Bouygues SA and Bouygues Télécom SA v Commission of the European Communities.

• Jurisdiction: European Union
• Celex Number: 62007CC0431
• ECLI: ECLI:EU:C:2008:545
• Court: Court of Justice (European Union)
• Date: 08 October 2008
• Procedure Type: Recurso de casación - inadmisible
• Docket Number: C-431/07

OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 8 October 2008 ¹(1)

Case C‑431/07 P

Bouygues SA and

Bouygues Télécom SA

v

Commission of the European Communities

(Appeal – Article 87(1) EC – State aid – Directive 97/13/EC – Decision No 128/1999/EC – Award of UMTS licences – Retroactive reduction of fees – Decision finding that no State aid exists – Exception based on the nature and general scheme of the system – Imputability to the State – Article 88(2) and (3) EC – Serious difficulties)

Table of contents

I – Legal context

II – Background to the dispute

A – Award of UMTS licences

B – Procedure before the Commission and the contested decision

III – Proceedings before the Court of First Instance and the judgment under appeal

IV – Forms of order sought before the Court of Justice

V – Arguments of the parties on appeal

A – First ground of appeal

B – Second ground of appeal

C – Third ground of appeal

1. The first branch

2. The second branch

3. The third branch

D – Fourth ground of appeal

1. The first branch

2. The second branch

3. The third branch

VI – Legal appraisal

A – Third and fourth grounds of appeal

1. Content of the letter of 22 February 2001 (third branch of the third ground of appeal)

2. The partial waiver of the claims on Orange and SFR and the exception based on the general scheme of the system (first branch of the fourth ground of appeal)

a) Applicability in the present case of the exception based on the nature and general scheme of the system, and the legal basis for that exception

b) The application of the exception based on the nature and general scheme of the Community framework

c) Interim conclusion

3. The uncertain nature of the claims (second branch of the third ground of appeal)

4. The selective temporal advantage (second branch of the fourth ground of appeal)

a) Notion of advantage for the purposes of Article 87(1) EC

b) The argument based on the exception relating to the nature and general scheme of the Community framework

i) Inevitability of the earlier grant of licences to Orange and SFR

ii) Inevitability of applying identical terms to Orange, SFR and Bouygues Télécom on 3 December 2002

c) Interim conclusion

5. Principle of non-discrimination (third branch of the fourth ground of appeal)

6. The single nature of the procedure (first branch of the third ground of appeal)

7. Interim conclusion

B – Second ground of appeal

C – First ground of appeal

D – Conclusion

VII – Costs

VIII – Conclusion

1. By their appeal, Bouygues SA and Bouygues Télécom SA (‘Bouygues and Bouygues Télécom’ or ‘the appellants’) claim that the Court of Justice should set aside the judgment in Case T-475/04 Bouygues and Bouygues Télécom v Commission (‘the judgment under appeal’) (2) by which the Court of First Instance of the European Communities dismissed their action for annulment of the Commission decision of 20 July 2004 (State aid NN 42/2004 – France) regarding the retroactive modification of payments due from Orange and SFR for Universal Mobile Telecommunications System (UMTS) licences (‘the contested decision’). (3)

I – Legal context

2. Under Article 87(1) EC:

‘Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market.’

3. Article 88(3) EC provides:

‘The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. If it considers that any such plan is not compatible with the common market having regard to Article 87, it shall without delay initiate the procedure provided for in paragraph 2. The Member State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision.’

4. Use of the radio spectrum to provide UMTS services is governed by Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (4) and Decision No 128/1999/EC of the European Parliament and of the Council of 14 December 1998 on the coordinated introduction of a third-generation mobile and wireless communications system (UMTS) in the Community. (5)

5. Article 3(3) of Directive 97/13 provides:

‘Member States shall ensure that telecommunications services and/or telecommunications networks can be provided either without authorisation or on the basis of general authorisations, to be supplemented where necessary by rights and obligations requiring an individual assessment of applications and giving rise to one or more individual licences. Member States may issue an individual licence only where the beneficiary is given access to scarce physical and other resources or is subject to particular obligations or enjoys particular rights, in accordance with the provisions of Section III.’

