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Annotation on the Judgment of the Conseil d'État of 13 July 2012 in Cases No 347073, 347170 and 350925, Communauté de communes d'Erdre et Gesvres, Les Verts des Pays-de-la-Loire and others, Association ACIPA a.o.
I. The Subject-Matter of the Dispute
An interesting case combining the factual scenario of infrastructure funding and the application of the Altmark criteriawas decided some one and half years ago already by the French Conseil d'État. The French municipalities of Edre and Gesvres, the Green Party of the Pays-de-la-Loire and of other départements as well as various associations had asked for the annulment of a concessionary contract entered into between the French public authorities on the one hand and the societé concessionaire Aéroports du Grand Ouest on the other.One of the pleas they raised,which in the framework of this annotation will also be the only one dealt with, was that this contract contained elements of unlawful State aid. The plaintiffs argued that the subsidies granted by the public authorities for both the building of the aérodrome de Notre-Dame des Landes and for the fulfilment of a number of tasks defined by way of certain specifications ("cahier des charges") constituted illegal State aid. As no notification to the EU Commission had taken place, they relied on the direct effect ofArticle 108(3) last sentence TFEUin the national courts andessentially triedto stoptheproject.
II. The Ruling of the Conseil d'État
The Conseil d'État dealt with one single line of argumentation in its assessment of this plea raising concerns under EU State aid law, i.e. whether the application of the four conditions laid down in the all-sofamousAltmark ruling1was capable of excluding the existence of an undue advantage under Article 107(1) TFEU. In doing so, it - formally speaking - respected diligently and correctly the boundaries set by the EU law jurisprudence for the competences of the national courts, namely that, whilst the EU Commission is solely competent for any assessment of compatibility, the national judge is the one designated for protecting third parties fromthe adverse effects arising from an infringement of the standstill clause of Article 108(3) last sentence TFEU.2
On the first Altmark criterion, i.e. the precise definition of a public-servicemission being subject of an appropriate act of entrustment, the Conseil d'État found this...