Judgment of the Court (Fourth Chamber) of 15 May 1997. - Siemens SA v Commission of the European Communities. - Appeal - State aid - General aid - Definition of aid. - Case C-278/95 P.



European Court reports 1997 Page I-02507



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1 Acts of the institutions - Statement of reasons - Obligation - Scope

(EC Treaty, Art. 190)

2 State aid - General aid scheme approved by the Commission - Individual aid purporting to be covered by the approval - Scrutiny by the Commission - Assessment primarily in the light of the approval decision and only secondarily in the light of Article 92 of the Treaty

(EC Treaty, Arts 92 and 93)

3 State aid - Prohibition - Derogations - Aid capable of being regarded as compatible with the common market - Discretion of the Commission - Reference to the Community context

(EC Treaty, Art. 92(3))

4 Appeals - Pleas in law - Erroneous assessment of the facts - Not admissible - Rejection - Legal characterization of the facts - Admissible

(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Art. 51, first para.)

Summary

5 Although the statement of reasons required by Article 190 of the Treaty must show clearly and unequivocally the reasoning of the Community authority which adopted the contested measure so as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review, it is not required to go into every relevant point of fact and law. The question whether a statement of reasons for a decision satisfies those requirements must be assessed with reference not only to its wording but also to its context and the whole body of legal rules governing the matter in question.

6 When the Commission has before it a specific grant of an aid alleged to be made in pursuance of a previously authorized scheme, it cannot at the outset examine it directly in relation to the Treaty. Prior to the initiation of any procedure, it must first examine whether the aid is covered by the general scheme and satisfies the conditions laid down in the decision approving it. If it did not do so, the Commission could, whenever it examined an individual aid, go back on its decision approving the aid scheme which already involved an examination in the light of Article 92 of the Treaty. This would jeopardize the principles of the protection of legitimate expectations and legal certainty from the point of view of both the Member States and traders since individual aid in strict conformity with the decision approving the aid scheme could at any time be called in question by the Commission.

7 As regards the rules on State aid, the discretion conferred on the Commission must be exercised in a Community context, just as the compatibility with the Treaty of the aid in question must be determined in the context of the Community.

8 Although an appeal may rely only on grounds relating to infringement of rules of law, to the exclusion of any appraisal of facts, nevertheless, where the Court of First Instance has not only assessed the facts but has also categorized them, the Court of Justice may examine the merits of a plea put forward in that regard.

Parties

In Case C-278/95 P,

Siemens SA, represented by Michel Waelbroeck, Jules Stuyck and Olivier Speltdoorn, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Marc Loesch, 11 Rue Goethe,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Second Chamber) of 8 June 1995 in Case T-459/93 Siemens v Commission [1995] ECR II-1675, seeking to have that judgment set aside, the other party to the proceedings being: Commission of the European Communities, represented initially by Jean-Paul Keppenne, of its Legal Service, and subsequently by Gérard Rozet, Legal Adviser, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

THE COURT

(Fourth Chamber),

composed of: J.L. Murray, President of the Chamber, P.J.G. Kapteyn and H. Ragnemalm (Rapporteur), Judges,

Advocate General: M.B. Elmer,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 7 November 1996,

after hearing the Opinion of the Advocate General at the sitting on 12 December 1996,

gives the following

Judgment

Grounds

1 By application lodged at the Registry of the Court of Justice on 17 August 1995, Siemens SA brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice against the judgment of 8 June 1995 in Case T-459/93 Siemens v Commission [1995] ECR II-1675 (hereinafter `the contested judgment'), in which the Court of First Instance dismissed its application for annulment of Articles 1(c) and 2 of Commission Decision 92/483/EEC of 24 June 1992 concerning aid provided by the Brussels Regional Authorities (Belgium) in favour of the activities of Siemens SA in the data-processing and telecommunications sectors (OJ 1992 L 288, p. 25, hereinafter `the contested decision').

2 The contested decision concerns aid granted by the Brussels Regional Authorities between November 1985 and January 1988 pursuant to the Belgian Law of 17 July 1959 introducing and coordinating measures to encourage economic expansion and the creation of new industries (hereinafter `the 1959 Law' or `the EEL'). By its decision, the Commission found that part of that aid was incompatible with the common market and ordered the Kingdom of Belgium to refrain from proceeding to make payment of the sum of BFR 28 694 000 and to recover from the appellant the sum of BFR 227 751 000 together with interest.

