CJEU, 4th chamber, October 19, 2023, No C-325/22

1 This request for a preliminary ruling concerns the interpretation of Article 107 TFEU, Article 16(3) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9), and Commission Decision (EU) 2015/456 of 5 September 2014 on the aid scheme No SA.26212 (11/C) (ex 11/NN – ex CP 176/A/08) and SA.26217 (11C) (ex 11/NN – ex CP 176/B/08) implemented by the Republic of Bulgaria in the context of swaps of forest land (OJ 2015 L 80, p. 100; ‘the Commission decision of 5 September 2014’).

2 The request has been made in proceedings between an individual and a legal entity, on the one hand, and the Ministar na zemedelieto, hranite i gorite (Minister for Agriculture, Food and Forestry), on the other hand, concerning a claim for repayment of State aid they had allegedly received in connection with a swap of forest land.

 Legal context

 European Union law

 Regulation 2015/1589

3 Article 16 of Regulation 2015/1589, entitled ‘Recovery of aid’, provides, in paragraph 3:

‘Without prejudice to any order of the Court of Justice of the European Union pursuant to Article 278 TFEU, recovery shall be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of the [European] Commission’s decision. To this effect and in the event of a procedure before national courts, the Member States concerned shall take all necessary steps which are available in their respective legal systems, including provisional measures, without prejudice to Union law.’

 The Commission decision of 5 September 2014

4 Recitals 125 to 128, 156 and 171 of the Commission decision of 5 September 2014 state:

‘(125) As a preliminary matter, however, it is also necessary to consider in the present case whether the potential beneficiaries of the swap transactions are undertakings within the meaning of Article 107(1) [TFEU]. That is because, according to the wording of that provision, the State aid rules only apply where the recipient of an aid is an undertaking.

(126) The [Court] defines the notion of “undertaking” for the purposes of Article 107(1) of the Treaty as any entity engaged in an economic activity, regardless of its legal status or the way in which it is financed … According to the [Court], any activity consisting in offering goods and services on a market constitutes an economic activity … The classification of an entity as an undertaking is thus always relative to a specific activity. An entity that carries out both economic and non-economic activities is to be regarded as an undertaking only with regard to the former. An undertaking does not need to be a legal person; natural persons can also be considered undertakings under the State aid provided they carry out an economic activity.

(127) With this in mind, it should be noted that certain beneficiaries of the contested swap transactions did not carry out economic activities with the swapped forest land during the period under review, nor do they carry out such activities at present. As a result, those beneficiaries cannot be considered undertakings within the meaning of Article 107(1) [TFEU] so that no State aid is considered to be present in the swap transactions they concluded with the Bulgarian State.

(128) Consequently, the remainder of this decision concerns only those beneficiaries of the contested swap transactions that constitute undertakings within the meaning of Article 107(1) [TFEU].

…

(156) In light of the foregoing, the Commission concludes that the swap transactions carried out by the Republic of Bulgaria during the period under review constitute State aid within the meaning of Article 107(1) [TFEU] in those cases in which the counter-party to that transaction is an undertaking within the meaning of that provision, the administrative prices used for that transaction did not reflect market prices and the conditions for de minimis aid laid down in [Commission] Regulation [EU] No 1407/2013 [of 18 December 2013 on the application of Articles 107 and 108 TFEU to de minimis aid (OJ 2013 L 352, p. 1)] are not fulfilled.

…

(171) In the present case, the potential beneficiaries of the incompatible State aid are those natural and legal persons who participated in the 132 swap transactions with the Bulgarian authorities during the period under review. From this group, the Bulgarian authorities should subtract those natural and legal persons that do not qualify as “undertakings” within the meaning of Article 107(1) [TFEU] …’

5 Article 1 of that decision provides:

‘The State aid, granted to undertakings in the context of swap transactions of publicly owned forest land in return for privately owned forest land in the period from 1 January 2007 until 27 January 2009, unlawfully put into effect by the Republic of Bulgaria in breach of Article 108(3) [TFEU], is incompatible with the internal market.’

6 Article 6(1)(b), (c) and (d) of that decision states:

‘Within four months following notification of this Decision, the Republic of Bulgaria shall submit to the Commission the following information:

…

(b) identification of the cases in which recovery will be conducted on the basis of the market prices at the moment of the swap transactions specified in submission 2014/032997 of the Republic of Bulgaria;

(c) identification of the cases in which recovery will be effectuated by undoing the swap transaction;

(d) identification of the cases in which recovery will be implemented on the basis of amounts determined by an independent expert evaluator and documents demonstrating that such an independent expert, selected by public tender and agreed to by the Commission, has been appointed.’

