GC, 1st chamber, July 12, 2019, No T-738/17

THE GENERAL COURT,

1 The applicant, Syndicat Transport Île-de-France (STIF-IDF), is a public administrative institution established by 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), as amended.

2 As the organising authority for scheduled public passenger transport services in the territory of the Île-de-France Region (France), the applicant coordinates and finances the public transport services provided by the Régie autonome des transports parisiens (RATP), the Société nationale des chemins de fer français (SNCF) and private undertakings forming part of the network of the organisation professionnelle des transports d'Île-de-France (Optile).

3 By resolution 2006/1161 of 13 December 2006, the applicant created two types of successive contracts designed to establish a new system of contractual organisation for all scheduled public transport routes by road in the territory of the Île-de-France Region. Type 1 contracts were concluded for a maximum period of 4 years, from 2007 to 2010 or 2011, and type 2 contracts ('CT2s') covered the remaining period, until 31 December 2016.

4 CT2s were the subject of bilateral negotiations between the applicant and private undertakings providing scheduled public transport services in the territory of the Île-de-France Region ('the final beneficiaries'). Several CT2s could be concluded between the applicant and a single undertaking. Article 53-3 of every CT2 provided for the payment of a financial contribution by the applicant to the signatory undertaking to compensate for the performance of the public service obligations to which the latter was subject under Article 5-2 of those contracts.

5 The C2 portion of the financial contributions paid by the applicant to the final beneficiaries under the CT2s was intended to cover all the investment costs borne by them in implementing an investment plan previously validated by the applicant.

6 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 Île-de-France Region in its territory, and subsequently from 2008 onwards by the applicant in the same area, in particular in the form of C2 contributions awarded under the CT2s.

7 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 aid measures at issue.

8 On 30 April 2014, the French Republic submitted its comments to the Commission. All the comments submitted by the interested parties, including the applicant, were provided to the French Republic, which made no remarks on them.

9 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 Île-de-France Region supplemented its comments.

10 On 2 February 2017, the Commission closed the formal investigation procedure laid down in Article 108(2) TFEU and adopted Decision (EU) 2017/1470 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').

11 In the contested decision, the Commission found, inter alia, that the aid scheme comprising the C2 contributions awarded by the applicant for the purpose of covering the investment costs borne by the final beneficiaries in performing the CT2s ('the aid scheme at issue') was compatible with the internal market. However, it concluded that in so far as the aid granted under the aid scheme at issue had not been notified and had to be categorised as 'new aid', that scheme had been implemented unlawfully, in infringement of Article 108(3) TFEU.

12 Articles 3 and 4 of the operative part of the contested decision read as follows:

'Article 3

The aid scheme unlawfully implemented by [the French Republic] in the form of C2 contributions awarded by STIF under [the CT2s] is compatible with the internal market.

Article 4

This Decision is addressed to the French Republic.'

Procedure and forms of order sought by the parties

13 By application lodged at the Court Registry on 3 November 2017, the applicant brought, pursuant to Article 263 TFEU, the present action seeking the annulment in part of the contested decision.

14 The applicant claims that the Court should:

- annul the contested decision only in so far as the Commission categorised the C2 contributions awarded under the CT2s as an aid scheme 'unlawfully implemented';

- order the Commission to pay the costs.

15 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

16 The Commission, without raising a plea of inadmissibility by 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 having no standing to bring proceedings and it having no legal interest in bringing proceedings.

17 The applicant disputes the Commission's arguments. It submits that, although it is not the addressee of the contested decision, it is entitled to bring the present action.

18 In that respect, 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).

19 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

20 In support of its action, the applicant relies essentially on two pleas in law. The first plea alleges infringement of Article 107(1) TFEU, in that the Commission was incorrect to take the view, in the contested decision, that the aid scheme at issue did not satisfy the fourth criterion set out in paragraphs 88 to 93 of the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415) ('the Altmark criteria'), and fell, therefore, within that provision. The second plea alleges infringement of the obligation to state reasons and is based on the argument that the Commission did not provide sufficient details of the reasons for its finding, in the contested decision, that the aid scheme at issue did not satisfy the fourth Altmark criterion.

21 In that regard, it should be recalled that 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).

22 It follows that the second plea, in so far as it seeks to establish an infringement of the obligation to state reasons, must be examined before the first plea, which is concerned with the substantive legality of the contested decision.

Infringement of the obligation to state reasons

23 By its second plea, the applicant submits, in essence, that the Commission did not provide sufficient details in the contested decision of the reasons for its finding that the aid scheme at issue did not satisfy the fourth Altmark criterion.

24 In particular, the applicant claims that the Commission's analysis of the fourth Altmark criterion is not consistent with the finding it made in its examination of the third Altmark criterion that there was no over-compensation. According to the applicant, such an absence of over-compensation necessarily implies that the C2 contributions represent the least cost to the public authority and that the fourth Altmark criterion is satisfied.

