Opinion of the Advocate General — ECLI:EU:C:2010:545
Date: 2010-09-23
Language of the case: English
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Italy

Summary of the Judgment 1. Appeals – Grounds – Review by the Court of Justice of the assessment of the facts and evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225 EC; Statute of the Court of Justice, Art. 58) 2. State aid – Examination by the Commission – Factors to be taken into consideration (Arts. 87 EC and 88 EC) 3. State aid – Commission decision to initiate a formal procedure to investigate a State measure – Judicial review – Limits (Art. 88(2) and (3), EC; Council Regulation No 659/1999, Art. 6) 4. European Union law – Principles – Protection of legitimate expectations – Commission decision on State aid which does not question its assessment in an earlier decision – Breach of the principle of the protection of legitimate expectations – No such breach 5. State aid – Commission decision to initiate a formal procedure to investigate a State measure which has been provisionally classified as new aid – Obligation to state reasons – Scope (Arts. 88(2), EC and 253 EC) 6. State aid – Existing aid and new aid – Change affecting the substance of a measure which was not initially classified as aid (Arts. 87 EC and 88 EC) 7. State aid – Existing aid and new aid – Distinction based on objective factors (Arts. 87 EC and 88 EC) 1. In accordance with Article 225 EC and Article 58 of the Statute of the Court of Justice, in an appeal the Court of Justice does not have jurisdiction to establish and assess the relevant facts, save when it is alleged that those facts are distorted. If the facts are not distorted by the General Court, the latter has sole jurisdiction to assess the facts. (see paras 39, 42) 2. The method by which aid is financed may render the entire aid scheme it is intended to fund incompatible with the common market. In such a case, the Commission is required to examine the aid by taking into account the effects of its method of financing. (see para. 48) 3. The purpose of the preliminary stage of the procedure for reviewing aid under Article 88(3) EC, which is governed by Articles 4 and 5 of Regulation No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty, is to allow the Commission to form a prima facie opinion as to whether the aid in question is compatible in whole or in part with the common market. That stage is separate from the investigation stage envisaged by Article 88(2) EC, which is governed by Articles 6 and 7 of that regulation and is designed to enable the Commission to be fully informed of all the facts of the case. As is apparent from Article 6 of Regulation No 659/1999, the decision to initiate the formal investigation procedure is to include a preliminary assessment by the Commission as to the aid character of the proposed measure and set out any doubts as to its compatibility with the common market. The Commission is required to adopt a decision to initiate that procedure if an initial examination does not enable it to satisfy itself that the measure in question is compatible with the common market. Consequently, any review by the General Court of the legality of such a decision must necessarily be limited, in so far as, where the applicants challenge the Commission’s assessment classifying the disputed measure as State aid, review by the European Union judicature is limited to ascertaining whether or not the Commission has made a manifest error of assessment. (see paras 57-58, 60-61) 4. The right to rely on the principle of the protection of legitimate expectations extends to any person in a situation in which a European Union institution has caused him to entertain expectations justified by precise assurances provided to him. However, if a prudent, alert economic operator could have foreseen the adoption of a Union measure likely to affect his interests, he cannot plead that principle if the measure is adopted. As far as concerns State aid, the principle of the protection of legitimate expectations can be infringed when the Commission alters its appraisal of a measure on the basis only of a more rigorous application of the Treaty rules on State aid. In such a case, the applicants are entitled to expect that a Commission decision reversing its previous approach will give them the time necessary to address that change of approach. Such a situation must be distinguished from that in which the Commission does not, in the contested decision, question its assessment of the measure examined in an earlier decision, but entertains doubts concerning the measure at issue on account of, first, the fact that its conclusions in the earlier decision were of limited duration and based on the circumstances prevailing at a given time and, second, the changes which the measure concerned by that decision underwent. In such a case, the earlier decision cannot give rise to a legitimate expectation that the Commission’s conclusions in that decision will be extended to a new method of financing. (see paras 71-74) 5. The requirements to be satisfied by the statement of reasons, for the purpose of Article 253 EC, depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. With regard to the preliminary stage of investigating a measure that has not previously been examined, it is permissible for the Commission merely to summarise the relevant issues of fact and law, include a preliminary assessment as to the aid character of the State measure in question and set out its doubts as to the measure’s compatibility with the common market. (see paras 96, 102) 6. The fact alone that a measure which has not been found to constitute aid continues to be implemented, in some cases following an extension of the legal act which introduced it, cannot convert it into State aid and, more specifically, new aid. On the other hand, if changes have been made to the very substance of such a measure, it can be examined only in the light of the rules applicable to new aid. (see paras 110-112) 7. The concept of aid, whether existing or new, corresponds to an objective situation and cannot depend on the conduct or statements of the institutions. (see para. 125)