tiercé Ladbroke v Com- 41 — Joined Cases 166/86 and 220/86 Irish Cement v Commis- mission [1995] ECR II-2537. sion [1988] ECR 6473, paragraph 11. 39 — The Court expressly stated this in CIRFS v Commission, 42 — Judgment cited in footnote 41, paragraph 9. cited in footnote 36, paragraph 26. 43 — Cook v Commission, cited in footnote 25, paragraphs 8 and 40 — See, for example. Cook v Commission, cited in footnote 25, 13, and Matra v Commission, cited in footnote 37, para- paragraph 15. graphs 5 and 6.

I-1735

O P I N I O N OF MR LENZ — CASE C-367/95 P

44 — Judgment cited in footnote 41, paragraph 16. 45 — Judgment cited in footnote 36, paragraphs 26 and 28. The action was considered admissible, however, since the 46 — Opinion cited in footnote 30, at [1993] ECR I-2510. decision included therein was of direct and individual con- 47 — I myself considered that factor decisive in my Opinion of cern to at least one of the complainants (ibid., paragraph 29 17 September 1992 in CIRFS v Commission, cited in foot- et seq.). note 36 ([1993] ECR I-1148, at I-1160).

I-1736

COMMISSION v SYTRAVAL A N D BRINK'S FRANCE

51. Even if one were not disposed to concur in that approach, it should be pointed out that persons to whom such a decision 49. What seems to me to be the most natural addressed to a Member State is of direct and solution, therefore, is to interpret the Com- individual concern may challenge it and that mission's letter as the Court of First Instance the Commission has expressly (and quite did. In my opinion the Commission must be rightly) recognised that the complainants recognised as having the power to address decisions of the type in issue here directly to the complainant. After all, it is essentially the 49 — This also makes it possible to prevent the danger that any complainant's arguments that the Commis- complainant (includine, for example, those in no way sion analyses in such a decision. Further- affected by an aid) will De granted a right of action against a corresponding decision of the Commission. Furthermore, it is also conceivable that the Commission's obligation to investigate complaints might be limited in that it would only be obliged to do so where the complainants were "par- ties concerned' within the meaning of Article 93(2) of the 48 — On the content of this letter, see paragraph 14 above. Treaty.

I - 1737

O P I N I O N OF MR L E N Z — CASE C-367/95 P

satisfied these conditions. In those circum- 1. Scope of the obligation to state reasons stances, it would seem to me wrong to seek to have the contested judgment set aside on the sole ground that it did not properly iden- tify the content of the decision and the per- sons to whom it was addressed, when there could be no doubt as to the objective of the 53. In a recent judgment the Court defined action. the scope of the obligations under Article 190 as follows:

I-1738

COMMISSION v SYTRAVAL A N D BRINK'S FRANCE

The German Government's such a way as to make the complainants opinion to the contrary, namely that such an aware of the reasons for the rejection of their obligation to state reasons is not to be complaint and thus enable them to defend inferred from Article 190 or from Article 93, their rights and the Court to exercise its cannot in my view be reconciled with recent power of review'. 55 case-law (with which the German Govern- ment fails to deal in its observations).

It was, rather, a submitted. review of the interpretation and application of the concept of State aid. 56 In that regard, too, I agree with the Court of First Instance. The French Government is quite right t o point out that the answer to the question whether State aid exists in a particular case The fact that the Commission, for the pur- may also present difficulties. Judicial review pose of the reasons on which its decision was must therefore focus on whether or not establishing the existence of aid involves complex technical or economic evaluations. 53 — See the earlier judgment in Joined Cases 296/82 and 318/82 The Court of Justice has also acknowledged, Netherlands and Leeuwarder Papierwarenfabriek v Com- in SFEI and Others, that the examination of mission [1985] ECR 809, paragraph 19 (where the Court considered that, apart from the interest of the person to whom a measure was addressed, the interest of 'other per- sons to whom it is of direct and individual concern within the meaning of the second paragraph of Article 173 of the Treaty' was also deserving of protection. 55 — Judgment cited in footnote 1, paragraph 53. 54 — See paragraph 42 above. 56 — See paragraph 20 above.