25 The applicant also submits that the Commission did not explain why the sample of undertakings chosen for the purpose of the comparative cost analysis was not representative of well-run undertakings within the meaning of the case-law resulting from the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415). In recital 220 of the contested decision, the Commission stated, despite the information brought to its attention, that 'there [is no]thing to show that the sample chosen by STIF is representative of well-managed undertakings'.

26 The Commission contests the applicant's arguments. It states that the four Altmark criteria are distinct from each other. Furthermore, it argues that the contested decision and, in particular, the analysis relating to the fourth Altmark criterion, are sufficiently reasoned.

27 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.

28 In addition, categorisation as 'State aid' requires all the conditions laid down in Article 107(1) TFEU to be satisfied. Therefore, for the purpose of categorisation as State aid, that provision presupposes in particular that there is an advantage conferred on an undertaking (see, to that effect, judgment of 22 October 2015, EasyPay and Finance Engineering, C-185/14, EU:C:2015:716, paragraphs 35 and 36 and the case-law cited).

29 In that regard, in accordance with the Court's settled case-law, a State measure regarded as compensation for the services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them, is not caught by Article 107(1) TFEU (see judgment of 22 October 2015, EasyPay and Finance Engineering, C-185/14, EU:C:2015:716, paragraph 45 and the case-law cited).

30 However, for such compensation to escape categorisation as State aid in a particular case, the Altmark criteria must be satisfied.

31 Therefore, first, the recipient undertaking must actually be required to discharge public service obligations and those obligations must be clearly defined. Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner. Third, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in discharging the public service obligations. Fourth, the level of compensation needed must be determined on the basis of an analysis of the costs which a typical undertaking, which is well-run and adequately equipped so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations.

32 It follows that a State measure which does not comply with one or more of the criteria set out in paragraph 31 above may be considered to be State aid within the meaning of Article 107(1) TFEU (see, to that effect, judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C-280/00, EU:C:2003:415, paragraph 94).

33 In the present case, it must be held that, contrary to the applicant's assertions, the Commission provided sufficient details in the contested decision of the reasons for its finding that the aid scheme at issue did not satisfy the fourth Altmark criterion. In particular, in recital 220 of the contested decision, the Commission stated that although the comparative cost analysis carried out by the applicant prior to the conclusion of the CT2s was based on accurate costed figures and reflected a thorough knowledge of the passenger transport market, that analysis was intended to define the variables that would be useful when negotiating the operating costs, not to ensure that the costs covered by the C2 contribution corresponded to those of a typical undertaking, well-run and adequately equipped, as provided for in the case-law resulting from the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415).

34 Contrary to the applicant's assertions, the Commission's reasoning clearly discloses the grounds underpinning its finding that the aid scheme at issue did not satisfy the fourth Altmark criterion.

35 Moreover, the applicant's argument that the Commission failed to explain why the sample of undertakings chosen for the purpose of the comparative cost analysis was not representative of well-run undertakings within the meaning of the case-law resulting from the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415), must be rejected, since the Commission found, in essence, in recital 220 of the contested decision that there was nothing in the file to demonstrate that the sample satisfied that criterion and the applicant did not provide any explanation of the information it submitted during the administrative procedure.

36 The applicant merely asserted, in its comments in reply to the Commission's decision to initiate the formal investigation procedure in relation to the aid scheme at issue, that the comparative cost analysis had been carried out in respect of 'provincial undertakings which had been awarded contracts following a competitive tendering procedure', and then categorised those undertakings as 'medium-sized undertakings, well-run and adequately equipped', without providing details of the evidence that might lead to such a conclusion.

37 In those circumstances, the Commission cannot be criticised for having carried out only a brief analysis of whether or not the sample of undertakings chosen by the applicant for the purpose of the comparative cost analysis was representative of well-run undertakings within the meaning of the case-law resulting from the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415).

38 As regards the applicant's arguments alleging that the Commission's reasoning in the contested decision is inconsistent, it should be noted that the third and fourth Altmark criteria are indeed closely linked in so far as they each require a determination of the costs and the receipts and profits relating to the discharge of a public service obligation (see, to that effect, judgment of 12 February 2008, BUPA and Others v Commission, T-289/03, EU:T:2008:29, paragraph 246).

39 However, the existence of that close link does not preclude the four Altmark criteria being distinct from one another and requiring to be satisfied cumulatively if the compensation is to avoid being categorised as State aid (see, to that effect, judgment of 15 December 2016, Abertis Telecom Terrestre and Telecom Castilla-La Mancha v Commission, T-37/15 and T-38/15, not published, EU:T:2016:743, paragraph 76).

