OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 5 June 2008 1(1)
Case C‑295/07 P
Commission of the European Communities
v
Département du Loiret
(Appeal – State aid − Aid granted by the French authorities to Scott Paper – Preferential price of a plot of land and preferential rate of water treatment levy in order to establish a mill making paper for domestic use)
I – Introduction
1. By a judgment of 29 March 2007 in Case T‑369/00 Département du Loiret v Commission (2) (‘the judgment under appeal’), the Court of First Instance annulled Commission Decision 2002/14/EC of 12 July 2000 on the State aid granted by France to Scott Paper SA/Kimberly‑Clark (3) (‘the contested decision’).
2. By the appeal on which the Court is now called to adjudicate, the Commission applies for the judgment under appeal to be set aside.
II – Facts and the contested decision
3. The dispute relates to the sale of a plot of land by the French public authorities to a private company, Scott, in 1987 at a favourable price. The land was used to establish a paper mill. In 1996 Scott was acquired by another company, Kimberly-Clark Corp., which, after having announced the closure of the plant, sold it in 1998 together with the land on which it stood to another company, Procter & Gamble.
4. Scott also benefited from a preferential rate for calculating the water treatment levy. However, that specific advantage is not the subject of this action.
5. In the contested decision the Commission stated that the abovementioned advantages were incompatible with the common market and ordered that the aid corresponding to those advantages be repaid.
6. The operative part of the contested decision reads as follows:
‘Article 1
The State aid in the form of a preferential land price and a preferential rate of water treatment levy granted by France to Scott and amounting, in the case of the land price, to FRF 39.58 million (EUR 6.03 million) or, at present value, FRF 80.77 million (EUR 12.3 million) and, in the case of the second advantage, to a value which the French authorities will have to calculate using a method worked out by the Commission is incompatible with the common market.
Article 2
1. France shall take all necessary measures to recover from the beneficiary the aid referred to in Article 1 and already made available to it unlawfully.
2. Recovery shall be effected without delay and in accordance with the procedures of national law, provided that they allow the immediate and effective execution of this Decision. The aid to be recovered shall include interest from the date on which it was made available to the beneficiary until the date of its recovery. Interest shall be calculated on the basis of the reference rate used for calculating the grant equivalent of regional aid.
…’
III – Proceedings before the Court of First Instance and the judgment under appeal
7. The contested decision was the subject of two separate actions brought before the Court of First Instance by Scott (Case T‑366/00) and the Département du Loiret (Case T‑369/00). Moreover, in the latter case Scott intervened in support of the Département du Loiret.
8. In the judgment in Case T‑366/00, the Court of First Instance annulled ‘Article 2 of [the] Decision … to the extent that it concerns the aid granted in the form of a preferential price for the property referred to in Article 1’. (4) That judgment in turn was the subject of an appeal in Case C‑290/07 P.
9. In the judgment under appeal in the present case, by contrast, the Court of First Instance annulled the contested decision ‘in so far as it concerns the aid granted in the form of a preferential price for the property referred to in Article 1’. (5)
10. More specifically, the Court of First Instance examined only one of the claims of unlawful action raised by the applicant, that is to say the lack of a statement of reasons for the Commission’s decision to determine the present‑day value of the aid by applying compound interest instead of simple interest.
11. In particular, the Court of First Instance observed that the contested decision did not state explicitly that that method of calculating interest had been used nor did it state reasons for that decision. Since in the opinion of the Court of First Instance it was not clear that at that time the Commission normally applied a compound interest rate, it considered that the use of a compound interest rate was the first manifestation of a new practice on the part of the Commission, which therefore called for an adequate statement of reasons. On the basis of that fact alone the Court of First Instance annulled the contested decision.
IV – Proceedings before the Court of Justice and forms of order sought
12. The Commission of the European Communities appealed against the judgment in Case T‑369/00 by an application lodged on 21 June 2007.
