Opinion of Advocate General Collins delivered on 11 April 2024.

• Jurisdiction: European Union
• Celex Number: 62022CC0710
• ECLI: ECLI:EU:C:2024:300
• Date: 11 April 2024
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 11 April 2024 (1)

Case C‑710/22 P

JCDecaux Street Furniture Belgium

v

European Commission

(Appeal – State aid – Article 107(1) TFEU – Aid implemented by the Belgian authorities in favour of JCDecaux Street Furniture Belgium – Non-payment of rent and taxes for advertising displays installed in the territory of the City of Brussels (Belgium) – Economic advantage – Compensation mechanism – Commission decision declaring the aid incompatible with the internal market and ordering its recovery – No contradictory reasoning – Review by the Court of the assessment of the facts and evidence – Possible only where the facts or evidence have been distorted)

Introduction

1. By the present appeal, JCDecaux Street Furniture Belgium (‘JCDecaux’) seeks to have set aside the judgment of the General Court of the European Union in Case T‑642/19, (2) by which the General Court dismissed its action for annulment of Commission Decision (EU) 2019/2120 of 24 June 2019 on State aid granted by Belgium to JCDecaux Belgium Publicité (SA.33078 (2015/C) (ex 2015/NN)). (3) In particular, the present case gives the Court the opportunity to rule on the nature and scope of the judicial review that it is called upon to carry out in the context of an appeal.

Background to the dispute

2. The City of Brussels (Belgium) and JCDecaux concluded two successive contracts, each for a term of 15 years, concerning the installation in that city of bus shelter advertisements and information street furniture (‘MUPIs’), some of which could be used for advertising purposes. (4)

3. The first contract, dated 16 July 1984 (‘the 1984 contract’), concerned bus shelter advertisements and MUPIs of which JCDecaux retained ownership. It provided inter alia that JCDecaux was not required to make any payments to the City of Brussels for rent, right of occupancy or fees for the bus shelters and MUPIs, but was to provide it with a number of benefits in kind, namely it was to provide, free of charge, waste-paper bins, public toilets and electronic newspapers, and to display a general map of the city, a tourist and hotel map and a map of the pedestrianised streets in the city. In return, JCDecaux was permitted to use for advertising purposes certain displays that were integrated into or separate from the bus shelters and MUPIs it supplied. Each of those displays could be used for a period of 15 years running from the date of its installation, as recorded in the presence of both parties to the contract. (5)

4. In 1998, the City of Brussels issued a call for tenders for the ‘manufacture, supply, installation, commissioning and maintenance of [MUPIs], passenger shelters and display panels, some of which may be used for advertising purposes’. In order to honour its contractual obligations under the 1984 contract and to ensure the transparency of the call for tenders, the City of Brussels listed, in Annex 10 to the special tender specifications (‘Annex 10’), 282 bus shelters and 198 MUPIs covered by the 1984 contract (‘the displays listed in Annex 10’), in respect of which JCDecaux’s right of use had not yet expired under the terms of the 1984 contract, indicating their locations and the expiry dates for the use of each display.

5. JCDecaux won the tender and a second contract was concluded on 14 October 1999 between it and the City of Brussels (‘the 1999 contract’). That contract, which consisted of a purchase order, the special tender specifications and the annexes thereto, including Annex 10, replaced the 1984 contract. It provided, inter alia, that ownership of the installed street furniture would pass to the City of Brussels in return for payment of a net fixed price per item supplied, fully equipped, installed and made operational, and that JCDecaux was to pay monthly rent to use that street furniture for advertising.

6. When the 1999 contract was implemented, some of the displays listed in Annex 10 were removed before the respective expiry dates stipulated in that annex, while others (‘the displays at issue’) were kept in place and continued to be used by JCDecaux beyond those dates. For the latter, the City of Brussels did not claim any payment of rent or taxes. That situation lasted until August 2011, when the last displays listed in Annex 10 were dismantled.

7. On 19 April 2011, Clear Channel Belgium (‘CCB’) lodged a complaint with the European Commission in which it claimed that, by continuing to use the displays at issue after the expiry dates stipulated for them, without paying rent or taxes to the City of Brussels, JCDecaux had benefited from State aid incompatible with the internal market.

