Case C-537/08 P

Kahla Thüringen Porzellan GmbH

v

European Commission

(Appeal – State aid – Commission decision finding aid to be incompatible with the common market and ordering its recovery – Principles of legal certainty and of the protection of legitimate expectations)

Summary of the Judgment

1. State aid – Commission decision not to raise objections with regard to an aid scheme – Scope – Elements to be taken into consideration

(Arts 87 EC and 88 EC)

2. State aid – General aid scheme approved by the Commission – Scheme excluding firms in difficulty and private firms – No explicit restrictions concerning those firms in the actual decision authorising the scheme – Legitimate expectation on the part of firms having unlawfully benefited from that aid – No such expectation

(Arts 87 EC and 88 EC)

1. The scope of a decision by which the Commission raises no objections to an aid scheme notified by a Member State must be determined not only by reference to the actual wording of that decision, only a summary of which is published in the Official Journal of the European Communities, but also by taking account of the aid scheme notified by the Member State concerned.

A request for additional information, by which the Commission requests further information on the scope of an aid scheme notified by a Member State, as well as the reply by the national authorities to that request, must be considered to be an indivisible part of the notified aid scheme. This is, a fortiori, the position when it is precisely on the basis of that information that the Commission decided not to raise objections to the aid scheme in question.

(see paras 44-45)

2. The right to rely on the principle of the protection of legitimate expectations applies to any individual in a situation in which an institution of the Union, by giving that person precise assurances, has led him to entertain well-founded expectations. Such assurances, in whatever form they are given, are constituted by precise, unconditional and consistent information.

In the context of an authorised aid scheme, the fact that a Commission decision not to raise objections against the scheme contains no explicit restrictions as regards firms in difficulty and private undertakings cannot, by definition, be deemed to constitute precise, unconditional and consistent information provided by the Commission to the interested person with regard to the fact that that scheme allowed the award of grants to such firms and undertakings and cannot therefore give rise to any legitimate expectation on the part of that person that the grants which were awarded to it were lawful. Quite the contrary, given that it was at the very least uncertain that aid could be granted to those firms, the lack of any explicit restriction could not thus be the source of precise assurances capable of giving rise to any legitimate expectation on the part of the interested person.

(see paras 63-66)

JUDGMENT OF THE COURT (First Chamber)

16 December 2010 ( )

(Appeal – State aid – Commission decision finding aid to be incompatible with the common market and ordering its recovery – Principles of legal certainty and of the protection of legitimate expectations)

In Case C‑537/08 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 3 December 2008,

Kahla Thüringen Porzellan GmbH, established in Kahla (Germany), represented by M. Schütte, S. Zühlke and P. Werner, Rechtsanwälte,

appellant,

the other parties to the proceedings being:

European Commission, represented by V. Kreuschitz and K. Gross, acting as Agents, assisted by C. Koenig, professor, with an address for service in Luxembourg,

defendant at first instance,

Freistaat Thüringen, represented by A. Weitbrecht and M. Núñez‑Müller, Rechtsanwälte,

Federal Republic of Germany, represented by M. Lumma and W.‑D. Plessing, acting as Agents,

interveners at first instance,

THE COURT (First Chamber),

composed of A. Tizzano (Rapporteur), President of the Chamber, J.‑J. Kasel, A. Borg Barthet, E. Levits and M. Berger, Judges,

Advocate General: Y. Bot,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 20 May 2010,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its appeal, Kahla Thüringen Porzellan GmbH seeks to have set aside the judgment of 24 September 2008 of the Court of First Instance of the European Communities (now ‘the General Court’) in Case T-20/03 Kahla Thüringen Porzellan v Commission [2008] ECR II-2305 (‘the judgment under appeal’), in which the General Court dismissed its application for annulment of Commission Decision 2003/643/EC of 13 May 2003 on the State aid implemented by Germany for Kahla Porzellan GmbH and Kahla/Thüringen Porzellan GmbH (OJ 2003 L 227, p. 12) (‘the contested decision’).

Background to the dispute

2 The appellant, which was established in November 1993, took over the immovable property, machinery and plant, as well as 380 employees, of Kahla Porzellan GmbH, a company in liquidation. The latter, which produced porcelain dishes and china, was established in the Land of Thuringia, one of the regions eligible for aid under Article 87(3)(a) EC.

3 The Commission of the European Communities had, for that region, authorised, in particular, two general aid schemes, namely, by decision of 27 October 1993, the programme of the Land of Thuringia for investments by small and medium-sized enterprises (KMU-Investitionsprogramm des Landes Thüringen) (Aid N 408/93 – SG(93) D/19245; OJ 1993 C 335, p. 7) and, by decision of 21 December 1994, a programme promoting employment in the context of social and environmental fields and in the context of youth in the territory of the former GDR (Aid NN 117/92 – SG (95) D/341; OJ 1994 C 401, p. 2).