13. The Commission claims that the Court should:
– set aside the judgment under appeal in its entirety;
– give final judgment on the substance, dismissing all claims against the contested decision or, in the alternative, refer the case back to the Court of First Instance; and
– order the other party to bear all the costs of the proceedings, including those of the proceedings before the Court of First Instance, and order Scott, as intervener in support of the Département du Loiret, to bear its own costs.
14. The Département du Loiret and Scott contend that the Court should:
– dismiss the appeal;
– order the Commission to pay the costs.
V – Legal analysis
15. The Commission raises eight pleas in support of its appeal.
16. In its first plea the Commission maintains that a decision is sufficiently reasoned if a simple mathematical calculation shows the calculation method used.
17. In its second plea it asserts that the use of a compound interest rate was necessarily implicit in the reasoning of the contested decision.
18. The third plea hinges on an allegedly unlawful reversal of the burden of proof by the Court of First Instance in respect of the Commission’s practice with regard to the calculation of interest.
19. In its fourth plea the Commission claims that it was not required to check that the recipient of State aid still enjoyed an advantage at the time of ordering its recovery.
20. In its fifth plea it maintains that the judgment under appeal was not based on any evidence and that it had reversed the burden of proof with regard to the price at which the land was sold to Procter & Gamble.
21. The sixth plea is based on the claim that the price for a sale that occurred no less than 11 years after the grant of aid is irrelevant for determining the amount of that aid.
22. In its seventh plea the Commission argues that, in any case, the question of the interest rate to be applied to the recovery of State aid is governed by Community law, not national law.
23. Finally, in its eighth plea it maintains that, in any case, a finding that the interest rate applied was unlawful did not justify the complete annulment of the contested decision, which the Court of First Instance should therefore have annulled only in part, if at all.
24. I wish to state immediately that I find the Commission’s first seven pleas rather inconsistent and hence difficult to uphold. Conversely, the eighth plea raises various relevant questions, which will call for particular attention for the decision to be reached in the present case. However, for the sake of completeness I shall now proceed to examine each plea separately. I shall follow the order used by the Commission, and will therefore first examine the pleas which, if upheld, would lead to the judgment under appeal being set aside in its entirety. The eighth plea, which I shall examine last, would, if upheld, of itself lead to the judgment of the Court of First Instance being set aside only in part.
A – The first plea, according to which ‘a decision is sufficiently reasoned if a simple mathematical calculation shows the calculation method used’
1. Arguments of the parties
25. The Commission maintains first that a decision is sufficiently reasoned if a simple mathematical calculation shows the method of calculation used.
26. According to the Département du Loiret and Scott, the plea is nugatory because the Court of First Instance annulled the decision not in so far as it was not possible to understand the technical process for determining interest but simply on the ground that the Commission did not state adequate reasons for its decision to use a compound interest rate rather than a simple one.
2. Assessment
27. In setting out the plea in question the Commission cites paragraph 36 of the judgment under appeal, in which the Court of First Instance observes that, since the Commission is silent in this regard, it is necessary to carry out certain mathematical calculations to understand that the Commission used the system of compound interest to calculate the present-day value of the amount of aid. Hence, if the Commission really intends to contest only this finding of the Court of First Instance, it seems clear to me that the observation of the Département du Loiret and Scott hits the target, and that the plea must be ruled to be nugatory. (6)
28. In fact, the Court of First Instance did not base its finding of illegality on the failure of the Commission to indicate the type of mathematical formula used to calculate interest. What the Court of First Instance held to constitute a defect in the contested decision was the fact that the Commission did not indicate why it had decided to use that formula, contrary to previous practice. Indeed, paragraph 36 of the judgment under appeal goes on to state that ‘the Commission does not indicate its reasons for charging a compound rate rather than a simple rate’.