7 Article 6(2)(a) and (b) of that decision provides:

‘Within eight months following notification of this Decision, the Republic of Bulgaria shall submit to the Commission the following information:

(a) the list of beneficiaries that have received aid under the swap transactions referred to in Article 1 and the total amount of aid received by each of them as a result of those transactions;

(b) the total amount (principal and recovery interests) to be recovered from each beneficiary’.

 The Commission communication on State aid elements in sales of land and buildings by public authorities

8 Under the last subparagraph of point 2(a) of the Commission Communication on State aid elements in sales of land and buildings by public authorities (OJ 1997 C 209, p. 3):

‘“Market value” means the price at which land and buildings could be sold under private contract between a willing seller and an arm’s length buyer on the date of valuation, it being assumed that the property is publicly exposed to the market, that market conditions permit orderly disposal and that a normal period, having regard to the nature of the property, is available for the negotiation of the sale …’

 Bulgarian law

 The Law on State aid

9 Article 38(9), (10) and (11) of the zakon za darzhavnite pomoshti (Law on State aid, DV No 85 of 24 October 2017) provides, so far as concerns the recovery of unlawful State aid declared incompatible with the internal market by virtue of a Commission decision, as follows:

‘(9) The valuation referred to in Paragraph 7(2) shall be carried out by an independent chartered valuer registered under the Law on independent valuers …

(10) The valuation referred to in Paragraph 7(2) shall be requested and accepted by the aid administrator in accordance with the conditions and time limit laid down in the decision of the European Commission.

(11) Where the aid administrator does not accept the valuation referred to in Paragraph 7(2), it shall, by means of a reasoned decision, request a second valuation from three valuers, except where the valuation is requested under the zakon za obshtestvenite porachki [Law on public procurement].’

 The Law on State property

10 Article 32(2) of the zakon za darzhavnata sobstvenost (Law on State property, DV No 44 of 21 May 1996), in the version applicable to the dispute in the main proceedings (‘the Law on State property’), reads as follows:

‘The equivalent cash compensation referred to in paragraph 1 shall be determined on the basis of the use of the land before the entry into force of the detailed land use plan, or before the approval of a detailed land use plan which provides for the construction of a national work and for which there is an order in force allowing provisional execution, on the basis of the market prices of land with similar characteristics located in the vicinity of the land subject to expropriation.’

11 Paragraph 1a of the dopalnitelni razporedbi na zakon za darzhavnata sobstvenost (Provisions supplementary to the Law on State property) states:

‘For the purposes of this Law:

…

(2) The “market price” is the average of the prices of all property transactions involving the purchase/sale, swap, creation of rights in rem or transfer of ownership against a building obligation, mortgaging (as security for the purchase/sale of property), auctions by public and private bailiffs, State and municipal institutions, as well as other transactions for consideration, with the exception of those involving notional shares in property, in which at least one of the parties is a merchant, concluded within the 12 months prior to the date of the request for valuation and registered at the registry office of the place where the property is located. If, in the 12 months preceding the date of the request for valuation, more than 20 transactions have been recorded at the registry office of the place where the property is located, the market price is determined by taking into account the last 20 recorded transactions. The average is calculated on the basis of at least two relevant transactions.

…

(4) “Property located in the vicinity of property subject to expropriation” means property located:

(a) in the same district, within major cities with a district division;

(b) in the same district, within other towns, population centres or localities;

(c) in the same area in agricultural and forestry zones.’

 The Law on Forests

12 Paragraph 3 of the transitional and final provisions of the zakon za gorite (Law on Forests, DV No 19 of 8 March 2011), in force since the year 2011, states:

‘(1) Under the terms of this Law, no change of use may be made and no construction may be carried out on land located in forestry zones which natural and legal persons or municipalities have acquired from the State as a result of swaps made up to the date of promulgation of the Law in the Darzhaven vestnik [(Official Journal)].

(2) The prohibition referred to in paragraph 1 shall also apply in the event of a change of ownership of the property, except in cases where the forestry zone concerned is acquired by the State.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

13 The dispute in the main proceedings forms part of a vast operation by the Republic of Bulgaria to return to its former owners forest land that had been nationalised in 1947.

14 It is apparent from the documents before the Court of Justice that an amendment to the Law on Forests, which entered into force on 22 February 2002, allowed privatised forest land to be swapped for forest land of that Member State.

