OPINION OF ADVOCATE GENERAL
JÄÄSKINEN
delivered on 21 November 2013 (1)
Case C‑559/12 P
French Republic
v
European Commission
(Appeals — La Poste — Public establishment endowed with its own legal personality — Existence of State aid — Implied unlimited State guarantee — Concept of advantage — Burden and standard of proof required)
I – Introduction
1. By its appeal, the French Republic seeks annulment of the judgment of the General Court of 20 September 2012 in Case T‑154/10 France v Commission [2012] ECR (‘the judgment under appeal’), dismissing its action against Commission Decision 2010/605/EU of 26 January 2010 on State aid C 56/07 (ex E 15/05) granted by France to La Poste (2) (‘the contested decision’).
2. In general terms, this appeal calls in my view for the analysis of three main questions. The first is the concept of the implied and unlimited State guarantee enjoyed by La Poste (3) which was described by the European Commission in the contested decision as incompatible State aid within the meaning of 107 TFEU; secondly, the question of the burden and standard of proof required in order to establish that there is such a guarantee; and thirdly, if there is, how the Commission is to prove that there is an advantage as a result of an implied State guarantee.
3. The specific feature of this case results first and foremost from the implied nature of the case before the Court, which renders particularly complex application of the criteria inherent in the concept of State aid. In that regard I note at the outset that aspects of the case which to me seem to be fundamental to the detailed examination of the file have not been contested or, at the very least, sufficiently debated in the context of the present appeal. That is true of the very notion of the unlimited implied guarantee under Union law which has not in my view gained widespread acceptance. That is likewise true of the potential link between the scheme at issue applicable to EPICs and the concept of service in the general economic interest which was touched upon only lightly.
II – Legal background, the contested decision and the judgment under appeal
4. For the description of the national law governing the status of La Poste and the factual background of the case, reference is made to the detailed presentation in the judgment under appeal.
5. With regard to the contested decision, the Commission found in Article 1 that ‘[t]he unlimited guarantee given by France to La Poste constitutes State aid that is incompatible with the internal market. France must withdraw it by 31 March 2010’. Further, Article 2 thereof states: ‘The Commission considers that the effective conversion of La Poste into a public limited company will result in the unlimited guarantee which La Poste enjoys being withdrawn. The effective withdrawal of the unlimited guarantee by 31 March 2010 is a measure that will remove, in accordance with Union law, the State aid referred to in Article 1.’
6. By application lodged at the Registry of the Court of First Instance on 2 April 2010, the French Republic brought an action for annulment of the contested decision. In that context, the French Republic argued that it was wrong for the Commission to find, first of all, that there was a State guarantee operating in favour of La Poste and, secondly, that that measure constituted State aid, since no advantage within the meaning of Article 107 TFEU had been established. (4)
7. In the judgment under appeal, the General Court rejected the entirety of the pleas raised by the French Republic and, consequently, upheld the lawfulness of the contested decision.
III – Pleas on appeal
8. In its appeal brought on 5 December 2012, the French Republic raises four pleas, the second and third of which are divided into four branches each. In its first plea, the appellant criticises the General Court for misconstruing the meaning of the pleas raised before it in finding that they all related to the existence of an advantage and not to the criterion of a transfer of State resources. In its second plea, the appellant raises an error of law inasmuch as the General Court erroneously formed the view that the Commission had established to the requisite legal standard that a State guarantee operated in favour of La Poste. In its third plea, the appellant criticises the General Court for a series of distortions of national law. In its fourth plea, the appellant raises an error of law inasmuch as the General Court deemed sufficient the establishment by the Commission of an advantage procured by the alleged State guarantee. For its part, the Commission contends that the appeal should be dismissed in its entirety.
9. In my view, irrespective of the number of pleas realised by the French Republic, the essential aspect of this appeal has to do with the issues already raised, that is to say, the principles to be observed by the Commission in establishing that there is an implied guarantee, and that an advantage flows from it. Consequently, I propose to analyse the appeal by arranging the pleas on appeal in accordance with these main aspects.
A – Establishing whether there is an implied guarantee constituting State aid (second and third pleas on appeal)
1. Arguments of the parties
10. In its second plea, divided into four limbs, the French Republic essentially maintains that the General Court erred in law by finding that the Commission had established to the requisite legal standard that there was a State guarantee.