6. Article 8(4) of Directive 97/13 is worded as follows:

‘Member States may amend the conditions attached to an individual licence in objectively justified cases and in a proportionate manner. When doing so, Member States shall give appropriate notice of their intention to do so and enable interested parties to express their views on the proposed amendments.’

7. Article 9(2) of Directive 97/13 provides:

‘Where a Member State intends to grant individual licences:

– it shall grant individual licences through open, non-discriminatory and transparent procedures and, to this end, shall subject all applicants to the same procedures, unless there is an objective reason for differentiation …’.

8. Under Article 10(1), (3) and (4) of Directive 97/13:

‘1. Member States may limit the number of individual licences for any category of telecommunications services and for the establishment and/or operation of telecommunications infrastructure, only to the extent required to ensure the efficient use of radio frequencies or for the time necessary to make available sufficient numbers in accordance with Community law.

...

3. Member States shall grant such individual licences on the basis of selection criteria which must be objective, non-discriminatory, detailed, transparent and proportionate. Any such selection must give due weight to the need to facilitate the development of competition and to maximise benefits for users. …

4. Where, on its own initiative or following a request by an undertaking, a Member State finds, either at the time of entry into force of this Directive or thereafter, that the number of individual licences can be increased, it shall publish this fact and invite applications for additional licences.’

9. Article 11(2) of Directive 97/13 provides:

‘… Member States may, where scarce resources are to be used, allow their national regulatory authorities to impose charges which reflect the need to ensure the optimal use of these resources. Those charges shall be non-discriminatory and take into particular account the need to foster the development of innovative services and competition.’

10. According to Article 1 thereof, the aim of Decision No 128/1999 is ‘to facilitate the rapid and coordinated introduction of compatible UMTS networks and services in the Community’. Article 3(1) of that decision is worded as follows:

‘Member States shall take all actions necessary in order to allow, in accordance with Article 1 of Directive 97/13/EC, the coordinated and progressive introduction of the UMTS services on their territory by 1 January 2002 at the latest.’

11. Hereinunder, the provisions of Directive 97/13 and of Decision No 128/1999 will be referred to as ‘the Community framework’.

II – Background to the dispute

A – Award of UMTS licences

12. By a decision of 28 July 2000, the French authorities launched a call for applications for four UMTS licences. The lifetime of the licences was to be 15 years. The fee for a licence was to amount to a total of EUR 4.95 billion. The four licences were to be awarded under a ‘comparative’ tendering procedure. That method enabled the French authorities to choose, from the operators which had declared themselves willing to pay EUR 4.95 billion, those who had entered into the most substantial commitments with regard to a number of criteria such as scale and speed of network development, quality of services provided and measures to protect the environment.

13. The final date for lodging applications was set at 31 January 2001 and applicants could withdraw their applications up until 31 May 2001. By 31 January 2001 only two applications had been received, namely from Société française du radiotéléphone – SFR (‘SFR’) and from France Télécom mobiles, which a few months later became Orange France (‘Orange’). Other operators chose not to tender, primarily on account of the high level of the fees.

14. Accordingly, the Autorité de régulation des télécommunications (Telecommunications Regulatory Authority; ‘the ART’) announced in a press release of 31 January 2001 (hence on the date on which the deadline for making applications expired) that in order to promote the development of genuine competition, as sought by both Community and French legislation, a second, supplementary call for applications was necessary so as to meet the objective of awarding four licences.

15. In the light of that information, Orange and SFR drew the attention of the Minister for the Economy and Finance and of the Secretary of State for Industry to the need, when deciding the terms of future licences, to comply with the principle of equal treatment of individuals vis-à-vis financial burdens imposed by the State and the principle of effective competition between operators.

16. By two identically worded letters dated 22 February...