Opinion of the Advocate General — ECLI:EU:C:2011:373
Date: 2011-06-09
Language of the case: German
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Austria

summary, according to Scheucher-Fleisch and Others, they were not able to benefit from the measure of support, but had to contribute to it and finance their own advertising themselves. Findings of the Court 93 By those third to fifth grounds of appeal, which should be dealt with together, the Republic of Austria and the Commission complain that the General Court, first, did not observe the burden of proof, did not of its own motion collect decisive information in the case, and influenced its investigation, and, second, did not provide sufficient grounds for the judgment under appeal. Scheucher-Fleisch and Others criticise the judgment under appeal in so far as it did not find that they were substantially affected by the contested decision. 94 First, it must be noted that, although Scheucher-Fleisch and Others criticise part of the judgment under appeal in their response to the fifth ground of appeal, they do not claim that that judgment should be set aside in part, nor that the Court of Justice should either rule itself definitively on that part, or refer the case back to the General Court for a ruling on that point. 95 Consequently, as that criticism was not put forward in support of the forms of order sought in Scheucher-Fleisch and Others’ response to the appeal, it should not be regarded as constituting a cross-appeal. 96 As regards the third and fifth grounds of appeal, in so far as it is claimed that the General Court ought not to have adopted the measures of organisation of procedure and put questions to the parties in relation to Scheucher-Fleisch and Others’ status as interested parties, it must be noted that, in accordance with what is stated in paragraph 43 of this judgment, the fact that a person has that status may be decisive, as in this case, as regards the admissibility of its action for annulment. 97 According to settled case-law, the rule laid down in the fourth paragraph of Article 230 EC that proceedings brought by a natural or legal person against a decision not addressed to that person are admissible only if the decision is of direct and individual concern to that person raises an absolute bar to proceedings which the Community judicature may examine at any time, even of its own motion (Case C‑362/06 P Sahlstedt and Others v Commission [2009] ECR I-2903, paragraph 22 and the case-law cited). 98 Consequently, the General Court cannot be criticised for having, of its own motion, adopted measures in order to inform itself of Scheucher-Fleisch and Others’ status as interested parties, for it did so in the course of considering whether there was an absolute bar to proceeding. 99 Moreover, the General Court is the sole judge of any need to supplement the information available to it in respect of the cases before it. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the inaccuracy of the findings of the General Court is apparent from the documents in the case-file (see Case C‑385/07 P Der Grüne Punkt – Duales System Deutschland v Commission [2009] ECR I‑6155, paragraph 163 and case-law cited). 100 Therefore, the General Court cannot be criticised for having put, before and at the hearing, a series of detailed questions to the parties in order to supplement the information already available to it and for having drawn certain conclusions from the replies given by the parties to those questions in the context of pleas in law validly raised by those parties. Similarly, the Republic of Austria and the Commission cannot criticise the General Court, at the appeal stage, for not having adopted other measures of organisation which they had not asked it to adopt in the proceedings before it, the Republic of Austria not having participated in them, and which they do not precisely describe in the present proceedings before the Court. 101 It follows that the Republic of Austria and the Commission cannot reasonably claim that the General Court infringed the rules on the burden of proof, nor that it unduly influenced the investigation, nor of not having adequately supplemented the information which it had available to it. 102 In essence, those arguments essentially discuss the assessment of the facts by the General Court regarding Scheucher-Fleisch and Others’ status as an interested party, for the purposes of Article 88(2) EC, and the existence of serious difficulties when assessing whether the aid at issue was compatible with the common market. 103 The third and fifth grounds of appeal which raise such questions are inadmissible in this appeal. In any event, they are without basis for the reasons set out in the answer to the first and second grounds of appeal. 104 As regards the fourth ground of appeal, it must be noted that the General Court’s duty under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice to state reasons for its judgments does not require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the measures in question were taken and provides the Court of Justice with sufficient material for it to exercise its powers of review (see Bouygues and Bouygues Télécom v Commission, paragraph 42 and case-law cited). 105 In the present case, the arguments made by the Republic of Austria essentially discuss questions forming the subject-matter of the first and second grounds of appeal and must, consequently, be rejected for the reasons set out in the answer to those grounds of appeal. 