11. In the first limb of that plea, the French Republic criticises the General Court for erroneously holding, at paragraph 23 of the judgment under appeal, that the Commission was entitled to reverse the burden of proof by assigning to the French authorities the task of showing that there was no guarantee. By the second limb, whilst criticising the alleged negative presumptions in the contested decision, the French Republic states that the General Court was wrong, in paragraphs 73 and 74 of the judgment under appeal, to validate the reversal of the burden of proof by the Commission in recitals 126 and 131 of the contested decision. In the third limb, the French Republic criticises the General Court for misinterpreting, in paragraph 119 of the judgment under appeal, the judgment in Commission v MTU Friedrichshafen. (5)
12. By the fourth limb of the second plea, the French Republic maintains that, even if, as the General Court stated at paragraph 120 of the judgment under appeal ‘the nature of the evidence to be adduced by the Commission is dependent on the nature of the State measure envisaged’, the implied nature of the guarantee allegedly identified cannot however result in a less stringent requirement in regard to proof, nor in a reversal of the burden of proof. Viewed in that light, the General Court was wrong to form the view at paragraph 121of the judgment under appeal that the Commission had, upon examination, found there to be an unlimited State guarantee in favour of La Poste and had taken into account several concordant evidential items forming a sufficient basis for establishing that there was such a guarantee. According to the appellant, there can only be positive proof of an implied guarantee.
13. For its part, the Commission replies that it in no way reversed the burden of proof. Secondly, the Commission maintains that the arguments as to the alleged use of negative presumptions or suppositions turn out to be merely reiterations of allegations at first instance. Thirdly, the Commission maintains that, as acknowledged in Commission v Scott, (6) the reference to the judgment in Commission v MTU Friedrichshafen concerned the taking into account of the difficulty of the complex task with which the Commission was confronted in this case. Finally, the Commission proposes that the criticisms directed at paragraphs 120 and 121 of the judgment under appeal should be dismissed as inoperative and unfounded.
14. In its third plea, the French Republic essentially alleges that the General Court was guilty of distortions of national law, certain provisions of which provided the starting point for the Commission’s reasoning in its finding of an implied unlimited guarantee. By its first limb, the appellant calls in question the consideration that French law does not exclude the possibility of the State’s granting an implied guarantee to the EPICs. By its second limb, the French Republic alleges that the General Court distorted French law when it approved the conclusions of the Commission as to the consequences flowing from the application of Law no 80-539. (7) By the third limb, whilst alleging a lack of reasoning, the French Republic criticises the General Court for wrongly equating the criteria for incurring State liability to a guarantee mechanism in the light of the case of Société fermière de Campoloro et autres of the Council of State, (8) the judgment in Société de gestion du port de Campoloro et Société fermière de Campoloro v. France of the Court of Human Rights (9) and the Note of the Council of State of 1995. (10) By the fourth limb, the appellant focuses on the issue examined by the General Court at paragraph 102 of the judgment under appeal, of the transfer of rights and obligations relating to provision of a service in the general interest.
15. In response to these claims, the Commission alleges that the third appeal plea, which is essentially a reiteration of the second plea raised before the General Court, is in actual fact seeking to request the Court to conduct a fresh appraisal of the facts and evidence, for which reason this plea is manifestly inadmissible.
2. Analysis
16. By way of introduction, the concept of guarantee, although well-known, does not at first sight appear to have received an unequivocal definition under Union law. The Commission stated in its Notice on the application of Articles 107 and 108 TFEU to State aids in the form of guarantees (11) that ‘in their most common form, guarantees are associated with a loan or other financial obligation to be contracted by a borrower with a lender; they may be granted as individual guarantees or within guarantee schemes’; it also regards as ‘aid in the form of a guarantee the more favourable funding terms obtained by enterprises whose legal form rules out bankruptcy or other insolvency procedures or provides an explicit State guarantee or coverage of losses by the State’. (12) The Commission also distinguishes between guarantees from a ‘contractual’ or ‘another legal source’ as opposed to ‘guarantees whose form is less visible’.
17. In this case it is therefore decisive that the unlimited implied guarantee at issue is a type of indirect intervention in the context of which resources committed by the State are not automatically translated into a corresponding advantage for the recipients. This category covers, in particular, implied guarantees arising from the legal rules specifically applicable to the beneficiary, or of letters of intent or comfort.
18. According to the case-law, measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict sense of the word, are similar in character and have the same effect are considered to constitute aid under Article 87(1) EC. (13) It is apparent from the case-law that State intervention that is likely both to place the undertakings to which it applies in a more favourable situation than others, and to create a sufficiently specific risk of a supplementary charge being incurred in the future for the State may be a burden on State resources. (14) In fact the term ‘aid … in any form whatsoever’ in Article 107 TFEU is construed as applying to advantages, whilst the legal nature or the objective of such a unilateral advantage is not relevant. Thus the Court has held that advantages may entail an additional burden for the public authorities in the form of a State guarantee. (15)
19. The implied guarantee at issue in the main proceedings, which forms the subject-matter of the plea advanced specifically in the fourth limb of the second plea, which I propose that we examine first of all, raises a particular difficulty because no French legislative text expressly provided for that guarantee. In fact, the contested aid stems not from a distinct measure but rather from the fact that the EPICs were not subject to the ordinary bankruptcy arrangements or from the introduction of a specific regime in this regard, in conjunction with an alleged situation in which the debts to creditors of public bodies having a legal personality of their own do not remain unpaid. Thus, after examining several sources, the Commission relied on various factors to conclude that there was an implied and unlimited guarantee.
