Opinion of the Advocate General — ECLI:EU:C:2018:229
Date: 2018-04-11
Language of the case: Italian
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - successful
Origin: Italy

Summary — Judgment of the Court (Grand Chamber), 6 November 2018 1. Actions for annulment — Natural or legal persons — Concept of regulatory act within the meaning of the fourth paragraph of Article 263 TFEU — Any act of general scope other than legislative acts (Art. 263, fourth para., TFEU) 2. Actions for annulment — Natural or legal persons — Concept of regulatory act within the meaning of the fourth paragraph of Article 263 TFEU — Any act of general scope other than legislative acts — Commission decision declaring an aid scheme compatible with the internal market — Included (Art. 263, fourth para., TFEU) 3. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Decision on State aid — Competitor of the undertaking receiving the aid — Right to bring an action — Conditions — Judicial review — Scope (Arts 108(2) and (3) TFEU and 263, fourth para., TFEU) 4. Appeal — Grounds — Grounds of a judgment vitiated by an infringement of EU law — Operative part well founded for other legal reasons — Rejection (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.) 5. Actions for annulment — Natural or legal persons — Regulatory acts entailing implementing measures — Concept — Criteria for assessment (Art. 263, fourth para., TFEU) 6. Actions for annulment — Natural or legal persons — Regulatory acts — Acts not comprising implementing measures and concerning the applicant directly — Concept of implementing measures — Criteria — Commission decision declaring an aid scheme incompatible with the internal market — Effects produced through the intermediary of measures taken by the national authorities — Acts constituting implementing measures for beneficiaries of the scheme but not for competing undertakings (Arts 107(1) TFEU and 263, fourth para., TFEU) 7. State aid — Recovery of unlawful aid — Absolute impossibility of implementation — Possibility of establishing that impossibility at the stage of the administrative procedure preceding adoption of the decision — Duty of the Commission and of the Member State to collaborate in seeking a solution compatible with the Treaty (Art. 4(3) TEU; Arts 107(1) TFEU and 108(2) TFEU; Council Regulation No 659/1999, Art. 14(1)) 8. Appeal — 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), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 168(1)(d)) 9. State aid — Recovery of unlawful aid — Aid granted in the form of tax exemption — Absolute impossibility of implementation — Grounds — Impossibility of the State obtaining the information necessary for identifying the beneficiaries of the aid — Not permissible (Art. 107(1) TFEU) 10. Competition — EU rules — Undertaking — Concept — Exercise of an economic activity — Concept — Private educational establishment — Educational activities forming part of a public education system and financed by public funds — Not included — Educational activities organised by the entity itself and not subsidised by the State — Included (Art. 107(1) TFEU) 11. Appeal — Grounds — Review by the Court of the assessment of rules of national law relied on by a party — Possible only where the clear sense of the evidence has been distorted (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.) 1. The concept of ‘regulatory acts’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU is more restricted in scope than the concept of ‘acts’ used in the first and second limbs of that provision and refers to acts of acts of general application other than legislative acts. It cannot therefore be argued that there are non-legislative acts of general application that are not covered by the concept of ‘regulatory act’. There is no basis for that interpretation in the wording, origin or purpose of that provision. Consequently, it must be considered that the concept of ‘regulatory act’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU extends to all non-legislative acts of general application. (see paras 23, 24, 28) 2. In the field of State aid, decisions of the Commission authorising or prohibiting a national scheme are of general application within the meaning of the third limb of the fourth paragraph of Article 263 TFEU. That general application derives from the fact that such decisions apply to objectively determined situations and produce legal effects with respect to a category of persons envisaged in a general and abstract manner. The issue of whether or not an act is of general application concerns an objective characteristic of the act which cannot vary according to the different limbs of the fourth paragraph of Article 263 TFEU. Moreover, an interpretation according to which an act could at the same time be of general application in relation to the second limb of the fourth paragraph of Article 263 TFEU and not be of general application in relation to the third limb of the fourth paragraph of Article 263 TFEU would run counter to the objective behind the addition of that provision, which was to relax the conditions of admissibility for annulment actions brought by natural or legal persons. Moreover, the fact that part of a Commission decision is of individual concern to the restricted class of beneficiaries of the aid scheme concerned does not preclude that part from being regarded as of general application where it applies to objectively determined situations and produces legal effects for categories of persons envisaged in a general and abstract manner. That is so where, in the first part of the decision, the Commission considers that it is not appropriate to order the recovery of the aid granted in the form of a tax exemption despite its being unlawful and incompatible with the internal market, and that decision preserves the anticompetitive effects of the general and abstract measure which that exemption constitutes with respect to an indefinite number of competitors of the beneficiaries of the aid granted under that measure. (see paras 31, 32, 36, 38) 3. While it is not for the EU judicature, at the stage of the examination of admissibility, to rule definitively on the competitive relationships between an applicant and the beneficiaries of the national measures assessed in a decision of the Commission on State aid, a direct effect on such an applicant