Judgment — ECLI:EU:C:2010:769
Date: 2010-12-16
Language of the case: German
Court formation: First Chamber
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded
Origin: Germany

summary of which is published in the Official Journal of the European Communities, but also by taking account of the aid scheme notified by the Member State concerned (see, to that effect, Case C‑138/09 Todaro Nunziatina & C. [2010] ECR I‑0000, paragraph 31, and C‑67/09 P Nuova Agricast and Cofra v Commission [2010] ECR I‑0000, paragraph 64). 45 A request for additional information, by which the Commission requests further information on the scope of an aid scheme notified by a Member State, as well as the reply by the national authorities to that request, must be considered to be an indivisible part of the notified aid scheme. This is, a fortiori, the position where, as in the present case, it is precisely on the basis of that information that the Commission decided not to raise objections to the aid scheme in question. 46 It follows that the General Court acted correctly in taking the view that the letter from the German authorities of 26 August 1993 formed part of the authorised aid scheme and, therefore, that the grant constituting measure 15 had not been awarded lawfully by reason of the fact that the appellant was, at the time when that grant was awarded, a firm in difficulty. 47 In this respect, it must, however, be stated that, in the framework of the implementation of the general aid programme authorised by the Commission, the Federal Republic of Germany, which obviously had that letter at its disposal, could not distance itself from the information which it had provided to the Commission, but, on the contrary, had to take that information into account, in order to ensure that the individual national aid would be granted in accordance with that information. 48 In view of the foregoing, it must be concluded that the appellant cannot therefore validly plead infringement of the principle of legal certainty in respect of measure 15. 49 As regards measure 26, the General Court, after having examined, in paragraphs 167 to 188 of the judgment under appeal, the scope of Paragraph 249h of the AFG, which established the scheme authorised by the Commission, concluded that private undertakings were not eligible for grants such as those constituting that measure. 50 In the context of that examination, it first noted that, as a result of the letter of the German authorities of 29 July 1994 – mentioned in paragraph 20 of this judgment – by which those authorities had set out the scope of the scheme established by Paragraph 249h of the AFG, the Commission had decided not to raise objections to the implementation of the measures thus provided for (paragraphs 172 and 173 of the judgment under appeal). 51 The General Court then went on to hold that the explanation contained in that letter, from which it followed that private undertakings were not eligible under that provision, was relevant for the purpose of determining the precise scope of the authorised scheme and had actually been taken into consideration by the Commission in order to establish that the measures envisaged did not constitute aid within the meaning of Article 87 EC (paragraphs 175, 176 and 180 of the judgment under appeal). 52 On the basis of that assessment, the General Court held, in paragraphs 205 and 206 of the judgment under appeal, that the Commission had also not infringed the principle of legal certainty in respect of measure 26, since it had limited itself strictly to assessing whether the grants constituting that measure complied with the conditions laid down in the decision authorising the scheme in question. 53 Contrary to the appellant’s contention, the General Court did not infringe the principle of principle of legal certainty in reaching such a conclusion. 54 Having regard to what is set out in paragraphs 44 and 45 of the present judgment, it must be noted that the letter of the German authorities of 29 July 1994 was part of the notified aid programme to which measure 26 belongs and that it was precisely on the basis of the information contained therein that the Commission decided not to raise any objection to the notified aid scheme. 55 It follows that the General Court was entitled to form the view that that scheme did not allow the grant of subsidies to private undertakings, such as the appellant, and, therefore, that the aid which the appellant had received did not meet the conditions laid down under that scheme. 56 The allegation of an infringement of the principle of legal certainty must therefore also be rejected in respect of measure 26. 57 In the light of all of the foregoing, the first plea must be rejected in its entirety as unfounded. The second plea: infringement of the principle of the protection of legitimate expectations Arguments of the parties 58 By its second plea, the appellant argues that the General Court infringed the principle of the protection of legitimate expectations by holding, in paragraphs 150 and 208 of the judgment under appeal, that the absence of explicit restrictions in the decisions approving the programme of the Land of Thuringia for investments by SMEs and the programme established under Paragraph 249h of the AFG cannot be equated with ‘precise assurances’, within the meaning of the case-law of the European Union judicature, provided by the Commission and capable of giving rise to legitimate expectations on the appellant’s part as to the lawfulness of measures 15 and 26. 59 First, it submits, the General Court erred in not taking account of the fact that the appellant was not in a position to identify any restrictions in the documents on the authorised programmes as published. The appellant was therefore justified in taking the view that the grants constituting those measures had been properly awarded, in compliance with the conditions imposed by the Commission concerning the authorised programmes, with the result that the appellant could not have expected that a decision would be taken requiring the recovery of those grants. 60 Second, the appellant criticises the General Court for holding that ‘it remained under an obligation to keep itself informed as to whether the grant of the aid that it had been awarded was lawful’ (paragraph 150 of the judgment under appeal). Such an obligation to keep itself informed is imposed on an aid beneficiary only when – unlike the situation in the present case – there is an identifiable uncertainty on the part of the interested party as to the scope of the authorisation to which that type of aid is subject. 61 The Commission contends that, since the appellant is neither an addressee of the contested decision nor directly covered by the authorised schemes – the latter being liable, on the contrary, to apply to an indeterminate number of undertakings – the appellant cannot validly invoke the principle of the protection of legitimate expectations. 