3 As is apparent from the contested judgment (paragraphs 3 to 5), the Court of First Instance made the following findings:

- Article 1(a) of the 1959 Law establishes a system of general aid for operations `contributing directly to the creation, extension, conversion or modernization of large and small undertakings, whether the said activities are carried on by those undertakings themselves or by other natural or legal persons under private or public law, provided that they are in the general economic interest'. Article 3(a) provides that subsidies may be granted to credit institutions approved for that purpose in order to enable them to grant loans at a reduced rate of interest for the operations referred to in Article 1, on condition that those loans are used for one of the purposes therein set out, which include, in particular, the direct financing of investments in immovable property, whether constructed or not, and in plant or machinery needed to carry out those operations.

- By Decision 75/397/EEC of 17 June 1975 on the aids granted by the Belgian Government pursuant to the Law of 17 July 1959 introducing and coordinating measures to encourage economic expansion and the creation of new industries (OJ 1975 L 177, p. 13, hereinafter `Decision 75/397'), the Commission found that that system of general aid was incompatible with the common market. In Article 1 of that decision, however, it considered that aids granted under the general scheme in connection with programmes of a sectoral or regional nature and notified to the Commission in advance, or aids of an insignificant amount, were compatible with the common market and did not therefore need to be notified in advance pursuant to Article 93(3) of the EC Treaty. The thresholds above which aids become significant and must be notified are laid down by Article 2 of Decision 75/397 and by letter SG (79) D10478 of 14 September 1979 from the Commission to the Member States on the notification of cases to which general investment aid schemes apply.

- As regards the form of aid, the 1959 Law provides, in particular, for interest-rate subsidies on loans contracted with the approved credit institutions. In addition, Article 176 of the Law of 22 December 1977 on budgetary proposals for 1977-1978 (hereinafter `the 1977 Law') allows, in conjunction with the Royal Decree of 24 January 1978 (hereinafter `the 1978 Royal Decree'), the grant of non-recoverable capital premiums equivalent to the interest-rate subsidies where the operations referred to in Article 1 of the 1959 Law are financed by the undertaking's equity capital. By letter to the Belgian authorities of 25 May 1978, the Commission authorized those measures. In the present case, the aid granted is in the form of non-recoverable capital premiums.

4 As regards the contested decision, the Court of First Instance stated in paragraphs 6 to 13:

- By letter of 18 July 1991, the Commission initiated the procedure under Article 93(2) of the Treaty, in response to information published in the Belgian press reporting that the Belgian Audit Court had raised objections regarding the legality of the aids in issue. After receiving the observations presented by the Belgian authorities, it adopted the contested decision.

- That decision, which relates to a number of aid measures, distinguishes between seven categories of operations for which those aids were granted, namely the leasing of equipment to clients, the purchase of equipment for internal use, the development costs of software, training costs, the acquisition of a building, advertising campaigns and market surveys.

- In the Commission's view, the aid intended for equipment for internal use was granted legally, since, first, that expenditure corresponds to the types of investment expressly eligible for aid under the 1959 Law and, second, those investments are made up of independent individual programmes which do not exceed the notification thresholds laid down in the letter to the Member States of 14 September 1979.

- On the other hand, the Commission considers that the training costs, the advertising campaigns and the market surveys are not items which are eligible for aid under the 1959 Law and that the grant of aid in respect of them constitutes an ad hoc intervention which should have been notified to it in accordance with Article 93(3) of the Treaty. Nevertheless, the Commission considers that the aid towards training costs qualifies for the exception provided for in Article 92(3)(c) of the EC Treaty, since it is intended to facilitate the development of certain economic activities and does not distort competitive conditions in a harmful manner.

- Lastly, the Commission considers that the expenditure on equipment leased to clients does not meet the criteria laid down by Articles 1 and 3(a) of the 1959 Law and approved by the Commission, because it does not contribute to the creation, extension, conversion or modernization of the structure of Siemens. Furthermore, the grant of aid for the financing of those operations does not constitute aid to client undertakings either, since those clients pay the full rental charges set by Siemens at its discretion. Consequently, that aid is in the nature of permanent operating aid granted to that company. The Commission further states that, even if the 1959 Law had covered those latter subsidies, they should have been notified pursuant to Article 93(3) of the Treaty, as they exceed the thresholds established in the letter to the Member States of 14 September 1979.

