Joined Cases C‑399/10 P and C‑401/10 P

Bouygues SA and Bouygues Télécom SA

v

European Commission and Others

(Appeals — State aid — Financial measures in favour of France Télécom — Shareholder loan proposal — Public declarations by a member of the French government — Decision declaring the aid incompatible with the common market and not ordering its recovery — Meaning of State aid — Meaning of economic advantage — Meaning of commitment of State resources)

Summary — Judgment of the Court (Grand Chamber), 19 March 2013

1.        State aid — Investigation by the Commission — Decision to open the formal investigation procedure provided for in Article 108(2) TFEU — Determining the subject matter of the administrative procedure — Complaint concerning a number of measures — View expressed by the Commission on some of those measures — Rejection of the claims relating to the other measures — Not included

(Art. 108(2) and (3) TFEU; Council Regulation No 659/1999, Arts 4(4), 6(1) and 13(1))

2.        State aid — Meaning — Conferment of an advantage by a State through State resources — Advantages leading to reduction of the State budget or a risk of such a reduction — Lack of any correspondence or equivalence between the advantage conferred and reduction of the budget — Included — Advantage in the form of several consecutive measures with inseparable links between them — Assessment of the measures taken as a whole

(Arts 107(1) TFEU and 108 TFEU)

1.        Under the terms of Articles 4(4), 6(1) and 13(1) of Regulation No 659/1999 laying down detailed rules for the application of Article 88 EC, a decision to initiate the formal procedure to investigate State aid and an invitation to the interested parties to present their observations are necessary in order both to determine the subject matter of the administrative procedure and to ensure that the Commission is as fully informed as possible.

Therefore, if, following a complaint concerning a number of measures taken by the government of a Member State, including public declarations made by that government, the Commission opens a formal investigation procedure only in relation to some of those complaints, the failure to express a view on the characterisation of the declarations not covered by that investigation as State aid cannot be regarded per se as a decision rejecting the claims of the complainant. Thus, in the absence of an additional decision that would have extended the subject matter of the administrative procedure to the issue of whether those declarations constitute, in themselves, State aid, the Commission does not, by its decision to open the formal investigation procedure, address those elements of the complaint.

(see paras 70-72, 77, 78)

2.        Only advantages granted directly or indirectly through State resources or constituting an additional burden on the State are to be regarded as aid within the meaning of Article 107(1) TFEU. Thus, for the purposes of establishing the existence of State aid within the meaning of that provision, the Commission must establish a sufficiently direct link between, on the one hand, the advantage given to the beneficiary and, on the other, a reduction of the State budget or a sufficiently concrete economic risk of burdens on that budget. However, it is not necessary that such a reduction, or even such a risk, should correspond or be equivalent to that advantage, or that the advantage has as its counterpoint 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.

Moreover, in the case of a number of interventions, as State interventions take various forms and have to be assessed in relation to their effects, it cannot be excluded that several consecutive measures of State intervention must, for the purposes of Article 107(1), be regarded as a single intervention. That could be the case in particular where consecutive interventions, especially having regard to their chronology, their purpose and the circumstances of the undertaking at the time of those interventions, are so closely linked to each other that they are inseparable from one another.

(see paras 99, 100, 103, 104, 109, 110)