Joined Cases T-254/00, T-270/00 and T-277/00

Hotel Cipriani SpA and Others

v

Commission of the European Communities

(State aid – Relief from social security contributions for firms in Venice and Chioggia – Decision declaring the aid scheme incompatible with the common market and requiring recovery of the aid paid out – Admissibility – Individual concern – Conditions concerning effect on trade between Member States and on competition – Derogations under Article 87(3)(b) to (e) EC and Article 87(2)(b) EC – Categorisation as new aid or as existing aid – Principles of legal certainty, protection of legitimate expectations, equal treatment and proportionality – Duty to state reasons)

Summary of the Judgment

1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Possibility of a decision of general application being of individual concern

(Art. 230, fourth para., EC)

2. State aid – Prejudicial to competition – State measures intended to approximate the conditions of competition in a particular sector of the economy to those prevailing in other Member States – Exclusion of the characterisation as aid – Conditions

(Art. 87(1) EC)

3. State aid – Examination by the Commission – Examination of an aid scheme in its totality – Lawfulness

(Art. 88 EC)

4. State aid – Commission decision declaring an aid scheme incompatible with the common market – Obligation to state the reasons on which the decision is based – Limits

(Arts 87 EC and 88(2) EC)

5. State aid – Not allowed – Exceptions – Aid which may be considered compatible with the common market

(Arts 87(3)(c) EC and 88 EC)

6. State aid – Existing aid and new aid – Classification as new aid

(Art. 87 EC)

1. A Commission decision concerning an unlawful State aid scheme and requiring recovery of the aid paid out is of general application with regard to the actual beneficiaries of the scheme inasmuch as it applies to objectively determined situations and involves legal effects vis-à-vis the beneficiaries of such a scheme considered in a general and abstract manner. The mere fact that the actual beneficiaries of such a scheme can be identified does not oblige the Commission to take account of their individual situation. Consequently, a decision concerning an aid scheme is based, in principle, on a general and abstract review of the aid scheme at issue, which is itself a measure of general application.

However, it is possible that, in certain circumstances, the provisions of a measure of general application may be of individual concern to a natural or legal person pursuant to the fourth paragraph of Article 230 EC where that person is affected by reason of attributes peculiar to him or by reason of factual circumstances differentiating him from all other persons.

Thus, where the Commission finds that an aid scheme is incompatible with the common market and requires that the aid paid out be recovered, all the actual beneficiaries of the scheme are individually concerned by the Commission’s decision. The fact of belonging to a closed class of actual beneficiaries of an aid scheme, particularly affected by the obligation to recover the aid paid out imposed by the Commission on the Member State concerned, is sufficient to differentiate those beneficiaries from all other persons. Individualisation results, in such cases, from the specific adverse effect of the recovery order on the interests of the members of the closed class, who are fully identifiable.

(see paras 73-74, 77, 84)

2. The fact that a Member State seeks to approximate, by unilateral measures, the 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.

Like all the rules of Community competition law, the Treaty rules on aid are intended to ensure, not perfect competition, but effective or efficient competition.

Under those circumstances, compensation for structural disadvantages makes it possible to avoid categorisation as aid only in certain specific situations. Thus, an advantage conferred on an undertaking with a view to correcting an unfavourable competitive situation is not State aid within the meaning of Article 87(1) EC if it is justified by economic criteria and if it does not discriminate between economic operators established in different Member States. In that sort of situation, the Community judicature in reality applies the criterion of a private operator in a market economy. Similarly, an advantage granted to an undertaking which mitigates the costs which are normally included in its budget does not constitute State aid within the meaning of Article 87(1) EC where the advantage is intended to remedy the fact that the beneficiary undertaking incurs additional costs resulting from special rules which are not incurred by competing undertakings subject to the ordinary law under normal market conditions.

(see paras 182,184-186)

3. In the case of an aid scheme, the Commission is not generally required to carry out an analysis of the aid granted in individual cases. It may confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies.

However, the Commission is required, in the context of Article 88 EC, to conduct a diligent and impartial assessment of the aid measure under consideration in the interests of sound administration of the fundamental rules of the Treaty on State aid. In particular, in a formal investigation procedure, the principle of sound administration, which is one of the general principles that are observed in a State governed by the rule of law and are common to the constitutional traditions of the Member States, requires the Commission to comply with the principle of equal treatment as between the parties concerned.

In that legal framework, possible recognition of an obligation on the part of the Commission to assess individually the situation of certain beneficiaries when examining an aid scheme is connected, on the one hand, to compliance with the procedural obligations incumbent upon the Commission and the Member State concerned respectively and, on the other, to the content of the specific information concerning those beneficiaries communicated to the Commission by the national authorities or the interested third parties.

(see paras 209-211)

4. The requirements concerning statements of reasons and the analysis by the Commission of the effect of a State aid measure on trade between the Member States and on competition vary, very logically, according to the individual or general nature of the measure.

With regard to multisectoral aid schemes, the Commission may merely study the characteristics of a programme in order to assess whether, by reason of the large amounts or high percentage of the aid, the characteristics of the investments being supported or other arrangements provided for under the programme, the latter gave an appreciable advantage to recipients in relation to their competitors and was likely to benefit in particular undertakings engaged in trade between Member States. Thus, in the case of an aid scheme applicable to all undertakings located in a particular territory, the Commission cannot be required to show, on the basis of even a summary examination of the situation in the markets, that the scheme will have a foreseeable effect on trade between the Member States and on competition in all the sectors of activity concerned.

In that regard, it is for the Member State concerned, by virtue of its duty to cooperate with the Commission, and for interested parties properly invited to submit their comments pursuant to Article 88(2) EC, to put forward their arguments and provide the Commission with all the information likely to provide clarification concerning all the circumstances of the case.

In the case of a multisectoral aid scheme, the Commission is merely required to ascertain, on the basis of specific factors, whether, in given sectors, the measure under consideration fulfils the two conditions for the application of Article 87(1) EC, namely, that it is likely to affect trade between the Member States or competition, where sufficient relevant information for that purpose has been communicated to it during the administrative procedure.

The scope of the Commission’s duty to state reasons in the case of a multisectoral aid scheme depends – particularly as regards the effect of the scheme on trade between the Member States and on competition – on the data and information communicated to the Commission within the framework of the administrative procedure.

(see paras 227, 230-231, 233, 235, 237)

5. The Commission has a wide discretion when applying Article 87(3)(c) EC, the exercise of which involves complex economic and social assessments which must be made in a Community context.

It is clear from the very wording of Article 87(3)(c) EC and Article 88 EC that the Commission ‘may’ consider aid covered by the first of those two provisions to be compatible with the common market. Accordingly, whilst the Commission must always determine whether State aid subject to review by it is compatible with the common market, even if that aid has not been notified to it, it is not bound to declare such aid compatible with the common market.

The Commission may adopt a policy as to how it will exercise its discretion in the form of measures such as frameworks, communications or guidelines, in so far as those measures contain rules indicating the approach which the institution is to take and do not depart from the rules of the Treaty. Where the Commission adopts such measures which are consistent with the Treaty and are designed to specify the criteria which it intends to apply in the exercise of its discretion, it itself limits that discretion in that it must comply with the indicative rules which it has imposed upon itself. In that context, it is for the Community judicature to verify whether those rules have been observed by the Commission.

(see paras 290-292)

6. Measures to grant or alter State aid must be regarded as new aid. In particular, where the alteration affects the actual substance of the original scheme, the latter is transformed into a new aid scheme. On the other hand, if the alteration is not substantive, only the alteration as such is liable to be classified as new aid.

Thus, the extension to undertakings located in a territory of exemptions intended for another territory introduces a new aid scheme. Even supposing that the new scheme merely extends an existing aid scheme to new beneficiaries, without making a substantive alteration to the existing scheme, such an extension, which is severable from the initial scheme, constitutes new aid which is subject to the obligation to notify.

(see paras 358-359, 362)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Sixth Chamber, Extended Composition)

28 November 2008 ( )

(State aid – Relief from social security contributions for firms in Venice and Chioggia – Decision declaring the aid scheme incompatible with the common market and requiring recovery of the aid paid out – Admissibility – Individual concern – Conditions concerning effect on trade between Member States and on competition – Derogations under Article 87(3)(b) to (e) EC and Article 87(2)(b) EC – Categorisation as new aid or as existing aid – Principles of legal certainty, protection of legitimate expectations, equal treatment and proportionality – Duty to state reasons)

In Joined Cases T‑254/00, T‑270/00 and T‑277/00,

Hotel Cipriani SpA, established in Venice (Italy), represented initially by M. Marinoni, G.M. Roberti and F. Sciaudone, and later by G.M. Roberti, F. Sciaudone and A. Bianchini, lawyers,

applicant in Case T-254/00,

Società italiana per il gas SpA (Italgas), established in Turin (Italy), represented by M. Merola, C. Tesauro, M. Pappalardo and T. Ubaldi, lawyers,

applicant in Case T-270/00,

supported by

Italian Republic, represented initially by U. Leanza, and later by I. Braguglia, acting as Agents, and by P. Gentili and S. Fiorentino, lawyers,

intervener in Case T-270/00,

Coopservice – Servizi di fiducia Soc. coop. rl, established in Cavriago (Italy),

Comitato ‘Venezia vuole vivere’, established in Venice,

represented by A. Bianchini and A. Vianello, lawyers,

applicants in Case T-277/00,

v

Commission of the European Communities, represented by V. Di Bucci, acting as Agent, and by A. Dal Ferro, lawyer,

defendant,

ACTION for annulment of Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (OJ 2000 L 150, p. 50),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES

(Sixth Chamber, Extended Composition),

composed of A.W.H. Meij (Rapporteur), President, V. Vadapalas, N. Wahl, M. Prek and V. Ciucă, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 30 April 2008,

gives the following

Judgment

Background to the dispute

A – The scheme for relief from social security contributions under consideration

1 The Italian Ministerial Decree of 5 August 1994, notified to the Commission, lays down the allocation criteria for the relief from social security contributions provided for in Article 59 of the Decree of the President of the Italian Republic of 6 March 1978 setting up a special scheme for relief from social security contributions owed by employers to the Istituto Nazionale de la Previdenza Sociale (‘INPS’) (National Institute of Social Insurance) in the Mezzogiorno for the period between 1994 and 1996 (‘the Mezzogiorno scheme’).

