JUDGMENT OF THE GENERAL COURT (First Chamber)

12 July 2019 (*)

(State aid – Aid scheme implemented by France between 1994 and 2008 – Investment subsidies awarded by the Île-de-France Region – Decision declaring the aid scheme compatible with the internal market – Concepts of ‘existing aid’ and ‘new aid’ – Article 107 TFEU – Article 108 TFEU – Article 1(b)(i) and (v) of Regulation (EU) 2015/1589 – Limitation period – Article 17 of Regulation 2015/1589)

In Case T‑309/17,

Organisation professionnelle des transports d’Île de France (Optile), established in Paris (France), represented by F. Thiriez and M. Dangibeaud, lawyers,

applicant,

v

European Commission, represented by L. Armati, C. Georgieva-Kecsmar and T. Maxian Rusche, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for the annulment in part of Commission Decision (EU) 2017/1470 of 2 February 2017 on State aid schemes SA.26763 2014/C (ex 2012/NN) implemented by France in favour of bus transport undertakings in the Île-de-France Region (OJ 2017 L 209, p. 24),

THE GENERAL COURT (First Chamber),

composed of I. Pelikánová, President, V. Valančius and U. Öberg (Rapporteur), Judges,

Registrar: E. Coulon,

gives the following

Judgment

 Background

1        By this action, the applicant, Organisation professionnelle des transports d’Île de France (Optile), seeks the annulment in part of Commission Decision (EU) 2017/1470 of 2 February 2017 on State aid schemes SA.26763 2014/C (ex 2012/NN) implemented by France in favour of bus transport undertakings in the Île-de-France Region (OJ 2017 L 209, p. 24; ‘the contested decision’).

2        The applicant is an association whose members are undertakings that provide road-based scheduled public passenger transport services in the territory of the Île-de-France Region (France) (‘the Region’). Those undertakings operate routes and networks primarily serving the départements of the ‘outer ring’ of Paris (namely Seine-et-Marne, Yvelines, Essonne and Val-d’Oise), whilst the régie autonome des transports parisiens (RATP) holds the monopoly in road transport networks in inner Paris and the départements bordering it.

3        On 20 October 1994, the conseil régional d’Île-de-France (Regional Council for Île-de-France, France) adopted resolution CR 34-94 on aid for the improvement of public road transport services operated by private undertakings or undertakings under local authority control aimed at renewing a series of aid measures previously implemented for the benefit of those undertakings. It was followed by two further resolutions, namely resolutions CR 44-98 and CR 47-01 (taken together with resolution CR 34-94, ‘the disputed resolutions’), in 1998 and 2001, respectively, before the aid mechanism put in place was withdrawn in 2008.

4        Under the disputed resolutions, the Region granted financial aid to public authorities in its territory which had signed contracts for scheduled bus services with private undertakings providing scheduled public transport services by road or which were operating such services directly under local authority control. The public authorities subsequently paid the aid over to those transport undertakings (‘the final beneficiaries’).

5        The aid was granted in the form of investment subsidies and was intended to promote the purchase of new vehicles and the installation of new equipment by the final beneficiaries, with a view to improving the supply of public transport and addressing the negative externalities associated with particularly heavy traffic in the Region’s network.

6        According to the French authorities, 135 undertakings benefited from the aid provided by the Region between 1994 and 2008. Limits on how the aid was to be used were stipulated in amendments to the operating agreements concluded between the public authorities and final beneficiaries. The amendments were countersigned by the chairman of the Regional Council for Île-de-France and set out the obligations imposed on the final beneficiaries in return for payment of the aid.

7        On 17 October 2008, the European Commission received a complaint concerning the State aid schemes, which were alleged to be unlawful, consisting of support measures implemented in favour of a number of bus transport undertakings, between 1994 and 2008, by the Region in its territory, and subsequently, from 2008 onwards, by the syndicat des transports d’Île-de-France (Île-de-France Transport Authority, France) (STIF).

8        By letter of 11 March 2014, the Commission notified the French Republic of its decision to initiate the formal investigation procedure laid down in Article 108(2) TFEU. By the publication of that decision in the Official Journal of the European Union (OJ 2014 C 141, p 38), the Commission invited interested parties to submit their comments on the measures at issue.

9        On 30 April 2014, the French Republic submitted its comments to the Commission. All the comments filed by the interested parties, including the applicant, were forwarded to the French Republic, which did not make any comment.

10      On 21 June 2016, the Commission received a joint note from four of the seven interested parties, the purpose of which was to clarify their position following delivery of the judgment of 6 October 2015, Commission v Andersen (C‑303/13 P, EU:C:2015:647). On 9 November 2016, the Region, as an interested party, supplemented its comments.