the question of the existence of aid presup- tion carried out pursuant to Article 93(3). poses an 'economic analysis' taking into The Commission could not therefore be account all the relevant factors. 57 That is cer- expected to analyse in its decision all the cir- tainly true. N o n e the less, I consider that the cumstances relevant to the present case in its margin of discretion is considerably nar- decision. 61 It must, on the other hand, be rower here than when determining whether expected to examine and assess the argu- an aid is compatible with the common mar- ments put forward by the complainants. ket, if only because the interpretation of the concept of 'aid', unlike the latter question, does not fall within the exclusive competence of the Commission. 58 That question does not need to be resolved here, as it is of n o relevance to the present case. Should prefer- ence be given to the view which I have 58. A number of the Member States which rejected, it would in any event be necessary intervened in the proceedings claimed that, to reach the conclusion that the statement of in the light of the case-law of the Court of the reasons for the Commission's decision is Justice, in particular the Lorenz judgment, 62 even more important. As the Court of Jus- the Commission, in carrying out its prelimi- tice held in Germany v Council, the 'Bremer nary examination, had only a short time in Vulkan case 59 — which also concerned the which to examine a proposal to grant aid. classification of certain measures as aid — That fact must have an impact on the extent the requirement to state reasons must be of the statement of reasons. That consider- assessed according to the circumstances of ation is of no relevance to the present case, the case. According to the Court, it followed however. O n the one hand, more than four that the Commission 'had to take account of years elapsed in this case before the con- all the circumstances and all the relevant fac- tested decision was taken, and on the other tors of the case'. 60 hand — and this is the decisive factor — the case-law in question (and the short period of time resulting from it) is not applicable where a Member State has implemented planned measures without first notifying them to the Commission. 63 That was the position in the present case.

complaint raised by all the interveners in the not contain an adequate statement of rea- present proceedings, namely that the Court sons. 64 of First Instance went far beyond what was reasonable in this context and, in essence, examined not the question 'whether there was an adequate statement of reasons but the question as to whether those reasons were factually correct, is to a considerable extent justified. 62. To my mind that is correct. If the requirement to state reasons in Article 190 is intended to enable the Community courts t o review the legality of the decision, the Com- mission must be regarded as being required (1) Secondment of administrative staff to comment expressly on all the points in the complaint. 65 N o r does that mean that the requirements laid down in Article 190 must be extended beyond their proper scope. If an aspect of a complaint appears to be second- 60. As regards the staff seconded to Sécuri- ary or less important, one is entitled t o post by the post office, it is established, in expect the Commission to explain, albeit the light of the findings of the Court of First summarily, that this is the case. That 'was not Instance, that in their complaint the com- done. The statement of reasons subsequently plainants had also criticised the fact that, provided by the Commission during the should the need arise, Sécuripost could dis- proceedings before the Court of First pense with the services of these employees Instance cannot make good that defect. without having to pay compensation for redundancy or dismissal. The Court of First Instance pointed out in its judgment that the Commission had admitted railing to examine that complaint in its decision. That finding is not challenged by the Commission or by the other parties to the proceedings before the Court. 63. Purely in the interest of completeness, it should be pointed out that this of course does not mean that the Commission must expressly answer all the points in a com- plaint. If a criticism appears to be manifestly 61. During the proceedings before the Court beside the point or irrelevant it would be of First Instance the Commission observed going too far to expect the Commission t o that in the present case this was merely a answer it in any event. That is certainly n o t 'secondary aspect' of a complaint regarding the case in the present situation, however. the payment by the State of the remuner- The possibility of dispensing with the ation of the staff of Sécuripost. The Court of First Instance considered that explanation inadequate, since in its view the Commission 64 — Judgment cited in footnote 1, paragraphs 61 and 62. was required to answer each of the com- 65 — The question whether the Court of First Instance, in Tiercé Ladbroke v Commission, cited in footnote 38, accepted a plaints, 'if only by referring where appropri- less rigorous criterion on this point (ibid., paragraphs 31 to ate to the de minimis rule'. It therefore con- 34) may be left open. It does not appear that in the decision forming the subject of that judgment the Commission com- sidered that in that regard the decision did pletely failed to deal with a point in the complaint.