20. The mechanism in question prompts me to make the following observations concerning the method and the level of proof required, as well as the degree of supervision to be exercised by the Union judicature.
– Implied guarantee
21. In the first place, with regard to the method of examination, I note that the term ‘implied guarantee’, which is not contested by the appellant, is rather a metaphorical term and contradictory in itself since a guarantee is habitually a promise giving rise to a binding legal act which generates or is capable of generating specific consequences in regard to the beneficiary of the guarantee. In fact, a creditor cannot rely on an implied guarantee in the same way as he can on an express guarantee. In my view, even on the supposition that the guarantor may have his undertaking held against him, the basis of his obligation is to be sought amongst the general principles of civil liability.
22. Thus, on the supposition that the term in question is founded on competition law, (16) for the purposes of Article 107 TFEU the concept of ‘implied guarantee’ is not a purely legal concept but is based also on an examination of the facts. In fact, the concept of ‘implied guarantee’ is related to the competition law of the Union, inasmuch as it describes ‘conduct’ by national authorities which may constitute in regard to its economic effects a State aid for the recipient thereof.
23. The major difficulty is the implied nature of the guarantee at issue resulting from both legal and factual factors. The implied guarantee is therefore an inferred phenomenon and also a presumed phenomenon. (17) The principal justification for using this concept in the law on State aid is that the arrangement in question creates a financial situation analogous to that resulting from an unlimited express guarantee granted by the Member State in favour of an undertaking, there being no obligation on that company to pay a premium corresponding to its economic value.
24. Consequently, the body of evidence method seems to me well suited to establishing that there is such an implied measure, (18) and that method is also applicable in the sector of State aid. (19)
25. The Court has already stated that the Commission may not in principle be barred from relying on a set of circumstances which taken as a whole indicate the de facto existence of an aid programme. (20) None the less the Commission must still cite evidence, be it legislative, administrative, financial or economic, enabling the contested aid to be so characterised. (21)
26. I wish to make two observations in this context. First, contrary to what seems to me to be the Commission’s view, I am of the opinion that the implied nature of a measure precludes any certainty that it exists. An implied guarantee inferred from a body of evidence must therefore be deemed to exist unless and until it is proved not to. In the present case it would be relatively easy to adduce such proof by pointing to specific cases where the debts of an EPIC or of a French territorial, local or regional authority persistently remained unpaid, despite there being no formal bankruptcy or insolvency procedure. In fact, such a defence of a Member State enables the view to be taken that the Commission decision is based on premisses which are in fact erroneous. (22)
27. Secondly, the General Court is required to determine whether the evidence constitutes that totality of the relevant information to be taken into consideration in appraising the aforementioned ‘conduct’ of the national authorities, and whether that information bears out the allegation that the undertaking is in receipt of State aid of an implied nature.
28. As the Court has pointed out, a manifest error of assessment may be constituted by the fact that the Commission is not basing itself on ‘all the information which must be taken into account in order to assess a complex situation’. (23)
29. Consequently, the criterion requiring the Commission to provide positive proof of a guarantee is satisfied where, in the interests of sound administration, the Commission conducts a diligent and impartial examination of the contested measures so that it has at its disposal when adopting the final decision the most complete and reliable information possible for that purpose. (24) That implies in a case such as the present a need to gather all information that may together plausibly plead in favour of there being a measure likely to constitute a State aid. That measure may also be inferred to exist from the fact that that inference is not rebutted by any information to the contrary.
30. In that regard I note that, after recalling at paragraph 119 of the judgment under appeal the obligations on the Commission in relation to the matters that may support a finding that the undertaking enjoys an advantage constituting State aid, at paragraph 120 of the judgment under appeal, the General Court affirmed that the evidence to be produced by the Commission is determined by the nature of the measure. In doing so, the General Court was thus of course giving expression to the notion of the wide variety of measures capable of constituting State aid without infringing the principles governing the burden and degree of proof. In regard to an implied measure, the General Court adapted the abovementioned finding in order rightly to hold at paragraph 120 that an implied guarantee may be inferred from a body of convergent evidence. Finally, the General Court set out, in relation to the second plea raised at first instance, the totality of the concordant evidence constituting a basis for a finding of State aid.