11      On 2 February 2017, the Commission adopted the contested decision and closed the formal investigation procedure laid down in Article 108(2) TFEU.

12      In the contested decision, the Commission found, among other things, that the investment subsidies awarded by the Region under the aid scheme at issue, between 1994 and 2008, constituted State aid within the meaning of Article 107(1) TFEU which had not affected trade between Member States to an extent contrary to the common interest and were therefore compatible with the internal market within the meaning of Article 107(3) TFEU. However, it concluded that in so far as that aid had not been notified and had to be categorised as ‘new aid’, it had been unlawfully implemented, in infringement of Article 108(3) TFEU.

13      The operative part of the contested decision reads as follows:

‘Article 1

The aid scheme unlawfully implemented by [the French Republic] between 1994 and 2008 in the form of investment subsidies awarded by the Île-de-France Region by way of [resolutions] CR 34-94, CR 44-98 and CR 47-01 is compatible with the internal market.

Article 4

This Decision is addressed to the French Republic.’

 Proceedings before the national courts

14      In May 2004, the syndicat autonome des transporteurs de voyageurs (Independent Union of Passenger Carriers, France) (‘SATV’) asked the chairman of the Regional Council for Île-de-France to rescind the disputed resolutions. Following the refusal of that request, SATV brought an action for annulment before the tribunal administratif de Paris (Administrative Court, Paris, France) against the decision of the chairman of the Regional Council for Île-de-France on 17 June 2004.

15      By judgment No 0417015 of 10 July 2008, the tribunal administratif de Paris (Administrative Court, Paris) upheld SATV’s action and ordered the Region to submit a new resolution to the Regional Council for Île-de-France on the ground that the aid scheme implemented pursuant to the disputed resolutions had not been notified to the Commission. The tribunal administratif de Paris (Administrative Court, Paris) also ordered the Region to rescind the disputed resolutions.

16      The Region, while challenging that decision, adopted resolution CR 80-08 of 16 October 2008 rescinding the disputed resolutions.

17      By judgment No 08PA04753 of 12 July 2010, the cour administrative d’appel de Paris (Administrative Court of Appeal, Paris, France) upheld judgment No 0417015 of the tribunal administratif de Paris (Administrative Court, Paris) of 10 July 2008. The Region lodged an appeal on a point of law against that decision before the Conseil d’État (Council of State, France). By judgment No 343440 of 23 July 2012, the Conseil d’État (Council of State) dismissed that appeal.

18      Following a new application filed by SATV on 27 October 2008, the tribunal administratif de Paris (Administrative Court, Paris), by judgment No 0817138 of 4 June 2013, ordered the Region to issue writs of execution for recovery of the aid paid on the basis of the disputed resolutions. On 27 November 2015, the cour administrative d’appel de Paris (Administrative Court of Appeal, Paris) dismissed the appeal brought by the Region against that decision (judgment No 13PA03172). The Region lodged an appeal on a point of law before the Conseil d’État (Council of State), which was still pending when the application was lodged.

 Procedure and forms of order sought by the parties

19      By application lodged at the Court Registry on 15 May 2017, the applicant brought the present action for the annulment in part of the contested decision pursuant to Article 263 TFEU.

20      The applicant claims that the Court should:

–        declare the action admissible;

–        annul the contested decision in so far as it finds that the aid scheme implemented within the framework of resolutions CR 34-94, CR 44-98 and CR 47-01 constitutes a new aid scheme which was ‘unlawfully implemented’ or, in the alternative, in so far as it finds that solely the subsidies paid before May 1994 are time-barred.

21      The Commission contends that the Court should:

–        primarily, declare the action inadmissible;

–        in the alternative, dismiss the action;

–        order the applicant to pay the costs.

 Law

 Admissibility

22      The Commission, without raising a plea of inadmissibility by means of a separate document under Article 130(1) of the Rules of Procedure of the General Court, contends that the action is inadmissible due to the applicant’s not having standing to bring proceedings.

23      The applicant submits that, although it is not the addressee of the contested decision, it is entitled to bring the present action.

24      It must be noted that the Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of the action on the merits without first ruling on its admissibility (judgments of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52, and of 14 September 2015, Brouillard v Court of Justice, T‑420/13, not published, EU:T:2015:633, paragraph 18).

25      In the circumstances of the present case, the Court considers that, in the interests of procedural economy, the substance of the action should be examined at the outset, without first ruling on its admissibility.