cannot, however, be deduced from the mere potential existence of a competitive relationship. In so far as the condition of direct concern requires the contested measure to produce effects directly on the applicant’s legal situation, the EU judicature must ascertain whether the applicant has adequately explained the reasons why the Commission’s decision is liable to place him in an unfavourable competitive position and thus to produce effects on his legal situation. The objective of the rules on State aid is to preserve competition. Therefore, the fact that a Commission decision leaves intact all the effects of the national measures which the applicant, in a complaint addressed to that institution, claims are not compatible with that objective and place him in an unfavourable competitive position makes it possible to conclude that the decision directly affects his legal situation, in particular his right under the provisions on State aid of the FEU Treaty not to be subject to competition distorted by the national measures concerned. (see paras 43, 46, 47) 4. See the text of the decision. (see para. 48) 5. See the text of the decision. (see paras 58-61) 6. For the beneficiaries of a State aid scheme, the national provisions establishing the scheme and the measures implementing those provisions, such as a tax notice, constitute implementing measures entailed by a Commission decision declaring the aid scheme incompatible with the internal market. That reflects the fact that a beneficiary of an aid scheme can, where he satisfies the conditions under national law for being eligible for that scheme, request the national authorities to grant him the aid as it would have been granted if there were an unconditional decision declaring the scheme compatible with the internal market, and contest before the national courts a measure refusing that request, pleading the invalidity of the Commission’s decision declaring the scheme incompatible with the internal market or compatible with that market subject to compliance with commitments entered into by the Member State concerned, in order to cause those courts to refer questions to the Court for a preliminary ruling on its validity. It is otherwise, however, with the situation of the competitors of beneficiaries of a national measure that has been found not to constitute State aid within the meaning of Article 107(1) TFEU. The situation of such a competitor differs from that of the beneficiaries of aid, in that the competitor does not satisfy the conditions laid down by the national measure in question for eligibility for that aid. In those circumstances, it would be artificial to require that competitor to request the national authorities to grant him that benefit and to contest the refusal of that request before a national court, in order to cause the national court to make a reference to the Court on the validity of the Commission’s decision concerning that measure. In that case, the decision must therefore be regarded as not comprising implementing measures with respect to such a competitor. (see paras 63-67) 7. In accordance with the second sentence of Article 14(1) of Regulation No 659/1999 laying down detailed rules for the application of Article [108 TFEU], the Commission shall not require the recovery of the aid if this would be contrary to a general principle of EU law. The principle that ‘no one is obliged to do the impossible’ is among the general principles of EU law. The Commission cannot therefore, on pain of its being invalid, adopt an order for recovery which, from the moment of its adoption, is objectively and absolutely impossible to implement. Since, moreover, under Article 4(3) TEU the principle of sincere cooperation applies throughout the procedure for the examination of a measure by reference to the provisions of EU law on State aid, where the Member State concerned already claims during the formal investigation procedure that recovery is absolutely impossible, that principle requires the Member State, at that stage, to submit to the Commission for assessment the reasons underlying that claim and requires the Commission to examine them scrupulously. Consequently, that principle does not require the Commission to attach an order for recovery to every decision declaring aid to be unlawful and incompatible with the internal market, but requires it to take into consideration the arguments put to it by the Member State concerned on the existence of absolute impossibility of recovery. (see paras 78, 79, 82-84) 8. See the text of the decision. (see para. 86) 9. As regards the implementation of a Commission decision ordering the recovery of unlawful aid, a Member State which at the stage of the formal investigation procedure encounters difficulties in recovering the aid concerned must submit those difficulties to the Commission for consideration and cooperate in good faith with the Commission with a view to overcoming them, in particular by suggesting alternative methods allowing recovery, if only in part, of the aid. In all cases, the Commission is required to undertake a detailed examination of the difficulties pleaded and the suggested alternative methods of recovery. Only if the Commission finds, following a detailed examination, that there are no alternative methods allowing even partial recovery of the unlawful aid in question may that recovery be considered to be objectively and absolutely impossible to carry out. The Commission cannot therefore confine itself to deducing the absolute impossibility of recovering the unlawful aid in question solely from the fact that it is not possible to obtain the necessary information for recovery of the aid from the national land registry and tax databases, while omitting to consider the possible existence of alternative methods allowing recovery, if only in part, of the aid. The circumstance that the information needed for recovery of the unlawful aid in question cannot be obtained from the national land registry and tax databases must be regarded as caused by internal difficulties attributable to the national authorities’ own acts or omissions. Such internal difficulties do not suffice for it to be concluded that there is absolute impossibility of recovery. (see paras 92, 93, 95) 10. See the text of the decision. (see paras 103-105) 11. See the text of the decision. (see para. 107)