Case T‑15/14

Simet SpA

v

European Commission

‛State aid — Retroactive public service compensation granted by the Italian authorities — Inter-regional bus transport services provided between 1987 and 2003 — Decision declaring the aid incompatible with the internal market — Maintenance of a public service obligation — Grant of compensation — Regulation (EEC) No 1191/69’

Summary — Judgment of the General Court (Eighth Chamber), 3 March 2016

Judicial proceedings — Introduction of new pleas during the proceedings — Plea raised for the first time at the reply stage and not constituting the amplification of a plea set out previously — Inadmissibility

Transport — Aid for transport — Obligations inherent in the concept of a public service in transport by rail, road and inland waterway — Road transport — Distinction between the concept of ‘economic disadvantage’ and the risk of overcompensation

State aid — Examination by the Commission — No observations by the persons concerned — Not relevant to the validity of the Commission decision — No obligation to examine matters not expressly invoked by the Commission’s own motion

Actions for annulment — Natural or legal persons — Interest in bringing proceedings — Need for an actual and current interest — Action against a decision of the Commission on State aid matters — Undertaking having discontinued its action for enforcement of a judgment of a national court ordering the payment in its favour of compensation for the costs involved in performing a public service — Possibility of bringing a new action with the same subject-matter before the national court — Admissibility

Having a legal interest in bringing proceedings is a precondition for the admissibility of an action for annulment brought by a natural or legal person. Such an interest presupposes that the annulment of the contested measure must of itself be capable of having legal consequences and that the action must be likely, if successful, to procure an advantage for the party who brought it. That interest must be vested and present when the action is brought. Moreover, it must continue until the final decision, failing which there will be no need to adjudicate. Where the applicant has discontinued proceedings seeking enforcement of a judgment of a court of a Member State ordering the authorities of that State to pay the applicant compensation which those authorities have refused to enforce, annulment by the General Court of the Commission decision holding that that compensation constitutes State aid would have the effect of placing those national authorities, in any event, under a continuing obligation to enforce the judgment of the court of the Member State concerned, despite the applicant discontinuing enforcement proceedings. In those circumstances, the applicant which brought the action for annulment of the decision on the State aid retains an interest in the outcome of the proceedings and its action is admissible. (see paras 64-66, 69, 72, 74)

See the text of the decision. (see para. 117)

It would be inappropriate for the Court to examine, in considering fulfilment of the obligation to state reasons, the substantive legality of the reasons relied on by the Commission to justify its decision. It follows that, in a plea based on a failure to state reasons or a lack of adequate reasons, objections and arguments which aim to challenge the merits of the contested decision are misplaced and irrelevant. (see paras 130, 147)

The distinguishing features of a tariff obligation within the meaning of Article 2(5) of Regulation No 1191/69 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway are not only that rates are fixed or approved by public authorities but also that it satisfies the double, cumulative, condition that ’special’ tariff obligations for certain specified categories of passenger or goods, or on certain routes, should be involved, and that, in addition, they should be contrary to the commercial interests of the undertaking. That interpretation is confirmed by the second subparagraph of Article 2(5), which excludes from the definition of tariff obligations general measures of price policy and measures taken with respect to transport rates and conditions in general with a view to the organisation of the transport market or of part thereof. It follows that a legal obligation of general application whereby transport rates are submitted for approval by public authorities cannot, of itself, be regarded as constituting a tariff obligation within the meaning of Article 2(5) of Regulation No 1191/69. (see para. 159)

See the text of the decision. (see para. 173)

In State aid matters, and, more particularly, in the assessment of the compensation representing the counterpart of services provided by the beneficiary undertakings for the performance of public service obligations, economic disadvantage and the risk of overcompensation are two separate concepts. Thus, under Articles 5, 10 and 11 of Regulation No 1191/69, proof of an economic disadvantage is necessary in order to determine the amount of compensation due to a transport undertaking on account of the unilateral imposition of public service obligations. On the other hand, the risk of overcompensation can be the result of a wide range of factors giving rise to a higher amount of compensation than that due to the undertaking on the basis of the regulation. (see para. 178)