2 By Decision 95/455/EC of 1 March 1995 on the arrangements for reducing the social security contributions paid by firms in the Mezzogiorno and for assigning to the State some of those contributions (OJ 1995 L 265, p. 23), the Commission declared the Mezzogiorno scheme compatible with the common market, subject to certain conditions. In particular, the decision of 1 March 1995 required the Italian authorities to notify to the Commission the measures adopted for implementing the plan for the progressive dismantling of the Mezzogiorno scheme, as provided for under that decision.

3 The scheme for relief from social security contributions at issue in the present case was introduced by Italian Law No 206/1995, which extended the Mezzogiorno scheme for 1995 and 1996, and widened it to cover undertakings established on the island territory of Venice and Chioggia. Later, Italian Law No 30/1997 extended the Mezzogiorno scheme for the year 1997, and again widened it to cover undertakings established on the island territory of Venice and Chioggia.

4 Article 1 of the Ministerial Decree of 5 August 1994 provides for a general reduction in the social security contributions owed by employers. Article 2 of the decree provides for an exemption from social security contributions for net job creation in undertakings for a period of one year from the date on which an unemployed worker is taken on.

5 It can be seen from Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (OJ 2000 L 150, p. 50; ‘the contested decision’) that, according to data supplied by INPS for the period under consideration between 1995 and 1997, the reductions in social security contributions accorded to undertakings located on the island territory of Venice and Chioggia pursuant to Article 1 of the Ministerial Decree of 5 August 1994 (‘the social security reductions at issue’) amounted to an annual average of ITL 73 billion (EUR 37.7 million), shared between 1 645 undertakings. The exemptions accorded to undertakings located on the island territory of Venice and Chioggia pursuant to Article 2 of that decree (‘the social security exemptions at issue’) amounted to ITL 567 million (EUR 292 831) per year, shared between 165 undertakings.

B – Administrative procedure

6 By letter dated 10 June 1997, the Italian authorities communicated the text of the abovementioned Law No 30/1997 to the Commission, in accordance with the provisions of Decision 95/455 (see paragraph 2 above). By letter of 1 July 1997, followed by a reminder dated 28 August 1997, the Commission asked for further information concerning the extension of the scope of the abovementioned scheme to undertakings located in Venice and Chioggia.

7 Since it received no reply, the Commission notified the Italian Republic by letter dated 17 December 1997 of its decision to initiate the procedure laid down in Article 88(2) EC regarding the aid provided for by Law No 206/1995 and Law No 30/1997, which extended to the island territory of Venice and Chioggia the scope of the reduction of social security contributions for the Mezzogiorno.

8 The Italian authorities suspended the scheme for relief from social security contributions under consideration (‘the scheme under consideration’) with effect from 1 December 1997.

9 The decision to initiate the procedure was published in the Official Journal of the European Communities on 18 February 1998. By letter of 17 March 1998, the applicant – the Comitato ‘Venezia vuole vivere’ (‘the Committee’), an association which brings together the principal organisations of industry and commerce in Venice and which was formed following the initiation of the abovementioned formal investigation procedure in order to coordinate action intended to remedy the disadvantageous situation of traders located in Venice – submitted its comments and a report, accompanied by a study carried out by the Consorzio per la ricerca e la formazione (‘COSES’) (Consortium for Research and Training) dated March 1998 concerning the difficulties encountered by undertakings operating in the area of the lagoon as compared with those located on the mainland. On 18 May 1998, the City of Venice also submitted comments, accompanied by an earlier study carried out by COSES on the same subject, dated February 1998. In its observations, the City of Venice explained that municipal undertakings providing public services of general economic interest were also beneficiaries of the scheme. It requested the application of Article 86(2) EC in favour of those undertakings. All of those comments were forwarded to the Italian Republic.

10 The Italian authorities notified their comments by letter dated 23 January 1999. By letter of 10 June 1999, they informed the Commission that they fully supported the comments submitted by the City of Venice.

11 By decision of 23 June 1999, the Commission gave the Italian Republic notice to provide it with all the documentation, information and data necessary to enable it to determine the role of the municipal undertakings and to assess the compatibility of the social security reductions at issue with the common market. The Italian authorities replied by letter of 27 July 1999. The Italian authorities met with the Commission’s representatives at a meeting in Brussels on 12 October 1999.

C – The contested decision

12 The Commission finds in the contested decision that the relief from social security contributions provided for by the abovementioned laws, which refer to Article 2 of the Ministerial Decree of 5 August 1994, constitutes State aid which is compatible with the common market where it is granted to firms, located in the territories of Venice and Chioggia, which are small and medium-sized enterprises (SMEs) within the meaning of the Community Guidelines on State aid for small and medium-sized enterprises (OJ 1996 C 213, p. 4), or firms located in an area eligible for a derogation under Article 87(3)(c) EC, or firms which hire groups of workers experiencing particular difficulties entering or re-entering the labour market as referred to in the Community Guidelines on aid to employment (OJ 1995 C 334, p. 4; first paragraph of Article 1 and recital 105 of the contested decision).

13 With regard to the categorisation of the scheme as State aid, the Commission states in its conclusions that it found, on the basis of its assessment of the measures considered in the contested decision (recital 110), that measures which comply with the de minimis rule do not fall within the scope of Article 87 EC except with regard to sectors covered by the ECSC Treaty, to shipbuilding, to transport, to agriculture or to fisheries, in accordance with its notice on de minimis aid (OJ 1996 C 68, p. 9).

14 Under the second paragraph of Article 1 of the contested decision, the aid provided for in Article 2 of the Ministerial Decree of 5 August 1994 is incompatible with the common market where it is granted to firms which are not SMEs and are located outside areas eligible for derogation under Article 87(3)(c) EC.

15 Under Article 2 of the contested decision, the social security reductions at issue constitute State aid which is incompatible with the common market.

16 Under Article 3 of the contested decision, the aid which the Italian Republic granted to ASPIV (Azienda servizi pubblici idraulici e vari, Venezia), a municipal undertaking, and Consorzio Venezia Nuova is compatible with the common market since it qualifies for a derogation under Article 86(2) EC and Article 87(3)(d) EC respectively.

17 Article 4 of the contested decision states that the measures which the Italian Republic has put into effect in favour of the municipal companies ACTV (Azienda del consorzio trasporti veneziano), AMAV (Azienda multiservizi ambientali veneziana) and Panfido SpA do not constitute aid within the meaning of Article 87 EC.

18 By Article 5 of the contested decision, the Commission requires the Italian Republic to recover from the beneficiaries the incompatible aid referred to in the second paragraph of Article 1, and in Article 2, of the decision, which has unlawfully been made available to them.

19 The contested decision was published in the Official Journalof the European Communities of 23 June 2000.

Procedure and forms of order sought

20 By applications lodged at the Registry of the Court of First Instance on 16 and 18 September 2000 respectively, the applicants brought the present actions.

21 In addition, 56 actions were brought by other applicants against the contested decision within the prescribed time-limit.

22 By separate documents lodged at the Registry of the Court of First Instance on 19 January 2001, the Commission raised preliminary pleas of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance.

23 By decision of 25 January 2001, the Court decided to refer the cases to the Second Chamber, Extended Composition, in accordance with Article 51(1) of the Rules of Procedure.

24 By application lodged at the Registry of the Court of First Instance on 7 March 2001, the Italian Republic applied for leave to intervene in Case T‑270/00 in support of the forms of order sought by the applicant, Società italiana per il gas SpA (Italgas). By order of 19 June 2001, the President of the Second Chamber, Extended Composition, granted leave to intervene.

25 As measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, the Court, having regard to the complexity of the criteria for compatibility set out in the contested decision, invited the Italian Republic to state inter alia, in respect of each of the applicants in the present cases, as well as in the 56 related cases mentioned above, whether it considered that it was required, in implementation of Article 5 of the contested decision, to recover the aid which had been granted and which is now at issue.

26 On receiving the replies of the Italian Republic of 25 September 2003 and 24 March 2004, the Court declared 22 actions wholly inadmissible and 6 actions partly inadmissible, with regard to undertakings which could not show an interest in bringing proceedings inasmuch as the competent national authorities had considered, when implementing the contested decision, that those undertakings had not received aid incompatible with the common market which must be recovered pursuant to that decision (orders of the Court of First Instance of 10 March 2005 in Joined Cases T‑228/00, T‑229/00, T‑242/00, T‑243/00, T‑245/00 to T‑248/00, T‑250/00, T‑252/00, T‑256/00 to T‑259/00, T‑265/00, T‑267/00, T‑268/00, T‑271/00, T‑274/00 to T‑276/00, T‑281/00, T‑287/00 and T‑296/00 Gruppo ormeggiatori del porto di Venezia and Others v Commission [2005] ECR II‑787; in Case T‑266/00 Confartigianato Venezia and Others v Commission (not published in the ECR); in Case T‑269/00 Baglioni Hotels and Sagar v Commission (not published in the ECR); in Case T‑273/00 Unindustria and Others v Commission (not published in the ECR); and in Case T‑288/00 Principessa v Commission (not published in the ECR)).