31. It is not expressly contested that EPICs are not subject to the general or specific rules on bankruptcy or to the insolvency procedure. Thus, the calling in question of the veracity of an individual item of evidence considered by the General Court cannot be deemed sufficient to disprove the measure that is inferred from a body of evidence. Indeed, in the absence of a specific counter-example in rebuttal of an implied guarantee, the appellant is required to contradict each item of evidence one by one. None the less, in my view the party contesting the evidence must prove that the inference of the totality of the items constituting a body of evidence is that there is no implied unlimited State guarantee.
32. It follows that the pleas alleged in a part of the second and in the whole of the third plea may therefore be dismissed from the outset as being of no avail, inasmuch as they do not put in issue the overall conclusion of an implied guarantee but relate to various items of evidence taken on their own.
– Burden and standard of proof required
33. In the second place, in regard to the burden of proof, it is undeniably for the Commission to prove that a measure may be classified as State aid. The General Court thus correctly interpreted the Commission’s role when on several occasions in the judgment under appeal it stated that the evidence gathered by the Commission was sufficient, (25) in accordance with the case-law requiring the Commission always to examine all the relevant features of the transaction at issue and its context, (26) in order to arrive without erring in law at the conclusion in paragraphs 120 and 121 of the judgment under appeal. Contrary therefore to the claim by the French Republic, the General Court did not reverse the burden of proof.
34. As to the standard of proof required, (27) construed as the degree of stringency applied by the judicature on examining the evidence before it, it is useful briefly to refer to the case-law on competition law in general and to the principles of the common law. As regards the practice of competition law, (28) although there is no uniform definition of the standard of proof applicable, the Court requires the standard of proof to be ‘sufficiently proved in law’, (29) or ‘sufficiently precise and coherent proof’ (30) and also applies the method of ‘a firm, precise and consistent body of evidence’ where there is no documentary evidence of concertation between producers. (31) On concentrations the Court also applies the criterion of the ‘most likely’. (32) Conversely at common law, the distinction is drawn between the less strict ‘balance of probabilities’ test applied in civil matters which means that the party must persuade the Court that the act alleged is more probable than improbable, and the stricter beyond a reasonable doubt standard applicable in criminal law, meaning that the Court may, after examining the evidence, entertain no reasonable doubt as to the facts constituting an offence. (33)
35. I consider that, in the case of an implied guarantee inferred from a body of evidence, the standard of proof must be based on serious probability and sufficiency of evidence. The requisite standard is thus more than mere probability, whilst falling short of a requirement of being beyond all reasonable doubt. This, I think, was the analysis conducted correctly by the General Court in regard to the evidence adduced by the Commission.
36. Besides, that approach seems to me to be supported by recent case-law under which the Commission must establish a sufficiently direct link between the advantage conferred on the beneficiary on the one hand and, on the other, a reduction of the State budget or a sufficiently concrete economic risk of burdens on that budget, (34) without there being any requirement that such a reduction, or even such a risk, should correspond or be equivalent to that advantage, or that the advantage has as its counterpart such a reduction or such a risk, or that it is of the same nature as the commitment of State resources from which it derives. (35)
37. As to the intensity of the review exercised by the Union judicature, although the Commission enjoys a margin of discretion in the sector of State aid since complex assessments of a financial nature are involved, the review exercised by the courts of the Union of the complex economic appraisals is a restrictive one which is necessarily limited to checking that the rules of procedure and the duty to provide a statement of reasons have been complied with, that the facts as stated are substantively accurate and that there has been no manifest error of assessment or misuse of powers. (36) The role of the Court is therefore not itself to establish that there is State aid, and the amount thereof, by substituting itself for the Commission. (37)
38. Undeniably, establishing that there was an implied unlimited guarantee, and that an advantage flowed from it, required the Commission to undertake a complex assessment.
39. Thus the appellant’s overall line of argument in its second plea, in particular in its fourth limb, must be dismissed as disclosing nothing to support an allegation that the General Court erred in law. On the contrary, the reasoning on which the judgment under appeal is based indicates that the General Court did not infringe the rules on the burden and extent of proof which I have set out above and correctly based its finding on the body of evidence indicative of an implied State guarantee.
– Pleas examined in the alternative
40. With regard to the first three limbs of the second plea, I note first of all that the appellant’s criticism springs from a misreading of paragraph 23 of the judgment under appeal in which the General Court reproduced the essential facts of the case without ruling on the allocation of the burden of proof. Secondly, the French Republic’s arguments criticise only the contested decision, which renders them inadmissible. Moreover, paragraphs 73 and 74 of the judgment under appeal fall within the parameters of the second plea at first instance and are an interpretation of national law the assessment of which is not a matter for review by the Court, except in the case of distortion (38) which is not demonstrated by the appellant in the present case.