services of certain employees without incur­ complaint that Sécuripost was not required ring heavy burdens is not a circumstance to pay any consideration. The Commission such as may be regarded as manifestly irrel­ relied in its decision on the fact that Sécuri­ evant to the question of the existence of an post was required to pay rent. The Court of aid. First Instance held that the Commission had omitted to ascertain the amount of the rent paid by Sécuripost and to compare it with the rent which its competitors were required to pay in a comparable situation. The Court of First Instance considered that this consti­ 64. The situation is different as regards the tuted a defect in reasoning. 6 6 complainants' objection that Sécuripost was not required to pay contributions to the unemployment insurance funds in respect of those employees. O n that point, the Com­ mission stated in its decision that such con­ tributions did not need to be paid since their employment was guaranteed by their status 66. I am unable to endorse that assessment. as officials. The validity of that reasoning In its decision the Commission provided the seems dubious. It should be pointed out, reasons for which it did not consider that the however, that Article 190 of the Treaty objection in question was established. That merely requires the Commission to explain statement of reasons makes it possible to the reasons on which a decision is based. I t review the question whether the Commis­ does not follow from Article 190 that those sion's view was correct. It is quite clear that reasons must also be accurate. Examination the obligation to pay rent precludes the of the material accuracy of a decision must argument that the premises were made avail­ be distinguished from the question as t o able free of charge. whether that decision is adequately reasoned. The obligation to state the reasons on which a decision is based must in fact — as I have already stated repeatedly — make it possible to ascertain its material accuracy and cannot therefore be the same thing. In that regard, 67. It is equally clear, of course, that the the assessment of the Court of First Instance mere fact that Sécuripost was required to pay is incorrect in law. rent is not enough to preclude the possibility that the provision of the premises in ques­ tion might include an element of aid. That might be the case if the rent was lower than that which its competitors were required to pay. However, that possibility was not raised (2) Placing of premises at Sécuriposťs dis­ by the complainants in their complaint. Of posal course, the question arises whether it was enough for the Commission to establish that rent was charged or whether, on the other hand, it should have examined more closely the amount of the rent paid by Sécuripost.

That, however, is an obligation arising (pos­ (3) Maintenance of vehicles sibly) from Article 93 and the procedure provided for therein. It does not, on the other hand, concern the breach of the obliga­ tion to state reasons laid down in Article 67 190. O n this point, too, the assessment by the Court of First Instance is incorrect in law. 69. The precise content of the objection raised by the applicants in their complaint relating to the maintenance of vehicles is n o t apparent from the judgment of the Court of First Instance. 6 9 According to the Commis­ sion's position, as stated in the judgment, the complainants had objected that Sécuriposťs vehicles were maintained by the Service Nationale des Ateliers et Garages des P T T (national workshops and garages department of the post office, hereinafter 'SNAG'). I n 68. It must be recognised, however, that in that regard, the Commission pointed out in Germany and Others v Commission, the its decision that SNAG invoiced Sécuripost 'Bremer Vulkan judgment, cited above, the for all the services provided and for that pur­ Court of Justice also appears to have adopted pose used an invoicing system similar to that an approach similar to that adopted by the used by private garages. The Court of First Court of First Instance in the present case. Instance considered that the Commission In that case the Commission had adopted a had failed to answer the complainants' objec­ decision establishing the existence of an aid tion, since it had not examined whether o r contrary to the Treaty. The objective of the not the rates charged disclosed the existence procedure was essentially to evaluate certain of State aid. 7 0 shares. The Commission considered in its decision that it was necessary to rely solely on the stock market price, since the value of shares is determined by the market. The Court of Justice, on the other hand, consid­ ered that the Commission should also have taken account of other factors (for example 70. O n this point, too, I take the view — as the 'intrinsic' value of the undertaking con­ does, for example, the Netherlands Govern­ cerned). Since it had not done so, the Court ment — that the Court of First Instance of Justice found that '[o]n this point ... the reviewed not the observance of Article 190 contested act lacks an adequate statement of but rather the material accuracy of the rea­ reasons'. 6 8 It cannot be denied that in that sons put forward by the Commission. I n case, too, judicial review centred essentially that regard, reference should be made to the on the material accuracy of the decision and observations which I made when discussing 7 not on the requirement to state reasons as the making available of premises. 1 such.