27 On 12 May 2005, an informal meeting took place before the Judge-Rapporteur, in which the representatives of the parties took part, in the 37 cases in which the action had not been declared wholly inadmissible. The parties represented submitted their observations and agreed to the choice of four test cases. Following that informal meeting, the present cases (T‑254/00, T‑270/00 and T‑277/00) and Case T‑221/00 were designated as test cases.

28 In the 29 other related cases, the Court ordered proceedings stayed at the joint request of the parties.

29 By order of 12 September 2005, the President of the Second Chamber, Extended Composition, after hearing the parties, ordered that Cases T‑254/00, T‑270/00 and T‑277/00 be joined for the purposes of the written procedure, the oral procedure and the judgment, pursuant to Article 50 of the Rules of Procedure.

30 The written procedures concerning the preliminary pleas of inadmissibility were terminated by the submission, between 5 and 23 December 2005, of written observations by the applicants in the three joined cases and by the Italian Republic in Case T‑270/00.

31 By order of 18 May 2006, the Court (Second Chamber, Extended Composition) decided to reserve a decision on the preliminary pleas of inadmissibility for the final judgment. The written procedure was terminated on 23 February 2007 in Cases T‑254/00 and T‑277/00 and on 26 November 2007 in Case T‑270/00.

32 As a result of changes in the composition of the Chambers of the Court of First Instance, the Judge-Rapporteur was assigned to the Sixth Chamber, Extended Composition, to which the present cases were consequently assigned.

33 As Judge T. Tchipev was unable to sit in the present cases, the President of the Court of First Instance designated Judge N. Wahl to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure.

34 On hearing the report of the Judge-Rapporteur, the Court (Sixth Chamber, Extended Composition) decided to open the oral procedure. The Commission produced the requested documents within the time‑limits laid down.

35 By order of 14 October 2008, Case T‑221/00 was removed from the register as a result of the discontinuance of proceedings by the applicant.

36 The applicant in Case T‑254/00 claims that the Court should:

– annul the contested decision;

– in the alternative, annul Article 5 of that decision;

– in the further alternative, annul Article 5 of the contested decision to the extent that the obligation to recover the aid set out therein includes the aid granted on the basis of the de minimis rule and/or annul that article to the extent that it provides for the payment of interest at a rate higher than the rate actually paid by it on its own debts;

– order the Commission to pay the costs.

37 The applicant in Case T‑270/00 claims that the Court should:

– annul Articles 1 and 2 of the contested decision to the extent that they declare incompatible with the common market the aid in the form of tax exemptions provided for in the Ministerial Decree of 5 August 1994;

– annul Article 5 of the contested decision;

– order the Commission to pay the costs.

38 The applicants in Case T‑277/00 claim that the Court should:

– annul the contested decision to the extent that it affects their interests;

– in the alternative, annul Article 5 of the contested decision to the extent that it imposes an obligation to recover the amount of the relief from social security contributions under consideration and to the extent that it provides that that amount should bear interest for the period under consideration in the contested decision;

– order the Commission to pay the costs.

39 The Commission contends that the Court should:

– dismiss the actions as inadmissible or unfounded;

– order the applicants to pay the costs.

Admissibility

40 In support of its preliminary plea of inadmissibility, the Commission alleges lack of locus standi both on the part of the applicant undertakings and on the part of the Committee. It first of all raises an objection of lis alibi pendens in respect of the action brought by the Committee in Case T‑277/00.

A – The objection of lis alibi pendens in Case T‑277/00





1. Arguments of the parties

41 In support of its plea of inadmissibility in respect of the action brought by the Committee in Case T‑277/00, the Commission contends that the action is identical in all respects to the action brought by the Committee in Case T‑274/00. In addition, it contends that the present action in Case T‑277/00 seeks annulment of the same decision as was challenged in Case T‑231/00 and is based on pleas in law which are largely analogous to those put forward in that case. The action in Case T‑277/00 should therefore be declared inadmissible – to the extent that it has been brought by the Committee – partly on the ground of lis alibi pendens as regards the reliance on identical pleas in law and partly for infringement of Article 48(2) of the Rules of Procedure as regards the introduction of new pleas in law.

42 The Committee argues that its action is admissible.

2. Findings of the Court

43 Since the Committee discontinued its action in Case T‑274/00 (order for removal from the register of 12 September 2005 in Case T‑274/00 Comitato ‘Venezia vuole vivere’ v Commission), the plea of inadmissibility on grounds of lis alibi pendens retains a purpose solely in respect of the action brought by Adriatica di navigazione SpA and the Committee in Case T‑231/00. However, it should be pointed out that the Committee has brought the action in Case T‑277/00 jointly with Coopservice – Servizi di fiducia Soc. coop. rl (‘Coopservice’), which means that, even if lis alibi pendens were to be established, it would have no effect on the admissibility of the present action to the extent that it has been brought by Coopservice and, in particular, no bearing on the substantive pleas considered by the Court in the present case inasmuch as they have been put forward jointly by the two applicants. Accordingly, the Court cannot in principle be required to consider the objection of lis alibi pendens raised by the Commission in the present case.

44 In any event, it should be noted that the present action in Case T‑277/00, brought, inter alia, by the Committee and seeking annulment of the same decision as in Case T‑231/00 is not based on the same pleas in law as those relied on previously by the Committee in Case T‑231/00. It follows that the conditions laid down in the case‑law for the existence of lis alibi pendens are not satisfied in this case (see, to that effect, the order in Gruppo ormeggiatori del porto di Venezia and Others v Commission, cited in paragraph 26 above, paragraph 41 and the case‑law cited). It must be held that a series of pleas alleging infringement of Article 88(3) EC and Article 15 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1) and of Article 87(2)(b) EC and Article 87(3)(b) and (e) EC has been raised only in Case T‑277/00.

45 With regard, in particular, to the plea alleging infringement of Article 88(3) EC and Article 15 of Regulation No 659/1999, it should be noted that this plea, which seeks to establish that the scheme under consideration constitutes existing aid, is based on the alleged continuity between Laws Nos 206/1995 and 30/1997, which introduced the aid scheme, and earlier legislation which also provided for undertakings located in certain regions of Italy to be granted exemptions from social security contributions under certain conditions. On the other hand, the plea raised in Case T‑231/00 to the effect that the scheme under consideration was existing aid was based on a different idea, namely that the scheme under consideration was introduced, with regard to internal cabotage, only after the liberalisation of that sector by Community law in 1999 (Joined Cases T‑298/97, T‑312/97, T‑313/97, T‑315/97, T‑600/97 to T‑607/97, T‑1/98, T‑3/98 to T‑6/98 and T‑23/98 Alzetta and Others v Commission [2000] ECR II‑2319, paragraphs 143 and 167). It follows that the Committee’s arguments, raised in Cases T‑231/00 and T‑277/00 respectively, to the effect that the scheme under consideration constitutes existing aid must be regarded as separate pleas.

46 Moreover, contrary to the Commission’s interpretation, the prohibition laid down in Article 48(2) of the Rules of Procedure relates only to the introduction of new pleas in law in the course of proceedings where they are not based on matters of law or of fact which have come to light in the course of the procedure. It is completely irrelevant for the purposes of assessing the admissibility of an action with the same subject-matter as an earlier action, and between the same parties, but based on different pleas in law. The case-law (see paragraph 44 above) does not make the admissibility of such an action subject to the emergence of new matters of law or of fact. An action may be inadmissible on the ground of lis alibi pendens only if, in relation to an earlier action, it is between the same parties, it seeks annulment of the same decision and it is based on the same pleas in law.

47 The objection of inadmissibility based on lis alibi pendens must therefore be rejected.

B – The alleged lack of locus standi on the part of the applicant undertakings in Cases T‑254/00, T‑270/00 and T‑277/00





1. Arguments of the parties

48 The Commission contends that the contested decision is not of individual concern to the applicant undertakings within the meaning of the fourth paragraph of Article 230 EC.

49 In the Commission’s view, the beneficiaries of an aid scheme are not individually concerned by a decision finding that scheme incompatible with the common market and ordering recovery of the aid paid out because such a decision is of general application.

50 The Commission states that the potential beneficiaries of an aid scheme are not individually concerned by a decision declaring the scheme incompatible with the common market. In addition, the Community judicature has held to be inadmissible an action brought by a beneficiary of an unlawful aid scheme against the decision by which the Commission declared the scheme incompatible with the common market but did not require recovery of the aid paid out (Joined Cases 67/85, 68/85 and 70/85 Kwekerij van der Kooy and Others v Commission [1988] ECR 219, paragraph 15).

51 The imposition of an obligation to recover the aid does not, in the Commission’s view, alter the nature of its decision and does not therefore allow it to be concluded that the decision is of individual concern to the beneficiaries of the aid scheme.

52 In that regard, the judgment of the Court of Justice in Joined Cases C‑15/98 and C‑105/99 Italy and Sardegna Lines v Commission [2000] ECR I‑8855 must be read in the light of the specific situation of the applicant undertaking, Sardegna Lines – Servizi Marittimi della Sardegna SpA. That undertaking had in fact received individual aid, granted formally in the framework of an aid scheme. The aid scheme under consideration was applicable only to a very limited number of undertakings and Sardegna Lines received a large part of the aid paid out (at least ITL 9.6 billion out of a total of ITL 12 697 450 000). In addition, the aid scheme in question was noteworthy for the broad discretion accorded to the national authorities to grant individual aid under the scheme.