41. Thirdly with regard to the interpretation of the judgment in Commission v MTU Friedrichshafen cited above in paragraph 119 of the judgment under appeal, that case prohibits the Commission from basing its decision on negative presumptions in a situation where there is no information allowing a contrary conclusion to be reached. It is therefore not fully applicable in the present case. None the less, as the Commission points out, the General Court was entitled to refer to it in stressing the difficult nature of the complex task with which it was faced in uncovering an implied unlimited guarantee mechanism.
42. With regard to the third plea, the French Republic criticises the interpretation of items of a body of evidence by the General Court in the course of the appraisal of the guarantee in favour of La Poste. In that regard, an allegation based on a misappraisal of national law is admissible when the General Court is alleged to have distorted that law. (39) Thus, as regards the examination on appeal of the findings made by the General Court in regard to national legislation, the Court is competent to examine, first of all, whether the General Court, on the basis of documentary and other evidence before it, has distorted the wording of the national provisions at issue or the tenor of national case-law relating to them, or the academic writings concerning them; second, whether the General Court, as regards those particulars, made findings that were manifestly inconsistent with their content; and, lastly, whether the General Court, in examining all the particulars, attributed to one of them, for the purpose of establishing the content of the national law at issue, a significance which is not appropriate in the light of the other particulars, where that is manifestly apparent from the documentation in the case-file. (40)
43. However, that is not so in the case of the arguments raised in the three first limbs of the present plea. In fact the French Republic seeks, even if it is relying on errors of law, to call in question the assessment of the facts by the General Court and, in particular, to challenge the interpretation of the facts and documents on the basis of which the General Court found that there was an implied guarantee. Those arguments actually reiterate criticisms submitted before the General Court with the result that they are inadmissible. In any event the distortion alleged has been neither demonstrated, nor is it manifest, thus leading to the dismissal of those allegations. In regard to a defect in the reasoning raised by the third limb of the third plea in relation to the decision of the ECHR in Société de gestion du port de Campoloro et Société fermière de Campoloro v. France, the General Court responded to that argument to the requisite legal standard at paragraphs 96 to 99 of the judgment under appeal. Finally, on the fourth branch of the third plea, that limb is directed against an obiter dictum and must therefore be dismissed as being of no avail.
44. Regard being had to all of the foregoing, the General Court correctly acquitted itself of its role in regard to the restricted review of whether there was an implied guarantee. I therefore propose that the second and third pleas on appeal should be dismissed.
B – Establishment of the advantage stemming from the implied guarantee (fourth plea)
1. Arguments of the parties
45. By its fourth plea the French Republic maintains that the General Court erred in law in considering that the Commission had established to the requisite legal standard that an advantage stemmed from the alleged State guarantee in favour of La Poste. First, the appellant maintains that the General Court infringed the rules governing the burden and standard of proof of an advantage when it considered, at paragraphs 123 and 124 of the judgment under appeal, that for existing aid the Commission was not required to demonstrate any real effects of that aid but could make a presumption in that regard. Moreover, even on the supposition that Union law does not require the actual effects of existing aid to be shown, the Commission should at the very least demonstrate its potential effects. That was moreover wrongly excluded from point 1.2 of the 2008 Notice. Thus, it is argued, the General Court also erred in law when considering in paragraphs 106 and 108 that the Commission’s analysis was well founded.
46. In the alternative, the French Republic maintains that the General Court distorted the evidence when considering, at paragraphs 110 and 123 of the judgment under appeal, that the Commission — whilst using the rating agencies to confirm rather than prove the existence of an advantage — had provided sufficient evidence to establish that the guarantee at issue conferred a genuine advantage. In that regard it criticises 111 to 116 of the judgment.
47. The appellant goes on to say that, as is apparent from paragraph 106 of the judgment under appeal, it has not accepted that an advantage results ‘automatically’ from exclusion of an undertaking, owing to its legal status, from a bankruptcy or equivalent procedure.
48. The Commission replies that it is justified in using the same analysis matrix for existing aid and for new aid; in accordance with which it is not required to demonstrate the actual effects of such measures. The Commission regards the challenge to the 2008 Notice as inadmissible, since no objection of illegality was raised before the General Court. On paragraph 106 of the judgment under appeal the Commission alleges that, on the basis of that declaration, the General Court could not but dismiss the third plea raised before it.