40 In the present case, it must be pointed out that, in any event, the Commission did not examine the aid scheme at issue in the light of the third Altmark criterion in the contested decision. In recital 218 of the contested decision, the Commission merely stated that, since it had been established that the C2 contributions satisfied the first Altmark criterion, it remained for it to assess whether they satisfied the second, third and fourth Altmark criteria, and that as the criteria are cumulative, it would confine itself to demonstrating that the fourth criterion was not satisfied in order to conclude that those contributions conferred an economic advantage, before actually reaching that conclusion in recital 221 of the contested decision.

41 In the light of those considerations, it must be held that the applicant's arguments concerning the Commission's allegedly contradictory assessment of the third Altmark criterion and of the fourth Altmark criterion are based on an incorrect reading of the contested decision, with the result that they cannot succeed.

42 Accordingly, the Commission did not infringe the obligation to state reasons laid down in Article 296 TFEU.

43 The second plea must be rejected.

The assessment of the aid scheme at issue in the light of the fourth Altmark criterion

44 By its first plea, the applicant submits that, in the contested decision, the Commission committed several errors of law and of assessment in its examination of the aid scheme at issue in the light of the fourth Altmark criterion.

45 The Commission disputes the applicant's arguments.

46 Under the fourth Altmark criterion, where the undertaking which is to discharge public service obligations, in a specific case, is not chosen pursuant to a public procurement procedure which would allow for the selection of the tenderer capable of providing those services at the least cost to the community, the level of compensation needed must be determined on the basis of a comparative analysis of the costs which a typical undertaking, well-run and adequately equipped so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations (judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C-280/00, EU:C:2003:415, paragraph 93).

47 In the present case, the Commission took the view that the fourth Altmark criterion was not satisfied. In particular, it took the view in the contested decision that the amount of the C2 contributions paid under the aid scheme at issue had not been calculated on the basis of a comparative analysis of the costs which a well-run undertaking within the meaning of the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415), would have incurred in order to provide identical services.

48 The applicant submits, in the first place, that contrary to the Commission's finding in the contested decision, the sample of undertakings it used for the purpose of the comparative cost analysis was representative of well-run undertakings within the meaning of the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415). It maintains that the sample included, in addition to transport operators with which it had concluded type 1 contracts, public transport undertakings entrusted with comparable public service tasks, outside the territory of the Île-de-France Region, allocated in the context of an open, transparent and non-discriminatory competitive tendering procedure.

49 In the second place, the applicant submits that the Commission should have found that its comparative cost analysis ensured that the investment costs incurred by the final beneficiaries corresponded to those of a typical undertaking, well-run and adequately equipped, as provided for in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415).

50 In the third place, the applicant contends that the Commission failed to take account of the tools and methods it used prior to setting the amount of the C2 contributions, for the purpose of determining that that amount did not exceed the costs incurred by a typical undertaking, well run and adequately equipped, as provided for in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415).

51 In the fourth place, the applicant asserts that the Commission did not attach sufficient importance to the ex post checks it carried out in respect of the final beneficiaries. In that respect, it states that the CT2s established a system to monitor continuously the costs incurred by the final beneficiaries, making it possible to verify the existence, range and conformity of the vehicles purchased using the C2 contributions paid under the CT2s.

52 In the fifth place, the applicant asserts that the Commission did not take account of a market study produced during the administrative procedure (Annex A7 to the application), which shows that the average cost per kilometre incurred by the final beneficiaries was comparable to that of undertakings carrying on business outside the territory of the Île-de-France Region.

53 The Commission claims that it took proper account of the comparative cost analysis conducted by the applicant prior to before the conclusion of the CT2s. However, it submits that there was nothing in the file to support the conclusion that the sample chosen by the applicant was representative of medium-sized undertakings, well-run and adequately equipped, as provided for in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415). Furthermore, it maintains that the average performance values used in that analysis did not permit a distinction to be drawn between the costs linked to the operation of the equipment and those relating to the investment in that equipment.

54 In that respect, first, it should be noted that the methodological tools used by the applicant prior to fixing the amount of the C2 contributions, in order to proceed with negotiations on the CT2s, and the various ex post checks it carried out to verify the investments made by the final beneficiaries, are not relevant or, at the very least, are insufficient for the purpose of determining, in accordance with the fourth Altmark criterion, whether the amount of compensation was fixed on the basis of the costs which a typical undertaking, well-run and adequately equipped so as to be able to meet the necessary public service requirements, would have incurred.