53 Similarly, in Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraph 39, the Court of Justice accepted that the undertakings which had received aid under the scheme in question were individually concerned inasmuch as the Commission knew the number of applications accepted and the amount budgeted for the aid in question. In addition, the aid scheme in question had been implemented by means of individual decisions.

54 The approach adopted by the EFTA Court in its judgment of 21 July 2005 in Joined Cases E‑5/04, E‑6/04 and E‑7/04 Fesil and Finnfjord and Others v EFTA Surveillance Authority, referred to by the applicant in Case T‑254/00 – Hotel Cipriani SpA – cannot be transposed to the present case inasmuch as the rules concerning the relationship between Member States of the European Free Trade Association (EFTA), the EFTA Surveillance Authority and the EFTA Court do not contain a provision similar to Article 234 EC, under which a reference may be made for a preliminary ruling for the purpose of assessing the validity of acts of the institutions.

55 Moreover, in its order in Gruppo ormeggiatori del porto di Venezia and Others v Commission, cited in paragraph 26 above, paragraph 29 et seq., the Court of First Instance declared certain actions inadmissible while accepting that the Commission could challenge the failure of the Member State concerned to recover the aid paid out. The inadmissibility of those actions thus did not depend on the recovery or otherwise of the aid from the applicants. Finally, in its judgment in Joined Cases C‑346/03 and C‑529/03 Atzeni and Others [2006] ECR I‑1875, paragraphs 33 and 34, the Court of Justice considered that it was not self-evident that an action brought by the beneficiaries of aid schemes intended for categories of persons defined in a general manner, seeking annulment of a Commission decision requiring recovery of the aid paid out, would be admissible.

56 The Commission therefore considers that Italy and Sardegna Lines v Commission, cited in paragraph 52 above, and Italy v Commission, cited in paragraph 53 above, do not alter settled case-law according to which actions brought by natural or legal persons against decisions concerning aid schemes are inadmissible.

57 The Commission admits in that regard, however, that where implementation of the aid scheme in question requires the adoption of individual implementing measures, implying a degree of latitude on the part of the competent administrative authority, the actual beneficiaries of such a scheme may be regarded as individually concerned by the Commission decision declaring the aid incompatible with the common market and ordering recovery of the aid paid out.

58 In the present case, the applicants are not individually concerned by the contested decision for two reasons. First, the relief from social security contributions was granted automatically to all undertakings located in Venice or Chioggia.

59 Secondly, the contested decision concerned an indeterminate and indeterminable number of undertakings on the basis of their objective characteristics, namely that they have employees and exercise their activities in a given geographical area. Even if the Commission, at the time that it adopted the contested decision, was perhaps – as the applicants claim – theoretically in a position to determine the beneficiary undertakings with the help of the national authorities, its task was to examine the aid scheme, not each specific case in which aid had been granted. The only exception concerned the municipal undertakings, whose situation was set out specifically in the observations submitted by the City of Venice and subscribed to by the Italian Government. The Commission therefore analysed the individual situation of those undertakings which – by contrast with the applicants – are for that reason individually concerned by the contested decision.

60 Since the Commission was not in a position to establish, on the basis of the tables supplied by INPS, the reductions granted to each individual undertaking, it could not have determined the aid granted to each beneficiary. The Member State concerned was therefore asked to identify the beneficiary undertakings which are required under the contested decision to repay the aid received. That identification requires a complex analysis based on a series of assessment criteria. It is for the national authorities to apply, in each individual case, the conditions concerning the existence of State aid within the meaning of Article 87(1) EC and the criteria laid down in a general and abstract manner in the contested decision.

61 A review of that kind should be carried out by the competent national authorities in the context of genuine cooperation with the Commission. Where a disagreement arises, the Commission may refer the matter to the Court of Justice pursuant to the second subparagraph of Article 88(2) EC. The beneficiaries of the measure in question are entitled to challenge, before the national courts, any decisions requiring recovery of the aid which are adopted in their regard by pleading the unlawfulness of the Commission decision. Their judicial protection is guaranteed by Article 234 EC.

62 For all of those reasons, and unlike the decision considered in Italy v Commission, cited in paragraph 53 above, the contested decision left open the possibility that some of the social security reductions at issue might not be regarded as State aid or might constitute State aid compatible with the common market. In the present case, the Commission did not establish that State aid had been granted to each of the beneficiaries and did not therefore specify the undertakings required to repay the aid received under the scheme in question.

63 The Commission concludes that the applicant undertakings do not possess specific features or characteristics which were highlighted in the contested decision and that they cannot point to any specific adverse effect. They cannot therefore be regarded as individually concerned by the contested decision.

64 The applicants and the Italian Republic – which is intervening in support of the forms of order sought by Italgas and agrees with its observations – point out that a recovery decision was addressed to the applicant undertakings in implementation of the contested decision. In similar circumstances, the Community judicature has accepted the existence of an individual connection.

65 In the first place, all the applicants and the Italian Republic argue that, contrary to the Commission’s contentions, the contested decision is not general and abstract in nature since the actual beneficiaries of the aid scheme constitute a closed class and were identifiable when that decision was adopted. However, the adoption of a decision providing for recovery of aid incompatible with the common market, so as to nullify the effects of that aid, implies that the Commission must first have ascertained the effects of the aid. The applicants state in that regard that it is sufficient if the beneficiary undertakings can be identified by the competent national authorities during the recovery procedure. The actual beneficiaries may be regarded as the persons to whom the Commission decision is directly addressed. Moreover, Hotel Cipriani and Italgas deny that, when implementing the decision, the national authorities are entitled to ascertain in each individual case whether the conditions for the application of Article 87(1) EC are satisfied (see paragraphs 124 and 138 below).

66 Secondly, Hotel Cipriani and Coopservice also claim that a Commission decision concerning an aid scheme and requiring recovery of the aid paid out individually affects the interests of the actual beneficiaries of the aid and constitutes an act adversely affecting them.

67 All the applicants reject the Commission’s argument that individuals enjoy effective judicial protection before the national courts. The procedure for referring questions to the Court of Justice for a preliminary ruling offers them a much narrower range of possibilities for putting forward their arguments. In addition, it is not at all certain that the national court will refer a question to the Court of Justice.

68 The Italian Republic points out that the social security reductions at issue were granted to undertakings on the sole condition that they be located in the island territory of Venice or Chioggia. That being so, there was no uncertainty, at the time that the decision was adopted, as to the identity of the recipients which were required to repay the aid received.

2. Findings of the Court

69 The Commission rightly acknowledges that, in the present cases, there is a direct connection for the purposes of the fourth paragraph of Article 230 EC. It points out that the Italian authorities are required by the contested decision to nullify the aid declared incompatible with the common market and to recover any such aid which has been unlawfully granted. It admits that the Italian authorities have no discretion when it comes to implementing the contested decision.

70 On the other hand, the Commission considers that the actual beneficiaries of an unlawful aid scheme are generally not individually concerned by a decision finding that the scheme is incompatible with the common market and ordering recovery of the aid paid out, because such a decision is based, in principle, on a general and abstract analysis of the scheme. The Commission explains its contention that there is no individual connection by pointing to the fact that the number of beneficiaries cannot be determined. When implementing the decision ordering recovery of the aid received, it is therefore for the Member State concerned to identify the beneficiary undertakings required to repay it.

71 First, the Commission denies that the case-law attributes locus standi to the actual beneficiaries of an aid scheme to challenge the decision finding the scheme incompatible with the common market and ordering recovery of the aid declared incompatible. It suggests restricting locus standi to cases where the aid scheme is implemented through individual decisions (see paragraph 56 above).

72 Secondly, the Commission proposes that, when implementing a decision finding that an unlawful aid scheme is incompatible with the common market, the national authorities should be regarded as having the power to ascertain in each individual case whether the conditions for the application of Article 87(1) EC, concerning the exercise of an economic activity, and the effect on trade between the Member States and on competition, are satisfied.

73 It should be pointed out at the outset that, as the Commission contends, a Commission decision concerning an unlawful aid scheme and requiring recovery of the aid paid out is of general application with regard to the actual beneficiaries of the scheme inasmuch as it applies to objectively determined situations and involves legal effects vis-à-vis the beneficiaries of such a scheme considered in a general and abstract manner. The mere fact that the actual beneficiaries of such a scheme can be identified does not oblige the Commission to take account of their individual situation. Consequently, a decision concerning an aid scheme is based, in principle, on a general and abstract review of the aid scheme at issue, which is itself a measure of general application (see paragraphs 83, 209, 229 and 230 below). Accordingly, the scope of such a decision is, in principle, distinct from that of, for example, a decision under Article 81 EC, which can be regarded as a bundle of individual decisions addressed to the undertakings concerned (see, to that effect, Case C‑310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I‑5363, paragraphs 39, 49 and 63). In particular, the fact that the Commission decision requires in a general and abstract manner recovery of the aid paid out is not such as to make that decision equivalent to a bundle of individual decisions (see, by analogy, the order of the Court of Justice in Case C‑503/07 P Saint‑Gobain Glass Deutschland v Commission [2008] ECR I‑0000, paragraph 72). On the other hand, where the Commission examines the individual situation of some of the actual beneficiaries of an aid scheme, its decision is an individual decision in relation to those beneficiaries.

74 In addition, it is possible that, in certain circumstances, the provisions of a measure of general application may be of individual concern to a natural or legal person where that person is affected by reason of attributes peculiar to him or by reason of factual circumstances differentiating him from all other persons (Case C‑309/89 Codorniu v Council [1994] ECR I‑1853, paragraphs 19 to 21; Case T‑298/94 Roquette Frères v Council [1996] ECR II‑1531, paragraph 37; and order in Case T‑28/07 Fels-Werke and Others v Commission [2007] ECR II‑0000, paragraph 60).