 Substance

26      In support of its action, the applicant, in essence, raises two pleas in law. The first plea alleges (i) infringement of Article 1(b)(i) and (v) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 249, p. 9), that the Commission was incorrect to the view in the contested decision that the aid granted under the aid scheme at issue, between 1994 and 2008, was new aid which, in the absence of notification, had been implemented unlawfully, and (ii) infringement of the obligation to state reasons in the context of the application of Article 1(b)(v) of that regulation, that the Commission did not provide sufficient details of the reasons why, in its view, that aid already constituted State aid within the meaning of Article 107(1) TFEU at the time it was introduced. The second plea, put forward in the alternative, alleges infringement of Article 17(2) of Regulation 2015/1589 in so far as the Commission erred in concluding in the contested decision that only the aid paid under the aid scheme at issue before May 1994 was time-barred.

 First plea in law alleging infringement of Article 1(b)(i) and (v) of Regulation 2015/1589 and infringement of the obligation to state reasons

27      As a preliminary point, the Commission submits that the applicant did not frame the first plea as alleging infringement of the ‘substantive rules’ of EU law.

28      That argument can be rejected at the outset since, in its written pleadings, the applicant cited Article 1(b)(i) and (v) of Regulation 2015/1589 and expressly based its arguments on that provision. The headings of the complaints comprising the first plea thus contain, respectively, a reference to Article 1(b)(i) of Regulation 2015/1589 and a reference to Article 1(b)(v) thereof. It follows that the Commission cannot claim that the applicant failed to base the present plea on specific provisions of EU law.

29      In addition to the alleged infringement of Article 1(b)(i) and (v) of Regulation 2015/1589, the applicant takes issue with the Commission for failing to provide sufficient details in the contested decision of the reasons why, in its view, the aid granted under the aid scheme at issue already constituted aid within the meaning of Article 107(1) TFEU at the time it was introduced and was therefore not capable of constituting existing aid under Article 1(b)(v) of Regulation 2015/1589.

30      In that regard, a claim that there is no, or only an inadequate, statement of reasons is intended to establish an infringement of essential procedural requirements and, therefore, should be examined separately, as such, from the question whether the grounds for the contested decision are accurate, the latter being a matter for the Court to review when it examines the substance of that decision (see, to that effect, judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67, and of 15 December 2005, Italy v Commission, C‑66/02, EU:C:2005:768, paragraph 26).

31      In those circumstances, it is therefore necessary to examine the complaint alleging infringement of the obligation to state reasons in the context of the application of Article 1(b)(v) of Regulation 2015/1589 before the other complaints raised in this plea, which concern the substantive legality of the contested decision.

–       Complaint alleging infringement of the obligation to state reasons

32      The applicant submits, in essence, that the Commission did not state the reasons for its decision not to classify the aid granted under the aid scheme at issue as existing aid under Article 1(b)(v) of Regulation 2015/1589, in so far as it failed to determine the precise date on which that scheme was introduced and merely stated that the date fell ‘between 1979 and 2008’.

33      The applicant claims, in particular, that the Commission’s reasoning was contradictory in that it found, on the one hand, that the aid granted under the aid scheme at issue was established in 1979 and, on the other, that resolution CR 84-07 (dating from 1984) was the legal basis for it. Moreover, in recitals 226 and 237 of the contested decision, the Commission took the view that the criterion that trade between Member States be affected was satisfied, irrespective of the date on which the aid scheme at issue was introduced. In recital 228 of the contested decision, it nevertheless stated that only subsidies awarded after 1993 were likely to affect trade between Member States.

34      The Commission disputes the applicant’s arguments.

35      It should be noted that, under the second paragraph of Article 296 TFEU, legal acts are to state the reasons on which they are based. Moreover, according to Article 41(2) of the Charter of Fundamental Rights of the European Union, the right to good administration includes the obligation of the administration to give reasons for its decisions.

36      The Court has consistently held that the scope of the obligation to state reasons depends on the nature of the measure at issue and on the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, in such a way as to enable the EU judicature to carry out its review and to enable the persons concerned to ascertain the reasons for the measure so that they can defend their rights and ascertain whether or not the measure is well founded (see judgment of 6 March 2003, Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission, T‑228/99 and T‑233/99, EU:T:2003:57, paragraph 278 and the case-law cited).

37      It is not necessary for the statement of reasons to specify all the relevant matters of fact or of law, since the question whether the statement of reasons for a measure satisfies the requirements of the second paragraph of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 6 March 2003, Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission, T‑228/99 and T‑233/99, EU:T:2003:57, paragraph 279).

38      However, although the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned, it must set out the facts and the legal considerations having decisive importance in the context of the decision (see, to that effect, judgment of 6 March 2003, Westdeutsche Landesbank Girozentrale and Land Nordrhein-Westfalen v Commission, T‑228/99 and T‑233/99, EU:T:2003:57, paragraph 280).