2. Analysis
49. As I have already said, one must first of all proceed on the basis that the present dispute is a matter of fact and a matter of law in the same way as an express guarantee. In fact, since what is involved is the absence of the usual kind of measure the implied guarantee presents the particular feature whereby the measure is subsumed within its effects. For the purposes of this analysis it must be borne in mind that the implied guarantee produces effects equivalent to an express guarantee which for its part is a directly identifiable measure capable, by definition, of producing certain effects.
50. According to the case-law, in order to assess whether a measure constitutes State aid, it is therefore necessary to determine whether the beneficiary undertaking is receiving an economic advantage which it would not have obtained under normal market conditions. (41) Yet, in my view, it cannot but be noted that such an approach in determining whether there is an advantage does not correspond to the specific nature of the State guarantee at issue in the main proceedings. (42)
51. It is also common ground that Article 107(1) TFEU does not distinguish between measures of State intervention by reference to their causes or their aims but defines them in relation to their effects. (43) In the appraisal of a measure in the light of Article 107 TFEU, regard must be had to the effects it is likely to produce (44) and to all relevant matters and their context. (45) However, the case-law does not deal exhaustively with the questions as to the manner in which the Commission is required to establish an advantage and as to the effects of a measure which it is for it to prove when it establishes that an advantage may be inferred from an implied measure.
– Advantage
52. With regard, first of all, to the findings by the General Court, at paragraph 124 of the judgment under appeal, that the actual effect of the advantage deriving from a State guarantee may be presumed, the point which is crucial to the reasoning of the General Court in upholding the Commission’s analysis and accepting that there was an advantage in this case is chiefly to be found in paragraph 106, read together with paragraph 108 of the judgment under appeal, in which the General Court found that an unlimited guarantee enabled its recipient to obtain credit terms more favourable than those it would have obtained on its own merits, thus enabling it to reduce the pressure on its budget.
53. For the General Court, the grant of a guarantee on terms which are not equivalent to market conditions, such as an unlimited guarantee granted without consideration, is, as a rule, liable to confer an advantage on the recipient of those terms, in that that party thereby enjoys an improvement in its financial position through a reduction of charges which would normally encumber its budget. (46)
54. In that regard the Court has already held that, subject to proving an additional burden on the State intended to create an advantage which cannot be inferred automatically for the undertakings concerned, (47) exemption from the rules of ordinary law on bankruptcy or waiver of tax debts and penalties in relation to the undertakings concerned, may be regarded as State aid. (48) Those advantages, conferred by the national legislature, could also entail an additional burden for the public authorities in the form of a State guarantee, a de facto waiver of public debts, exemption from the obligation to pay fines or other pecuniary penalties, or a reduced rate of tax. (49)
55. With regard in particular to the criterion of advantage, having found that ‘the legislation in question is liable to place the undertakings to which it applies in a more favourable situation than others’ the Court in the Ecotrade and Piaggio cases considered it from the point of the view of allowing an undertaking in that situation to carry on business in circumstances where it would not be able to, were the ordinary rules on bankruptcy to be applied. Thus the case-law, it seems to me, already allows an advantage to be presumed where it appears plausible under the national regulatory framework governing the undertakings in question.
56. Moreover, the present case appears to me not to be one of individual aid but more akin to a system of aid which, because it applies to EPICs, affects the legal situation of La Poste. It is thus appropriate to apply by analogy the case-law concerning an aid programme under which the Commission may merely study the characteristics of the programme at issue in order to assess, in the grounds for its decision, whether, by reason of the arrangements provided for under the programme, it affords an appreciable advantage to beneficiaries in relation to their competitors and is likely essentially to benefit undertakings engaged in trade between Member States. Only on recovery of the aid is it necessary to look at the individual situation of each undertaking concerned. (50)
57. Moreover, I note that it is clear from the Residex Capital judgment (51) concerning an express guarantee that ‘where the loan granted by a credit institution to a borrower is guaranteed by the public authorities of a Member State, that borrower normally obtains a financial advantage and thus benefits from aid within the meaning of Article 87(1) EC, inasmuch as the financial cost that it bears is less than that which it would have borne if it had had to obtain that same financing and that same guarantee at market prices’.
58. Were the Court to uphold in general terms the concept of an implied guarantee and in the present case acknowledge that there was one, advantage could be presumed to derive therefrom under the same conditions as if it were an express guarantee, by virtue of the fact that such a guarantee is likely to improve the situation of the beneficiary undertaking. It goes without saying that that is a mere presumption. Consequently, the General Court rightly held at paragraph 124 of the judgment under appeal that the guarantees are likely to confer an advantage on their beneficiaries.