29. Moreover, even if it were held that, by making this plea, the Commission intended to maintain that the possibility of deducing the mathematical formula used constituted, of itself, a sufficient statement of the reasons for choosing that formula, it is perfectly clear that the plea would be groundless. The justification for the decision to use a compound interest rate instead of a simple one is not inherent in the operation itself.
30. I therefore consider that the first plea of the appeal should not be upheld.
B – The second plea, alleging that ‘the use of a compound interest rate is necessarily implicit in the reasoning of the contested decision’
1. Arguments of the parties
31. In its second plea the Commission maintains that the use of a compound interest rate is implicit in the reasoning of the contested decision, as it was necessary in order to achieve the objective of restoring the situation prevailing before the granting of the aid.
32. The Département du Loiret and Scott, by contrast, maintain that nothing in the contested decision indicates the reasons for deciding to apply a compound interest rate, all the more so as the Commission’s practice at the time was not to apply compound interest. The Département du Loiret, for its part, also states that in any event in the present case an implied statement of reasons could not have met the Commission’s obligation to state the reasons for the decision.
2. Assessment
33. It is clear to me that in its appeal the Commission itself recognises that the contested decision did not provide an explicit statement of the reason for deciding to use compound interest to calculate the present-day value of the State aid. Indeed, the Commission observes that the use of compound interest was ‘necessarily implicit’ in the reasoning of the decision.
34. I consider that the plea under examination cannot be accepted.
35. As the Court of First Instance found, in particular in paragraphs 40 to 43 of the judgment under appeal, at the time of the facts of the case the use of compound interest represented a significant change in the Commission’s decision‑making practice. Hence, as the Court of First Instance correctly observed, the particular importance of a statement of reasons in the present case.
36. I also observe that the very idea of an ‘implied statement of reasons’ in the context of an administrative decision seems to me to be incompatible with the principles which the Court has repeatedly upheld with regard to the statement of reasons. In particular, according to settled case-law, the statement of reasons required by Article 253 EC must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question, so as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. (7)
37. In the light of that general principle, the Court has conceded that in some cases a decision may be reasoned in a ‘summary’ manner (which, however, is not the same as ‘implied’). This may occur, in particular, where a decision has been adopted in a context that is well known and, above all, forms part of a consistent decision-making practice of the institution issuing the decision. (8) Hence, in a situation far different from that at the origin of the contested decision.
38. It seems clear to me that in the present case the assessment by the Court of First Instance is above all possible reproach. Neither a summary statement of reasons nor, even less, an implied statement of reasons, even if it were accepted that such a statement could be deduced from the text of the contested decision, could meet the Commission’s obligation to provide a statement of reasons.
39. In my opinion, therefore, nor should the second plea be accepted.
C – The third plea challenging an unlawful reversal of the burden of proof
1. Arguments of the parties
40. In the third plea, which links partly to the second, the Commission claims that it was for the applicant to show that the Commission’s decision-making practice had changed as regards the calculation of interest and it maintains that the Commission did not have any burden of proof in that respect. In other words, the applicant should have proven fully that at the time of the contested decision the Commission did not as a rule use the mechanism of compound interest. According to the Commission, that evidence was not provided.
41. The Département du Loiret and Scott, on the other hand, maintain that they provided the Court of First Instance with sufficient information to attest to the fact that at that time the Commission’s practice did not provide for the use of a compound interest rate. Faced with that evidence, the Commission had not been able to produce any evidence to the contrary. Hence in their view the judgment of the Court of First Instance was correct.
2. Assessment
42. I wish to emphasise once again that, as I have observed above, (9) a statement of reasons that is completely ‘implied’, or substantially absent from the text of the decision, could not be adequate even for acts that accord with a well-established decision-making practice of Community institutions.