39      With regard to the categorisation of a measure as aid, the obligation to state reasons requires that the reasons which led the Commission to consider that the measure concerned falls within the scope of Article 107(1) TFEU should be stated (judgment of 13 June 2000, EPAC v Commission, T‑204/97 and T‑270/97, EU:T:2000:148, paragraph 36).

40      Furthermore, even in cases where it is clear from the circumstances under which it was granted that the aid is liable to affect trade between Member States or to distort or threaten to distort competition, the Commission must at least set out those circumstances in the statement of reasons for its decision (judgments of 7 June 1988, Greece v Commission, 57/86, EU:C:1988:284, paragraph 15; of 24 October 1996, Germany and Others v Commission, C‑329/93, C‑62/95 and C‑63/95, EU:C:1996:394, paragraph 52; and of 30 April 1998, Vlaamse Gewest v Commission, T‑214/95, EU:T:1998:77, paragraph 64).

41      If Article 107(1) TFEU is not to be rendered meaningless, the effect on trade between Member States cannot be purely hypothetical or presumed. Thus, it is necessary to determine the reason why the measure concerned distorts or threatens to distort competition and is liable by its foreseeable effects to have an impact on trade between Member States (judgment of 18 May 2017, Fondul Proprietatea, C‑150/16, EU:C:2017:388, paragraph 30).

42      It should be recalled that, under Article 1(b)(v) of Regulation 2015/1589, aid is deemed to be existing aid if, at the time it was put into effect, it did not constitute aid but subsequently became aid due to the evolution of the internal market and without having been altered by the Member State. On the other hand, where certain measures become aid following the liberalisation of an activity by EU law, such measures are not to be regarded as existing aid after the date fixed for liberalisation.

43      The Commission concluded, in recitals 226 and 237 of the contested decision, that in so far as the final beneficiaries were likely to use the subsidised equipment in connection with occasional transport or on other scheduled transport markets open to competition in France or within the territory of the European Union, the aid granted under the aid scheme at issue was likely to distort competition and affect trade between Member States and, consequently, constitute State aid within the meaning of Article 107(1) TFEU, as soon as it was implemented for the first time.

44      In support of that conclusion, the Commission cited judgment No 0417015 of 10 July 2008 of the tribunal administratif de Paris (Administrative Court, Paris) and judgment No 08PA04753 of 12 July 2010 of the cour administrative d’appel de Paris (Administrative Court of Appeal, Paris) finding that the implementation of the aid scheme at issue was unlawful.

45      Moreover, after stating that the grant of regional aid was regulated by the disputed resolutions, the first of which dated from 1994 and which formed the legal basis for the aid scheme at issue, the Commission took proper account of the arguments of the parties to the administrative procedure seeking to establish that that scheme had been introduced either prior to the entry into force of the Treaty establishing the European Community in France (now the TFEU), or before 1994, when the market for scheduled public transport by road was not yet open to competition, that is, 1984 or, at the earliest, 1979.

46      It is apparent from recitals 234 to 237 of the contested decision that the Commission’s examination of whether a State aid scheme, in terms of Article 107(1) TFEU, existed in relation to aid granted before 1994 was conducted for the sole purpose of responding to the arguments put forward by the Region and a number of interested parties during the administrative procedure.

47      Consequently, it cannot be inferred from recitals 234 to 237 of the contested decision that the Commission itself considered that the aid scheme at issue could have been introduced at any time between 1979 and 2008. On the contrary, it took the view that the period between 1979 and 1994 preceded the introduction of the aid scheme at issue. In those circumstances, it cannot be accused of having failed to explain why the subsidies awarded during that period were able to be categorised as State aid within the meaning of Article 107(1) TFEU.

48      In addition, the Commission cannot be criticised for not having provided sufficient details of the reasons why, in its view, it was appropriate to reject the arguments of the interested parties to the effect that the aid scheme at issue had been introduced prior to 1994 and had to be categorised as an existing aid scheme because the scheduled passenger transport market was not yet open to competition on that date.

49      The Commission explained, in recitals 226 and 237 of the contested decision, that even if the aid scheme at issue had been established prior to 1994, it would have been likely to distort competition and affect trade between Member States and, consequently, satisfy the criteria laid down in Article 107(1) TFEU as soon as it was introduced, given the presence of the final beneficiaries on the market for occasional passenger transport.

50      It follows that the Commission provided a statement of reasons which, although brief, was sufficient in the present case to enable the applicants to ascertain the reasons for its view that, from the point at which the aid scheme at issue was set up, the aid granted under that scheme was likely to distort competition and affect trade between Member States and, therefore, constitute new aid within the meaning of Article 1(b)(v) of Regulation 2015/1589.