- The Commission further considers that the aid, which falls outside the scope of Decision 75/397, cannot qualify for any of the exceptions provided for in Article 92 of the Treaty. First, Article 92(2) is not applicable in the present case, because the aid in question is not directed towards the attainment of the objectives to which that provision of the Treaty refers. Second, the aid in question is not intended to serve any regional or sectoral purpose and cannot therefore be covered by the exceptions laid down in Article 92(3)(a) and (c). The exceptions provided for in Article 92(3)(b) are likewise inapplicable in the present case, since the aid in question was not intended to promote an important project of common interest or to remedy a serious disturbance in the Belgian economy.

- On the basis of those considerations, the Commission's conclusions, as set out in Article 1 of the contested decision, were as follows:

`Of the total aid under investigation, that is to say BFR 335 980 000 in the form of subsidies awarded by the Government of the Region of Brussels under the aid scheme established by the Economic Expansion Law (EEL) of 17 July 1959 towards expenditure by Siemens SA totalling BFR 2 647 294 000:

...

(c) the aid of BFR 256 445 000 towards expenditure on equipment leased to clients, advertising campaigns and market surveys, was illegally awarded in breach of the provisions of Article 93(3) and, after appraisal, does not meet any of the conditions which must be fulfilled in order for one of the exceptions in Article 92(2) and (3) to apply; consequently, this aid is incompatible with the common market within the meaning of Article 92(1).'

- By Article 2 of the decision, the Commission prohibited the Brussels Regional Authorities from proceeding to make payment of the aid illegally awarded and not yet paid, and required them to recover the sums paid in respect of the aid declared incompatible with the common market in accordance with the procedures and provisions of national law, in particular those relating to interest on arrears payable on State liabilities. According to the decision, interest on those sums was to run from the date on which the illegal aid was received.

5 Siemens claimed before the Court of First Instance that Article 1(c) and, in the alternative, Article 2 of the contested decision should be annulled.

6 The Court of First Instance dismissed Siemens' application and ordered it to pay the costs.

7 In its appeal, Siemens requests the Court of Justice to set aside the contested judgment, to annul Articles 1(c) and 2 of the contested decision and to order the Commission to pay the costs of the two sets of proceedings.

8 The Commission contends that the Court should dismiss the appeal and order Siemens to pay the costs.

9 Siemens advances four pleas in support of its appeal, asserting that the Court of First Instance erred in law, or made findings which were unfounded in law, by ruling that:

- the statement of reasons for the contested decision was adequate and relevant;

- if the aid granted by the Belgian authorities under the general scheme provided for by the 1959 Law was not intended for investment purposes in accordance with Community law, it could not be regarded as having been authorized by Decision 75/397 and by the letter of 25 May 1978, and therefore had to be notified pursuant to Article 93(3) of the Treaty;

- the operations at issue did not constitute investment operations under Community law, even though an examination should have been carried out as to whether they did in fact fall within the substantive scope of the 1959 Law;

- Siemens' objections to the allegation that the notification thresholds were exceeded were of no relevance, `since the Court has held that the aid in issue was not covered by authorization under the general scheme approved by Decision 75/397 and the letter of 25 May 1978, by reason of its being in the nature of operating aid for the undertaking'.

The statement of reasons for the contested decision

10 The Court of First Instance held, in paragraph 34 of the contested judgment, that `the Commission has set out the facts and the legal considerations which are of decisive importance in the context of the decision' and concluded from this, in paragraph 35, that `the decision is not inadequately reasoned and this plea must be rejected'.

11 Siemens maintains that the finding by the Court of First Instance that there had been no failure to provide a statement of reasons with regard, first, to the aid relating to the costs of developing marketing concepts and conducting market surveys and, second, to the allegation that the notification thresholds were exceeded is incompatible with certain rules of law.

12 As regards the aid relating to the costs of developing marketing concepts and conducting market surveys, Siemens argues, first, that the mere finding in the contested decision that those costs `are not listed as items eligible for aid under the EEL' but fall `under the category of operating aid as this expenditure is a typical general operating cost that a company must bear in its normal activities' did not give an opportunity to the parties of defending their rights, to the Community judicature of exercising its powers of review and to the Member States and to all interested parties of ascertaining the circumstances in which the Commission has applied the Treaty. Moreover, the Commission did not explain in the contested decision the reasons for which the operating aid, in the sense applied to that term by Community law, fell outside the scope of the 1959 Law.