62 Furthermore, according to the Commission, the appellant ought, in any event, to have expected the withdrawal of the grants constituting measures 15 and 26 in view of the fact that the German authorities had awarded those grants in clear contravention of the conditions set out in the notified programmes. Findings of the Court 63 In accordance with settled case-law, to which the General Court, moreover, correctly referred in paragraph 146 of the judgment under appeal, the right to rely on the principle of the protection of legitimate expectations applies to any individual in a situation in which an institution of the European Union, by giving that person precise assurances, has led him to entertain well-founded expectations (see, inter alia, judgment of 24 November 2005 in Case C-506/03 Germany v Commission, not published in the ECR, paragraph 58, and judgment in Case C‑213/06 P EAR v Karatzoglou [2007] ECR I‑6733, paragraph 33). Such assurances, in whatever form they are given, constitute precise, unconditional and consistent information (see, to that effect, judgment in Case C-47/07 P Masdar (UK) v Commission [2008] ECR I‑9761, paragraphs 34 and 81). 64 It must be held that the General Court correctly applied that case-law in the judgment under appeal. 65 As the General Court noted, the absence of explicit restrictions in the aid schemes concerned could not, by definition, be deemed to constitute precise, unconditional and consistent information provided by the Commission to the appellant with regard to the fact that those schemes allowed the award of grants, respectively, to firms in difficulty, in the case of measure 15, or to private undertakings, in the case of measure 26, and could not therefore give rise to a legitimate expectation on the appellant’s part that the grants which had been awarded to it were lawful. 66 Quite on the contrary, since the possibility of granting aid to those firms was at the very least, uncertain, that absence of any explicit restriction could not therefore be the source of precise assurances capable of giving rise to any legitimate expectation on the appellant’s part. 67 It follows from the foregoing that the judgment under appeal does not infringe the principle of the protection of legitimate expectations, and therefore that the second plea must also be rejected as unfounded. The third plea: infringement of Article 87(1) EC Arguments of the parties 68 By its third plea, which is raised in the alternative, the appellant claims that the General Court infringed Article 87(1) EC by finding, in paragraphs 193 to 201 of the judgment under appeal, that the grants constituting measure 26 had to be regarded as constituting State aid up to their full amount. 69 In reaching that conclusion, however, according to the appellant, the General Court infringed, first, the principle of the division of powers between itself and the Commission, regard being had to the fact that the contested decision leaves the Member State free to calculate the actual advantage received by the appellant. Second, the General Court did not comply with the case-law according to which the advantage received by a beneficiary is to be calculated, not on the basis of the costs incurred by the Member State concerned, but in accordance with the savings actually made by that beneficiary by reason of its receipt of the unlawful aid measure. 70 The Commission, taking the opposite view, denies that there was any infringement whatsoever of that principle, arguing, first, that the General Court did not examine the amount of the advantages granted to the appellant, but referred clearly to the amount of aid as mentioned in the contested decision. Second, it considers that the General Court correctly applied the criteria established in the case-law when calculating the advantage obtained by the appellant by virtue of measure 26 inasmuch as it based itself, in paragraphs 196 to 198 of the judgment under appeal, on the savings actually made by the appellant by virtue of the wages subsidies which it had received. Findings of the Court 71 It must first be pointed out that, contrary to the appellant’s submission, the General Court did not state, in paragraphs 193 to 201 of the judgment under appeal, that the grants constituting measure 26 had to be regarded as constituting State aid up to their full amount. 72 On the contrary, as the Commission rightly submits, it follows from a reading of those paragraphs that, without examining the amount of the advantages granted to the appellant, the General Court clearly referred to that amount as mentioned by the Commission in the contested decision and, moreover, specifically indicated in paragraphs 18 and 192 of the judgment under appeal. 73 In these circumstances, it cannot validly be argued that the General Court infringed the principle of the division of powers between itself and the Commission by going beyond what the Commission had determined within the framework of the contested decision. 74 Second, with regard to the alleged failure to follow the Community case-law to the effect that the advantage is to be determined by reference to the savings actually made by the beneficiary due to the fact that the unlawful aid measure was received, it must be stated that the judgment under appeal is in fact based on the correct assumption that the income constituted by the grants in question represent the advantage from which the appellant benefited. 75 In that regard, it is important to note that, in paragraph 196 of the judgment under appeal, the General Court found that the appellant had been ‘relieved of some of the financial burden (wage costs)’ relating to works which it had carried out in its own interest. Similarly, in paragraph 198 of the judgment under appeal, the General Court found, as the Commission had argued, that the appellant ‘[had] not actually [borne] the part of the costs corresponding to the amount of the grant it [had] received’. 76 In the light of all of the foregoing considerations, the third plea must also be rejected as unfounded. 77 Since none of the pleas in the appeal has been successful, the appeal must be dismissed. Costs 78 The first paragraph of Article 122 of the Rules of Procedure of the Court states that, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings pursuant to Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the appellant has been unsuccessful, the appellant must be ordered to pay the costs. On those grounds, the Court (First Chamber) hereby: 1. Dismisses the appeal; 2. Orders Kahla Thüringen Porzellan GmbH to pay the costs. [Signatures] * Language of the case: German.