– Economic context
59. However, that finding relieves neither the Commission nor the General Court from the duty of taking into account the legal and economic conditions under which the entity presumed to be the recipient of an advantage operates. (52) In fact, as I have already said, the Commission must be in a position to evaluate the advantage in question. (53)
60. The French Republic criticises the General Court for erring in law in finding that the Commission was entitled to refer to the rating agencies in order to ‘confirm’ and not in order to ‘prove’ the advantage enjoyed by La Poste.
61. It is true that in order to prove that La Poste enjoyed a more advantageous position as a result of the more favourable credit terms than those which would have been available to it had there not been the provision of an unlimited guarantee by the French State, the Commission chiefly referred to the data of the rating agencies and to the methods employed by them. (54) Moreover, the Commission considered that La Poste also enjoyed a benefit, inasmuch as it did not pay a premium to the State. (55)
62. In that regard, I note first of all that, having regard to the permissible presumption of an advantage in this case, the confirmatory nature of the data from the rating agencies fits perfectly with the logic of the presumption. Thus, the allegation of insufficient proof in relation to the methods and data of rating agencies must be considered unfounded.
63. In addition, it was precisely in order to place the guarantee at issue in its proper economic context that the Commission referred to the methods and data of the rating agencies. In that connection, save for the private investors test that is not applicable to the present case, the range of instruments to which the Commission may have recourse in order to underpin its analysis with reasoning should be very broad. Consequently, the more favourable credit terms supported by the data of rating agencies must be accepted. Thus, at paragraphs 115 to 117 of the judgment under appeal, the General Court righty upheld the relevance of that data, whilst dismissing the criticism as to circular reasoning raised before it. Since the present plea relates to the problem of the method to be applied by the Commission in establishing an advantage in the case of State guarantees, I none the less intend to revert to it subsequently by way of obiter dictum.
– Category of effects of aid already granted
64. With regard, conversely, to the effects of new and existing aid it is clear from point 1 of the contested decision that the Commission considered the measure at issue to come within the concept of existing aid. (56) Apart from the queries that such a classification (57) may at first sight give rise to, I observe first of all that the temporal effects of an arrangement such as the implied guarantee are difficult to determine since the guarantee does not result from a specific and discernible act but is inferred from a body of concordant evidence. However, since it is settled case-law that the concept of State aid must be applied to an objective situation appraised on the date on which the Commission takes its decision, the appraisals carried out on that date are the ones to be taken into account in the conduct of judicial review. (58)
65. At paragraph 123 of the judgment under appeal, the General Court referred to the case-law under which the Commission is not required in its decision to show the actual effect of aid already granted. (59) If, as the Court has held, the Commission had to provide evidence in its decision of the actual effect of aid already granted, the effect would be to favour Member states which grant aid in breach of the notification obligation, to the detriment of those notifying aid at the planning stage. (60)
66. However, not only does that line of case-law (61) not have any link with the examination of existing aid, but the Court specifically refers to the manner of determining two other criteria, namely the effect on trade and competition without mentioning advantage. This is the classic approach under which the Commission is only required to examine whether the aid is likely to affect trade and to distort competition, and not whether the measure at issue actually has a real impact in terms of those two criteria. (62)
67. The Court has already held with regard to the effect on trade and the distortion of competition that the same treatment must be accorded to the two types of aid, that is to say existing aid and aid granted without prior notification to the Commission. (63) Conversely, the relevance of that case to the determination of the effects of an advantage is not certain. Nor, moreover, is it clear from paragraph 123 of the judgment under appeal whether the General Court sought to distinguish between determination of the advantage and determination of other criteria or whether the Boussac Saint Frères et P&O European Ferries (Vizcaya) et Diputación Foral de Vizcaya v Commission case-law was cited only to relieve the Commission of the duty of proving by analogy the advantageous effects of the measure at issue.
68. Furthermore, I note from the arguments of the General Court that, while at paragraph 123 of the judgment under appeal it dismissed the need to verify the actual effects of existing unlawful aid, it held at paragraph 124 that the actual effect of the advantage afforded by a State guarantee may be presumed.
69. Since the General Court’s reasoning lacks clarity and applies the case-law in a confused manner, the reasoning in paragraph 123 of the judgment under appeal is vitiated by an error of law. However, under the Court’s case-law an error of law by the General Court will not invalidate the judgment under appeal if its operative provisions appear to be well founded on other legal grounds. (64)
70. Since the judgment under appeal is lawfully founded on the notion that the advantage afforded by a guarantee may be presumed, that error cannot affect the operative part of the judgment under appeal. Moreover, any objection as to the legality of point 1.2 of the Notice must be regarded as manifestly inadmissible.