13 Secondly, as regards the expenditure on equipment bought for the purposes of being leased, the Commission should have demonstrated that all the items in question had been artificially divided up and that, had it not been for such subdivision, the notification thresholds would, in each case, have been exceeded.

14 The Commission contends that the statement of reasons for the contested decision was sufficient to enable Siemens to be fully aware of its rationale, namely that, in the Commission's view, aid covering the recipient undertaking's normal operating costs could not fall within any of the permissible items provided for in the Belgian legislation as approved by the Commission.

15 The Commission also states that the meaning of `permissible items' was perfectly clear in the context of the system established by the 1959 Law and the 1978 Royal Decree. In order for a recipient to obtain aid in the form of reduced interest rates, as provided for by the 1959 Law, such aid had to fall within one of the permissible items listed in Article 3(a) of that law. In enacting the 1978 Royal Decree, the Belgian authorities merely extended the number of forms in which that aid could be granted. According to the Commission, Siemens clearly understood the reasons given, since it was able, in its application for annulment, to challenge the applicability of Article 3(a) of the 1959 Law in the present case.

16 It should be noted in that regard that, referring to its judgment in Case T-44/90 La Cinq v Commission [1992] ECR II-1, the Court of First Instance held, in paragraph 31 of the contested judgment, that the Commission was not obliged to adopt a position on all the arguments relied on by the parties concerned and that it was sufficient for it to set out the facts and the legal considerations having decisive importance in the context of the decision.

17 Although the reasoning required by Article 190 of the EC Treaty must show clearly and unequivocally the reasoning of the Community authority which adopted the contested measure so as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review, it is not required to go into every relevant point of fact and law. The question whether a statement of reasons satisfies those requirements must be assessed with reference not only to its wording but also to its context and the whole body of legal rules governing the matter in question (Case C-122/94 Commission v Council [1996] ECR I-881, paragraph 29).

18 The Court of First Instance was correct, therefore, in holding that the contested decision was adequately reasoned inasmuch as it states, first, that the aid in question constitutes operating aid since it is a typical general operating cost that a company must bear in its normal activities and, second, that the aid relating to equipment bought for the purposes of being leased was subdivided into several applications whereas, by reason of the homogenous nature of the expenditure and the fact of its having been incurred at the same time, it should have been treated in the aggregate by the Brussels Regional Authorities as a single expenditure programme. The statement of reasons given was sufficient to make Siemens aware of the grounds for the decision.

19 It follows that this plea must be rejected.

The nature of the aid covered by the Commission's authorization decisions

20 In paragraph 45 of the contested judgment, the Court of First Instance stated that `it is necessary to examine whether the provisions in question allowed the grant of aid for purposes other than investment. To that end, the national rules concerning the authorized general scheme need to be interpreted in the light of the Community rules in the matter. More specifically, the 1959 Law and Article 176 of the 1977 Law, as implemented by the 1978 Royal Decree, must be interpreted in accordance with the terms of Decision 75/397, the letter of 25 May 1978 and the wording of the relevant provisions of the Treaty'.

21 The Court of First Instance noted, in paragraph 46, that Article 3(a) of the 1959 Law states that aid is to be restricted to the financing of investment operations, that the Commission had stated in Decision 75/397 that the scheme established by the 1959 Law was a system for granting `aid in favour of investments which the enterprises carry out for ... various purposes' (p. 13 of Decision 75/397) and that, by its letter of 25 May 1978 concerning the 1978 Royal Decree, the Commission had authorized the grant of such aid for `investment operations', subject to compliance with the `verification procedure' provided for in Decision 75/397 (p. 2 of the letter).

22 The Court of First Instance found, first, in paragraph 47, that `where aid granted by the Belgian authorities within the framework of the general scheme in question is not intended for use for investment purposes, it cannot qualify under the Commission's authorization decisions and must therefore be notified pursuant to Article 93(3) of the Treaty'.

23 Next, in paragraph 48, the Court of First Instance stated that `operating aid, that is to say, aid intended to relieve an undertaking of the expenses which it would itself normally have had to bear in its day-to-day management or its usual activities, does not in principle fall within the scope of the aforesaid Article 92(3), and cannot therefore be regarded as having been authorized by Decision 75/397 or by the letter of 25 May 1978'.