75 In that legal context, it is necessary to consider the Commission’s position in the light both of the jurisprudential criteria for assessing whether there is an individual connection for the purposes of the fourth paragraph of Article 230 EC and of the system for the prior review of State aid as instituted by the Treaty and interpreted in the case-law. To that end, the relevance of the criterion concerning the detailed arrangements for the implementation of the aid scheme must first be assessed in the light of the case-law based on Italy and Sardegna Lines v Commission, cited in paragraph 52 above, and Italy v Commission, cited in paragraph 53 above, and having regard to the system for the review of State aid. The Court will then consider the Commission’s argument concerning the extent of the powers of the Member State concerned when implementing the decision declaring an unlawful aid scheme incompatible with the common market and ordering recovery of the aid paid out.

a) Assessment, in the light of the case-law, of the criterion based on the detailed arrangements for the implementation of the aid scheme

76 With regard, first of all, to the case-law, it should be noted at the outset that, contrary to the Commission’s contention, the Court of Justice has not ruled out the possibility that the actual beneficiaries of an unlawful aid scheme could have locus standi to challenge a decision declaring the scheme incompatible with the common market, but not requiring recovery of the aid paid out. Kwekerij van der Kooy and Others v Commission, cited in paragraph 50 above, is not relevant in that regard. It is clear from the Opinion of Advocate General Sir Gordon Slynn in that case (ECR 240) that, in the decision at issue, the Commission did not impose any recovery obligation. Although, in the last recital of the decision, it reserved the possibility of seeking recovery at a later stage, it informed the Court of Justice at the hearing that no such steps had been taken.

77 On the other hand, it clearly follows from Italy and Sardegna Lines v Commission, cited in paragraph 52 above, and Italy v Commission, cited in paragraph 53 above, that, where the Commission finds that an aid scheme is incompatible with the common market and requires that the aid paid out be recovered, all the actual beneficiaries of the scheme are individually concerned by the Commission’s decision (see also Case T‑55/99 CETM v Commission [2000] ECR II-3207, paragraph 25; Joined Cases T‑239/04 and T‑323/04 Italy and Brandt Italia v Commission [2007] ECR II‑3265, paragraph 44; and Case T‑136/05 Salvat père & fils and Others v Commission [2007] ECR II‑4063, paragraphs 69 to 73).

78 Contrary to the Commission’s argument, it does not emerge from the decision at issue in Italy and Sardegna Lines v Commission, cited in paragraph 52 above, that the individual situation of Sardegna Lines was taken into account by the Commission. In that decision, the Commission merely indicated, in the course of setting out the facts, that it had ‘learned of the existence of the aid scheme in question from a complaint regarding a case in which the scheme was applied’. Even accepting that the Commission was aware of Sardegna Lines’ situation, the fact remains that, on the one hand, that undertaking was not mentioned by name in the decision at issue and, on the other, no factor was mentioned which distinguished its specific situation. The Commission merely indicated the total amount of the aid granted to provide the loans and contributions at issue since the entry into force of the aid scheme at issue. The Commission then carried out a general and abstract examination of the aid scheme on that basis (see, in particular, point VII of the decision at issue). Accordingly, it cannot be inferred from Italy and Sardegna Lines v Commission that the Court of Justice considered that the Commission had taken the individual situation of Sardegna Lines into account. On the contrary, it was by contrasting the potential beneficiaries of an aid scheme viewed in an abstract manner with the actual beneficiaries of such a scheme unlawfully implemented that the Court of Justice held that Sardegna Lines was individually concerned ‘by virtue of being an actual beneficiary of individual aid granted under [the aid scheme for Sardinian shipowners], the recovery of which has been ordered by the Commission’ (paragraph 34 of the judgment). The allusion to ‘individual aid’ manifestly refers to the aid granted to Sardegna Lines in implementation of the aid scheme in question. Contrary to the interpretation proposed by the Commission, it cannot be understood as referring to the Commission’s taking into account of the individual situation of Sardegna Lines on the ground that the scheme in question was not applied automatically.

79 That analysis of Italy and Sardegna Lines v Commission, cited in paragraph 52 above, is corroborated by the Opinion of Advocate General Alber in Italy v Commission, cited in paragraph 53 above (ECR I‑4092). In his Opinion, the Advocate General rejected the Commission’s argument that the aid scheme under consideration in Italy and Sardegna Lines v Commission had been implemented by means of discretionary implementing decisions on the part of the national authorities. He pointed out in that regard that:

‘[t]he Court [of Justice] … relies [in paragraph 34 of its judgment] only on the fact that the applicant, Sardegna Lines, is affected as a recipient of aid whose recovery the Commission had ordered. It makes no reference to other circumstances which set the applicant apart as an individual, for example, consideration of its case in the administrative procedure’ (point 71 of the Opinion).

80 In Italy v Commission, cited in paragraph 53 above, the Court of Justice clearly confirmed the approach it had adopted in Italy and Sardegna Lines v Commission, cited in paragraph 52 above. It should be pointed out that the sectoral aid scheme at issue in Italy v Commission concerned a large number of commercial road haulage companies. Unlike Sardegna Lines, none of the applicant hauliers could be distinguished from the other beneficiaries of the aid scheme in question whether in terms of the amount of aid received or in terms of a particular role played during the administrative procedure. The Court of Justice held that the applicant undertakings were in a different position from that of applicants for whom a Commission decision is in the nature of a measure of general application, because they were concerned ‘by virtue of being actual recipients of individual aid granted under that scheme, the recovery of which [had] been ordered by the Commission’ (paragraph 39 of the judgment).

81 In addition, paragraph 39 of Italy v Commission, cited in paragraph 53 above, although brief, also contains important details regarding proof of locus standi on the part of undertakings which have benefited from an unlawful aid scheme. The Court of Justice pointed out in that judgment that the decision at issue mentioned ‘the number of applications accepted and the amount budgeted for the aid in question’ during the period under consideration and concluded that ‘the Commission must therefore have known of the existence of those actual recipients’. It therefore expressly draws a distinction between the situation of the actual beneficiaries, who could be identified and whose situation was specifically affected by the recovery order, and the situation of potential beneficiaries.

82 In the light, in particular, of the Opinion of Advocate General Alber in Italy v Commission, cited in paragraph 79 above, points 74 to 85, paragraph 39 of the judgment in Italy v Commission, cited in paragraph 53 above, may therefore be understood as recognising that the applicant undertakings were differentiated from all other traders by the fact that they constituted a closed class of persons specifically affected by the recovery order. In particular, unlike potential beneficiaries of an aid scheme, the actual beneficiaries of that aid scheme constituted a limited group since implementation of the scheme had ceased even before the adoption of the decision at issue, with the result that the Commission was in principle able, with the help of the national authorities, to identify them when adopting the contested decision. Contrary to the Commission’s argument, the Court of Justice did not make recognition of an individual connection subject to specific identification of the beneficiaries of the aid scheme under consideration and the analysis of their individual situations by the Commission.

83 It should be pointed out that, although a decision concerning an aid scheme is of general application, inasmuch as the Commission carries out a general and abstract examination of the scheme (see paragraph 73 above), such a decision relates solely to a particular aid scheme. Thus it does not form part of the determination of a Community policy and is not legislative in nature, but relates rather to the implementation of the rules of Community law concerning, in this instance, State aid, unlike measures which are legislative in nature and which apply to all traders concerned (see, for example, Case 206/87 Lefebvre v Commission [1989] ECR 275; Roquette Frères v Council, cited in paragraph 74 above, paragraph 42; and the order in Fels-Werke and Others v Commission, cited in paragraph 74 above, paragraphs 61 and 63).

84 In that legal context, the fact of belonging to a closed class of actual beneficiaries of an aid scheme, particularly affected by the obligation to recover the aid paid out imposed by the Commission on the Member State concerned, is sufficient to differentiate those beneficiaries from all other persons, in accordance with the case-law (Case 25/62 Plaumann v Commission [1963] ECR 95, at p. 107). Individualisation results, in such cases, from the specific adverse effect of the recovery order on the interests of the members of the closed class, who are fully identifiable.

85 If the locus standi of an actual beneficiary of an aid scheme were conditional upon an examination of its individual situation, locus standi would depend on whether or not the Commission chose in the contested decision to carry out such an individual examination in the light of the information communicated to it during the administrative procedure. That approach would be a source of legal uncertainty inasmuch as the Commission’s knowledge of specific individual situations is frequently a matter of chance (Opinion of Advocate General Alber in Italy v Commission, cited in paragraph 79 above, point 83). In addition, if a beneficiary challenged, before the Court, the Commission’s failure to carry out an individual examination – in the light, for example, of information concerning it supplied to the Commission during the administrative procedure – the admissibility of its action would be linked to the appraisal of the pleas in law going to the substance. In that situation, the complexity and the difficulty of predicting the outcome of the determination of admissibility would exacerbate the legal uncertainty.