71. Finally, in the context of the fourth plea, the appellant challenges paragraph 106 of the judgment under appeal and states that it did not assert at the hearing that the fact that an undertaking is exempted from a bankruptcy procedure ‘automatically’ gives rise to an advantage. In my view, that criticism stems from a misreading of the judgment. In fact the General Court did not mention any such automatic consequence. Moreover, the appellant’s allegations disclose no distortion, with the result that the present plea cannot avail it.
72. Thus, the second plea must be dismissed as unfounded in its entirety.
– Obiter dicta on the private investor criterion
73. By way of obiter dictum, and without wishing to call in question the judgment under appeal, I should like to raise a procedural question linked with the method to be followed by the Commission when it finds there to have been an advantage. In fact, as is apparent from both the case-law and the Commission’s Notice, in order to determine whether a guarantee or a guarantee scheme confers an advantage, the Commission must be guided by the ‘market-economy investor’ principle which requires regard to be had to the possibilities open to a beneficiary undertaking of obtaining equivalent financial resources by having recourse to the capital markets. (65) Since the private investor criterion is articulated around the criterion of profitability of a reasonable level, it must be verified whether an operation was conducted under the normal market economy conditions, at the same time as taking into account the interaction between the various economic operators. (66)
74. Although, under the case-law, in adopting rules of conduct the Commission limits itself in the exercise of its margin of discretion and cannot depart from those rules under penalty of sanction, (67) the abovementioned criterion was not applied by the Commission in the contested decision and that failing was not censured by the General Court. Consequently, it must be asked whether such a plea could have been raised ex officio by the General Court after notification of the parties. (68) As the applicability of that criterion was not raised in this appeal, that issue can be raised by the Court only in regard to the infringement of essential formal requirements under Article 263 TFEU, as an infringement of the duty to provide a statement of reasons. (69)
75. Moreover, in the State aid sector the Court distinguishes between two categories of situation: those in which the State’s intervention is economic in nature and those where the State’s intervention is in pursuance of its status as a public authority, (70) the private investor criterion applies only in the former case. The Court recently held that even where an economic advantage is conferred by fiscal means it must be specifically appraised in light of the private investor criterion where, after the overall assessment that may be required, the Member State concerned appears, notwithstanding the use by it of public powers, to have conferred that advantage in its capacity as shareholder of the undertaking belonging to it. (71)
76. In that regard I would emphasise that application of the private investor test is not suitable in the case of an implied State guarantee and should therefore be precluded in particular on the ground that such guarantee forms part of the acts or omissions of the public authorities in general terms and not of measures adopted by it as a holder of assets in the undertaking concerned, in this case, La Poste. However, in my view, the General Court would have been entitled to rule on this question by raising it of its own motion.
C – The sense of the pleas raised before the General Court (first plea on appeal)
77. In its first plea the appellant alleges that the General Court considered in paragraphs 53 to 57 of the judgment under appeal that all the pleas raised in support of the action for annulment related to the issue of whether there was an advantage and that, consequently, the argument as to non-observance of the condition applicable to the transfer of State resources was inadmissible inasmuch as it was a new plea introduced during the proceedings. On this, the appellant also claims that, contrary to the General Court’s finding at paragraph 57, it did not accept at the hearing that its arguments related only to the condition applying to the advantage.
78. I note at the outset that the record of the hearing whose accuracy has not been impugned by the French Republic clearly states that the French Republic replied to a question put to it by the General Court by saying that it did not dispute that State resources were involved in the event that the General Court were to find there to be an unlimited implied guarantee. Moreover in the correspondence following the hearing before the General Court, (72) the French Republic confirmed that ‘if the General Court should find that there was an implied unlimited guarantee, that would involve State resources’. In the same letter the French Republic then set out the evidence to be produced in its view by the Commission in order to warrant a finding of such a guarantee. I therefore conclude that the French Republic does not deny stating its position at the hearing. Moreover, any distortion must be obvious from the documents on the Court’s file, without any need for a new assessment of the facts and the evidence. (73) That is not the case here.
79. Moreover, by rejecting the issue of allocation of State resources as a distinct criterion of the concept of State aid, the General Court was merely observing the case-law concerning the prohibition on redefining the subject-matter of the action. (74) Although on some points the application relates to the transfer of State resources, it is clear from paragraph 49 of the judgment under appeal, which contains a summary of the French Republic’s arguments, that none of the pleas raised before the General Court referred expressly to analysis of that criterion. It is not for the General Court to reconstruct the pleas before it on the basis of sporadic allusions appearing in various parts of the application. (75) Consequently, the first plea must also be rejected.
IV – Conclusion
80. In conclusion I propose that the Court should:
– dismiss the appeal by the French Republic;
– order the French Republic to bear its own costs and to pay those incurred by the European Commission.