71. As regards the loan of FF 15 000 000 to (5) Prices charged by Sécuripost to the post Sécuripost, the Commission stated in its office decision that the rate of interest applied was equal to half a percentage point over the bank base rate. It inferred from this that the complainants' objection should be rejected, since the loan represented a commercial transaction. The Court considered that 'the 73. The complainants maintained in their fact that the transaction was of a commercial complaint that the agreements concluded nature is not in itself sufficient to show that between the post office and Sécuripost, par- it does not amount to State aid within the ticularly those relating to money transporta- meaning of Article 92 of the Treaty, since tion, had provided for a rate substantially such a transaction may none the less be higher than that normally charged in that effected at a rate which gives Sécuripost a sector. In its decision the Commission special advantage by comparison with its undertook a comparison between the rates competitors'. In that regard, the decision was charged by Sécuripost to the post office and inadequately reasoned. 72 those charged to Casino shops. The Court of First Instance observed in its judgment that the Commission based its comparison solely on information relating to 1993, without attempting to justify or clarify its decision to do so. In the absence of any details regarding the years 1987 to 1992, the Court of First Instance considered that 'it [did] not have at 72. O n this point, too, the Court of First its disposal the requisite information Instance did not in my opinion review com- enabling it to review the validity of the con- pliance with Article 190 but the material tested decision'. According to the Court of accuracy of the decision. The Commission First Instance, the decision contained inad- stated the reasons which had led it to con- equate reasons in that respect and the Court clude that the loan in issue did not represent was required to raise this matter of its own an aid. Whether or not these reasons were motion. accurate is another matter. If, for example, the complainants were in a position to show that the rates normally applied on the market for such a loan were in reality substantially higher than those charged to Sécuripost the statement of reasons provided by the Com- 74. If one examines the corresponding pas- mission in its decision would be invalid. sage in the Commission decision, it will be However, this is not a question of the obliga- seen that the method employed in comparing the prices is not at first sight very easy to understand. It should be pointed out, how- 72 — Judgment cited in footnote 1, paragraph 72. ever, that the Court of First Instance does

not criticise the contested decision for being 76. I shall merely observe as an incidental inadequately reasoned in that regard. 73 The point that the fact, emphasised by the Court fact remains that the Commission relied of First Instance, that in this part of its exclusively on the figures relating to 1993. decision the Commission merely repeated the explanations given by the French Gov- ernment strikes me as irrelevant in this con- text. All that is required here is to ascertain whether sufficient reasons were given.

Such an approach is not without merit. To my mind, however, a different interpretation is to be preferred. If the Com- mission based its conclusion on the 1993 fig- ures to which it referred in its decision, it must be inferred that it considered those fig- ures to be decisive. In other works, the Commission apparently believed that the fig- 77. It should be observed, however, that the ures relating to 1993 were representative of difference in prices for 1993 established by the entire period to be considered. Whether the comparison was higher than 10%. that was in fact the case, however, is a ques- According to the findings of the Court of tion of the material accuracy of the decision First Instance — which are binding on the and not the statement of reasons on which it Court of Justice in its appellate capacity —

guarantee. On this point the contested act contains an adequate statement of reasons' (ibid., paragraph 30). 75 — Judgment cited in footnote 1, paragraph 74.

before the Court of First Instance. Since the time in which to carry out the preliminary decision of the Court of First Instance there- examination provided for in Article 93(3). 78 fore appears to be materially well founded in that regard, in spite of the error which that Court committed — the decision discloses a (manifest) error of assessment rather than a lack of reasons — the appeal cannot suc- ceed. 76 80. In my view, however, there is no need to go further into that question. As the French Government has rightly pointed out, that question concerns the scope of the obliga- tions which Article 93 and the procedure laid down therein impose on the Commission. On the pretext of reviewing compliance with 2. Procedural aspects Article 190 the Court of First Instance, according to that Government, reviewed compliance with a new procedural rule pos- tulated by the Court itself. I must subscribe to that point of view. The obligation to state reasons which is laid down in Article 190 78. The Court of First Instance considered certainly does not imply an obligation to that where the Commission decides not to answer arguments which have not been put initiate the procedure provided for in Article forward. The corresponding criticisms of the 93(2) of the Treaty but has not first given the parties to the proceedings are therefore well complainant the opportunity to comment on founded. the results of the investigation it is 'under an automatic obligation to examine the objec- tions which the complainant would certainly have raised if it had been given the opportu- nity of taking cognisance of that infor- mation'. 77 81. The Court of First Instance also put for- ward the proposition that the obligation to state reasons in Article 190 might in certain circumstances require the Commission to allow a complainant to make his views known during the Article 93(3) stage and to undertake an exchange of views and argu- 79. The Netherlands Government has ments ('un débat contradictoire'). 79 pointed out the difficulties which such an approach entails. It would in fact be extremely difficult for the Commission to carry out the task assigned to it by the Court of First Instance. That is so in particular where the Commission has only a limited 82. It is impossible to see precisely what sta- tus should be attributed to this consideration