4 It is apparent from the contested decision that, under those schemes, the German public authorities granted 23 items of financial assistance to the appellant between 1994 and 1999, amounting to a total of DEM 39.028 million. Those measures included an investment grant for small and medium sized enterprises (SMEs) of DEM 2.5 million, paid in May 1994 by the Land of Thuringia (‘measure 15’), as well as employment promotion grants linked to environmental protection investments, which amounted to DEM 1.549 million and were granted by the Bundesanstalt für Arbeit (Federal Labour Office) between 1994 and 1996, under Paragraph 249h of the Arbeitsförderungsgesetz (Law on the promotion of employment; ‘the AFG’), (‘measure 26’).

5 As regards measure 15, the Commission found, however, in recitals 128 and 129 of the contested decision, that it was not in compliance with the previously authorised aid scheme, in so far as, at the time of the award of the grant at issue, the appellant had to be regarded as being a company in difficulty, a category of company expressly excluded from the scope of that scheme. Moreover, the Commission had in the meantime adopted Decision 2003/225/EC of 19 June 2002 on the programme of the Land of Thuringia for investments by small and medium-sized enterprises and its implementation (OJ 2003 L 91, p. 1), which was a negative decision on that scheme, due to the fact that the scheme had been applied, in particular, to companies in difficulty, contrary to the specific provisions of the aid scheme authorised by the Commission.

6 As regards measure 26, the Commission pointed out, in recitals 134 to 139 of the contested decision, that the grants concerned were not covered by the scheme provided for in Paragraph 249h of the AFG, which it had approved as not constituting aid. In this context, the Commission found that, apart from the undertakings owned by the Treuhandanstalt, the authorised scheme concerned public undertakings, whereas the appellant was a private undertaking at the time of the award of the grants at issue.

7 The Commission accordingly declared that, inter alia, measures 15 and 26 were incompatible with the common market and enjoined the Federal Republic of Germany to take all necessary measures to recover the aid in question from the appellant.

The action before the General Court and the judgment under appeal

8 By its action before the General Court, the present appellant sought the annulment of the contested decision in so far as it concerned the appellant, relying on four pleas in support of its claims. The first three pleas, which related exclusively to measures 15 and 26, alleged infringement of Articles 87 EC and 88 EC (first plea), of the principle of legal certainty (second plea) and of the principle of the protection of legitimate expectations (third plea). The fourth plea, which will not be dealt with below because it was not raised in the appeal, concerned several errors of fact and of assessment allegedly committed by the Commission.

9 By its first plea, the appellant claimed that the measures at issue had been granted in conformity with the authorised aid schemes and therefore constituted existing aid. The Commission, it argued, had thus infringed Articles 87 EC and 88 EC by introducing retroactively additional conditions regarding those schemes, on the basis of which it incorrectly concluded that those measures constituted new aid.

10 As regards, first, measure 15, the General Court first found that the authorised aid scheme was aimed – as the Federal Republic of Germany had confirmed in a letter of 26 August 1993 in response to a request from the Commission for additional information – at undertakings privatised after 1989 which, ‘even though they [were] healthy, mostly [found] themselves in a financially precarious situation’ (paragraphs 102 to 105 of the judgment under appeal).

11 However, according to the General Court, first, the reference to such a financial situation must be regarded as a reference to the difficulties that come with the transition from a planned to a market economy, and not to those that are characteristic of a firm in difficulty (paragraph 106 of the judgment under appeal). Second, the fact that the Land of Thuringia had also notified a programme specifically designed for the rescue and restructuring of firms in difficulty confirmed that those firms did not come within the scope of the programme at issue, as the Commission had found in the contested decision (paragraphs 108, 109 and 111 of the judgment under appeal).

12 Having clarified that point, the General Court went on to hold, in paragraph 133 of the judgment under appeal, that the Commission had not committed a manifest error of assessment in finding that the appellant was a firm in difficulty.

13 It accordingly took the view, in paragraphs 134 and 135 of the judgment under appeal, that the Commission was entitled to find that the aid constituting measure 15 did not satisfy the grant conditions set out in the programme of the Land of Thuringia and that it therefore had to be classified as new aid for the purposes of Article 88(3) EC.