86 Finally, it should be pointed out that the criterion of a closed class, the members of which are particularly affected by a Commission decision, was also used by the Court of Justice in Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, paragraphs 58 to 64. With regard, in particular, to the coordination centres whose authorisation was under way, the Court of Justice considered – along the lines of Italy and Sardegna Lines v Commission, cited in paragraph 52 above, and Italy v Commission, cited in paragraph 53 above – that such centres were individually concerned inasmuch as they were ‘fully identifiable at the time when the [decision under challenge] was adopted’ (Belgium and Forum 187 v Commission, paragraph 61, and the Opinion of Advocate General Léger in that case, ECR I‑5485, points 196 and 197). With regard to the centres whose applications for renewal of authorisation were pending at the time that the decision at issue was notified, the Court of Justice considered that those potential beneficiaries had locus standi, in the particular circumstances of the case, on the ground that they formed part of a closed class, the members of which were particularly affected by the decision at issue, as they could no longer obtain a renewal of their authorisation (Belgium and Forum 187 v Commission, paragraphs 62 and 63, and the Opinion of Advocate General Léger in that case, point 211).

87 In the light of all that case-law, the criterion, proposed by the Commission, based on the detailed arrangements for the implementation of the aid scheme is irrelevant. In particular, a reading of Italy and Sardegna Lines v Commission, cited in paragraph 52 above, and Italy v Commission, cited in paragraph 53 above, does not reveal any account being taken by the Court of Justice of the fact, already relied on by the Commission in the cases which gave rise to those judgments, that the aid schemes in question were actually implemented by means of administrative implementing decisions involving a discretionary power. Moreover, it should be noted that the judgment in CETM v Commission, cited in paragraph 77 above, and the judgment of the EFTA Court in Fesil and Finnfjord and Others v EFTA Surveillance Authority, cited in paragraph 54 above, concerned aid schemes which automatically benefited undertakings which satisfied the conditions laid down for those schemes. It is clear from the EFTA Court’s judgment (paragraph 46) that, in its observations, the Commission had already argued, by way of objection to the admissibility of the action, that the aid schemes under consideration in Italy and Sardegna Lines v Commission and Italy v Commission did not automatically apply to undertakings meeting certain conditions, but empowered the competent national authorities to grant advantages to beneficiaries by means of subsequent administrative acts. That distinction was not considered relevant by the EFTA Court, as shown by the fact that it concurred with the concise but clear reasoning of the above two judgments of the Court of Justice.

88 With regard to the order in Gruppo ormeggiatori del porto di Venezia and Others v Commission, cited in paragraph 26 above, referred to by the Commission (see paragraph 55 above), the applicants rightly point out that it is irrelevant for the purposes of assessing locus standi. In that order, the Court of First Instance did not consider the locus standi of the undertakings concerned but declared inadmissible, for lack of an interest in bringing proceedings, the actions brought by undertakings which had in the meantime been excluded from the procedure for recovering the aid in question undertaken by the national authorities in implementation of the contested decision. It should be noted that, in order to show its interest in bringing proceedings at the time of making the application initiating proceedings, it is sufficient for an undertaking to indicate in a relevant manner that it has received, under the scheme concerned, aid which could be covered by the declaration of incompatibility with the common market made by the Commission in the decision at issue. It is not for the Court, in the context of an action brought against a Commission decision concerning an aid scheme, to rule on the specific application of the criteria set out in that decision, in order to determine whether the aid at issue which has been granted to a specific undertaking must be regarded as aid incompatible with the common market under that decision. It is for the competent national authorities, when implementing such a decision, to apply those criteria in each individual case, subject to supervision by the Commission.

89 In that context, the order in Gruppo ormeggiatori del porto di Venezia and Others v Commission, cited in paragraph 26 above, merely excludes any interest in bringing proceedings on the part of an applicant undertaking where, after the application initiating proceedings has been lodged, it appears that the national authorities, in the implementation of the Commission decision, have concluded that the measures in favour of that undertaking, under the aid scheme at issue, do not have to be recovered pursuant to that decision, either because, according to that decision, they do not come within the scope of Article 87(1) EC or because they meet the criteria laid down in that decision for compatibility with the common market. In the above order (paragraph 26), the Court rejected, in particular, the undertakings’ argument concerning the Commission’s power, in the framework of its supervision of the implementation of its decision by the Member State concerned, to require the latter, at a date subsequent to the adoption of the decision, to recover the alleged aid from those undertakings on the ground, precisely, that such a circumstance was not future and uncertain in nature. In the present case, it is common ground that the national authorities addressed a recovery decision to the applicant undertakings, which confirms their interest in bringing proceedings.

90 In Atzeni and Others, cited in paragraph 55 above, also relied upon by the Commission, the Court of Justice merely stated that a reference for a preliminary ruling on a question of legality is not inadmissible where it relates to a Commission decision concerning an aid scheme on the ground that the locus standi of the undertakings concerned under the fourth paragraph of Article 230 EC required a complex analysis and was therefore not manifest. That judgment follows the line of authority flowing from the judgment of the Court of Justice in Case C-188/92 TWD Textilwerke Deggendorf [1994] ECR I‑833, in which it was held that a preliminary plea of inadmissibility cannot be raised before a national court in respect of a plea, entered by way of preliminary objection, that the Commission’s decision is illegal, except where the undertakings which had received aid were entitled beyond a doubt to challenge the Commission’s decision and had been informed of that right (TWD Textilwerke Deggendorf, paragraph 24; Case C‑241/95 Accrington Beef and Others [1996] ECR I‑6699, paragraphs 15 and 16; and Case C‑408/95 Eurotunnel and Others [1997] ECR I‑6315, paragraph 28). Moreover, it is clear from Italy v Commission, cited in paragraph 53 above, paragraph 31, that the Court of Justice has already impliedly rejected the Commission’s argument that, if the undertakings which actually received aid were recognised as having locus standi to bring actions contesting the Commission decision declaring the aid scheme incompatible with the common market and requiring recovery of the aid paid out, any reference for a preliminary ruling concerning the recovery of such aid would be declared inadmissible in accordance with the case-law flowing from TWDTextilwerke Deggendorf (see, in that regard, the Opinion of Advocate General Alber in Italy v Commission, cited in paragraph 79 above, points 86 to 89). Moreover, it should be added that actual beneficiaries can in no circumstances be declared time-barred for the purposes of pleading before the national courts, by way of preliminary objection, that the Commission’s decision is illegal, if, in view of the particular circumstances of the case or the complexity of the criteria laid down in that decision for defining the aid declared incompatible with the common market which must be recovered, the question whether those beneficiaries are required to repay the aid in question, in implementation of the Commission decision, could reasonably have given rise to doubt initially, so that their interest in bringing proceedings against that decision was not obvious (order in Gruppo ormeggiatori del porto di Venezia and Others v Commission, cited in paragraph 26 above, paragraph 31).

91 In the present cases, it is clear from the contested decision (recital 13), and is not contested by the applicants, that, just as in Italy v Commission, cited in paragraph 53 above, the Commission was aware of the precise number of beneficiary undertakings and the total amount accounted for both by the social security reductions at issue and the social security exemptions at issue during the period under consideration.

92 It follows that the beneficiaries of the aid scheme at issue were fully identifiable when the contested decision was adopted. Accordingly, it is clear from the foregoing that the applicant undertakings must be regarded as individually concerned by that decision.

93 The reading of the case-law (see paragraphs 74 to 85 above) on which that conclusion is based is confirmed by a consideration of the Community system for the review of State aid, which precludes acceptance of the criteria and arguments put forward by the Commission, as is clear from the following paragraphs.

b) Assessment, in the light of the Community system for the review of State aid, of the criterion based on the detailed arrangements for the implementation of the aid scheme

94 Consideration of the Community system for the review of State aid confirms the irrelevance of the criterion, invoked by the Commission, based on the detailed arrangements for the implementation of the aid scheme.

95 If that criterion were accepted, it would lead to legal uncertainty for litigants because the determination made by the court having jurisdiction would first of all depend on the detailed arrangements for the implementation of the aid scheme in question and then, if the scheme were automatically applicable, on any examination which the Commission may have carried out of the individual situation of some of the beneficiaries (see paragraph 85 above). However, such a criterion is wholly unjustified in view of the condition relating to the existence of an individual connection, which forms part of the Community system for the review of State aid. The detailed arrangements for the implementation of an aid scheme have no bearing on whether or not the Commission is able to identify the beneficiaries; nor do they have any bearing on the review carried out by the Commission, or on the scope of the obligation to recover the aid from the beneficiaries.

96 First, it follows from the case-law that the actual beneficiaries of an aid scheme are individualised by dint of belonging to a closed class of persons particularly affected by the recovery order (see paragraphs 77 to 84 above). However, inasmuch as, in all cases, the actual beneficiaries constitute, precisely, a closed class, they are always fully identifiable when the Commission decision is adopted, regardless of whether the scheme is automatically applicable or requires the adoption of individual implementing measures.

97 Secondly, bearing in mind the general application of any aid scheme, there is no justification, a priori, for the nature and extent of the Commission’s review varying according to whether the scheme provides for the aid to be granted automatically or by means of implementing measures. When confronted with an unlawful aid scheme, all the Commission is in principle obliged to do is to examine the general and abstract characteristics of the scheme (see paragraph 73 above). Consequently, even where the aid scheme has been implemented by means of individual decisions involving a discretionary power, the Commission is not thereby required to carry out an examination on a case-by-case basis of the decisions granting aid, and in each case assess, inter alia, whether the conditions for the application of Article 87(1) EC are satisfied.

98 Thirdly, during the national recovery procedure, the fact that the aid scheme was implemented automatically or by means of individual decisions has no effect on the scope of the Commission’s decision with regard to the beneficiaries. In both situations, the national authorities are merely entitled to implement that general and abstract decision. It is not for them to ascertain whether the conditions for the application of Article 87(1) EC are satisfied in each individual case (see paragraphs 99 and 100 below).