15 In addition, the prices of the land swapped were determined on the basis of criteria laid down in Bulgarian legislation.

16 On 26 November 2008, the Darzhavna agentsia po gorite (National Forestry Agency, Bulgaria) and TS, a natural person, entered into a forest land swap agreement (‘the disputed swap’).

17 Two months later, TS sold the land acquired under that agreement to HI, a private company established in Bulgaria, managed and partly owned by TS. It is apparent from the order for reference that TS was already a partner in HI at the time of the disputed swap.

18 HI operates in the hotel, restaurant, forestry, wood processing and merchandise sales sectors. It is apparent from the order for reference that HI intended to build a hotel complex on some of the land it had acquired and that, to that end, it had applied to the competent authorities in August 2009 for a change of use.

19 However, that property transaction could not be completed due to a moratorium adopted by the Narodno sabranie na Republika Bulgaria (National Assembly of the Republic of Bulgaria) on 3 September 2009 (DV No 72 of 8 September 2009) and a subsequent legislative measure prohibiting changes to the use of land acquired from the Republic of Bulgaria.

20 By the decision of 5 September 2014, the Commission took the view that the forest land swap transactions carried out by that Member State constituted State aid, within the meaning of Article 107(1) TFEU, where the persons involved in those swaps were undertakings, within the meaning of that provision, and the value of the forest land in that Member State did not reflect the market value, provided that it was not de minimis aid, within the meaning of Regulation No 1407/2013.

21 The Commission therefore considered that certain aid granted to undertakings in connection with the forest land swap transactions concerned during the period between 1 January 2007, the date on which the Republic of Bulgaria acceded to the European Union, and 27 January 2009 had been unlawfully put into effect by that Member State, was incompatible with the internal market and had to be recovered by that Member State.

22 On 8 July 2020, pursuant to the Commission decision of 5 September 2014, in an act establishing a public debt, the Bulgarian authorities estimated, on the basis of a forest land valuation report, that TS and HI were jointly and severally liable to repay the aid of 294 627 leva (BGN) resulting from the disputed swap, together with BGN 145 737.79 in interest, representing a total amount of BGN 440 364.79 (approximately EUR 224 700).

23 TS and HI filed an appeal against that act with the Administrativen sad – Varna (Administrative Court, Varna, Bulgaria), arguing, first, that they could not be regarded as ‘undertakings’ within the meaning of Article 107(1) TFEU, since the land acquired as part of the disputed swap was not ultimately used for economic purposes and, secondly, that the national administration’s assessment of the amount of aid to be repaid was incorrect. In their view, the assessment of the value of the land swapped should be subject to a judicial valuation in accordance with the method provided for in points 2 and 4 of Paragraph 1a of the Provisions supplementary to the Law on State property, applicable in the event of expropriation of private land for public interest purposes.

24 The referring court states that, as regards the implementation of the Commission decision of 5 September 2014, the national case-law is inconsistent as to whether or not, in the light of the wording of recital 127 of that decision, the classification as an ‘undertaking’ depends on the exploitation of the forest land acquired in the context of the land swaps at issue.

25 That court also states that the objective criterion of the ‘market value’ of a plot of land, derived from the Court’s case-law for the purposes of assessing whether the acquisition of public land constitutes State aid within the meaning of Article 107(1) TFEU, differs from the method of determining the market price provided for in points 2 and 4 of Paragraph 1a of the Provisions supplementary to the Law on State property, on which the applicants in the main proceedings rely.

26 In those circumstances, the Administrativen sad – Varna (Administrative Court, Varna) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is a beneficiary of unlawfully granted State aid under a swap contract by which it acquired land in a forest area (owned by the State under private law) excluded from the definition of the term “undertaking” where, as evidenced by its annual balance sheets, it carries out an economic activity by offering goods and services on the market concerned, but, in accordance with recital 127 of [the Commission decision of 5 September 2014], does not directly or indirectly carry out economic activities with the land acquired by way of the swap, because national law provides for an objective prohibition preventing the beneficiary from changing the designated use of the land and from carrying out construction on the land removed from the forest stock or from selling that land?