51      Accordingly, the complaint alleging infringement of the obligation to state reasons must be rejected.

–       Complaint alleging infringement of Article 1(b)(i) of Regulation 2015/1589

52      The applicant submits, in essence, that the aid scheme at issue must be categorised as an existing aid scheme under Article 1(b)(i) of Regulation 2015/1589. It claims that the possibility for public authorities to award subsidies to undertakings providing public passenger transport services by road, under contracts defining the latter’s service obligations and fare obligations, was introduced by Article 19 of décret no 49-1473, du 14 novembre 1949, relatif à la coordination et à l’harmonisation des transports ferroviaires et routiers (Decree No 49-1473 of 14 November 1949 on the coordination and harmonisation of rail and road transport); (JORF of 15 November 1949, p. 11104; ‘the 1949 Decree’), before the entry into force of the Treaty establishing the European Economic Community in France on 1 January 1958. It states that, under Article 1(b)(i) of Regulation 2015/1589, aid introduced before the entry into force of the TFEU in the Member State concerned is to be regarded as existing aid.

53      The Commission disputes the applicant’s arguments.

54      In particular, the Commission contends that even if the 1949 Decree introduced the possibility for French local authorities to conclude subsidy agreements with public transport undertakings, that decree was, in any event, substantially altered by the disputed resolutions.

55      The 1949 Decree laid down the following:

‘Article 2

The following passenger transport services shall be subject to coordination and harmonisation measures under the provisions of Article 7 of the Law of 5 July 1949:

2. The public passenger transport services by road listed below …:

Scheduled services, including seasonal and periodic services …;

Occasional services, that is to say, services which, although provided on request, meet the public’s general needs and are renewed at given times each year …

Article 19

A local authority may subsidise a road service by signing a contract with an undertaking laying down the obligations imposed on the latter over and above those to which it is subject under its operating rules.

The fares established in accordance with this contract shall comply with all the rules contained in the preceding articles.’

56      As regards whether the aid granted under the aid scheme at issue had its origin in the 1949 Decree, it must be stated, first, that the procedure for awarding subsidies laid down in the 1949 Decree differed from the conditions for granting aid under resolution CR 34-94. As the Commission rightly points out, under resolution CR 34-94, investment subsidies were awarded by the Region to public authorities before being paid over to the final beneficiaries. No such pay-over mechanism existed under the 1949 Decree.

57      Secondly, it is apparent from judgment No 343440 of 23 July 2012 of the Conseil d’État (Council of State) that the subsidies awarded under resolution CR 34-94 were intended solely to facilitate the purchase of equipment by public transport undertakings in Île-de-France; the aid scheme at issue had neither the object nor effect of imposing fare obligations on the final beneficiaries in return. The same cannot be said of Article 19 of the 1949 Decree, which, whilst making general provision enabling French local authorities to conclude subsidy agreements with those same undertakings, sought to control the fares charged. Article 11 of that decree thus provided that ‘in respect of services covered by a contract with a local authority, fares shall be set … in accordance with the contract concluded between the undertaking and the authority that pays the subsidy’.

58      Thirdly, the disputed resolutions contained no reference to the 1949 Decree. They mentioned only the Code général des collectivités territoriales (General Code on local authorities), loi no 82-1153, du 30 décembre 1982, d’orientation des transports intérieurs (Law No 82-1153 of 30 December 1982 laying down guidelines for domestic transport) (JORF of 31décembre 1982, p. 4004) and several earlier resolutions and decrees adopted in accordance with national law, which did not include the 1949 Decree.

59      Fourthly, the disputed resolutions formed part of a specific legislative framework concerning the organisation of transport in Île-de-France, which was defined, for the first time, in ordonnance no 59-151, du 7 janvier 1959, relative à l’organisation des transports de voyageurs dans la région parisienne (Order No 59-151 of 7 January 1959 on the organisation of passenger transport in the Paris area) (JORF of 10 January 1959, p. 696), almost 10 years after the adoption of the 1949 Decree.

60      It follows from all those considerations that the 1949 Decree was not the legal basis for the aid scheme at issue.

61      In those circumstances, it must be held that the applicants have not adduced sufficient evidence before the Court to prove that the aid scheme at issue must be categorised as an existing aid scheme under Article 1(b)(i) of Regulation 2015/1589.

62      Therefore, the complaint alleging infringement of Article 1(b)(i) of Regulation 2015/1589 must be rejected.

–       Complaint alleging infringement of Article 1(b)(v) of Regulation 2015/1589

63      The applicant submits, in essence, that the Commission infringed Article 1(b)(v) of Regulation 2015/1589 in so far as it did not find, in the contested decision, that the aid granted by the Region amounted to an existing aid scheme under that provision.

