Opinion of the Advocate General — ECLI:EU:C:2013:194
Date: 2013-03-21
Language of the case: Italian
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Italy

Summary — Judgment of the Court (Second Chamber), 13 June 2013 1. Appeals — Grounds — Challenge, reiterating the pleas and arguments put forward before the General Court, to the interpretation or application of EU law by that court — Admissibility (Art. 256(1) second para. TFEU) 2. State aid — Examination by the Commission — Decision to open the formal investigation procedure provided for in Article 88(2) EC — Decision based on incomplete facts or an incorrect legal characterisation of those facts — Adoption of a corrective decision — Lawfulness — Legal characterisation identical to that in the decision to open the procedure (Art. 88(2) EC) 3. Appeals — Grounds — Inadequate statement of reasons — Reliance by the Court of First Instance on implied reasoning — Lawfulness — Conditions (Art. 256 TFEU; Statute of the Court of Justice, Arts 36 and 53, first para.) 4. State aid — Examination by the Commission — Opening of a formal examination procedure — Maximum time-limit of two months — Inapplicability in the case of non-notified aid (Arts 87 EC and 88 EC; Council Regulation No 659/1999, Arts 4(5), 7(6) and 13(2)) 5. State aid — Examination by the Commission — Obligation to complete the preliminary examination undertaken following a complaint within a reasonable time — Assessment of actual situation — Scope (Arts 87 EC and 88 EC) 6. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the findings of fact — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) 7. State aid — Existing aid and new aid — Measure amending an existing aid scheme — Treated as new aid (Council Regulation No 659/1999, Art. 1(c); Commission Regulation No 794/2004, Art. 4(1); Commission Notice 98/C 74/06) 8. State aid — Compatibility of the aid with the common market — Aid improving the financial situation of the recipient undertaking without being necessary for the attainment of the objectives specified in Article 107(3) TFEU — Aid having to be necessary for the development of less favoured areas — Criteria for assessing whether the aid is necessary (Art. 107(3) TFEU) 9. State aid — Examination by the Commission — Examination of an aid scheme as a whole — Lawfulness (Arts 107 TFEU and 108 TFEU) 10. State aid — Compatibility of the aid with the common market — Legitimate expectations on the part of the persons concerned — Protection — Conditions and limits (Art. 108 TFEU) 1. See the text of the decision. (see para. 47) 2. It is true that the legislation governing procedure in State aid cases does not provide expressly for the possibility of adopting a corrective decision and extending a pending procedure. That does not mean, however, that the Commission may not correct or, where necessary, extend the formal investigation procedure, if it discovers that the initial decision to open the procedure was based on an incomplete set of facts or on an incorrect legal characterisation of those facts. (see paras 50, 51) 3. See the text of the decision. (see para. 56) 4. It is unequivocally clear from the wording of Articles 4(5) and 7(6) of Regulation No 659/1999 laying down detailed rules for the application of Article 88 EC that they apply only in the case of aid which has been notified. Moreover, Article 13(2) of that regulation provides expressly that, in cases of possible unlawful aid, the Commission is not bound by the time-limits set out in, inter alia, Articles 4(5) and 7(6) of that regulation. Where the scheme at issue has not been notified, the Commission is not bound by the two-month time period provided for in Article 4(5) of Regulation No 659/1999. (see paras 74, 75) 5. The Commission is required to act within a reasonable time in procedures for examining State aid and is not allowed to persist in refraining from taking action during the preliminary examination phase. The reasonableness of the period for delivering judgment is to be appraised in the light of the circumstances specific to each case, such as the complexity of the case and the conduct of the parties. (see paras 81, 82) 6. See the text of the decision. (see para. 88) 7. A measure which allows certain projects commenced before the submission of the application for aid to be taken into account constitutes an alteration to an existing aid scheme where the national legislation introducing that scheme is silent on the point of the temporal relationship between the submission of the application for aid and the commencement of work and where the national authorities inform the Commission that the grant of the aid provided for by that law can relate only to projects to be carried out ‘subsequently’ and that that condition is confirmed in the provisions for the implementation of that legislation. Moreover, that alteration cannot be characterised as being of a purely formal or administrative nature within the meaning of Article 4(1) of Regulation No 794/2004 implementing Council Regulation No 659/1999, since it was liable to affect the evaluation of the compatibility of the aid measure with the common market. This is the case where the approval decision referred expressly to the condition that the application for aid had to precede the commencement of work on the investment projects, a condition which the Commission regularly imposes for its approval of regional aid schemes, as is apparent from point 4.2 of the Guidelines on national regional aid. The alteration to the aid scheme introduced by such a measure is not minor or trivial and, accordingly, the scheme at issue falls to be considered as new aid within the meaning of Article 1(c) of Regulation No 659/1999 laying down detailed rules for the application of Article 88 EC and not as existing aid. (see paras 91, 93, 94) 8. The Commission is entitled to refuse the grant of aid where that aid does not induce the recipient undertakings to adopt conduct likely to assist attainment of one of the objectives referred to in Article 107(3) TFEU. Such aid must thus be necessary for the attainment of the objectives specified in that provision, with the result that, without it, market forces alone would not succeed in getting the recipient undertakings to adopt conduct likely to assist attainment of those objectives. Aid which improves the financial situation of the recipient undertaking without being necessary for the attainment of the objectives specified in Article 107(3) TFEU cannot be considered compatible with the internal market. It follows from the foregoing that, in the context of Article 107(3)(a) TFEU, in order to be compatible with the internal market, the planned aid must be necessary for the development of less favoured areas. To that end, it must be shown that, without the planned aid, the investment intended to support the development of the region in question would not take place. If, on the other hand, it appears that that investment would take place even without the planned aid, the conclusion must be that the aid serves merely to improve the situation of the recipient undertakings, without however meeting the requirement in Article 107(3)(a) TFEU that it be necessary for the development of less favoured areas. The criteria in the light of which the necessary nature of planned aid for the development of less favoured areas may be inferred from the requirement that the investment project be commenced before the submission of the application for aid and on the basis of other assessment criteria. (see paras 104-106, 109) 9. See the text of the decision. (see para. 114) 10. In the area of State aid, the right to rely on the principle of the protection of legitimate expectations presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union. That right applies to any individual in a situation in which an EU institution, body or agency, by giving that person precise assurances, has led him to entertain well-founded expectations. Precise, unconditional and consistent information, in whatever form it is given, constitutes such an assurance. Moreover, a legitimate expectation in the lawfulness of State aid can, in principle, save in exceptional circumstances, be relied upon only where that aid was granted in a manner compatible with the procedure laid down in Article 108 TFEU. (see paras 132, 134)