(2) Must the provision of Article 107 TFEU be interpreted and applied in such a manner that, with regard to the status of “undertaking” and in the application of the criteria for an “undertaking”, and having regard to the data collected in relation to the completed first stage of the administrative procedure for prior consent, the investment project as applied for and factually described of the beneficiary of unlawfully obtained State aid, which is to be realised on State-owned forest land acquired by means of a swap and which is a prerequisite for the initiation of a subsequent procedure concerning the removal from the forest stock of the land acquired for the purpose of the construction, must be taken into account as a legally relevant circumstance, irrespective of the fact that it has become objectively impossible for the investment project to be realised due to the moratorium imposed by [the National Assembly of the Republic of Bulgaria] and the subsequently adopted statutory provision containing an express prohibition preventing a change of the designated use of the land acquired from the State and preventing construction on that land?

(3) Must Article 107 TFEU and Article 16(3) of [Regulation 2015/1589] be interpreted as precluding, for the purposes of determining the amount of State aid received by way of a swap of forest land (owned by the State under private law), national legislation such as the provisions of points 2 and 4 of Paragraph 1a of the [Provisions supplementary to the Law on State property] which prevents the establishment of a market price for the land due to the fact that it sets market indicators and valuation criteria for the calculation which result in a deviation from the actual value of the land, and, in that sense, does such national legislation infringe the principle of effectiveness?’

 Consideration of the questions referred

 The first question

27 By its first question, the referring court asks, in essence, whether the Commission decision of 5 September 2014 is to be interpreted as meaning that only persons who have acquired land in the context of the forest land swap transactions concerned by that decision and who use that land for the purposes of an economic activity are to be regarded as undertakings in receipt of State aid for the purposes of Article 107(1) TFEU.

28 First of all, it is important to note that the answer to that question is without prejudice to whether TS is an ‘undertaking’ within the meaning of that provision or to whether TS and HI may be regarded as joint and several recipients of State aid under that provision.

29 Next, it should be recalled that it is settled case-law of the Court that the concept of ‘undertaking’ within the meaning of Article 107(1) TFEU covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed, and that any activity consisting in offering goods or services on a given market constitutes an economic activity (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraphs 41 and 45 and the case-law cited).

30 On the other hand, it does not in any way follow that classification as an ‘undertaking’, within the meaning of that provision, would be made conditional on the economic activity concerned having a link with goods the acquisition of which would constitute State aid, within the meaning of that provision.

31 Furthermore, it is important to recall that Article 108(3) TFEU establishes a prior control of alterations to existing aid and of plans to grant new aid, so that only aid that is compatible with the internal market may be implemented (see, to that effect, judgment of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 36 and the case-law cited).

32 Consequently, such a system of prior authorisation of State aid, which is based on an ex ante assessment of aid projects, precludes classification as an ‘undertaking’, within the meaning of Article 107(1) TFEU, from being made conditional on the occurrence of uncertain circumstances subsequent to the granting of the advantage concerned, such as that consisting in the use of the good acquired for economic purposes.

33 Lastly, as regards the definition of the concept of ‘undertaking’ used by the Commission in its decision of 5 September 2014, Article 1 of that decision refers to State aid granted to ‘undertakings’, without specifying that concept.

34 It is true that recital 127 of that decision states that ‘certain beneficiaries of the contested swap transactions did not carry out economic activities with the swapped forest land during the period under review, nor do they carry out such activities at present’, with the result that ‘those beneficiaries cannot be considered undertakings within the meaning of Article 107(1) [TFEU] so that no State aid is considered to be present in the swap transactions they concluded with the Bulgarian State’.

35 However, it is apparent from the overall structure of that decision and, in particular, from recitals 126 and 128 thereof, that the Commission also referred, on several occasions, to undertakings ‘within the meaning of Article 107(1) TFEU’, without in any way linking such a classification to an economic activity in relation to that forest land.

36 Recital 171 of the Commission decision of 5 September 2014, contained in the part of the decision relating to the identification of the ‘beneficiaries’ of the aid concerned, states, moreover, that natural and legal persons ‘that do not qualify as “undertakings” within the meaning of Article 107(1) [TFEU]’ should be excluded, without providing any further details.

37 Finally, the Court has consistently held that, if the wording of secondary EU law is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with the Treaty rather than to the interpretation which leads to its being incompatible with the Treaty (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 70 and the case-law cited).

38 It must therefore be held that recital 127 of the Commission decision of 5 September 2014 refers only to a specific situation in which an entity cannot be classified as an ‘undertaking’ within the meaning of Article 107(1) TFEU. Accordingly, that recital cannot form the basis for an interpretation of that decision which would lead to the conclusion that only entities carrying out an economic activity linked to the land acquired in the context of the land swaps referred to in that decision could be regarded as undertakings in receipt of State aid for the purposes of that provision.