64      It argues, in particular, that since the public transport markets of the Member States of the European Union were not open to competition until 1995, the date accepted in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), concerning the opening up of those markets, the subsidies awarded under the disputed resolutions were not capable of constituting an aid scheme for the purposes of Article 107(1) TFEU when they were awarded for the first time.

65      According to the applicant, the aid scheme at issue was established by resolution CR 79-21 of 10 July 1979 and supplemented by resolution CR 80-40 of 10 December 1980, when the public transport markets were not open to competition in the European Union. That scheme was renewed without any substantial alteration in 1984, 1994, 1998 and 2001.

66      The Commission contends that, as the tribunal administratif de Paris (Administrative Court, Paris) held in judgment No 0417015 of 10 July 2008, the final beneficiaries operated both on the scheduled passenger transport market and on the occasional passenger transport market. The occasional passenger transport market was already liberalised in 1979. Accordingly, the aid scheme at issue was likely to affect competition between Member States on that market, irrespective of its date of introduction, as long as that date fell between 1979 and 2008.

67      The Commission adds that the date to be taken into account for the opening up of the scheduled passenger transport market is the date of the entry into force of loi no 93-122, du 29 janvier 1993, relative à la prévention de la corruption et à la transparence de la vie économique et des procédures publiques (Law No 93-122 of 29 January 1993 on the prevention of corruption and transparency in economic affairs and public procedures) (JORF of 30 January 1993, p. 1588; ‘the Sapin Law’), which enabled investors and operators to enter the French market and transposed into French law Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84).

68      According to the Commission, the fact that it is apparent from the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), that some Member States opened up their markets to competition in 1995 does not mean that the French Republic could not have opened up its own market as of 1993.

69      According to the case-law of the Court, the concept of ‘evolution of the internal market’ in Article 1(b)(v) of Regulation 2015/1589 can be understood as referring to a change in the economic and legal framework of the sector concerned by the measure in question. Such a change may, in particular, be the result of the liberalisation of a market initially closed to competition (see, by analogy, judgment of 24 March 2011, Freistaat Sachsen and Land Sachsen-Anhalt v Commission, T‑443/08 and T‑455/08, EU:T:2011:117, paragraph 188).

70      In accordance with Article 1(b)(v) of Regulation 2015/1589, the date on which an activity is liberalised by EU law must be taken into consideration for the sole purpose of ensuring that, after that date, a measure which did not constitute aid before that liberalisation should not be categorised as existing aid (see, by analogy, judgment of 16 January 2018, EDF v Commission, T‑747/15, EU:T:2018:6, paragraph 369).

71      In the present case, it is apparent from the contested decision, particularly recitals 18(a), 19, 183 and 186 thereof, that the Commission found that the aid scheme at issue had been introduced in 1994 and withdrawn in 2008, with the result that the 1979 initial aid mechanism must be considered to be a separate aid scheme from that implemented by resolution CR 34-94 et seq.

72      As regards whether the aid scheme at issue must be categorised as an existing aid scheme under Article 1(b)(v) of Regulation 2015/1589 or in accordance with the case-law to the effect that a system of aid established in a market that was initially closed to competition must, when that market is liberalised, be regarded as an existing aid system (judgment of 15 June 2000, Alzetta and Others v Commission, T‑298/97, T‑312/97, T‑313/97, T‑315/97, T‑600/97 to T‑607/97, T‑1/98, T‑3/98 to T‑6/98 and T‑23/98, EU:T:2000:151, paragraph 143), it must be borne in mind that the Sapin Law, which liberalised the scheduled passenger transport market across the whole of France, with the exception of Île-de-France, was adopted in 1993, that is, before the date on which resolution CR 34-94 came into force, and that the latter date coincides, according to the Commission’s analysis in the contested decision, as recalled in paragraph 71 above, with the date on which the aid scheme at issue was introduced.

73      In the light of the foregoing, the Commission was correct to find, in the contested decision, that the final beneficiaries could, from 1994 onwards, use the equipment financed by the aid granted under the aid scheme at issue on other scheduled passenger transport markets open to competition and, consequently, that that aid was likely to affect competition and trade between Member States and constitute new aid from that date.

74      That conclusion cannot be called into question by the applicant’s assertion that the Sapin Law pre-dates any formal liberalisation of the scheduled transport market by EU law. Article 1(b)(v) of Regulation 2015/1589 must be interpreted as meaning that the mere fact that a date for liberalisation has been fixed as a result of the entry into force of EU legislation is not sufficient to prevent a measure from being categorised as new aid if, by reference to the evolution of the market, it can be proven that the measure was adopted on a market that was already open, wholly or partly, to competition before the date set for the liberalisation of the activity in question by EU law (see, by analogy, judgment of 16 January 2018, EDF v Commission, T‑747/15, EU:T:2018:6, paragraph 369).