24 Lastly, in paragraph 49, the Court of First Instance rejected Siemens' argument that Article 3(a) of the 1959 Law, which sets out the investment operations qualifying for general aid, is not applicable in the context of the 1978 Royal Decree.

25 Siemens argues that, in imposing the condition that aid granted pursuant to the general aid scheme introduced by the 1959 Law must constitute investment aid within the meaning applied to that term by Community law, the Commission did not approve that general scheme. By contrast, in adopting Decision 75/397, the Commission gave unconditional authorization for insignificant individual cases involving application of the general aid scheme introduced by the 1959 Law. Even as regards aid exceeding the notification thresholds, the Commission merely required that advance notification be given, without expressing any prima facie unfavourable view in relation to any specific categories of aid.

26 Consequently, rather than considering whether the aid in issue constituted investment aid, the Court of First Instance should have ascertained whether that aid fell within the substantive scope of the 1959 Law, as interpreted under Belgian law and as approved by the Commission.

27 Siemens maintains that, whilst it is true that the national provisions must be interpreted in the light of the Community rules, the Commission had already expressed its view on the scope of the 1959 Law in Decision 75/397, in the light of the Community rules in the matter as construed at the time. The principles of legal certainty and of the protection of legitimate expectations prevent the Commission from subsequently departing from that interpretation.

28 The Commission considers, on the other hand, that the Court of First Instance correctly analysed the scope of the Belgian scheme in the light of the approval decisions adopted by the Commission. That method is the only one capable of ensuring coherence in the application of Community law.

29 According to the Commission, the fact that the 1959 Belgian scheme and the amendment made to it in 1978 constituted a system of aid for investment is apparent both from the provisions of that scheme and from the content of the Commission's decisions. In order to qualify under the 1978 Royal Decree, the operations to be financed must serve at least one of the purposes laid down in Article 3(a) of the 1959 Law, namely investment in tangible or intangible assets.

30 As regards its decisions, the Commission observes that Decision 75/397 describes the Belgian scheme as follows: `under that Law, the Belgian Government may grant a number of types of aid in favour of investments which undertakings carry out for the various purposes'. Article 2 of that decision, which required notification to be given of significant cases, referred to `cases where the value of the investment is 2 million u.a. or more' and `cases where the value of the aid, expressed as net subsidy equivalent, is 15% or more of the value of the investment'. The Commission's letter of 25 May 1978, approving the 1978 amendment, deals with `investment operations' and expressly states that the qualifying operations are the same as those covered by the 1959 Law. Furthermore, the Belgian scheme is covered by the Commission's letter to the Member States of 14 September 1979 on the `notification of cases to which general investment aid schemes apply'.

31 As the Court of Justice observed in paragraph 24 of its judgment in Case C-47/91 Italy v Commission [1994] ECR I-4635, when the Commission has before it a specific grant of an aid alleged to be made in pursuance of a previously authorized scheme, it cannot at the outset examine it directly in relation to the Treaty. Prior to the initiation of any procedure, it must first examine whether the aid is covered by the general scheme and satisfies the conditions laid down in the decision approving it. If it did not do so, the Commission could, whenever it examined an individual aid, go back on its decision approving the aid scheme which already involved an examination in the light of Article 92 of the Treaty. This would jeopardize the principles of the protection of legitimate expectations and legal certainty from the point of view of both the Member States and traders since individual aid in strict conformity with the decision approving the aid scheme could at any time be called in question by the Commission.

32 Consequently, the Court of First Instance was entitled to consider whether the aid in issue fell within the scope of the Belgian general scheme as approved by the Commission.

33 The general scheme had been approved by the Commission by Decision 75/397 and, as regards the amendments provided for by the 1978 Royal Decree, by the letter of 25 May 1978. It is clear from the wording of Decision 75/397 that the Commission construed the 1959 Law as a general scheme of aid for investment and in part approved it as such. The position is the same as regards the letter of 25 May 1978, which refers to `investment operations' and states that the qualifying operations are those covered by the 1959 Law.

34 The question remains whether, as Siemens maintains, the Court of First Instance erred in considering that the meaning of `investment', as applied by the Commission when approving the Belgian general scheme, was the same as that provided for by Community law.

