Keywords

Summary



Keywords

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1. Procedure ° Intervention ° Application for leave to intervene in support of the form of order sought by one of the parties but advancing different arguments ° Admissibility

(Protocol on the Statute of the Court of Justice of the EEC, Art. 37, third para.; Rules of Procedure of the Court of First Instance, Art. 116(3))

2. Acts of the institutions ° Statement of reasons ° Obligation ° Scope ° Decision applying the competition rules

(EEC Treaty, Art. 190)

3. State aid ° Prohibition ° Derogations ° Aid falling within the derogation provided for by Article 92(3)(c) of the Treaty ° Operating aid ° Excluded

(EEC Treaty, Art. 92(3)(c))

4. State aid ° Recovery of illegally granted aid ° Application of national law ° Conditions and limitations ° Deduction from the sum to be recovered of tax paid ° Whether permissible

(EEC Treaty, Art. 93(2), first para.)

5. State aid ° Recovery of illegally granted aid ° Breach of the principle of proportionality ° None ° Payment of interest justified by the need to restore the situation previously obtaining ° Date from which interest is payable ° Fixed by the Commission as the date of payment of the aid

(EEC Treaty, Art. 93(2), first para.)

6. State aid ° Recovery of illegally granted aid ° Application of national law ° Possible legitimate expectations on the part of the recipients ° Protection ° Conditions and limitations ° Interests of the Community to be taken into account

(EEC Treaty, Art. 93(2), first para.)

Summary

1. In imposing the requirements that submissions made in an application for leave to intervene must be limited to supporting the submissions of one of the parties and that the intervener must accept the case as he finds it at the time of his intervention, the third paragraph of Article 37 of the Protocol on the Statute of the Court of Justice and Article 116(3) of the Rules of Procedure of the Court of First Instance do not preclude the intervener from advancing arguments which differ from those of the party which he supports, since the intervention is always intended to support the form of order sought by the latter.

2. In stating the reasons for the decisions it has to take in order to ensure that the competition rules are applied, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned. It is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision.

3. 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, cannot be held to be compatible with the common market pursuant to Article 92(3)(c) of the Treaty, inasmuch as, by its very nature, it distorts competition in the sectors in which it is granted and is liable to affect trading conditions to an extent contrary to the common interest, whilst nevertheless being incapable of achieving any of the objectives of the exceptions laid down by that provision.

The classification of aid as operating aid or, alternatively, as investment aid is to be made in a Community context, regardless of the classification applied to it by the national accounting or fiscal laws to which the recipient undertaking is subject.

4. In the absence of provisions of Community law concerning the procedure for recovering amounts unduly paid, the recovery of aid improperly granted must be carried out in accordance with the rules and procedures laid down by national law. However, the application of national law must not affect the scope and effectiveness of Community law, that is to say, it must not make it impossible in practice to recover the sums irregularly granted or be discriminatory in relation to comparable cases which are governed solely by national legislation.

It follows that the Commission is not obliged, in its decisions ordering the recovery of State aid, to determine the incidence of tax on the amount of aid to be recovered, since that calculation falls within the scope of national law; it is merely required to indicate the gross sum to be recovered. That does not prevent the national authorities, when recovering the amount in question, from deducting certain sums, where appropriate, pursuant to their internal rules, provided that, in so doing, they comply with Community law.

5. Where, pursuant to Article 93(2) of the Treaty, the Commission orders the abolition or alteration of State aid granted contrary to the Treaty, it may require such aid to be repaid. In so far as that recovery is aimed at restoring the situation as it was prior to the payment of the aid, it cannot in principle be regarded as disproportionate to the objectives of the Treaty with regard to State aid.

Since the restoration of the situation as it was prior to the payment of the illegal aid presupposes that all of the financial advantages resulting from the aid which adversely affect competition in the common market have been eliminated, the decision of the Commission may require interest to be recovered on the sums granted in order to prevent the undertaking from retaining any advantage resulting from the aid, in the form of an interest-free loan. Interest may only be recovered in order to offset the financial advantages actually arising from the allocation of the aid, and must be in proportion to the aid.

Consequently, such interest, which is not default interest payable by reason of the delay in the performance of the obligation to repay the aid, may not start to run before the date, which it is in principle for the Commission and not for the national authorities to fix, on which the recipient of the aid actually had those funds at its disposal.

6. Community law does not prevent national law from having regard, in connection with the recovery of aid unduly paid, to the protection of legitimate expectations, provided however that the conditions laid down are the same as those for the recovery of purely national financial benefits and the interests of the Community are fully taken into account. Accordingly, a recipient of State aid unduly granted may rely, when the aid is to be repaid, only on exceptional circumstances on the basis of which it had legitimately assumed the aid to be lawful, and it is for the national court alone to assess the material circumstances of the case, if necessary after obtaining a preliminary ruling on interpretation from the Court of Justice.