39 In the light of the foregoing, the answer to the first question is that the Commission decision of 5 September 2014 must be interpreted as meaning that it cannot be held that only persons who have acquired land in the context of the forest land swap transactions concerned by that decision and who use that land for the purposes of an economic activity are to be regarded as undertakings in receipt of State aid for the purposes of Article 107(1) TFEU.

 The second question

40 By its second question, the referring court asks, in essence, whether the fact that the entity which obtained forest land as part of the disputed swap intended to use it in the course of its economic activity, but was prevented from doing so by subsequent changes in national law, is relevant for the purposes of assessing whether that entity constitutes an ‘undertaking’ within the meaning of Article 107(1) TFEU.

41 In view of the answer given to the first question, according to which the Commission Decision of 5 September 2014 does not limit the concept of ‘undertaking’ to entities that have used the forest land thus obtained for economic purposes, there is no need to answer the second question.

 The third question

42 By its third question, the referring court asks, in essence, whether Article 107(1) TFEU and Article 16(3) of Regulation 2015/1589 must be interpreted as precluding the determination of the amount of State aid received on the acquisition of land, in the context of a forest land swap, from being based on criteria such as those laid down in points 2 and 4 of Paragraph 1a of the Provisions supplementary to the Law on State property.

43 It is apparent from the order for reference that those criteria relate to the average prices of registered property transactions involving land with similar characteristics to that being valued and located close to it, in which at least one of the parties is a merchant, concluded within a period of 12 months prior to the valuation.

44 The applicants in the main proceedings submit that those criteria should have been applied in order to determine the amount of State aid to be recovered, while the referring court takes the view that they do not make it possible to determine the market value of the forest land which was the subject of the disputed swap.

45 Thus, the third question should be reworded and it should be considered that, by that question, that court is asking, in essence, whether Article 107(1) TFEU and Article 16(3) of Regulation 2015/1589 preclude the criteria for determining the amount of State aid received in connection with the acquisition of land from being based on the average prices of registered property transactions relating to land with similar characteristics to that being valued and located close to it, in which at least one of the parties is a merchant, concluded within a period of 12 months prior to the valuation.

46 In this respect, it is important to recall that Article 16(3) of Regulation 2015/1589 provides that, without prejudice to any order of the Court pursuant to Article 278 TFEU, recovery of State aid is to be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of the Commission’s decision. To that effect and in the event of a procedure before national courts, the Member States concerned are to take all necessary steps which are available in their respective legal systems, including provisional measures, without prejudice to EU law.

47 Furthermore, it follows from the case-law of the Court that the main purpose of the repayment of unlawfully paid State aid is to eliminate the distortion of competition caused by the competitive advantage afforded by that aid and that restoring the situation prior to the payment of aid which was unlawful or incompatible with the internal market is a necessary requirement for preserving the effectiveness of the provisions of the Treaties concerning State aid (see, to that effect, judgment of 30 April 2020, Nelson Antunes da Cunha, C‑627/18, EU:C:2020:321, paragraph 42 and the case-law cited).

48 Finally, it is also important to note that, where the Member State concerned has to quantify the aid to be recovered, it must do so on the basis of the method indicated in the recovery decision (see, to that effect, judgment of 13 February 2014, Mediaset, C‑69/13, EU:C:2014:71, paragraphs 21 and 23).

49 In the present case, it follows from the foregoing that the application of a valuation method, such as that referred to by the referring court in its third question, must, first of all, comply with the Commission decision of 5 September 2014, which it is for the referring court to ascertain.

50 In particular, it must assess whether such a method complies with Article 6(1)(b), (c) and (d) of that decision, which provides for three different methods of recovery of the aid, namely recovery of the aid on the basis of the market prices in effect at the time of the swap transactions specified in submission 2014/032997 of the Republic of Bulgaria, the undoing of the swap transaction or the amounts determined by an independent expert evaluator and documents demonstrating that such an independent expert, selected by public tender and agreed to by the Commission, has been appointed.

51 Next, as regards the conformity with Article 107(1) TFEU and Article 16(3) of Regulation 2015/1589 of a valuation method such as that referred to by the referring court in its third question, it is important to recall that the sale of land by a public authority may involve State aid elements for the purpose of Article 107(1) TFEU, in particular where it is not made at market value, that is to say, where it is not sold at the price which a private investor, operating in normal competitive conditions, would have been able to fix (see, to that effect, judgment of 16 December 2010, Seydaland Vereinigte Agrarbetriebe, C‑239/09, EU:C:2010:778, paragraph 34 and the case-law cited).