43. Moreover, even if it were held that the statement of reasons potentially contained in the contested decision could be considered ‘summary’ and not ‘implied’, it seems to me that the observations made by the Court of First Instance, particularly in paragraphs 39 to 43 of the judgment under appeal, explain in a more than adequate manner the conviction of the Court of First Instance that, at the time of the contested decision, the application of compound interest represented an important change in the decision-making practice of the Commission. In addition, in the context of its powers to ascertain the facts of the case, the Court of First Instance also addressed a written question to the Commission designed precisely to ascertain the practice of that Community institution at that time. On the basis of the reply provided by the Commission, the Court of First Instance therefore drew the conclusions that it set out in the judgment.
44. In particular, the Court of First Instance observed that, by taking an explicit position in 2003 on the question of the interest to charge, (10) the Commission had acknowledged the need to provide clarification on this point, at a time subsequent to the contested decision. Specifically, in that communication the Commission stated that ‘[a]ccordingly the Commission wishes to inform the Member States and interested parties that in any future decisions it may adopt ordering the recovery of aid unlawfully granted, it will apply the reference rate used for calculating the net grant equivalent of regional aids on a compound basis’ (my italics).
45. The Court of First Instance, as the court responsible for ascertaining the facts, was therefore able to ascertain and justify exhaustively, in the judgment under appeal, that the Commission’s decision-making practice did not provide for the use of compound interest: (11) it is therefore clear that this plea is unfounded and thus cannot be upheld.
D – The fourth plea, according to which the Commission was not required to verify that an advantage continued to exist at the time of ordering recovery
1. Arguments of the parties
46. The Commission maintains that the Court of First Instance erred in law by holding that the Commission was required to consider whether the recipient of the aid still retained an advantage at the time of ordering recovery of that aid. In particular, in the opinion of the Commission, the error committed by the Court of First Instance is evident in the reasoning of that court in paragraphs 50 and 52 of the judgment under appeal.
47. The Département du Loiret and Scott maintain, by contrast, that in those passages the Court of First Instance did not state in any manner that verification of the existence of an advantage at the time of the decision on aid is a precondition for the recovery of the aid. In their view, the Court of First Instance merely observed that it had to be ascertained whether an advantage still existed at the time of the decision on aid in order to justify the use of a compound interest rate.
2. Assessment
48. The plea under examination is nugatory and in any event unfounded.
49. I share the opinion expressed by the Département du Loiret and Scott that the Court of First Instance simply stated that, since the Commission should have given adequate reasons for the use of a compound interest rate, for the purpose of that statement of reasons it was also necessary to demonstrate the concrete advantage enjoyed by the recipient of the aid in the years following that in which the aid was granted. It is clear that it would have been difficult to base the decision to apply a compound interest rate, instead of the simple interest rate normally used at that time, on anything but the existence of an enduring advantage to the recipient.
50. The plea is therefore first and foremost nugatory, in that the reasoning set out by the Court of First Instance, particularly in paragraph 50 of the judgment under appeal, was of no consequence for the purpose of the decision to annul the contested act, a decision that was based solely on the lack of a statement of reasons for the Commission’s decision to apply a compound interest rate.
51. The plea is also unfounded, because it rests on the erroneous premise that the Court of First Instance surreptitiously introduced an unlawful condition for ascertaining whether State aid existed.
E – The fifth and sixth pleas relating to the price at which the land was sold to Procter & Gamble
1. Arguments of the parties
52. In the fifth plea the Commission maintains, citing paragraph 51 of the judgment under appeal, that the Court of First Instance based its decision on ‘speculation’ rather than evidence, and moreover reversed the burden of proof with regard to the price at which the land was sold to Procter & Gamble. In particular, according to the Commission, the Court of First Instance ignored the fact that, as indicated in the contested decision, the price at which the land was sold to Procter & Gamble was never proven by the company receiving the aid. The Court of First Instance had accepted that amount as a fact.
53. In its sixth plea the Commission then maintains that the Court of First Instance erred in law in paragraphs 51 and 52 of the judgment under appeal by asserting that in its decision the Commission should have considered the price at which the land was sold to Procter & Gamble in 1998, 11 years after the granting of the State aid. In the opinion of the Commission, by contrast, that sale price was entirely irrelevant for the purposes of the decision on aid.