99 Moreover, the fact that the aid was granted by means of individual decisions implementing an aid scheme does not necessarily reduce the complexity of the assessments which must be made by the authorities in order to implement the Commission decision, in which the abovementioned individual decisions are not, as a rule, taken into account (see paragraph 97 above). In any event, since in all cases the national authorities merely implement the Commission decision, the level of complexity of their assessments when recovering the aid does not constitute a relevant criterion for establishing whether or not the actual beneficiaries are individually concerned by that decision. The argument relating to the complexity of such assessments, already raised by the Commission in its appeal in Italy v Commission, cited in paragraph 53 above, was already impliedly rejected by the Court of Justice in that judgment.

c) The alleged power of the national authorities to ascertain in each individual case whether aid exists when implementing a recovery order

100 However, in order to show that the actual beneficiaries of an aid scheme are not individually concerned by a Commission decision finding that the scheme is incompatible with the common market and ordering recovery of the aid paid out, the Commission contends that, when that decision is being implemented, the Member State concerned has power not merely to apply the criteria set out in the decision at issue but also to ascertain in each individual case whether the conditions for the application of Article 87(1) EC are satisfied in the light of the subjective situation of the undertaking concerned.

101 All the same, the Commission provides no justification for that argument, other than that the aid scheme under consideration in the present cases is not sectoral but applies to all undertakings located in the island territory of Venice or Chioggia, with the result that the Commission was unable to assess whether the conditions for the application of Article 87(1) EC were satisfied in each of the many sectors of activity concerned. It is therefore for the Member State concerned to check this.

102 However, it must be stated at the outset that, on the one hand, the Commission seems to be suggesting that where the national authorities implement a decision finding that a multisectoral aid scheme is incompatible with the common market and requiring recovery of the aid paid out, they are automatically entitled to ascertain whether the conditions for the application of Article 87(1) EC are satisfied in the sectors of economic activity in respect of which the Commission has not examined the effect of the measures under consideration on trade between the Member States and on competition. The scope of the national authorities’ power in that regard would thus depend on the extent of the examination carried out by the Commission, which is in turn dependent on the information communicated to it during the administrative procedure, with the result that the limits of the above powers on the part of the national authorities are a matter of legal uncertainty (see paragraph 85 above and paragraphs 229 to 234 below).

103 On the other hand, in the present cases, it is clear from the contested decision that the Commission excluded from the category of State aid within the meaning of Article 87(1) EC solely the social security exemptions at issue which comply with the de minimis rule (see paragraph 13 above). Even though the enacting terms of the contested decision make no mention of the de minimis rule, those enacting terms are indissociably linked to the reasons on which the decision is based and must therefore be interpreted in the light and in the context of all the reasons which led to its adoption (Case C‑355/95 P TWD v Commission [1997] ECR I‑2549, paragraph 21, and Alzetta and Others v Commission, cited in paragraph 45 above, paragraph 163). Consequently, in so far as the Commission states, in recital 110 of the contested decision, that measures which comply with the de minimis rule do not fall within the scope of Article 87 EC, such measures are not covered by the recovery obligation laid down in Article 5 of the decision. Moreover, there is nothing in the contested decision to enable other exemptions from among the social security exemptions at issue to be excluded from the recovery obligation on the ground that they do not constitute State aid within the meaning of Article 87(1) EC.

104 In that context, the Commission’s argument that the national authorities, when implementing the contested decision, have the power to ascertain in each individual case whether the conditions for the application of Article 87(1) EC are satisfied is not supported by the case-law. In its defence, the Commission relies solely on Case C-310/99 Italy v Commission [2002] ECR I‑2289, in which the Court of Justice held, in the context of its consideration of a plea alleging that the statement of reasons was insufficient, that where the Commission considered the characteristics of the aid scheme in question and illustrated its analysis using as an example one sector of activity concerned by the scheme, it established to the requisite legal standard that the scheme gave an appreciable advantage to beneficiaries as compared with their competitors and was likely to benefit in particular undertakings engaged in trade between Member States (paragraphs 88 and 89 of the judgment). Emphasising that ‘[t]here was no need for the contested decision to include an analysis of the aid granted in individual cases on the basis of the scheme’, the Court of Justice added that ‘[i]t is only at the stage of recovery of the aid that it is necessary to look at the individual situation of each undertaking concerned’ (paragraph 91). In the absence of any indication to that effect, there is nothing to allow the latter sentence to be interpreted as referring to an individual examination of the conditions for the application of Article 87(1) EC during the procedure for the recovery of the aid. On the contrary, in the context of that dispute, it seems more likely that the Court of Justice was merely emphasising the fact that the general and abstract analysis of the aid scheme carried out in the Commission decision was sufficient by pointing out that an examination of the individual situation of the recipients was necessary only to recover the aid pursuant to that very decision (see paragraphs 73 above and 209 below).

105 Moreover, the approach contended for by the Commission in the present case is at odds with settled case-law, which seeks to avoid treating unlawful aid more favourably than aid properly notified. In particular, it has been held that if new aid has been granted without prior notification, the Commission is not required to establish whether the aid has a real effect on trade and competition. Such a requirement would favour Member States which grant aid in breach of the obligation to notify, to the detriment of those which notify aid at the planning stage (Alzetta and Others v Commission, cited in paragraph 45 above, paragraph 79).

106 However, to accept that the Member State concerned may, when implementing a Commission decision concerning an unlawful aid scheme, ascertain in each individual case whether the conditions for the application of Article 87(1) EC are satisfied would amount to giving the Member State, where it is in breach of its obligation to notify, a power which the case-law has not as yet recognised as accruing to it, where a Commission decision has declared an aid scheme incompatible with the common market. Consequently, if the Commission’s argument were to be accepted in the present case, the stumbling block of granting more favourable treatment to aid that has not been notified could be avoided only by recognising that the Member State concerned enjoyed comparable powers when dealing with a Commission decision declaring notified aid incompatible with the common market.

107 It should be pointed out in that regard that the Court of Justice resolved certain questions concerning the scope of the obligation to notify laid down in Article 88(3) EC by holding that only State aid within the meaning of Article 87(1) EC is subject to the notification procedure (Case C‑71/04 Xunta de Galicia [2005] ECR I‑7419, paragraph 32). By the same logic, with regard to measures granted in order to offset the costs incurred in discharging public service obligations, it follows from Case C‑280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I‑7747 (‘Altmark’), paragraphs 87 and 94, that such measures do not fall within the purview of Article 87(1) EC and therefore do not have to be notified if they meet the conditions laid down in that judgment. On the other hand, the Community judicature has not yet been called upon to rule on the question whether measures granted under an aid scheme either, for example, to an entity which does not constitute an undertaking within the meaning of Article 87(1) EC or, by way of compensation, to an undertaking entrusted with discharging public service obligations under the conditions set out in Altmark are not to be regarded as State aid and may therefore be implemented without the Commission’s authorisation, even if the latter has previously declared the aid scheme incompatible with the common market.

108 None the less, it should be pointed out that the power of the Member State concerned – confirmed by Xunta de Galicia, cited in paragraph 107 above – to define a measure in the light of the conditions for the application of Article 87(1) EC so as to establish whether it is subject to the notification and standstill obligations laid down in Article 88(3) EC does not enable that measure to escape the power of review conferred on the Commission by the Treaty once the Commission has decided to initiate the formal investigation procedure provided for in Article 88(2) EC. Regardless of whether it is the prior review of notified aid or the ex post review of unlawful aid, that review covers in principle both the categorisation of the aid and, if appropriate, its compatibility with the common market and is as a rule carried out by the Commission solely on the basis of the general characteristics of the aid scheme. The approach which the Commission proposes in the present cases would entail not only a significant transfer of power to the Member State concerned but also a substantive change in the review of aid schemes, since the Member State could systematically take account of the individual situation of each beneficiary when implementing the Commission decision in order to categorise the measure in question, notwithstanding the Commission’s finding that the aid scheme in question affects trade between the Member States and competition. However, even in the case of a multisectoral scheme, recognition of such a power cannot be justified for the purposes of an enlightened application of the conditions laid down in Article 87(1) EC. When such a scheme is being examined by the Commission, the Member State concerned may, by drawing the Commission’s attention to the market situation in given sectors of activity, persuade that institution to ascertain in particular whether, in those sectors, the aid scheme is likely to affect trade between the Member States and distort competition (see paragraphs 231 to 233 below). Moreover, it is for the Member State concerned to draw the Commission’s attention, if necessary, to the specific individual situation of certain undertakings (see paragraph 209 below).

109 In addition, the approach proposed by the Commission would entail a change in the courses of action open to it. If the Commission considered that the Member State concerned had committed an error when applying Article 87(1) EC in the procedure implementing the decision requiring recovery of the aid paid out, it would be obliged not to reopen the procedure provided for in the first subparagraph of Article 88(2) EC but to bring an action directly before the Court of Justice for failure to fulfil obligations under the second subparagraph of Article 88(2) EC.

110 On account of its scope, the approach contended for by the Commission in the present cases is therefore to be distinguished from the approach adopted with regard to public services in Altmark, cited in paragraph 107 above, which leaves it to the Member States to assess measures, granted in compensation for the assumption of responsibility for services of general economic interest, which are exempt, under certain conditions, from being regarded as State aid and, consequently, from the obligation to notify. Such measures may, however, undergo an ex post review by the Commission in the framework of the formal investigation procedure provided for in the first subparagraph of Article 88(2) EC.

111 As the Community rules on State aid and the case-law now stand, recognition that the Member State concerned has a power, when implementing a Commission decision declaring an aid scheme incompatible with the common market and ordering recovery of the aid paid out, to assess in each individual case whether all the conditions for the application of Article 87(1) EC have been satisfied would radically change the scope and effectiveness of the review carried out by the Commission in the framework of the formal investigation procedure provided for in Article 88(2) EC, during which that institution, as a rule, first determines whether a scheme falls properly to be regarded as State aid, before declaring it, if appropriate, incompatible with the common market.

