Opinion of the Advocate General — ECLI:EU:C:2006:91
Date: 2006-02-09
Language of the case: English;Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded
Origin: Spain

Summary of the Judgment 1. Procedure – Time-limits for instituting proceedings – Appeals (Rules of Procedure of the Court of First Instance, Art. 44(2), second subpara., and Art. 100(2), second subpara.) 2. Actions for annulment – Judgment annulling a measure – Scope 3. Appeals – Pleas in law – Mistaken assessment of the facts – Inadmissibility – Review by the Court of Justice of the assessment of the facts before the Court of First Instance – Possible only where the clear sense of the evidence has been distorted (Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.) 4. Appeals – Pleas in law – Admissibility – Points of law (Art. 88(3) EC) 5. State aid – Planned aid – Notification to the Commission (Art. 88(3) EC; Council Regulation No 659/1999, Art. 2(1)) 6. State aid – Decision of the Commission that aid which has not been notified is incompatible with the common market – Obligation to state the reasons on which the decision is based – Scope (Art. 88(3) EC) 1. If the Registry of the Court of First Instance does not advise, by fax or other technical means of communication, in accordance with the second subparagraph of Article 100(2) of the Rules of Procedure of the Court of First Instance, an addressee which has not stated an address for service in Luxembourg for the purposes of the proceedings before that Court and which has agreed that service of a judgment or order could be effected on it in such a way in accordance with the second paragraph of Article 44(2) of the Rules of Procedure, the judgment or order in question cannot be presumed to have reached the addressee on the 10th day following its lodging at the Luxembourg post office. In such a case, the date of service of that judgment or order, which starts the period for bringing an appeal, is either the date on which the addressee acknowledged receipt of the registered letter sent to him or the date of personal delivery against a receipt of the judgment or order concerned, irrespective of the fact that the addressee could have made itself aware of the decision at an earlier point in time, since it was accessible on the website of the Court of Justice. (see paras 26-27) 2. A judgment by which the Community judicature annuls a Commission decision finding that a given action of a Member State cannot be analysed as State aid does not only have relative authority as res judicata preventing merely new actions from being brought with the same subject-matter, between the same parties and based on the same grounds. The retroactive annulment which it pronounces has authority erga omnes with regard to all persons, which gives it the force of res judicata with absolute effect and thus prevents legal questions which it has already settled from being referred to the same court for re-examination. That force of res judicata is not attached only to the operative part but also to the ratio decidendi of that judgment which is inseparable from it. That force of res judicata with absolute effect is a matter of public policy which must be raised by the Court of its own motion. (see paras 41-45) 3. The assessment by the Court of First Instance of the facts does not, except where the clear sense of the evidence submitted to the Court of First Instance has been distorted by that Court, constitute a point of law, subject as such to review by the Court of Justice in the context of an appeal. The Court of Justice is thus entitled to censure a distortion by the Court of First Instance of the evidence before it, in particular where that court substitutes its own reasoning for that of the contested decision. (see paras 60, 67) 4. The classification of an act or a measure for legal purposes by the Court of First Instance, such as the question whether a letter must be regarded as a notification for the purposes of Article 88(3) EC, is a question of law which may be raised in an appeal. (see paras 89-90) 5. It is apparent from the actual structure of Article 88(3) EC, which establishes a bilateral relationship between the Commission and the Member State, that only the Member States are under the obligation to notify any plans to grant or alter State aid. That obligation can thus not be regarded as satisfied by notification by the undertaking receiving the aid. The machinery for reviewing and examining State aid established by Article 88 EC does not impose any specific obligation on the recipient of aid. First, the notification requirement and the prior prohibition on implementing planned aid are directed to the Member State. Second, the Member State is also the addressee of the decision by which the Commission finds that aid is incompatible with the common market and requests the Member State to abolish the aid within the period determined by the Commission. Therefore, the fact that on the date on which a proposal for an agreement was sent to the Commission, no legislation provided that, in order to be lawful, notification had to be made by the government concerned, is irrelevant. While the requirement that notification is the task of the government concerned was noted in the Community legislation in Article 2(1) of Regulation No 659/1999 laying down detailed rules for the application of Article 88 EC, that article merely codified the case-law of the Court without adding anything to the state of the applicable law. (see paras 102-103) 6. In the case of State aid which has been granted without prior notification to the Commission, the latter is not required in its decision to demonstrate its real effect. To impose such a requirement would ultimately favour those Member States which grant aid in breach of the duty to notify laid down in Article 88(3) EC. (see para. 109)