54. The Département du Loiret and Scott, for their part, maintain that the fifth and sixth pleas are inadmissible in that their purpose is to question assessments of fact made by the Court of First Instance. They also claim that, in any case, the pleas in question are nugatory, since the findings of the Court of First Instance on which they focus are superfluous within the scheme of the judgment under appeal.
2. Assessment
55. In my opinion, the observations of the Département du Loiret and Scott are essentially correct. First, it is clear that the observations of the Court of First Instance about the subsequent sale of the land to Procter & Gamble were not a determining factor for the purposes of the decision reached by that court. Hence the assessment that the Commission’s fifth and sixth pleas are nugatory.
56. Secondly, the Commission appears in any case to set out from a false supposition that the observations of the Court of First Instance criticised in the fifth and sixth pleas were the direct basis of the decision to annul the contested decision, as though the Court of First Instance had made the assessment of a series of factors that had arisen many years after the alleged granting of the aid one of the necessary conditions for finding that State aid existed.
57. In reality it is clear that the observations of the Court of First Instance about the subsequent sale of the land in 1998, in the context of that court’s reasoning, form part of the finding of fact that the Commission did not state reasons for the decision to use a compound interest rate.
58. The Court of First Instance therefore simply observed, superfluously in fact, that in taking the decision to use that type of interest rate instead of a simple interest rate the Commission could/should have taken account of the subsequent events affecting the land in question. In short, the Court of First Instance did not in any way state that investigation of the terms of the sale of the land in 1998, 11 years after the granting of the aid, was necessary for finding that the aid existed and that it was incompatible with the common market.
59. I therefore consider that nor can the fifth and sixth pleas of the appeal be upheld.
F – The seventh plea contesting the application of interest for the period following the contested decision at a different rate from that applied for the preceding period
1. Arguments of the parties
60. By its seventh plea the Commission maintains that the Court of First Instance erred in law in holding, in paragraph 53 of the judgment under appeal, that there was a contradiction in the fact that, under Article 2 of the contested decision, the interest applied to the sum to be recovered should have been compound interest for the period preceding the decision and simple interest, in accordance with national law, for the period between that decision and the actual recovery of the amounts.
61. In particular, according to the Commission, there is no contradiction, since in reality national law governs only the ‘procedures’ for the recovery of aid but not the interest rate applied, which is a substantive factor, not a procedural one.
62. According to the Département du Loiret and Scott, however, nothing in the contested decision indicates the need for the French authorities to use a compound interest rate for calculating the present-day value of the amount of aid for the period between the date of the contested decision and that of actual recovery. Consequently, in their view, the inconsistency noted by the Court of First Instance was real.
2. Assessment
63. I consider that the Commission’s seventh plea is also nugatory. The reason for the annulment of the contested decision by the Court of First Instance is the lack of an explanation for the decision to use a compound interest rate. Hence, the argument set out by the Court of First Instance about the contradiction between the different types of interest rate applicable on the one hand to the period between the granting of the aid and the adoption of the contested decision and on the other to the period between its adoption and the actual recovery of the sum is not decisive for the purposes of annulment of the decision, but is in fact stated superfluously.
64. Moreover, the plea also appears to be unfounded as to the substance.
65. As the Court of First Instance correctly noted, in particular in paragraph 11 of the judgment under appeal, nothing in the contested decision indicates that the Commission intended to ask the French authorities to apply a compound interest rate. Hence, on the basis of the law at the time, there is no doubt that the interest to be charged for the period between the contested decision and the actual recovery of the aid should have been calculated at a simple rate, under national law, and not at a compound rate.
66. Moreover, in its appeal the Commission was only able to repeat in this regard that the use of compound interest was the only system that would effectively redress the granting of the State aid. (12) It is clear, however, that a general assertion that it is appropriate to apply a compound interest rate cannot be sufficient for it to be held that the use of such a rate was implicitly provided for in the contested decision.