106 In particular, as regards the argument regarding the alleged contradictory nature of the grounds of the judgment under appeal, it must be noted that, in accordance with the case-law referred to at paragraph 50 of this judgment, an applicant who is directly and individually concerned by a Commission decision due to his status as an interested party for the purposes of Article 88(2) EC may invoke any plea such as to show that that institution should have had serious doubts as to the compatibility of an aid measure with the common market, and therefore, that it ought to have initiated the formal investigation procedure under that provision. Accordingly, the fact that the General Court assessed the pleas in law linked to the substance of the contested decision in order to assess whether Scheucher-Fleisch and Others’ procedural rights had been breached is not incompatible with its finding, at paragraphs 60 and 61 of the judgment under appeal, that they had not shown that their position on the market could be substantially affected by the aid which was the subject of the contested decision. 107 The Court of Justice also rejects the Commission’s argument alleging failure to state reasons for the judgment under appeal because the General Court, first, did not assess whether the discrepancy between the AMA-Gesetz 1992 and the AMA directives should have led to annulment of the contested decision, and, second, did not establish that the assessment of that decision by the Commission would have been the same if it had initiated the formal investigation procedure. 108 It must be recalled that the object of the action for annulment was a decision not to raise objections under Article 88(3) EC. 109 As has been pointed out at paragraphs 40 to 42 of this judgment, the preliminary procedure giving rise to such a decision has the sole purpose of enabling the Commission to form an initial view as to whether the aid at issue is compatible with the common market. Therefore, the General Court cannot encroach on the Commission’s powers by finding that the Commission’s assessment would have been the same if it had initiated the formal investigation procedure. 110 Moreover, given that the existence of serious doubts as to the compatibility of a measure with the common market is sufficient for the Commission to be under an obligation to initiate that formal investigation procedure, the General Court did not have to explain, in the judgment under appeal, why the discrepancy which it had noted between the AMA-Gesetz 1992 and the AMA directives had to lead to the annulment of the contested decision. 111 The Court of Justice has already had occasion to hold that the decision not to raise objections under Article 88(3) EC, which is taken within a short period of time, must simply set out the reasons for which the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the common market, and that even a succinct statement of reasons for that decision must be regarded as sufficient for the purpose of satisfying the requirement to state adequate reasons laid down in Article 253 TFEU if it nevertheless discloses in a clear and unequivocal fashion the reasons for which the Commission considered that it was not faced with serious difficulties, the question of whether the reasoning is well founded being a separate matter (see Case C‑333/07 Régie Networks [2008] ECR I‑10807, paragraphs 65, 70 and 71). 112 Consequently, the judgment under appeal cannot be criticised for failure to give reasons in that regard, the question whether the assessment regarding the compatibility would have been the same or not once the formal investigation procedure was initiated being a separate matter to that requirement to give reasons. 113 Consequently, the third to fifth grounds of appeal must be rejected as in part inadmissible and in part unfounded. 114 It follows that the main appeal must be dismissed in its entirety. The additional appeal Arguments of the parties 115 In its response to the appeal, the Commission argues, in support of the argument that Scheucher-Fleisch and Others were not directly and individually concerned by the contested decision, that the contributions at issue were not a component of the aid authorised by that decision. 116 In that regard, the Commission points out that the judgment under appeal explained that Scheucher-Fleisch and Others were directly affected by the contested decision, in view of their obligation to pay a contribution to AMA. According to the Commission, it is apparent from the case-law of the Court, in particular Joined Cases C‑266/04 to C‑270/04, C‑276/04 and C‑321/04 to C‑325/04 Distribution Casino France and Others [2005] ECR I‑9481, that taxes do not fall within the scope of the provisions of EU law concerning State aid unless they constitute the method of financing an aid measure, so that they form an integral part of that measure due to hypothecation between the tax and the aid, in the sense that revenue from the tax is necessarily allocated for financing the aid. 117 According to the Commission, the judgment under appeal is, on that point, vitiated by an error of law, in so far as in the AMA scheme there is no link between the contributions and the amount of the aid granted, as the Verwaltungsgerichtshof (Administrative Court) has already held on several occasions. 118 Consequently, the Commission takes the view that the action brought by Scheucher-Fleisch and Others ought to have been held inadmissible. 119 The Republic of Austria agrees with the Commission’s reasoning and maintains that the lack of hypothecation in this case is confirmed by the fact that the measures financed by the AMA are not quantifiable by reference to the various beneficiaries and that the measures are applied independently of the revenue from the contributions. 