52 In addition, as the Commission stated in its decision of 5 September 2014, where such a valuation takes place, as in the present case, ex post, the Member State is to assess the market value of the land concerned at the time of the disputed swap transaction (see, by analogy, judgment of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraphs 71 and 72).

53 As for the method which may be applied for that purpose, it should be borne in mind that several methods are capable of providing prices corresponding to market value and that, while those methods include sale to the highest bidder and an expert report, it cannot be ruled out that other methods may also achieve the same result (see, to that effect, judgment of 16 July 2015, BVVG, C‑39/14, EU:C:2015:470, paragraph 31 and the case-law cited).

54 Where the national law establishes rules for calculating the market value of land for its sale by public authorities, their application must, in order to comply with Article 107 TFEU, lead in all cases to a price as close as possible to that value. As that market value is theoretical, except in the case of sales accepting the highest bid, a margin for variation on the price obtained as compared with the theoretical price must be tolerated (judgment of 16 December 2010, Seydaland Vereinigte Agrarbetriebe, C‑239/09, EU:C:2010:778, paragraph 35).

55 Lastly, even if a valuation method were to comply with Article 107 TFEU, it cannot be ruled out that, in certain instances, that method may lead to a result far removed from market value. In such circumstances, the national court would be required to disapply it pursuant to the obligation on all the organs of the State, including the national courts, to set aside a rule of national law which is contrary to EU law (see, to that effect, judgment of 16 December 2010, Seydaland Vereinigte Agrarbetriebe, C‑239/09, EU:C:2010:778, paragraph 52).

56 In the present case, as regards valuation criteria such as those laid down in points 2 and 4 of Paragraph 1a of the Provisions supplementary to the Law on State property, it must be observed that it follows from the case-law referred to in paragraphs 53 to 55 of this judgment that Article 107(1) TFEU does not preclude, a priori, or require the application of, a valuation method based on a comparison with similar property transactions, provided that the criteria it lays down make it possible to calculate the market value of the forest land concerned.

57 As to the assessment of whether such valuation criteria would make it possible to establish that market value at the time of the disputed swap, that is essentially a matter for the referring court, in the light of the matters of fact and of law of which it is aware.

58 In that context, it is for that court in particular to verify the truth of the fact, referred to by it, that the prices of property transactions are, in practice, undervalued in order to reduce the amount of tax and notarial costs, and of the fact, referred to by the Bulgarian Government in its written observations, that the sales which may be taken into account by analogy are insufficient to enable a reliable comparison.

59 It is also for the referring court to ascertain whether the property transactions that may be taken into account in that context were carried out at a date too far removed from that of the disputed swap.

60 In the light of the foregoing, the answer to the third question is that Article 107(1) TFEU and Article 16(3) of Regulation 2015/1589 must be interpreted as not precluding the criteria for determining the amount of State aid received on the acquisition of land, in the context of a forest land swap, from being based on the average prices of registered property transactions relating to land with similar characteristics to that being valued and located close to it, in which at least one of the parties is a merchant, concluded within a period of 12 months prior to the valuation, provided that the application of such criteria is compatible with the Commission’s decision on the recovery of that aid and that they make it possible to determine the market value of that land at the time of the swap transaction.

 Costs

61 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

1. Commission Decision (EU) 2015/456 of 5 September 2014 on the aid scheme No SA.26212 (11/C) (ex 11/NN – ex CP 176/A/08) and No SA.26217 (11/C) (ex 11/NN – ex CP 176/B/08) implemented by the Republic of Bulgaria in the context of swaps of forest land

must be interpreted as meaning that only persons who have acquired land in the context of the forest land swap transactions concerned by that decision and who use that land for the purposes of an economic activity are to be regarded as undertakings in receipt of State aid for the purposes of Article 107(1) TFEU.

2. Article 107(1) TFEU and Article 16(3) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU]

must be interpreted as not precluding the criteria for determining the amount of State aid received on the acquisition of land, in the context of a forest land swap, from being based on the average prices of registered property transactions relating to land with similar characteristics to that being valued and located close to it, in which at least one of the parties is a merchant, concluded within a period of 12 months prior to the valuation, provided that the application of such criteria is compatible with the Commission’s decision on the recovery of that aid and that they make it possible to determine the market value of that land at the time of the swap transaction.