14 As regards, second, measure 26, the General Court found that the conditions set out under the aid scheme established under Paragraph 249h of the AFG, as authorised, had not been fulfilled. As the Commission had held in the contested decision, private undertakings, such as the appellant, were not eligible under that provision (paragraphs 175 and 180 of the judgment under appeal). Furthermore, as the Federal Republic of Germany had itself explained in a letter of 29 July 1994, those measures had to be adopted in the general interest and were not to serve the particular interests of an undertaking (paragraphs 181, 182 and 185 of the judgment under appeal). However, that had not been the position in the present case (paragraph 186 of the judgment under appeal).

15 The General Court thus rejected all of the arguments alleging infringement of Articles 87 EC and 88 EC also in respect of measure 26 (paragraph 203 of the judgment under appeal).

16 By its second plea, the appellant submitted that the Commission had infringed the principle of legal certainty by relying, in the contested decision, on restrictive conditions which were not provided for either by the programmes at issue or by the decision authorising those programmes.

17 The General Court rejected that plea, stating, first, that, in its assessment as to whether measure 15 was compliant with the authorised aid programme, the Commission had strictly limited itself to an examination of the conditions laid down in the decision authorising the programme (paragraph 138 of the judgment under appeal).

18 Furthermore, and in any event, the German authorities had themselves, in their letter of 26 August 1993, explicitly excluded firms in difficulty from the scheme at issue (paragraph 140 of the judgment under appeal). It was therefore clear, in the light of that letter, that such firms could not benefit from aid under that scheme (paragraph 141 of the judgment under appeal).

19 The General Court accordingly held that the Commission had not infringed the principle of legal certainty by finding that measure 15 did not fulfil the conditions set out in programme of the Land of Thuringia for investments by SMEs because the appellant was, at the time when it received the aid, a firm in difficulty (paragraph 144 of the judgment under appeal).

20 Second, the General Court held that, for the purposes of examining compatibility of the grants constituting measure 26 with the common market, the Commission had limited itself strictly to assessing whether the grants complied with the conditions laid down in the decision authorising the scheme provided for in Paragraph 249h of the AFG. In that decision, the Commission had explicitly mentioned, in particular, the letter of the German authorities of 29 July 1994 explaining the scope of that provision, which it had correctly interpreted and applied to the grants at issue (paragraph 205 of the judgment under appeal).

21 By its third plea, the appellant alleged infringement of the principle of the protection of legitimate expectations, in that the Commission did not take account of the fact that neither the aid programmes at issue nor the decisions authorising them made it possible to identify the restrictive conditions which the Commission had applied in the contested decision. The appellant claimed in particular that an economic operator performing its activities with all reasonable and appropriate care could assume that aid is not new if it satisfies all of the conditions laid down in the authorised programme.

22 In that regard, the General Court first pointed out, in paragraph 146 of the judgment under appeal, that the right to rely on the principle of the protection of legitimate expectation extends to any individual in a situation in which the Community authorities have, by giving him precise assurances, led him to entertain legitimate expectations.

23 The General Court also pointed out, in paragraph 148 of the judgment under appeal, that it cannot be accepted that the Commission can adopt a decision requiring recovery of aid to the detriment of a recipient who has complied with the aid conditions laid down by the Commission in the authorising decisions.

24 The General Court, however, held that that was not the position in this case, in so far as both measures 15 and 26 were awarded to the appellant in breach of the conditions laid down in the decisions approving the programme of the Land of Thuringia for investments by SMEs (paragraph 149 of the judgment under appeal) and in breach of Paragraph 249h of the AFG (paragraph 207 of the judgment under appeal).

25 The General Court also held that the alleged absence of explicit restrictions with regard to firms in difficulty and private undertakings in the schemes at issue or in the publications in the Official Journal of the European Communities could not give rise to a legitimate expectation on the appellant’s part that the grant of subventions under measures 15 and 26 was lawful. That circumstance, the General Court held, could not in any way be treated in the same way as precise assurances from the Commission that the firms in difficulty and private undertakings may receive aid under the programme of the Land of Thuringia for investments by SMEs and under Paragraph 249h of the AFG respectively (paragraphs 150 and 208 of the judgment under appeal).

26 Finally, as regards measure 15 alone, the General Court also specified that, in any event, the appellant remained under an obligation to keep itself informed as to whether the grant of the aid awarded to it was lawful (paragraph 150 of the judgment under appeal).

27 Having found that all of the pleas raised by the present appellant in support of its action were unfounded, the General Court dismissed the action in its entirety.