112 It follows from all the foregoing considerations that the applicant undertakings have locus standi to challenge the contested decision.

C – The alleged lack of locus standi of the Committee in Case T‑277/00

113 The Commission contends that the Committee, which brings together various professional associations, has produced no evidence to show that one or more of those associations were individually concerned by the contested decision, particularly as negotiators when the aid schemes examined in the contested decision were being set up. In addition, even the member undertakings of those associations are not individually concerned.

114 It is sufficient in that regard to point out that, in accordance with settled case-law, since the applicant undertaking, Coopservice, has locus standi, there is no need to consider whether the Committee has locus standi (see Case C‑313/90 CIRFS and Others v Commission [1993] ECR I‑1125, paragraph 31). The action brought by Coopservice and by the Committee in Case T‑277/00 is therefore admissible.

115 In addition, it must be added that, in any event, the Committee, as an organisation bringing together professional associations representing undertakings which are located in Venice or Chioggia and which received aid under the scheme at issue solely for that reason, is directly and individually concerned by the contested decision inasmuch as it acts on behalf of its members which could themselves have brought an action that would have been declared admissible (see Joined Cases T‑447/93 to T‑449/93 AITEC and Others v Commission [1995] ECR II‑1971, paragraph 60).

116 It follows that the present actions are admissible in their entirety.

Substance

117 The applicants challenge the contested decision in so far as it categorises the measures at issue as State aid incompatible with the common market and imposes an obligation to recover the aid paid out.

A – The allegedly erroneous categorisation of the measures at issue as State aid incompatible with the common market

118 The applicants put forward a series of pleas alleging: (i) infringement of Article 87(1) EC, Article 86(2) EC and the principle of equal treatment, as well as failure to state adequate reasons and the contradictory nature of the reasons stated; (ii) infringement of Article 87(3)(c) EC; (iii) infringement of Article 87(3)(d) EC; (iv) infringement of Article 87(3)(e) EC; and (v) infringement of Article 87(3)(b) EC and Article 87(2)(b) EC.

1. The alleged infringement of Article 87(1) EC, Article 86(2) EC and the principle of equal treatment, as well as the alleged failure to state adequate reasons and the allegedly contradictory nature of the reasons stated

a) Arguments of the parties

The applicants’ arguments





– Case T‑254/00

119 The applicant – Hotel Cipriani – alleges infringement of Article 87(1) EC and failure to state adequate reasons for the contested decision.

120 First, it argues that the contested decision (recitals 49, 50 and 58) is vitiated by an inadequate statement of the reasons on which it is based, as a result of the failure to take into account the local nature of the market concerned.

121 It maintains that the Commission is required to analyse the characteristics, detailed arrangements and content of the measures under consideration so as to be able to assess their effects on trade and competition on a sector-by-sector basis.

122 Moreover, limitation of the obligation to state the reasons on which a decision is based with regard to aid schemes would impair the comprehensive review by the Community judicature of the categorisation of a measure in the light of Article 87(1) EC.

123 In the present case, the contested decision contains no reference, even summary, to the markets for the products and services concerned; nor does it refer to the flows of imports and exports or to the position on those markets of the undertakings concerned. In particular, no mention is made of the hotel and catering sectors.

124 Contrary to the Commission’s contentions, it is not for the Italian authorities to determine and assess the situation of each beneficiary in the framework of the procedure for the recovery of the aid. The Italian authorities are required to adopt automatically the conclusions formulated by the Commission in the contested decision. None the less, in the present case, the Italian authorities should – precisely because of the lack of adequate reasons for that decision – have asked the Commission for further explanations so as to be able to identify which undertakings had benefited from measures meeting the criterion of affecting trade between the Member States (see the Commission’s answers of 29 August and 29 October 2001, annexed to the Italian Government’s answers of 12 March 2004 to questions put to it by the Court).

125 Secondly, the applicant claims that the Commission committed a manifest error of assessment and thus misapplied Article 87(1) EC by relying on a ‘generic’ presumption rather than taking into account the local nature of the market concerned.

126 At the hearing, the applicant pointed out that the Commission could not rely on such a presumption since it was in a position to know that the measures under consideration in favour of certain categories of undertaking were not likely to affect trade between the Member States and competition.

127 However, the local nature of the hotel and catering sectors has been confirmed in a general way, in particular by the Community Guidelines on State aid for undertakings in deprived urban areas (OJ 1997 C 146, p. 6). Consumers choose a hotel in, or as near as possible to, the locality in which they intend to stay.

128 In addition, in any event, the hotel market in Venice is special. By reason of the power of attraction of the city, the hotel undertakings in Venice are not in competition with undertakings in the same sector located in other cities. The criterion on the basis of which consumers choose is not the price of the hotels, but the location. The measures at issue are therefore unlikely to affect, even potentially, trade between the Member States and competition.

129 In the present case, the Commission was in possession of the necessary information concerning, in particular, the special nature of the hotel sector in Venice, thanks, inter alia, to the participation of the Committee in the administrative procedure. In addition, the information relating to the sectors concerned and the number of beneficiary undertakings was sent to the Commission by the Italian authorities (recitals 6 and 13 of the contested decision). In any event, it was for the Commission to ask the Italian authorities for additional information on the situation of the various beneficiaries, in accordance with the procedures laid down in Regulation No 659/1999, without there being any need for an injunction.

130 Under those circumstances, the contested decision is, in addition, incomprehensible and contradictory inasmuch as, in taking account of the local dimension, the Commission considered only certain public services.

131 Thirdly, the Commission committed a manifest error of assessment and thus misapplied Article 87(1) EC by failing to take into account the additional costs borne by undertakings trading in Venice when assessing whether the measures at issue were of such a nature as to confer an actual economic advantage on their beneficiaries. In addition, on the same point, the statement of reasons in the contested decision is insufficient.

132 The additional costs mentioned above amount to between 8% and 12% of the turnover of the undertakings concerned, according to a report by a firm of experts dated 8 September 2000, submitted by the applicant. Contrary to the Commission’s contentions, those costs were calculated on the basis of specific and objective points of reference.

133 Those additional costs were not the result of macroeconomic factors – linked, for example, to the cost of credit, or to taxation or exchange rates – but solely of the fact that the activity is exercised in Venice. They are only partly offset by the measures at issue, which explains why the prices charged by the Hotel Cipriani are higher than those normally charged by establishments located elsewhere.

– Case T‑270/00

134 The applicant – Italgas – points out that the Italian authorities had supplied the Commission with the data relating to the social security exemptions at issue, broken down by sector. It was therefore for the Commission to carry out an overall examination, even if summary, of the likely effect of the measures under consideration on trade between the Member States and on competition in the sectors of activity concerned.

135 In addition, the Guidelines on aid to employment of 12 December 1995 expressly provide that measures in favour of employment ‘in respect of activities that do not involve trade between Member States (e.g. neighbourhood care services, certain local employment initiatives)’ do not fall within the scope of Article 87(1) EC.

136 Under those circumstances, the applicant claims first that the contested decision is vitiated by an inadequate statement of the reasons on which it is based, inasmuch as it does not contain a sufficient examination of the facts.

137 The applicant disputes that, in its decisions concerning aid schemes, the Commission can rely on the ‘worst case scenario’. If such a decision examined only the worst case scenario and none the less included a general obligation to recover the aid, it would be necessary to specify which authority, under which circumstances and on the basis of which criteria, could determine whether the scenario envisaged had actually happened and with regard to which traders or categories of trader.

138 At the hearing, the applicant pointed out that, when the Commission considers an aid scheme, it alone has the power to apply the substantive provisions of Article 87 EC. Under the present system for the Community review of State aid, the Commission is not entitled to delegate its discretionary powers of assessment to the national authorities. Its decision must therefore contain a sufficient statement of reasons to enable the Community judicature to review the decision and to enable the national authorities to implement the recovery order, subject to review by the national courts, which need only ensure compliance with the Commission’s decision.

139 In the present case, the applicant claims that the contested decision did not contain the information necessary to implement it with regard to Italgas. In order to require the repayment of the alleged aid, the national authorities therefore took as their basis the assessment contained in the Commission’s letter of 29 October 2001, mentioned above. However, inasmuch as that assessment was carried out after the adoption of the contested decision, it cannot usefully give rise to a reference to the Court of Justice for a preliminary ruling.

140 Under those circumstances, to accept that the Commission could rely on presumptions when dealing with an aid scheme would ultimately weaken its obligation to undertake a diligent and impartial investigation, which would in turn reduce the possibility of challenging the Commission decision.

141 Secondly, according to the applicant, the Commission committed a manifest error of assessment and thus infringed Article 87(1) EC by refusing to take into account the compensatory nature of the measures at issue, without even undertaking a summary analysis of market conditions.

142 In the present case, during the administrative procedure, the Italian authorities – on the basis of the COSES report – referred to the additional costs borne by the undertakings operating on the islands in the lagoon. They considered that such undertakings are in a situation comparable – particularly as regards the instability of work – to that of undertakings in the Mezzogiorno. The social security reductions at issue are intended solely to compensate, at least partly, for the unfavourable conditions in the employment market in the area of the lagoon and thereby slow down the exodus of undertakings towards the mainland. Since those measures were legitimately intended to align the costs borne by the undertakings concerned with those borne by undertakings located on the mainland, the additional costs had to be calculated by reference to costs on the mainland. In an