67. On the basis of these considerations, the seventh plea can also not be upheld.
G – The eighth plea, according to which the Court of First Instance should have ordered partial annulment
1. Arguments of the parties
68. By its eighth and last plea the Commission maintains that in any case the question of the interest rate applicable can and should be separated from that of the principal amount of the aid, so that the Court of First Instance, in finding an error with regard to the interest, should have annulled only the part of the contested decision relating to interest.
69. In other words, by annulling the entire contested decision the judgment under appeal was, according to the Commission, disproportionate and unlawful.
70. The Département du Loiret and Scott maintain that the plea in question is inadmissible. Since the Commission had not applied to the Court of First Instance for annulment of the contested decision in part, even in the alternative, that request, presented for the first time in the appeal, constitutes a broadening of the subject-matter of the dispute, which is prohibited under Article 58 of the Statute of the Court of Justice and Article 113 of the Rules of Procedure.
71. In their submission, the plea is also unfounded as to the substance, in that the question of the calculation of interest cannot easily be separated from the rest of the contested decision, so that the Commission’s request ultimately comes down to a request to amend the contested decision, and not simply to annul it in part. In a context in which the Community courts do not have so-called full jurisdiction, this is obviously impossible.
72. In any case, in the submission of the Département du Loiret and Scott, the reasons stated by the Court of First Instance for its decision to annul were based partly on the further complaints against the contested decision.
2. Assessment
73. The eighth ground of appeal raised by the Commission is undoubtedly the most complex, and therefore calls for careful analysis. In particular, the questions of whether the plea is admissible and whether it is well founded must be examined separately.
a) The admissibility of the plea
74. The admissibility of the plea must be assessed from two perspectives. First, it must be asked whether, going beyond the literal meaning of the operative part of the judgment under appeal, the judgment does not already constitute partial annulment of the contested decision. Secondly, it is necessary to examine the objection raised by the Département du Loiret and Scott, according to which the plea in question is inadmissible in that it is new.
i) The existence of a possible partial annulment of the contested decision
75. It could be held that the Commission’s plea is based on an incorrect premise. Despite the tenor of the operative part of the judgment under appeal, the judgment could be considered, to all intents and purposes, to be a partial annulment.
76. The Court has already had occasion to state, in the so-called Baby-Dry judgment, (13) that a partial annulment occurs if the Court of First Instance adopts a judgment which, despite providing in the operative part simply for the annulment of the contested decision, does so by accepting only some of the pleas of the applicant and confirming de facto, in the reasoning of the judgment, the legality of part of the decision.
77. Although such a partial annulment completely overturns the contested act, it permits the institution which adopted the act de facto to readopt it with more or less marginal amendments, but keeping part of it intact: (14) in the case of the contested decision, that would be the part containing the finding that the aid was incompatible with the common market and the determination of the ‘historic’ value of the aid, net of the subsequent revaluation.
78. In other words, to use the reasoning of the Court in the Baby-Dry judgment, although in the judgment under appeal the Court of First Instance formally annulled the contested decision in its entirety, at least in the part relating to the land, in reality it preserved the part of that decision not relating to the calculation of interest by not ruling on the other grounds of the application. (15)
79. From the viewpoint I have just described, the plea would be inadmissible for lack of a legal interest in bringing proceedings, (16) since by that plea the Commission would be requesting something (the separation of the part relating to interest, and the annulment of that part alone) which the Court of First Instance had in essence already granted. (17)
80. It should also be noted that in the Baby-Dry case the Court of First Instance had explicitly dismissed some of the pleas put forward by the applicant: in the judgment under appeal in the present case, by contrast, some pleas have simply been absorbed, without being the subject of an explicit ruling. However, in that case as in the present one, the judgment of the Court of First Instance ‘gives the appellant only partial satisfaction’. (18)
81. On the basis of the reasoning I have just described, the Court would have to rule that the eighth plea was inadmissible. However, I consider that that reconstruction, while interesting, should not be upheld.