Forms of order sought by the parties to the appeal

28 The appellant claims that the Court should:

– set aside the judgment under appeal in so far as it concerns measures 15 and 26 and the decision as to costs;

– annul Article 1(2)(d) and (g) of the contested decision, as well as Article 2 thereof in so far as it concerns measures 15 and 26 or, in any event, in so far as it orders the recovery of the aid paid pursuant to those measures;

– in the alternative, set aside the judgment under appeal in so far as the General Court holds that the grants received by the appellant under measure 26 conferred an advantage on it to the full amount of the aid and therefore that that full amount must be recovered; and

– order the Commission to pay the costs.

29 The Commission contends that the Court should dismiss the appeal and order the appellant to pay the costs.

The appeal

30 In support of its appeal the appellant invokes two main pleas and one alternative plea.

The first plea: infringement of the principle of legal certainty

Arguments of the parties

31 By its first plea, the appellant contends that the General Court infringed the principle of legal certainty by holding, first, in paragraphs 97 to 111 and 138 of the judgment under appeal, that the scheme for investments by SMEs authorised by the Commission provided, from the outset, a restriction as regards firms in difficulty and, second, in paragraphs 167 to 188 and 205 of the judgment under appeal, that the scheme in Paragraph 249h of the AFG did not cover private undertakings.

32 In that regard, the appellant argues that that principle requires that restrictions affecting a State aid scheme must appear clearly and unambiguously in the State aid scheme itself or in the authorising decision published in the Official Journal of the European Communities, or in the Commission’s letter confirming that authorisation, in order to enable potential recipients to determine whether or not they are affected by the authorised programme.

33 In the context of the interpretation of the scope of the programmes at issue, however, the General Court erroneously took into account restrictions that the appellant was not in a position to identify and which could therefore not be relied on against it. Those restrictions do not result clearly from the authorised aid schemes or from published documents or documents accessible to the appellant, but result at the most from a possible interpretation of the purely internal correspondence between the Commission and the German authorities.

34 According to the appellant, that error led the General Court to infringe the principle of legal certainty and erroneously to find, as the Commission did in the contested decision, that the grants constituting measures 15 and 26 were not covered by the authorised aid schemes.

35 The Commission emphasises that both the authorisation of the programme of the Land of Thuringia for investments by SMEs and the authorisation of the scheme established under Paragraph 249h of the AFG were addressed by the Commission directly and exclusively to the Federal Republic of Germany within the framework of a procedure establishing a legal relationship exclusively between the Commission and that Member State, in which the recipient of the aid – in the present case, the appellant – did not take part. Furthermore, those authorisations did not specifically relate to the grants constituting measures 15 and 26, but simply to a ‘general scheme’ of aid in respect of which the Commission – unlike the Member State concerned – could not have known in advance the potential recipients. The competent authorities of a Member State alone decide on the individual and specific allocation of a grant covered by an authorised aid scheme.

36 The Commission argues that, since it was not the addressee of any binding Commission decision, the appellant cannot plead infringement by the Commission of the principle of legal certainty. It could, on the other hand, be argued that that principle was infringed by the German authorities, which had themselves the obligation and the responsibility to inform in a sufficiently clear manner the potential recipients of the specific conditions under which national aid could be awarded to them in conformity with the authorised programmes.

37 According to the Commission, the error on the part of the German authorities, involving the grant of national aid at variance with the authorised schemes and with the explanations provided to the Commission concerning those schemes, cannot therefore be attributed to the Commission.

Findings of the Court

38 In assessing whether this plea is well founded, it is appropriate to consider whether the General Court infringed the principle of legal certainty by holding, in the judgment under appeal, that the schemes authorised by the Commission did not allow the award of grants, first, as regards measure 15, to firms in difficulty and, second, as regards measure 26, to private undertakings.

39 With regard to measure 15, it must be borne in mind that the General Court reached such a conclusion after carrying out an assessment of the scope of the authorised aid scheme in paragraphs 97 to 111 of the judgment under appeal.

40 In conducting that assessment, it pointed out, first, that, as a consequence of a letter of the German authorities of 26 August 1993 – cited in paragraph 10 of the present judgment – by which those authorities had explained the scope of the notified aid programme, the Commission was entitled to take the view that firms in difficulty were excluded from the scope of that programme (paragraphs 108, 109 and 111 of the judgment under appeal).

41 The General Court then held, in paragraph 110 of the judgment under appeal, that that letter was part of the authorised aid programme, since the Commission considered the additional information and the explanations in the letter relevant to its decision not to raise objections to the implementation of the notified project, as it informed the Federal Republic of Germany by letter of 26 November 1993. That was, in particular, confirmed by the fact that, in that letter, the Commission referred explicitly to that letter of 26 August 1993 (paragraph 104 of the judgment under appeal).