8. On 24 March 2015, the Commission initiated the formal investigation procedure under Article 108(2) TFEU and invited the Kingdom of Belgium and other interested parties to submit their comments. The Commission received comments from the Kingdom of Belgium, CCB and JCDecaux. Additional discussions and exchanges took place between those parties and the Commission.

9. In their comments, the Belgian authorities stated inter alia that they had agreed to the retention and use of the displays at issue beyond the expiry dates stipulated in Annex 10 in order to maintain the economic balance of the 1984 contract, since some displays listed in that annex had been removed early at the request of the City of Brussels, which, for mainly aesthetic reasons, wished to install other models. According to those authorities, since JCDecaux had suffered a disadvantage as a result of that early removal, it was acceptable that, in order to compensate for that early removal, it could keep other displays in place for longer than specified and no payment of rent or taxes would be required from JCDecaux for those displays. (6) The Belgian authorities have acknowledged that there was a limited imbalance between the number of displays which were removed early and the number of displays which were kept in place beyond their respective expiry dates. By calculating the difference between the savings on rent and taxes that JCDecaux forwent by accepting those early removals and the savings on rent and taxes that it made by keeping other displays in place beyond those expiry dates, it is would have benefited from a financial advantage amounting to only a maximum of EUR 100 000 to EUR 150 000 between December 1999 and 2011. (7) The measure at issue could therefore constitutes de minimis aid within the meaning of Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles [107 and 108 TFEU] to de minimis aid. (8)

10. On 24 June 2019 the Commission adopted the contested decision.

11. In recitals 66 to 69 of the contested decision, the Commission defined the subject of its assessment, stating inter alia that, having regard to the limitation rules laid down in Article 17 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU], (9) that assessment related only to the extent to which the retention of the displays at issue beyond the expiry dates specified in Annex 10 without payment of rent or taxes constituted State aid granted to JCDecaux after 15 September 2001.

12. In recitals 72 to 81 of the contested decision, the Commission examined the conditions relating to imputability to the State and the transfer of State resources. It pointed out inter alia that the Belgian authorities did not dispute that the measure at issue was imputable to them or that it had resulted in a loss of revenue for the City of Brussels in terms of the rent and taxes not charged on the displays at issue, which would otherwise have been replaced by displays under the 1999 contract.

13. In recitals 82 to 96 of the contested decision, the Commission analysed the condition relating to the existence of an economic advantage.

14. In that regard, first of all, the Commission noted that, from 1999 onwards and as the authorisations based on the 1984 contract expired, JCDecaux had continued to use advertising displays on the territory of the City of Brussels without paying rent or taxes when, under the 1999 contract, they should have been removed. Under the same contract, rent and taxes would have been payable for the operation of the new advertising displays replacing them. (10)

15. Next, the Commission observed that the Belgian authorities had acknowledged that, ‘overall’, JCDecaux had enjoyed an economic advantage and that they merely contested the scale of that advantage. As regards their argument based on the existence of a compensation mechanism, it recalled, referring to the judgment in Orange v Commission, (11) that it was only in so far as a State intervention must be regarded as compensation for the services provided by undertakings entrusted with performing a service in the general public interest in order to discharge public service obligations in accordance with the criteria established in the judgment in Altmark Trans and Regierungspräsidium Magdeburg, (12) that such a measure fell outside Article 107(1) TFEU. It stated that the 1984 and the 1999 contracts are purely commercial contracts and their provisions do not entrust JCDecaux with a public service responsibility. The alleged compensation, ‘even assuming it is actually designed to offset the disadvantage related to a potential obligation to withdraw certain displays ahead of schedule’, therefore confers an advantage on JCDecaux. That conclusion is all the more obvious ‘in that it is hard to believe that [JCDecaux] suffered from a structural disadvantage, since it agreed to remove the displays on its own initiative, and, furthermore, the Belgian authorities themselves recognise that the compensation in question went beyond what was required by the alleged disadvantage’. (13) The Commission also contended that neither of the situations referred to in paragraphs 69 and 71 of its Notice on...