Opinion of the Advocate General — ECLI:EU:C:2003:278
Date: 2003-05-15
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Transport
Procedure: Action for annulment;Appeal - unfounded
Origin: Italy

Summary of the Judgment 1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Examination by the Community judicature of its own motion (EC Treaty, Art. 173 (now, after amendment, Art. 230 EC)) 2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision prohibiting a sectoral aid scheme – Application made by an undertaking which is a beneficiary of individual aid granted under that scheme and which is to be repaid – Admissibility (EC Treaty, Art. 173, fourth para. (now, after amendment, Article 230, fourth para., EC)) 3. State aid – Commission decision finding aid which has not been notified incompatible with the common market – Obligation to state reasons – Scope (EC Treaty, Arts 93(3) and 190 (now Arts 88(3) EC and 253 EC)) 4. State aid – Effect on trade between Member States – Adverse effect on competition – Aid the individual amounts of which are relatively small but awarded in a sector characterised by strong competition (EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 5. State aid – Adverse effect on competition – State measures aimed at approximating the conditions of competition in a particular sector of the economy to those prevailing in other Member States (EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC)) 6. State aid – Recovery of unlawful aid – Breach of the principle of proportionality – None – Discretionary power of the Commission (EC Treaty, Art. 93(2), first para. (now Art. 88(2), first para., EC)) 7. State aid – Recovery of unlawful aid – No rule, prior to the entry into force of Regulation No 659/1999, prescribing a limitation period for the exercise by the Commission of its powers – Compliance with the requirements of legal certainty (EC Treaty, Art. 93(2), first para. (now Art. 88(2), first para., EC)) 8. Community law – Interpretation – Acts of the institutions – Statement of reasons – To be taken into account 1. Where a decision is not of individual concern to a natural or legal person within the meaning of Article 173 of the Treaty (now, after amendment, Article 230 EC), which is an essential condition for having locus standi in proceedings seeking judicial review of a Community act, such proceedings are inadmissible and that inadmissibility therefore constitutes a ground involving a question of public policy which may, and even must, be raised of its own motion by the Community judicature. (see para. 35) 2. Persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed. Consequently, an undertaking cannot, in principle, contest a Commission decision prohibiting a sectoral aid scheme if it is concerned by that decision solely by virtue of belonging to the sector in question and being a potential beneficiary of the scheme. Such a decision is, vis-à-vis the undertaking should it seek to contest the decision, a measure of general application covering situations which are determined objectively and entails legal effects for a class of persons envisaged in a general and abstract manner. However, the position is different for an undertaking which is not only concerned by the decision at issue by virtue of being an undertaking in the sector concerned and a potential beneficiary of the aid scheme in question, but also by virtue of being an actual recipient of individual aid granted under that scheme, the recovery of which has been ordered by the Commission. (see paras 36-37, 39) 3. In the course of the Commission’s assessment of new aid which, pursuant to Article 93(3) of the Treaty (now Article 88(3) EC), is to be notified to it before being put into effect, the Commission is required to establish, not whether such aid has a real impact on trade between Member States and on competition, but whether that aid could affect that trade. If the Commission had to demonstrate in its decision the real effect of aid already granted, such a requirement would have the effect of favouring Member States which grant aid in breach of the obligation to notify laid down in that article, to the detriment of those which do notify aid at the planning stage. (see para. 49) 4. The relatively small amount of State aid or the relatively small size of the undertaking which receives it do not as such exclude the possibility that intra-Community trade might be affected. Aid of a relatively small amount is liable to affect competition and trade between Member States where there is strong competition in the sector in which the undertakings which receive it operate. (see para. 54) 5. The fact that a Member State seeks to approximate, by unilateral measures, conditions of competition in a particular sector of the economy to those prevailing in other Member States cannot deprive the measures in question of their character as State aid. (see para. 61) 6. Abolishing unlawful aid by means of recovery is the logical consequence of a finding that it is unlawful. Consequently, the recovery of State aid unlawfully granted, for the purpose of restoring the previously existing situation, cannot in principle be regarded as disproportionate to the objectives of the Treaty in regard to State aid. By repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored. It also follows from that function of repayment of aid that, as a general rule, save in exceptional circumstances, the Commission will not exceed the bounds of its discretion if it asks the Member State to recover the sums granted by way of unlawful aid since it is only restoring the previous situation. (see paras 75-76) 7. In order to fulfil its function, a limitation period must be fixed in advance, the fixing of its duration and the detailed rules for its application coming within the powers of the Community legislature. As the latter had acted to fix a period of limitation in connection with the monitoring of aid granted under the Treaty only by means of Regulation No 659/1999, which entered into force only on 16 April 1999, limitation cannot be relied on as regards a Commission decision requiring that unlawful aid prior to that date be recovered. However, the fundamental requirement of legal certainty has the effect of preventing the Commission from indefinitely delaying the exercise of its powers. In that regard, a delay by the Commission in deciding that an aid is illegal and must be abolished and recovered by a Member State could in exceptional circumstances establish a legitimate expectation on the part of the recipients of that aid so as to prevent the Commission from requiring that Member State to order the refund of the aid. In any event, in the case of State aid that has not been notified, such a delay may be imputed to the Commission only from the time when it learned of the existence of the aid incompatible with the common market. (see paras 89-91) 8. The operative part of an act is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption. (see para. 97)