Judgment;Abstract — ECLI:EU:T:2022:638
Date: 2022-10-19
Language of the case: Greek
Court formation: First Chamber
Subject matter: State aids;Competition
Procedure: Action for annulment - unfounded
Origin: Greece

summary forming part of the notice that the preliminary examination led the Commission to conclude that ‘aid could have been granted to other beneficiaries in the agricultural and forestry sectors as well’. Paragraph 2 of that summary sets out the legal bases of the aid schemes and states that the aid was granted to undertakings established and operating in the regions of Greece affected by the 2007 fires. 143 Given that the notice, including the summary forming part of it, is only two pages long, a diligent economic operator may reasonably be required to study such a document, which makes clear, with reference to the considerations mentioned in paragraph 142 above, that the invitation to submit comments was not limited exclusively to Sogia Ellas, but was directed at all producers established in the affected areas which had received that aid. 144 Accordingly, the Court must conclude that, in accordance with the case-law referred to in paragraph 138 above, a diligent economic operator having benefited from the aid schemes in question was sufficiently informed by the notice published with the decision to initiate the formal investigation procedure in the Official Journal to be able to consider itself to be a party concerned by that decision. 145 At the hearing, the Hellenic Republic also confirmed the content of recital 103 of the contested decision, inasmuch as it stated that, in the light of the difficulties it had in identifying the ‘beneficiaries operating … in the agricultural and forestry sectors’, it had considered that the publication of the opening decision in the Official Journal was sufficient to alert the undertakings concerned. 146 Accordingly, the Court must reject the arguments that the notice published by the Commission containing the invitation to submit comments on the examination of the aid schemes in question created the false impression that it related to aid granted only to Sogia Ellas and that, therefore, the Commission infringed the principle of legal certainty and the rights of the defence. 147 As regards, in the fourth and last place, the Hellenic Republic’s argument that both that State and the beneficiaries entertained a legitimate expectation that the measures at issue were not incompatible State aid because, for a considerable period of time, the Commission did not express any concerns about the legality of those measures, despite being aware of the situation caused by the 2007 fires, it must be observed that, in accordance with settled case-law, 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 (see judgment of 13 July 2018, Quadri di Cardano v Commission, T‑273/17, EU:T:2018:480, paragraph 109 and the case-law cited). 148 Moreover, it is common ground that a Member State whose authorities have granted aid contrary to the procedural rules laid down in Article 108 TFEU may not rely on the legitimate expectations of recipients in order to justify a failure to comply with the obligation to take the steps necessary to implement a Commission decision instructing it to recover the aid. If it could do so, Articles 107 and 108 TFEU would be rendered ineffective, since national authorities would thus be able to rely on their own unlawful conduct in order to deprive decisions taken by the Commission under provisions of the Treaty of their effectiveness (see judgment of 19 June 2008, Commission v Germany, C‑39/06, not published, EU:C:2008:349, paragraph 24 and the case-law cited). 149 In the present case, it must be observed that the remarks of various EU representatives mentioned by the Hellenic Republic, which essentially refer to the exceptional nature of the fires and the ensuing aftermath and to their intention to deploy all available means to assist those affected and the local economy, cannot be regarded as constituting ‘precise, unconditional and consistent assurances’ from which it follows that the measures at issue cannot be classified as State aid. 150 Moreover, besides the fact that, for the reasons set out in paragraphs 130 to 136 above, the Commission cannot be criticised for not having adopted the contested decision within a reasonable time, it is common ground that the Hellenic Republic did not notify the aid schemes in question in good time, so that it cannot validly plead, for the reasons set out in paragraphs 147 and 148 above, breach of the principle of the protection of legitimate expectations. 151 Consequently, the arguments claiming breach of the principle of the protection of legitimate expectations must be dismissed. 152 It follows that the third part of the first plea in law, alleging breach of the principle of the protection of legitimate expectations, and the first part of the third plea in law, alleging lack of competence ratione temporis and breach of the principle of sound administration, the principle of legal certainty and the rights of the defence, must be rejected. Second part of the third plea in law 153 By the second part of the third plea, the Hellenic Republic submits that the obligation to recover the aid, set out in Article 2 of the contested decision, is contrary to the principles of proportionality and legal certainty. 154 In that regard, the Hellenic Republic claims that the exceptional circumstances surrounding the measures at issue mean that the aid in question is not recoverable. 155 In the first place, the aid schemes in question did not give rise to ‘advantages’ and were intended only to ensure the survival of the market concerned. 156 In the second place, the fact that aid is to be recovered only in the agricultural sector is liable to create an imbalance to the detriment of that sector, even though the Member of the Commission responsible for agriculture stated that the Commission would provide increased support to that sector. 157 The Commission disputes all of the arguments put forward by the Hellenic Republic. 158 In that regard, it must be recalled that Article 16(1) of Regulation 2015/1589 provides that where negative decisions are taken in cases of unlawful aid, the Commission is to decide that the Member State concerned must take all necessary measures to recover the aid from the beneficiary, unless recovery would be contrary to a general principle of EU law. 159 Furthermore, according to settled case-law, the removal of unlawful aid by means of recovery is the logical consequence of a finding that it is unlawful and the aim of obliging the Member State to abolish aid found by the Commission to be incompatible with the internal market is to restore the previous situation (see judgment of 14 February 2008, Commission v Greece, C‑419/06, not published, EU:C:2008:89, paragraph 53 and the case-law cited). 160 By repaying the aid, the beneficiary forfeits the advantage which it had enjoyed over its competitors in the internal market, and the situation prior to payment of the aid is restored (see judgment of 14 February 2008, Commission v Greece, C‑419/06, not published, EU:C:2008:89, paragraph 54 and the case-law cited). 161 The recovery of State aid unlawfully granted, for the purpose of restoring the situation existing prior to that grant, cannot, therefore, in principle be regarded as disproportionate to the objectives of the provisions of the Treaty on State aid (see judgment of 14 February 2008, Commission v Greece, C‑419/06, not published, EU:C:2008:89, paragraph 55 and the case-law cited). 162 In the present case, in the first place, as held in paragraphs 41 to 51 above, the measures at issue constitute an advantage for those who received them, even if they were paid as a result of exceptional circumstances characterised by a natural disaster, and, as held, inter alia, in paragraphs 136 and 151 above, recovery of the aid is not contrary to a general principle of law. 163 In the second place, since the scope of the contested decision is expressly limited to the agricultural and forestry sectors, and since the Hellenic Republic has not claimed that the Commission should have extended that decision to other sectors of the economy and did not notify such aid, it cannot criticise the Commission for ordering recovery of the aid only from the beneficiaries specified in the contested decision. 164 Finally, it is true that, at the Council of Ministers of 26 September 2007, the Member of the Commission responsible for agriculture informed the Greek delegation of the various tools available (State aid, regional aid, rural development) and stated, in particular, that agricultural areas eligible for the single payment would remain eligible. 165 However, although those statements concern the 2007 fires, they cannot usefully support the Hellenic Republic’s arguments in that regard because they are unrelated to the assessment of the legality of the recovery order. 166 In the light of the foregoing, the third part of the first plea in law and the third plea in law must be dismissed, and, in consequence, the action must be dismissed in its entirety. Costs 167 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Hellenic Republic has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Dismisses the action; 2. Orders the Hellenic Republic to pay the costs. Kanninen Półtorak Porchia Delivered in open court in Luxembourg on 19 October 2022. [Signatures] * Language of the case: Greek.