35 As regards the rules on State aid, the Court of Justice has held that the discretion conferred on the Commission must be exercised in a Community context, just as the compatibility with the Treaty of the aid in question must be determined in the context of the Community (Case 730/79 Philip Morris v Commission [1980] ECR 2671, paragraphs 24 and 26).

36 There are no grounds for concluding that, in approving the Belgian general scheme, the Commission applied to the term `investment' a meaning other than that which it has in Community law.

37 As regards the meaning applied to `investment' under Community law, it should be recalled, as the Advocate General notes in point 7 of his Opinion, that, in a communication on regional aid systems (OJ 1979 C 31, p. 9) dated 21 December 1978, that is to say, six years prior to the award of the first of the grants of aid in issue, the Commission published the principles which, in accordance with the powers vested in it by Article 92 et seq. of the Treaty, it intended to apply to regional aid systems already in force or to be established in the regions of the Community. It suffices, therefore, to note that, in that communication, the Commission, drawing a distinction between investment aid and operating aid, expressed reservations of principle concerning the compatibility of the latter with the common market.

38 It follows that this plea must be rejected.

The nature of the operations in issue

39 The Court of First Instance stated in paragraph 53 of the contested judgment that it was necessary to examine whether the purpose of the aid in the present case was to finance investments, and that such an examination entailed assessments which must be made in a Community context.

40 As regards the aid for advertising campaigns and market surveys, the Court of First Instance observed in paragraph 55 that `the aid in question was intended for use in the marketing of Siemens' products, constituting one of its day-to-day activities. Consequently, it cannot be regarded as investment aid and qualify under the decision of the Commission of 25 May 1978 authorizing the grant of capital premiums for investment aid'.

41 As regards the aid for the purchase of equipment to be leased, the Court of First Instance observed in paragraph 57 that `that operation is not such as to involve any technical or structural change or to promote Siemens' development otherwise than in an exclusively commercial way ... the aid in question enabled it over a given period to offer its clients artificially favourable terms and to increase its profit margin without any justification'. Lastly, the Court of First Instance considered, in paragraph 58, that Siemens `cannot claim that the aid in issue contributes to the creation, extension, conversion or modernization of the third-party undertakings which leased the equipment, and that it thus falls within the authorized general aid scheme. Those undertakings pay a rental charge set by Siemens at its discretion, and Siemens therefore remains the sole recipient of that aid, which enables it to reduce the rental level applied and thereby to distort competition to the detriment of its rivals'.

Admissibility

42 The Commission maintains that the plea concerning the nature of the operations in question is inadmissible inasmuch as it seeks to challenge the assessment of the facts carried out by the Court of First Instance. Having examined the specific characteristics of the aid in issue, the Court of First Instance held that it constituted operating aid granted to the recipient undertaking. That examination of the facts cannot be called in question in the appeal.

43 Siemens stated in reply that it was criticizing the Court of First Instance, first, for having applied an incorrect criterion, namely the concept of investment aid under Community law, and, second, for having drawn from the finding that it set the rental charges for the equipment concerned at its discretion the inference that it remained the sole recipient of the aid.

44 It should be noted that, although an appeal may rely only on grounds relating to infringement of rules of law, to the exclusion of any appraisal of facts, nevertheless, where the Court of First Instance has not only assessed the facts but has also characterized them, the Court of Justice may examine the merits of that plea (see the order in Case C-325/94 P An Taisce and WWF UK v Commission [1996] ECR I-3727, paragraphs 28 and 30).

45 In the present case, the Court of First Instance, having examined the facts, found that the nature of the aid in question was such that it did not fall within the general aid scheme authorized by the Commission. Consequently, that characterization is open to examination by the Court of Justice.

46 It follows that the plea is admissible.

Substance

47 Siemens considers, first of all, that the aid towards the costs of developing marketing concepts and conducting market surveys was in fact covered by the 1959 Law, since the cost of those operations constituted investment in intangible assets. Article 3(a) of the 1959 Law expressly includes, amongst the purposes to be served by the subsidized operations: `the direct financing of investments in intangible assets such as organizational studies and research into, or the completion of, prototypes, new products and new manufacturing processes'.