85. To speak of a new direction is justified, 83. As regards the substance, it is quite obvi- therefore, because according to the case-law ous here, too, that the Court of First thus far an obligation to hear the persons Instance cannot base itself in that regard on affected by an aid measure exists only in the Article 190, but goes far beyond the require- context of the procedure provided for in ments of that provision. It essentially implies paragraph (2) of Article 93. As an instance of that this is so where it states that the obliga- that case-law, it will suffice to quote the find- tion which it postulates 'constitutes a neces- ings of the Court of Justice to that effect in sary extension of the Commission's obliga- Matra v Commission: tion to deal diligently and impartially with its inquiry into the matter by eliciting all such views as may be necessary'. 81 Thus what is examined is not whether the Com- mission has properly provided the reasons for its decision but whether it has complied with its procedural obligations. 'As the Court has already held ... the pre- liminary stage of the procedure for reviewing aid under Article 93(3) of the Treaty, which is intended merely to allow the Commission to form a prima facie opinion on the partial 84. Since on this point (too) the Court of or complete conformity of the aid in ques- First Instance based its decision solely on an tion, must be distinguished from the exami- nation under Article 93(2) of the Treaty. It is only in connection with the latter examina- tion, which is designed to enable the Com- 80 — See, for example, Case C-395/95 P Geotronics v Commis- mission to be fully informed of all the facts sion [1997] ECR I-2271, paragraph 23. 81 — Judgment cited in footnote 1, paragraph 78, in fine. of the case, that the Treaty imposes an

obligation on the Commission to give the ments sent to it by the Member State con- parties concerned notice to submit their cerned, as the Commission, according to the comments.' 82 Court of First Instance, has already done in certain cases. 86 The Commission should be left to decide, in the normal framework of its discretion, whether or not it wishes to make use of that possibility. An obligation to hear the comments of the parties concerned, how- 'The Treaty does not, on the other hand, lay ever, only exists in the procedure provided down any such obligation where the Com- for in Article 93(2). mission is able lawfully to restrict itself to finding that aid is compatible in the prelimi- nary stage provided for by Article 93(3) of the Treaty.' 83 87. This distinction between the two stages of the procedure is also correct in this con- text. The preliminary examination procedure is designed to allow the Commission to form The Court of First Instance itself confirmed a (provisional) opinion, within a short time, that case-law again in a recent decision. 84 as to whether an aid measure is or is not compatible with the Treaty. If the Commis- sion were placed under a duty, in this con- text, to consult the parties concerned, or indeed to undertake an exchange of views and arguments with them, that objective would be defeated. The practicability of the 86. As all the parties to the appeal proceed- preliminary examination procedure — and in ings have rightly observed, the Court of First particular its completion in a short time — Instance failed to have sufficient regard in its would then be called in question. judgment to this fundamental distinction between the two stages of the examination. 85 Admittedly, the Treaty does not prohibit the Commission from hearing the views of an interested party at the stage of the prelimi- nary examination procedure provided for in 88. The judgment of the Court of First Article 93(3) or from passing on to such a Instance is clearly based on the intention to party — while observing the legitimate protect the interests of the complainants and requirements of confidentiality — the com- other parties concerned (within the meaning of Article 93(2)) by requiring the Commis- sion to hear them 'in certain circumstances' at the stage of the preliminary examination 82 — Judgment cited in footnote 37, paragraph 16. 83 — Judgment cited in footnote 37, paragraph 53. procedure. The Court of First Instance also 84 — See judgment of the Court of First Instance (Third Cham- very righdy observes, in that context, that ber, Extended Composition) of 22 October 1996 in Case T-266/94 Foreningen af Jernskibs-og Maskinbyggerier i complainants generally encounter great diffi- Danmark, Skibsvèerftsforeningen and Others v Commission culties in such a situation in gathering the [1996] ECR II-1399, paragraph 257. In the present case the contested judgment was delivered by the Court of First Instance (Fourth Chamber, Extended Composition). 85 — See, in the same sense, P. J. Slot: 'De concurrentie waakt. Het aanvechten van steunmaatregelen', in NJB 1996, p. 797, at p. 800. 86 — Judgment cited in footnote 1, paragraph 79.