82. There appears to be no doubt that in the present case the Court of First Instance intended to annul the contested decision in its entirety, or rather all of that part relating to the purchase of the land at a preferential price. It would therefore be possible to speak of ‘partial annulment’ only in the sense that the Commission could adopt a new act by amending the part relating to interest and reproducing verbatim the other parts of the contested decision.
83. Although it could be maintained, from the point of view of substance, that for the Commission the adoption of a new act dealing only with the question of interest might not be very different from the adoption of a new decision to replace the preceding one entirely (albeit differing from it only in the part relating to interest), the two situations cannot be considered to be entirely equivalent.
84. In the event of annulment ‘in part’, the contested decision would continue to exist as such, albeit in need of complementing with regard to the annulled part. By contrast, in the event of annulment pure and simple, even if the statement of reasons made reference to a specific aspect of the contested act, complete annulment would produce a situation in which the contested act was completely absent, at least temporarily.
85. I therefore consider that the Commission can legitimately aspire to ‘salvaging’ at least part of the contested decision, and therefore has an interest in bringing proceedings with regard to the plea under examination.
ii) The possible newness of the plea
86. As we have seen, the Département du Loiret and Scott maintain that the plea is inadmissible in that it allegedly broadens the subject‑matter of the dispute originally submitted to the Court of First Instance. They recall in particular the judgment of the Court of Justice in the IPK-München case. (19) In that judgment the plea in which the Commission maintained at appeal that the Court of First Instance should have annulled the contested decision only in part and not in its entirety was ruled to be inadmissible. In particular, the Court of Justice observed that ‘before the Court of First Instance the Commission neither asked in the forms of order sought that any annulment of the contested decision should be partial nor relied on a plea to that effect’: (20) the plea therefore had to be regarded as new and consequently inadmissible.
87. It is clear that, following the approach I have just described, the plea under examination here could also be ruled to be inadmissible.
88. I consider, however, that in the present case a different solution is preferable, for two reasons.
89. First, in my opinion the Commission is not submitting new pleas in law as the basis of its requests but is simply criticising the logic followed by the Court of First Instance in deriving a particular consequence (complete annulment of the contested decision) from a particular premise (the inadequacy of the statement of reasons for the calculation of interest). In that sense, the criticism does not put forward a new request but only challenges the logical reasoning of the Court of First Instance.
90. In this regard it should be noted that the case-law unquestionably holds that questions as to whether the grounds of a judgment of the Court of First Instance are contradictory or inadequate are questions of law that can be raised before the Court of Justice as grounds of appeal under Article 58 of the Statute of the Court. (21) Furthermore, in asserting its own lack of jurisdiction to assess the facts, the Court of Justice has stated that, in appeal proceedings, it is for the Court ‘to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them’ (22) (my italics). I therefore consider that in the present case it can be held that the Commission is entitled to raise before the Court of Justice what it regards as a logical error by the Court of First Instance in the grounds of the judgment.
91. Secondly, even if one were to view the problem from the perspective of the pleas put forward by the Commission, as Scott and the Département du Loiret do, it appears clear to me that the question regarding the point under examination should be assessed in terms of a ‘request’ rather than in terms of a ‘plea’. In other words, the Commission is proposing not so much a new ‘plea’ as, if anything, a new ‘request’.
92. Nevertheless, I consider that what the Commission is requesting in this plea can be regarded as a ‘minor’ request by comparison with the ‘major’ (that is to say broader) request made both before the Court of First Instance and, at appeal, before the Court of Justice. That ‘major’ request is naturally for the application for annulment from the Département du Loiret to be dismissed in its entirety.
93. As I see it, the narrower request can be considered to be subsumed within the broader request already made before the Court of First Instance. Hence we are not dealing here with a ‘new’ request.