55 The methodological tools used by the applicant were intended only to ensure that the CT2s were negotiated successfully and to monitor the costs actually incurred by the final beneficiaries. In particular, the applicant states in its written pleadings that the methodological tools used prior to setting the amount of the C2 portion of the contributions paid enabled a cost analysis to be carried out for each of the subsidised networks during the negotiations on the CT2s. However, it does not demonstrate that those tools would have enabled it to ensure that the amount of compensation paid to the final beneficiaries satisfied the requirements laid down in the fourth Altmark criterion. As regards the ex post monitoring system put in place by the applicant to ensure the productivity and quality of the service provided by the final beneficiaries, that system is not relevant when investigating whether the amount of the C2 portion of the contributions paid prior to that monitoring was set on the basis of the costs which a typical undertaking, well-run and adequately equipped so as to be able to meet the necessary public service requirements, would have incurred.

56 Secondly, the applicant does not adduce any other evidence of a sufficiently specific nature to prove that it conducted the necessary investigations to ensure that the benchmark undertakings used in its comparative cost analysis could be considered to be well-run and adequately equipped as provided for in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415).

57 As the Commission correctly points out, the applicant submits, in essence, that since the undertakings established outside the territory of the Île-de-France Region which it selected for the purpose of its comparative cost analysis were subject to a competitive tendering procedure in accordance with the requirements 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 publique (Law No 93-122 of 29 January 1993 on the prevention of corruption and on transparency in economic affairs and public procedures) (JORF of 30 January 1993, p. 1588; 'the Sapin Law'), they must automatically be regarded as well-run undertakings within the meaning of the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415).

58 It is clear from the case-law that, except where the choice of the beneficiary undertaking is made in the context of a public procurement procedure, the fourth Altmark criterion requires that the parameters taken into account in order to establish the amount of compensation be based on the example of a typical undertaking, well run and adequately equipped so as to be able to meet the necessary public service requirements (see, to that effect, judgment of 24 September 2015, Viasat Broadcasting UK v Commission, T-125/12, EU:T:2015:687, paragraph 82).

59 The process of determining such a typical undertaking is intended to optimise the amount of compensation considered necessary to discharge the assigned public service task and avoid the high costs of an inefficient undertaking being taken as the reference for calculating the amount of that compensation.

60 In the present case, even though the applicant explains that it based its comparative cost analysis on the average values or ratios of undertakings which, besides merely participating in the competitive tendering procedure laid down by the Sapin Law, had been awarded contracts at the end of that procedure, it provides no specific information on the rules governing that procedure and simply states that it is similar, in terms of its effects and its object, to the procedure for the award of a public contract.

61 In particular, the applicant asserts that the competitive tendering procedure laid down by the Sapin Law had 'proven positive effects on the reduction of prices and the control of costs of [public service delegations] in the sectors concerned'. However, it does not demonstrate precisely how that procedure and, in particular, the selection criteria used in that respect allowed for a level of competitive tendering comparable to that of tendering procedures for the award of public contracts. Furthermore, it does not provide any details concerning the alleged price reduction and does not explain how such a reduction would have enabled it to ensure that the contracts awarded at the end of the procedure laid down by the Sapin Law were performed by the undertakings which won those contracts at the least cost to the community.

62 The foregoing is in addition to the fact that the data taken into account by the applicant, namely, in particular, data relating to the average cost per kilometre (Annex A7 to the application), do not enable a distinction to be drawn between investment-related costs, which are the only relevant cos

63 ts when comparing the amount allocated under the C2 contribution, and other costs borne by the undertakings selected for the purpose of the comparative cost analysis. The applicant states, moreover, in that respect, that the contracts of undertakings carrying on business outside the territory of the Île-de-France Region which it analysed 'undoubtedly' did not include all the investment-related costs and, in particular, the acquisition of rolling stock.

64 In those circumstances, the Commission was correct in finding, in recital 220 of the contested decision, that the applicant's comparative costs analysis was mainly concerned with operating variables, such as the commercial speed of buses or the number of hours driven per vehicle, which are admittedly useful when negotiating the operating costs and setting the C1 contribution (also granted under the CT2s and intended specifically to compensate for the operating costs incurred), but which did not make it possible to ensure that the investment costs covered by the C2 contribution corresponded to those of a typical undertaking, well-run and adequately equipped, as provided for in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415).

65 It must therefore be concluded that the evidence adduced by the applicant does not prove that the Commission's assessment in the contested decision of the aid scheme at issue in the light of the fourth Altmark criterion is vitiated by an error of law or of assessment.

66 Since the criteria laid down in the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C-280/00, EU:C:2003:415), are cumulative, it was sufficient for the Commission to demonstrate that only one of those criteria was not satisfied in order to conclude that the aid scheme at issue conferred an economic advantage on the final beneficiaries and therefore constituted a State aid scheme for the purposes of Article 107(1) TFEU.

67 Consequently, the first plea in law must be rejected and the action must be dismissed in its entirety.

Costs

68 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.

69 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 Syndicat Transport Île de France (STIF-IDF) to bear its own costs and to pay those incurred by the European Commission.