Opinion of the Advocate General — ECLI:EU:C:2009:298
Date: 2009-05-12
Language of the case: English;French;Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - successful
Origin: France;Ireland;Italy

Summary of the Judgment 1. Actions for annulment – Pleas in law – Infringement of essential procedural requirements – Examination by the Court acting of its own motion (Art. 230 EC) 2. Community law – Principles – Rights of the defence – Rule that the parties should be heard – Observance in the context of judicial proceedings (Rules of Procedure of the Court of First Instance, Art. 62) 3. State aid – Existing aid and new aid – Evolution of the common market (Art. 253 EC) 1. An absence of or inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 230 EC and is a plea involving a matter of public policy which may, and even must, be raised by the Community judicature of its own motion. By raising such a plea of its own motion, the Community judicature does not go beyond the scope of the dispute that has been brought before it, or in any way infringe the rules of procedure relating to the presentation in the application of the subject-matter of the dispute or of the pleas in law. (see paras 34-35) 2. The rule that the parties should be heard, a basic principle of law, forms part of the rights of the defence. It applies to any procedure which may result in a decision by a Community institution perceptibly affecting a person’s interests. The Community Courts ensure that the principle that the parties should be heard is observed in proceedings before them and that they themselves observe that principle. The principle that the parties should be heard must benefit all parties to proceedings before the Community judicature, irrespective of their legal status. The Community institutions may also, therefore, avail themselves of that principle when they are parties to such proceedings. The court must itself observe the principle that the parties should be heard, in particular when it decides a dispute on a ground it has identified of its own motion. The principle that the parties should be heard does not, as a rule, merely confer on each party to proceedings the right to be apprised of the documents produced and observations made to the Community Courts by the other party and to discuss them, and does not merely prevent the Community Courts from basing their decision on facts and documents which the parties, or one of them, have not had an opportunity to examine and on which they have therefore been unable to comment. It also, as a rule, implies a right for the parties to be apprised of pleas in law raised by those Courts of their own motion, on which they intend basing their decisions, and to discuss them. The discretion which the General Court has with regard to the reopening of the oral procedure under Article 62 of its Rules of Procedure cannot be exercised without taking account of the obligation to comply with the principle that the parties should be heard. A judgment annulling a contested Commission decision on the basis of a plea concerning an infringement of Article 253 EC that the Court had raised of its own motion without the parties first having been invited, in the course of the written or oral procedures, to submit their observations on that plea infringes the rule that the parties should be heard. While an inadequate statement of reasons is a defect which, in principle, cannot be remedied, the finding of such a defect nevertheless follows from an assessment which must take certain matters into consideration. Such an assessment may be open to debate, particularly where it relates to the reasons for a specific point of fact and of law rather than to the total absence of reasons. (see paras 50-57, 59-61) 3. Under Article 1(b)(v) of Regulation No 659/1999 relating to the application of Article 88 EC, aid is deemed to be an existing aid if, at the time it was put into effect, it did not constitute an aid, and subsequently became an aid due to the evolution of the common market and without having been altered by the Member State. The concept of evolution of the common market may be understood as a change in the economic and legal framework of the sector concerned by the measure in question, and does not apply, for example, in a situation where the Commission alters its appraisal on the basis of a more rigorous application of the rules on State aid. More generally, the concept of State aid, whether existing or new, corresponds to an objective situation. That concept cannot depend on the conduct or statements of the institutions. Accordingly, while the statement of reasons for a Community measure required under Article 253 EC must be appropriate to the act at issue, the Commission is not required to state the reasons why it made a different assessment of a measure in its previous decisions. Consequently, circumstances which relate principally to the fact that the Commission took the view, when decisions authorising contested exemptions were adopted by the Council, that those exemptions did not give rise to distortions in competition or interfere with the working of the internal market and, moreover, that those decisions might suggest that the exemptions at issue could not be classified as State aid, are not such as to require the Commission, in principle, to set out in a contested decision reasons for finding Article 1(b)(v) of Regulation No 659/1999 to be inapplicable. (see paras 70-73, 75)