94. Moreover, in that plea the Commission essentially asks the Court, albeit in a manner that is far from clear and not specifically reflected in the form of order sought, to set aside in part the judgment of the Court of First Instance and to uphold, again in part, the arguments that the Commission had set out at first instance, in accordance with Article 113 of the Rules of Procedure of the Court.
95. I therefore consider that the plea can be held to be admissible.
b) The substance of the plea
96. In order to examine the substance of the plea it is necessary first to verify whether, in the case in point, it is possible to separate the part of the contested decision relating to interest from the other components of the decision, in particular those regarding the incompatibility of the aid with Community law and the initial value of the aid. If the answer is in the affirmative, it will then be necessary to consider whether the Court of First Instance had a duty to set aside only the part of the decision relating to interest rather than annulling the entire decision.
i) The severability of the part relating to interest
97. According to settled case-law, the partial annulment of a decision of a Community institution is possible only if the elements the annulment of which is sought may be severed clearly from the remainder of the decision. (23) Such severance is normally ‘physical’ and consists in the possibility of annulling individual articles, paragraphs or other clearly identifiable parts of an act. In my opinion, however, the possibility of purely ‘logical’ severability can also be considered: such as, in the present case, severability between determination of the ‘historic’ amount of the aid and calculation of the interest on that aid.
98. In the judgment under appeal, the Court of First Instance could not have annulled a single specifically identifiable part of the contested decision, since the operative part does not devote a specific separate section to the question of interest. It could, however, have annulled the decision ‘to the extent that’ or ‘in the part in which’ the Commission failed to provide (an adequate) statement of reasons for the decision to use a compound interest rate.
99. Hence, it appears to me that, in concrete terms, the part relating to calculation of the interest on the aid can be severed from the remainder of the decision.
ii) The need to annul only the part relating to interest
100. I consider that the eighth plea put forward by the Commission should be upheld, for the following reasons.
101. First and foremost, I note that for reasons of completeness and legal certainty it is permissible to examine only certain pleas, and to consider the other pleas to have been absorbed within them, only where the accepted pleas permit full acceptance of the requests made. Since in the present case the plea accepted by the Court of First Instance relates only to one specific aspect of the contested decision, I do not consider that that court could confine itself to examining and accepting the plea cited, and basing thereon the annulment of the contested decision in its entirety.
102. Hence in my opinion the Court of First Instance made an error of logic by basing the annulment of the entire contested decision on the finding that the part of the decision relating to interest was unlawful.
103. Moreover, the decision of the Court of First Instance not to examine all the other pleas made by the applicant means that, if the Commission adopted a new decision with amendments only in the part relating to the calculation of interest, the Département du Loiret would face the expense of bringing a fresh action before the Court of First Instance against that decision, reiterating the various pleas already submitted but not examined. Quite apart from the possible problem of the admissibility of such an action, it seems obvious to me that it would run counter to every principle of procedural economy, which is all the more important in a case such as the present one dealing with events that now date back more than 20 years.
104. I therefore propose that the Court, having accepted the eighth plea put forward by the Commission, should set aside the judgment under appeal and refer the case back to the Court of First Instance for it to draw the appropriate conclusions from the unlawful action relating to interest and to rule in addition on the other pleas put forward by the Département du Loiret, without prejudice to the correctness of the assessment of the Court of First Instance as to the plea regarding the Commission’s use of a compound interest rate.
VI – Conclusions
105. In the light of the abovementioned considerations, I propose that the Court should:
(1) set aside the part of the judgment of the Court of First Instance of the European Communities of 29 March 2007 in Case T‑369/00 Département du Loiret v Commission in which the Court annulled the contested decision in its entirety on the basis of the unlawful action regarding the calculation of interest;
(2) refer the case back to the Court of First Instance of the European Communities;
(3) reserve the decision as to costs.