In that regard, it is for the Commission ' t o determine, subject to review by the Court, on the basis of the factual and legal circum­ stances of the case, whether the difficulties involved in assessing the compatibility of the aid warrant the initiation of that pro­ cedure'. 8 8 89. The recent case-law of the Court of Jus­ tice already provides a means of guaranteeing the rights of the parties concerned in a way which is as simple as it is effective. In that regard, the Court of Justice stated in Cook v Commission: 90. If the Commission is therefore consid­ ered to be required in such a situation to ini­ tiate the procedure provided for in Article 93(2), which requires consultation with the parties concerned, the rights of that category of persons will be sufficiently taken into account. Where at the close of the prelimi­ nary examination the Commission still has doubts as to the compatibility of an aid 'As the Court pointed out in its abovemen- measure with the Treaty it is required to ini­ tioned judgment in Germany v Commission tiate the procedure provided for in Article (at paragraph 13), the procedure under 93(2). Where, on the other hand, it has Article 93(2) is essential whenever the Com­ become convinced that the measure is com­ mission has serious difficulties in determin­ patible with the Treaty, it may decide not t o ing whether an aid is compatible with the initiate that procedure. In that case it must common market. The Commission may naturally set out its reasons in order t o restrict itself to the preliminary examination enable the parties concerned to challenge the under Article 93(3) when taking a decision in decision, where appropriate, before the favour of an aid only if it is able to satisfy Community courts. itself after the preliminary examination that the aid is compatible with the Treaty. If, on the other hand, the initial examination leads the Commission to the opposite conclusion 87 — Judgment cited in footnote 25, paragraph 29 (as regards the Germany v Commission judgment to which the Court or if it does not enable it to overcome all the refers, see paragraph 25 above); see, in the same sense, Case T-49/93 SIDE v Commission [1995] ECR II-2501, para­ difficulties involved in determining whether graph 58. the aid is compatible with the common mar­ 88 — Judgment cited in footnote 25, paragraph 30; sec, in the same sense, SIDE v Commission, citeď in footnote 87, para­ ket, the Commission is under a duty to graph 59.

91. That approach also avoids certain incon- was not entitled to extend the preliminary sistencies concerning the procedural regime stage until those difficulties appeared to it to to which the view of the Court of First have been overcome, but was required to ini- Instance would inevitably lead. The French tiate the procedure provided for in Article Government has rightly observed that, in the 93(2). Furthermore, even having regard to context of the procedure provided for in the fact that the complainants subsequently Article 93(2), it is considered sufficient, for supplemented their initial complaint and that the purpose of consultation, that the Com- the Commission adopted an initial decision mission should invite the parties concerned, on 5 February 1992, which was withdrawn by an announcement in the Official Journal, shortly afterwards, the time which it needed to submit their comments, whereas the to take cannot be regarded as reasonable for Court of First Instance requires, in the con- a preliminary examination procedure.

93. The Netherlands Government has claimed in its observations that the Court of First Instance itself failed to provide adequate reasons for its judgment, so that the judgment should also be set aside for that 92. As regards the present proceedings, it reason. In that regard, the Netherlands Gov- should be observed that the complainants, by ernment refers to the question of the admis- their first plea, claimed that the Commission sibility of the action and also to the finding had been wrong to decide not to initiate the of the Court of First Instance that the cir- procedure provided for in Article 93(2). 8 9 cumstances of the case 'reinforce the Com- Having regard to the circumstances of the mission's obligation to furnish a statement of case as described by the Court of First reasons'. As I have already expressed my Instance, it appears to me that there is no views on these aspects in their respective doubt that this plea was well founded. The contexts, 91 there is no need to examine this explanations provided by the Commission objection separately. during the procedure clearly disclosed that it had encountered 'serious difficulties' in the course of its examination. Accordingly, it 90 — See, in the same sense, V. Sottili: 'Partecipazione ai procedi- menti comunitari di controllo nel settore della concor- renza', in Foro Amministrativo 1996, p. 2812 et seq., at p. 2824. 91 — See paragraphs 36 to 51 (in particular paragraph 51) and 89 — Sec paragraph 17 above. paragraphs 90 and 92.

Conclusion

96. I therefore p r o p o s e t h a t the C o u r t dismiss the appeal and o r d e r the parties t o bear their o w n costs.

92 — See paragraphs 60 to 63 above. 93 — See paragraph 77 above.

I - 1751