Opinion of the Advocate General — ECLI:EU:C:2013:11
Date: 2013-01-17
Language of the case: English
Subject matter: State aids;Competition;Principles, objectives and tasks of the Treaties
Procedure: Action for annulment - unfounded

summary notice of the decisions which it takes pursuant to ... Article 18 in conjunction with Article 19(1)’, and that the summary notice must state that ‘a copy of the decision may be obtained in the authentic language version or versions’. On the effects of such publication, see Case T‑354/05 TF1 v Commission [2009] ECR II‑471. 43 – In that regard, in TF1 v Commission, the Court of First Instance points out that that ‘it is only where the Commission decides, in the exercise of its exclusive power to assess the compatibility of State aid with the common market, to accept the State’s commitments as answering its concerns that the [constant] examination procedure [for existing aids] is brought to an end’, paragraph 70. 44 – The fifth subparagraph of Article 249 EC (now the fifth subparagraph of Article 288 TFEU). In certain cases, the Treaty accords to recommendations limited legal effects; see Article 97(2) EC (now Article 117 TFEU). See Joined Cases T‑132/96 and T‑143/96 Freistaat Sachsen and Others v Commission, paragraph 209; the Opinion of Advocate-General Mayras in Case 70/72, p. 834, and the Opinion of Advocate-General Lenz in Case C‑313/90. 45 – The first subparagraph of Article 230 EC (now the first subparagraph of Article 263 TFEU). In the judgment in Salt Union v Commission, the Court of First Instance (as it then was) ruled out the possibility of challenging the Commission’s refusal to propose appropriate measures to a Member State, since the latter is not compelled to accept them. 46 – In Case T‑354/05 TF1 v Commission, the Court of First Instance (now the General Court) defined the procedure under Articles 17, 18 and 19 of Regulation No 659/1999 as a procedure which ‘by its very nature, is a decision-making procedure’ (see paragraph 69). 47 – In Case C‑242/00, the Federal Republic of Germany had brought an action for annulment against the decision by which, according to the applicant, the Commission had deemed certain regional aid schemes to be compatible with the common market only if they related to regions corresponding to a certain percentage of the German population. In the objection by which it disputed the admissibility of the application, the Commission maintained, inter alia, that the decision challenged by the German Government merely confirmed two earlier positions adopted in accordance with the guidelines on regional aid in which it had fixed the ceiling on coverage for regional aid, expressed in terms of population, for the period 2000-2006, and had asked the German Government to adjust its existing aid schemes to bring them into line with the guidelines. In rejecting that line of argument, the Court began by stating that those positions, described in the judgment as ‘decisions’, had to be construed as forming ‘an integral part of the guidelines on regional aid and as having, in themselves, binding force only on condition that they have been accepted by the Member States’. The Court went on to point out that, although they had approved the adjustment proposed by the Commission, the German authorities had made an express reservation on the method of calculating the ceilings. On the basis of that premiss, the Court concluded that the part of the guidelines on regional aid concerning the method of calculating the ceiling on coverage could not be enforced in relation to Germany, with the result that the positions invoked by the Commission could not be regarded as acts which the contested decision – the first decision with binding effect in relation to that Member State – simply confirmed. The Court did not therefore reject a priori the possibility that a proposal for appropriate measures accepted by a Member State constitutes an enforceable act, but basically confined itself to ruling it out in that particular case. 48– TF1 v Commission, paragraphs 60 to 81. 49 – See Article 13(2) TEU and, in case‑law, in particular, Case 204/86 Greece v Council [1988] ECR 5323 and Case C‑65/93 Parliament v Council [1995] ECR I‑643. 50– Paragraphs 18 and 19. At paragraph 18, the Court also notes that ‘when the implementation by the Council of the Community’s agricultural policy necessitates the evaluation of a complex economic situation, the discretion which it has does not apply exclusively to the nature and scope of the measures to be taken but also to some extent to the finding of the basic facts inasmuch as, in particular, it is open to the Council to rely if necessary on general findings’. 51 See, most recently, judgment of 26 June 2012 in Case C‑335/09 P Poland v Commission, paragraphs 71 and 72, concerning the Commission’s implementing powers, and Case T‑326/07 Cheminova and Others v Commission [2009] ECR II‑2685, paragraphs 194 to 196. 52 Insofar as the Court, at paragraph 18, referring to paragraph 25 of the judgment in Case C‑138/79 Roquette Frères v Council [1980] ECR 3333, refers in general to the question whether the authority in question ‘did not clearly exceed the bounds of its discretion’. 53– All emphasis added. 54– The system of the gradual introduction of direct Community payments, introduced by the 2003 Act of Accession (pp. 369 and 370), was adapted by Decision 2004/281/EC of 22 March 2004 adapting the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, following the reform of the common agricultural policy (OJ 2004 L 93, p. 1). That decision was the subject of an action for annulment brought by Poland and rejected by the Court in Case C‑273/04 [2007] ECR I‑8925. For an overview of the scheme and its operation, see the Opinion delivered by Advocate General Poiares Maduro on 21 June 2007 in that case. 55 – I would, however, point out, along with the Council, that the report at Annex A.11 to the application refers to a 16% fall in agricultural incomes in 2008 compared with 2007. 56 – This seems, moreover, to be the finding of the report ‘Five years of Poland in the European Union’, a number of extracts from which were annexed by the Commission to its application. 57 – A similar argument by the Commission was rejected at paragraph 22 in Case C‑122/94. 58– Emphasis added. 59 – Emphasis added. 60– At paragraph 21. 61 – OJ 2009 C 83, p. 1. 62– Communication from the Commission amending the Temporary Community Framework for State aid measures to support access to finance in the current financial and economic crisis (OJ 2009 C 261, p. 2). 63 – To that effect, see also the Opinion of Advocate General Cosmas in Case C‑122/94, in particular point 85. 64– Council Regulation (EC) No 1698/2005 of 20 September 2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (OJ 2005 L 277, p. 1.). 65– Commission Regulation (EC) No 1535/2007 of 20 December 2007 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the sector of agricultural production (OJ 2007 L 337, p. 35). 66 – To that effect, see the judgment in Case C‑122/94 Commission v Council, paragraph 25.