120 In that regard, that Member State points out that, under Paragraph 21j(1) of the AMA-Gesetz 1992, the contributions are used to cover AMA’s administrative collection costs and must also be used for the measures listed in Paragraph 21a of that law. 121 Scheucher-Fleisch and Others maintain that that ground is new and that it was neither raised before the General Court nor in the appeal. According to those parties, in AMA’s agricultural marketing scheme, there is hypothecation, within the meaning of the case-law referred to by the Commission in support of its submission, between the contributions and the aid at issue, given that the contributions to AMA were the only means which AMA had to promote agricultural marketing. As regards the judgment of the Verwaltungsgerichtshof of 20 March 2006 No 2005/17/0230, Scheucher-Fleisch and Others take the view that it is attributable to a misinterpretation of the case-law of the Court of Justice and point out that the Veraltungsgerichtshof has never made a reference for a preliminary ruling before the Court on this point. Findings of the Court 122 At the outset, it is important to analyse whether, as Scheucher-Fleisch and Others maintain, the ground of appeal raised in the context of the cross-appeal is new. 123 To allow a party to put forward, for the first time before the Court of Justice, a plea in law regarding the measure contested before the General Court which it has not raised before that court would be to authorise it to bring before the Court of Justice a case of wider ambit than that which came before the General Court, the jurisdiction of the Court of Justice in an appeal being confined to review of the findings of law on the pleas argued before the General Court (see, to that effect, Case C‑266/05 P Sison v Council [2007] ECR I‑1233, paragraph 95 and case-law cited). 124 In the present case, that ground of appeal concerns the plea of inadmissibility, which it supplements, and was expressly raised by the Commission before the General Court, according to which the action for annulment of the contested decision was inadmissible since Scheucher-Fleisch and Others were not directly and individually concerned by that decision. 125 The additional appeal is thus admissible. 126 As regards the plea raised by the Commission, it must be noted that, contrary to what it claims, the judgment under appeal did not find that Scheucher-Fleisch and Others were directly concerned by the contested decision on the sole basis of their obligation to pay a contribution to the AMA. 127 It is apparent from paragraph 37 of the judgment under appeal that the General Court relied on, first, the demand for payment addressed to one of those parties and, second, the internet pages of AMA and a retailer which showed that the AMA labels had been issued prior to the contested decision. 128 Furthermore, as is apparent from paragraph 44 of this judgment, any interested party, within the meaning of Article 1(h) of Regulation No 659/1999, is directly and individually concerned by a decision not to raise objections, in so far as it raises pleas for annulment of that decision in order to protect its procedural rights. 129 It follows that the single ground of appeal raised in the additional appeal is tantamount to discussing once more Scheucher-Fleisch and Others’ status as an interested party under that provision. 130 In that regard, it is necessary, first, to refer to the reply given to the second part of the first ground of appeal. 131 Second, it must be noted that in their reply and at the hearing, Scheucher-Fleisch and Others complained that they were obliged not only to contribute to the financing of the established scheme, but also suffered the disadvantage linked to the fact that only their competitors benefit from the advertising measures taken by AMA-Marketing. 132 It must, however, be noted that, under Article 1(h) of Regulation No 659/1999, ‘interested party’ means inter alia any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, that is to say, in particular competing undertakings of the beneficiary of that aid. In other words, that term covers an indeterminate group of addressees, which does not rule out that an indirect competitor of the beneficiary of the aid can be categorised as an interested party, provided that it demonstrates that its interests could be adversely affected by the grant of the aid, and that that undertaking establishes, to the requisite legal standard, that the aid is likely to have a specific effect on its situation (see, to that effect, Commission v Kronoply and Kronotex, paragraphs 63 to 65 and case-law cited). 133 In the present case, as the judgment under appeal held that Scheucher-Fleisch and Others had to be considered as interested parties within the meaning of Article 1(h) of that regulation, the ground of appeal raised by the Commission in the context of its appeal must be rejected as unfounded. 134 It follows from all the foregoing considerations that the Commission’s appeal must be dismissed in its entirety. Costs 135 Under Article 69(2) of the Rules of Procedure of the Court, applicable to appeal proceedings by virtue of Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Scheucher-Fleisch and Others have applied for costs and the Republic of Austria has been unsuccessful, it must be ordered to pay the costs. 136 As Scheucher-Fleisch and Others did not apply for the Commission to be ordered to pay costs, the Commission shall bear its own costs. On those grounds, the Court (Third Chamber) hereby: 1. Dismisses the main appeal and the additional appeal; 2. Orders the Republic of Austria to pay the costs; 3. Orders the European Commission to bear its own costs. [Signatures] * Language of the case: German.