75      In that regard, it must be pointed out that the applicant did not challenge the categorisation of the subsidies awarded under the disputed resolutions as State aid, within the meaning of Article 107(1) TFEU, in respect of the period from 1994 to 2008. Moreover, the Commission’s finding that all the criteria laid down in Article 107(1) TFEU were satisfied for that period is consistent with the analysis set out in the decisions of the national courts, namely, in particular, judgment No 0417015 of 10 July 2008 of the tribunal administratif de Paris (Administrative Court, Paris) and judgment No 08PA04753 of 12 July 2010 of the cour administrative d’appel de Paris (Administrative Court of Appeal, Paris), cited, inter alia, in recital 226 of the contested decision.

76      Furthermore, even if, as the applicant claims, the Commission erred in finding that the aid scheme at issue was not introduced until 1994, that error alone would not be sufficient to invalidate the conclusion that it must be considered to be a new aid scheme. As noted in paragraph 48 above, it is apparent from recitals 226 and 237 of the contested decision that, even on the assumption that the aid scheme at issue should be regarded as having been introduced in 1979 or, at the latest, 1994, when the scheduled passenger transport market was still closed to competition, the final beneficiaries were likely to use the equipment partly financed by the Region in connection with occasional transport activities open to competition.

77      In the instant case, the applicant has not adduced any specific evidence to prove that the occasional transport market was not the subject of trade between Member States during the period prior to the introduction of the aid scheme at issue or at the time of its introduction.

78      Moreover, the cour administrative d’appel de Paris (Administrative Court of Appeal, Paris) had already drawn attention to the relevance of the occasional passenger transport market in judgment No 15PA00385 of 27 November 2015. Thus, the Commission, on the basis of the decisions of the national courts, found that the aid scheme at issue had to be regarded as having affected trade between Member States and competition since its introduction, even supposing it had been established in 1979.

79      In the light of all the foregoing considerations, the complaint alleging infringement of Article 1(b)(v) of Regulation 2015/1589 must be rejected, as must the first plea in law in its entirety.

 Second plea in law alleging infringement of Article 17(2) of Regulation 2015/1589

80      The applicant essentially disputes the finding in recital 239 of the contested decision that, since an initial action was brought before the national courts in May 2004, only aid granted under the aid scheme at issue before May 1994 is time-barred.

81      In particular, the applicant submits that the Commission infringed Article 17 of Regulation 2015/1589 in finding, in the contested decision, that the limitation period laid down by that provision could be suspended by the lodging of an action before the national courts by a private party. It argues that, under that provision, only an act emanating from the Commission or a Member State acting at the Commission’s request is capable of suspending the limitation period.

82      The applicant also asserts that the Commission infringed the procedural rights of the interested parties and the principle of the protection of legitimate expectations, since it did not inform them of the alteration of the limitation period previously set down in the decision to initiate the procedure of 11 March 2014, which provided that only the years elapsed as from 1998 were not time-barred.

83      The Commission contends that the second plea is ineffective. It maintains that its analysis of the limitation period for aid granted under the aid scheme at issue in the light of the national proceedings does not concern the interpretation of Article 17 of Regulation 2015/1589, but the interpretation of Article 108(3) TFEU.

84      According to the Commission, Article 108(3) TFEU seeks to ensure that the national courts maintain the Commission’s exclusive jurisdiction over the authorisation of aid and the power to recover aid. The limitation period is determined by national law and may be suspended by the first legal action brought before the national courts by one of the final beneficiaries’ competitors.

85      Article 17(2) of Regulation 2015/1589 lays down the procedure for calculating the 10-year limitation period applying to the Commission’s power to recover aid, while Article 17(3) of that regulation provides that ‘any aid with regard to which the limitation period has expired shall be deemed to be existing aid’. Article 1(b)(iv) of Regulation 2015/1589 states that existing aid includes ‘aid which is deemed to be existing aid pursuant to Article 17’.

86      In that respect, it is apparent from recitals 238 to 240 of the contested decision that the limitation period for the disputed aid was examined by the Commission solely in order to determine whether the conclusion it had reached earlier in that decision, to the effect that the aid scheme at issue was a new aid scheme, might be called into question on account of a proportion of that aid being time-barred. In particular, recital 239 of the contested decision is intended to confirm that ‘any aid paid by the Region after May 1994 … must therefore be considered as being new aid in the current proceedings’.

87      It follows that the considerations set out in recital 239 of the contested decision are clearly linked to the analysis carried out in that decision concerning whether the aid scheme at issue was a new or existing aid scheme, so that the Commission, contrary to its assertions, intended in that recital to apply Article 1(b)(iv) of Regulation 2015/1589, read in conjunction with Article 17 of that regulation.

