Judgment of the General Court (Eighth Chamber) of 15 September 2016 — Scuola Elementare Maria Montessori v Commission(Case T‑220/13)

‛(State aid — Municipal real estate tax — Exemption granted to non-commercial entities carrying out specific activities — Consolidated text on income tax — Exemption from one-off municipal tax — Decision partly finding the absence of State aid and party declaring the aid incompatible with the common market — Action for annulment — Regulatory act not entailing implementing measures — Direct concern — Admissibility — Absolute impossibility of recovery — Article 14(1) of Regulation (EC) No 659/1999 — Obligation to state reasons’

1. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Commission decision terminating an aid proceeding — Competitor of the undertaking receiving the aid — Right to bring an action — Conditions (Arts 108(2) and (3) TFEU and 263, fourth para., TFEU) (see paras 40, 41, 43-45)

2. Actions for annulment — Natural or legal persons — Meaning of ‘regulatory act’ in Article 263, fourth paragraph, TFEU — Any act of general scope other than legislative acts — Commission decision holding a State aid, in the form of a tax exemption laid down by national legislation of general scope, incompatible with the internal market — Legal effects in relation to a general and abstract category of persons — Included (Arts 107 TFEU and 263, fourth para., TFEU) (see paras 47, 49-52)

3. Actions for annulment — Natural or legal persons — Regulatory acts entailing implementing measures or not — Notion — Court remedies available against such measures — Conditions for using objection of illegality or reference for a preliminary ruling on validity (Arts 263, fourth para., TFEU and 267 TFEU) (see paras 53-56)

4. Actions for annulment — Natural or legal persons — Regulatory acts — Acts not comprising implementing measures and concerning the applicant directly — Concept of implementing measures — Criteria — Commission decision holding an aid granted by States, in the form of a tax exemption laid down by national legislation of general scope, incompatible with the internal market — Decision not involving the adoption of any implementing measure on the part of the addressee — Act not entailing implementing measures (Arts 107(1) TFEU and 263, fourth para., TFEU) (see paras 57, 58, 61, 67)

5. State aid — Recovery of unlawful aid — Absolute impossibility of implementation — Possibility of establishing that impossibility at the stage of the administrative procedure preceding adoption of the decision — Duty of the Commission and of the Member State to collaborate in seeking a solution compatible with the Treaty (Art. 4(3) TEU; Arts 107(1) TFEU and 108(2), TFEU; Regulation No 659/1999, thirteenth recital and Art. 14(1)) (see paras 77, 81-83, 87)

6. State aid — Non-compliance with the obligation to recover unlawful aid — Absolute impossibility of implementation — Criteria for assessment (Art. 4(3) TEU; Art. 108(2) TFEU) (see paras 91-93)

7. State aid — Recovery of unlawful aid — Aid granted in the form of tax exemption — Absolute impossibility of implementation — Grounds — Impossibility of the State obtaining the information necessary for identifying the aid beneficiaries (Art. 107(1) TFEU) (see paras 95, 98, 103)

8. State aid — Commission decision finding aid incompatible with the internal market and ordering its recovery — Possibility for the Commission to base its decision on the information available — Limits — Obligation on the Commission to base its decisions on elements with a certain reliability and consistency (Art. 107(1) TFEU) (see para. 106)

9. State aid — Provisions of the Treaty — Scope — Entities carrying on economic activities in a non-commercial manner — Exclusion (Art. 107(1) TFEU) (see paras 129, 137, 138, 144)

10. Competition — EU rules — Undertakings — Concept — Exercise of an economic activity (Art. 107(1) TFEU) (see paras 131-133)

11. State aid — Commission decision finding an aid incompatible with the internal market without ordering its recovery and finding the non-existence of an aid — Obligation to state reasons — Scope — No infringement (Art. 296 TFEU) (see paras 148-152)

Re:

APPLICATION based on Article 263 TFEU and seeking annulment of Commission Decision 2013/284/EU of 19 December 2012 on State aid SA.20829 (C 26/2010, ex NN 43/2010 (ex CP 71/2006)) Scheme concerning the municipal real estate tax exemption granted to real estate used by non-commercial entities for specific purposes implemented by Italy (OJ 2013 L 166, p. 24).

Operative part

The Court:

1. Dismisses the action;

2. Orders Scuola Elementare Maria Montessori Srl to pay, in addition to its own costs, those incurred by the European Commission;