48 Moreover, it was stated in a communication from the Ministry of Economic Affairs of 2 February 1977 that the cases in which aid could be granted pursuant to the economic expansion legislation towards investment in intangible assets included: `market studies, studies with a view to improving sales promotion, studies in advance of start-up operations for the opening of sales outlets, etc. ... studies relating to surveys and canvassing'.

49 Secondly, the aid in respect of the purchase of equipment to be leased also falls within the general aid scheme approved by Decision 75/397. The objectives listed in Article 3(a) of the 1959 Law include: `direct financing of investments ... in plant or equipment needed in order to put those operations into effect'.

50 Furthermore, aid may be granted under the 1959 Law to an undertaking carrying out an operation which contributes to the creation, extension, conversion or modernization of that undertaking or another undertaking.

51 The fact that the aid was paid to Siemens does not in any way mean that that company was the sole beneficiary. It has also benefited the third-party undertakings which lease the equipment; indeed, they are the primary beneficiaries. Those undertakings could equally well have purchased that equipment direct from Siemens or from another supplier of equipment of that type, and could have applied to the Belgian authorities for a grant of aid under the 1959 Law. Their decision to lease the equipment from Siemens is due to the fact that the terms offered to them by that company were no less advantageous, with the result that they benefited from the aid granted to Siemens.

52 The Commission asserted at the hearing that, according to the case-law of the Court of Justice, the aid in issue had to be assessed in terms of its tangible effects. It was apparent from such an assessment that the aid did not fall within any of the permissible headings.

53 The Court finds, first, that, for the reasons set out in paragraphs 35 to 37 of this judgment, in order to fall within the authorized general scheme, the aid must be regarded as intended for the purposes of investment, in the sense applied to that term by Community law. Consequently, an explanatory communication emanating from a national authority cannot be determinative of the scope of the approved general scheme.

54 Next, it is apparent from the facts established by the Court of First Instance, in paragraph 54 of the contested judgment, that the aid for the advertising campaigns and market surveys was intended to contribute to the marketing and promotion of new Siemens products and to help it maintain, or even increase, its share of the Belgian office technology market. As regards the aid towards the purchase of equipment to be leased, the Court of First Instance found, in paragraph 56, that it was apparent from the supporting documents annexed to the applications for aid that Siemens itself classified the operation in question as a `conventional sale', stating that, `thanks to this method of selling', it had `significantly increased (its) market share in the data-processing and office technology sector'.

55 In those circumstances, it must be stated that the Court of First Instance correctly held that the aid in question was wholly intended for use in the marketing of Siemens' products, that being one of its day-to-day activities. Consequently, it cannot be regarded as investment aid in favour either of Siemens or, as regards the purchase of equipment to be leased, of third-party undertakings.

56 It follows that this plea must be rejected.

The question whether the thresholds were exceeded

57 The Court of First Instance found in this connection, in paragraph 62 of the contested judgment, that Siemens' objections `are of no relevance. Since the Court has held that the aid in issue was not covered by authorization under the general scheme approved by Decision 75/397 and the letter of 25 May 1978, by reason of its being in the nature of operating aid for the undertaking, there is no need to examine whether the conditions imposed by those decisions, such as that relating to notification thresholds, were fulfilled'.

58 Siemens maintains that, since aid must be regarded as covered by the 1959 Law even where it may constitute operating aid under Community law, the Court of First Instance erred in law in failing to examine the allegation that the notification thresholds were exceeded.

59 The Commission considers that, having found that the approved scheme did not permit the financing of operating aid, the Court of First Instance was entitled to verify the nature of the aid in issue and, having found that it constituted operating aid, to conclude that it did not fall within the scope of the scheme. The grant of that aid therefore constituted an ad hoc intervention which should have been notified. The question whether the notification thresholds were exceeded is irrelevant, since those thresholds relate only to cases involving the application of existing aid schemes.

60 It suffices in that connection to state that, having found that the aid in issue was covered by the approved scheme, the Court of First Instance rightly decided not to examine the question whether the thresholds were exceeded.

Decision on costs

Costs

61 Under Article 69(2) of the Rules of Procedure, which applies to appeals pursuant to Article 118 thereof, the unsuccessful party is to be ordered to pay the costs. Since Siemens has been unsuccessful, it must be ordered to pay the costs of the appeal.

Operative part

On those grounds,

THE COURT

(Fourth Chamber)

hereby:

1. Dismisses the appeal;

2. Orders Siemens to pay the costs.