Judgment of the General Court Seventh Chamber, Extended Composition, 21 December 2022, Landwärme v Commission, T-626/20

• Date: 21 December 2022
• Year: 2022

41

that the objective of a State measure is to maintain the economic balance between the parties to a

contract or that that objective is consistent with the principles of national law cannot rule out ab initio

the classification of such a measure as State aid.

Furthermore, since the 1999 contract made the use of street furniture in the territory of the City of

Brussels subject to the payment of rent and taxes, the use by JCDecaux of the displays listed in

Annex 10 after the expiry dates stipulated in that annex, without paying rent or taxes to the City of

Brussels, had the effect of mitigating those charges.

Finally, the compensation mechanism established by the 1984 contract could not be deemed to be

conduct which, in similar circumstances, a market economy operator of a size comparable to that of

the bodies managing the public sector might have been prompted to adopt.

There is no evidence in the documents before the Court that the City of Brussels carried out an

evaluation of the actual loss incurred by JCDecaux as a result of the early removal of certain displays

listed in Annex 10 or of the profit that could be earned from keeping in place other displays listed in

that annex. Nor did it monitor the implementation of the compensation mechanism established by

the 1984 contract. Furthermore, irrespective of whether or not a written formalisation of that

mechanism was necessary, in a judgment of 2016, the cour d’appel de Bruxelles (Court of Appeal,

Brussels, Belgium) found that, by failing to adhere to the expiry dates stipulated by Annex 10 for the

use of certain displays listed in that annex, JCDecaux had used those displays without right or title.

Accordingly, the Commission was right to consider that the retention and use by JCDecaux of a

number of displays listed in Annex 10 after the expiry dates stipulated in that annex constituted an

economic advantage for the purposes of Article 107(1) TFEU, even if the retention of those displays

was a compensation mechanism established by the 1984 contract.

The Court also rejects the complaint alleging that the Commission made a manifest error of

assessment and an error of law in finding that JCDecaux had saved on rent and taxes, which

constituted an advantage.

Since one of the conditions laid down in the 1999 contract for the use of street furniture for

advertising was the payment of rent, the Commission was right to conclude that the fact that

JCDecaux continued to use of a number of displays listed in Annex 10 after the expiry dates without

fulfilling such an obligation constituted an advantage conferred through State resources for the

purposes of Article 107(1) TFEU.

As regards the taxes, the Court notes that, with effect from 2001, the City of Brussels had introduced

a tax on temporary advertising in and on public property. Although the exemption from that tax could

be justified if street furniture were used for advertising by the City of Brussels for its own purposes,

such an exemption was not applicable where that street furniture was used for advertising by a third

party. Consequently, the Commission was right to conclude that, by granting the tax exemption to

JCDecaux until the 2009 tax year, the City of Brussels conferred an advantage through State

resources. Furthermore, the Belgian authorities had themselves stated, during the formal

investigation procedure before the Commission, that the City of Brussels had concluded that

exempting street furniture used for advertising by third parties from tax solely on the ground that it

was owned by the City of Brussels, when the City of Brussels was not the operator, was unfair to

operators of other advertising displays.

In the second place, the Court holds that the Commission was right to consider that the point from

which the limitation period for the recovery of aid started to run was not the date of the decision to

grant the alleged compensation, but the date from which JCDecaux actually benefited from the

advantage consisting of the non-payment of rent and taxes, namely the date on which the displays

listed in Annex 10, which were kept in place after the expiry dates stipulated for them in that annex,

should have been removed.

Judgment of the General Court (Seventh Chamber, Extended Composition), 21 December

2022, Landwärme v Commission, T-626/20