88      Moreover, it should be noted that the rules on limitation laid down in Article 17 of Regulation 2015/1589 relate only to the ‘powers of the Commission to recover aid’. That provision must be read as a continuation of Article 16(1) of that regulation, which essentially provides that only where a negative decision is taken concerning the unlawful aid, namely after finding that the disputed aid is incompatible with the internal market, can the Commission adopt a recovery decision.

89      It follows that the rules on limitation laid down in Article 17 of Regulation 2015/1589, and Article 1(b)(iv) of that regulation, are not intended to apply where, as in the present case, the Commission has acknowledged that unlawful aid is compatible with the internal market after it was granted.

90      Similarly, the 10-year limitation period set out in Article 17 of Regulation 2015/1589 cannot be interpreted as covering the powers of national authorities to recover interest in respect of the period during which the aid in question was unlawfully paid.

91      In that respect, is apparent from the very wording of Article 17(2) of Regulation 2015/1589 that that provision is intended to govern all aspects of the applicable limitation period in the event of a decision by the Commission to recover aid. The bringing of an action before the national courts by a competitor cannot therefore constitute ‘action taken by the Commission or by a Member State, acting at the request of the Commission, with regard to the unlawful aid’, within the meaning of Article 17(2) of Regulation 2015/1589.

92      In those circumstances, even if the national courts had decided, as regards the aid scheme at issue, that the aid granted under that scheme was time-barred from the date on which the first action was brought before them by a competitor of the final beneficiaries, that decision would not have been capable of binding the Commission.

93      Conversely, the powers of the national authorities concerning the possible recovery of the aid in question or interest in respect of the period during which that aid was unlawfully paid are subject only to the national legal rules on limitation applicable before the national courts.

94      In paragraphs 34 and 35 of its judgment of 5 October 2006, Transalpine Ölleitung in Österreich (C‑368/04, EU:C:2006:644), the Court clarified that, although Regulation 2015/1589 contains rules of a procedural nature that apply to all administrative procedures in the matter of State aid pending before the Commission, that regulation codifies and reinforces the Commission’s practice in reviewing State aid and does not contain any provision relating to the powers and obligations of the national courts, which continue to be governed by the provisions of the Treaty as interpreted by the Court.

95      In the present case, it must be borne in mind that the Commission was not in a position to exercise its powers of recovery over the final beneficiaries of the aid granted under the aid scheme at issue, since it had found, in Article 1 of the operative part of the contested decision, that the aid scheme at issue was compatible with the internal market.

96      In addition, it should be noted that where the Commission finds, as in the contested decision, that aid is unlawful, EU law requires the national courts to order the beneficiary of the aid to pay interest in respect of the period during which the aid in question was unlawfully paid (see, to that effect, judgments of 12 February 2008, CELF and ministre de la Culture et de la Communication, C‑199/06, EU:C:2008:79, paragraphs 51, 52 and 55, and of 16 October 2014, Alpiq RomIndustries and Alpiq RomEnergie v Commission, T‑129/13, not published, EU:T:2014:895, paragraph 39). However, even in the absence of exceptional circumstances, EU law does not require them to recover also the unlawful aid, where that aid is compatible with the internal market. Where relevant, therefore, it is only under national law that the national courts may have the power to order recovery of the unlawful aid, without prejudice to the right of the Member State concerned to re-implement that aid, subsequently, or to uphold claims for compensation for damage caused by reason of the unlawful nature of the aid (see, to that effect, judgment of 12 February 2008, CELF and ministre de la Culture et de la Communication, C‑199/06, EU:C:2008:79, paragraph 55).

97      Consequently, even if the Commission were to have erred in applying Article 1(b)(iv) and Article 17 of Regulation 2015/1589 in recital 239 of the contested decision, such error is not capable of producing legal effects vis-à-vis the applicants.

98      In the light of all the foregoing, the second plea must be declared ineffective on the ground that Article 17(2) of Regulation 2015/1589 did not apply in the present case, given that the aid scheme at issue was compatible with the internal market.

99      Since all of the pleas in law put forward in support of this action have been rejected, the action must be dismissed.

 Costs

100    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

101    In this case, since the applicant has been unsuccessful, it must be ordered to bear its own costs and, in addition, to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Dismisses the action;

2.      Orders the Organisation professionnelle des transports d’Île de France (Optile) to bear its own costs and to pay those incurred by the European Commission.

Pelikánová

Valančius

Öberg

Delivered in open court in Luxembourg on 12 July 2019.

[Signatures]


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*      Language of the case: French.