42 On the basis of those findings, the General Court held, in paragraph 138 of the judgment under appeal, that there had been no infringement of the principle of legal certainty, ruling that the Commission had not, by the contested decision, retroactively introduced conditions that were additional to those featured in its decision authorising the programme at issue.

43 Contrary to the appellant’s contention, the General Court did not infringe the principle of principle of legal certainty in reaching such a conclusion.

44 It must be pointed out that, as the Court has previously held, the scope of a decision by which the Commission raises no objections to an aid scheme notified by a Member State must be determined not only by reference to the actual wording of that decision, only a summary of which is published in the Official Journal of the European Communities, but also by taking account of the aid scheme notified by the Member State concerned (see, to that effect, Case C‑138/09 Todaro Nunziatina & C. [2010] ECR I‑0000, paragraph 31, and C‑67/09 P Nuova Agricast and Cofra v Commission [2010] ECR I‑0000, paragraph 64).

45 A request for additional information, by which the Commission requests further information on the scope of an aid scheme notified by a Member State, as well as the reply by the national authorities to that request, must be considered to be an indivisible part of the notified aid scheme. This is, a fortiori, the position where, as in the present case, it is precisely on the basis of that information that the Commission decided not to raise objections to the aid scheme in question.

46 It follows that the General Court acted correctly in taking the view that the letter from the German authorities of 26 August 1993 formed part of the authorised aid scheme and, therefore, that the grant constituting measure 15 had not been awarded lawfully by reason of the fact that the appellant was, at the time when that grant was awarded, a firm in difficulty.

47 In this respect, it must, however, be stated that, in the framework of the implementation of the general aid programme authorised by the Commission, the Federal Republic of Germany, which obviously had that letter at its disposal, could not distance itself from the information which it had provided to the Commission, but, on the contrary, had to take that information into account, in order to ensure that the individual national aid would be granted in accordance with that information.

48 In view of the foregoing, it must be concluded that the appellant cannot therefore validly plead infringement of the principle of legal certainty in respect of measure 15.

49 As regards measure 26, the General Court, after having examined, in paragraphs 167 to 188 of the judgment under appeal, the scope of Paragraph 249h of the AFG, which established the scheme authorised by the Commission, concluded that private undertakings were not eligible for grants such as those constituting that measure.

50 In the context of that examination, it first noted that, as a result of the letter of the German authorities of 29 July 1994 – mentioned in paragraph 20 of this judgment – by which those authorities had set out the scope of the scheme established by Paragraph 249h of the AFG, the Commission had decided not to raise objections to the implementation of the measures thus provided for (paragraphs 172 and 173 of the judgment under appeal).

51 The General Court then went on to hold that the explanation contained in that letter, from which it followed that private undertakings were not eligible under that provision, was relevant for the purpose of determining the precise scope of the authorised scheme and had actually been taken into consideration by the Commission in order to establish that the measures envisaged did not constitute aid within the meaning of Article 87 EC (paragraphs 175, 176 and 180 of the judgment under appeal).

52 On the basis of that assessment, the General Court held, in paragraphs 205 and 206 of the judgment under appeal, that the Commission had also not infringed the principle of legal certainty in respect of measure 26, since it had limited itself strictly to assessing whether the grants constituting that measure complied with the conditions laid down in the decision authorising the scheme in question.

53 Contrary to the appellant’s contention, the General Court did not infringe the principle of principle of legal certainty in reaching such a conclusion.

54 Having regard to what is set out in paragraphs 44 and 45 of the present judgment, it must be noted that the letter of the German authorities of 29 July 1994 was part of the notified aid programme to which measure 26 belongs and that it was precisely on the basis of the information contained therein that the Commission decided not to raise any objection to the notified aid scheme.

55 It follows that the General Court was entitled to form the view that that scheme did not allow the grant of subsidies to private undertakings, such as the appellant, and, therefore, that the aid which the appellant had received did not meet the conditions laid down under that scheme.

56 The allegation of an infringement of the principle of legal certainty must therefore also be rejected in respect of measure 26.

57 In the light of all of the foregoing, the first plea must be rejected in its entirety as unfounded.

The second plea: infringement of the principle of the protection of legitimate expectations

Arguments of the parties

58 By its second plea, the appellant argues that the General Court infringed the principle of the protection of legitimate expectations by holding, in paragraphs 150 and 208 of the judgment under appeal, that the absence of explicit restrictions in the decisions approving the programme of the Land of Thuringia for investments by SMEs and the programme established under Paragraph 249h of the AFG cannot be equated with ‘precise assurances’, within the meaning of the case-law of the European Union judicature, provided by the Commission and capable of giving rise to legitimate expectations on the appellant’s part as to the lawfulness of measures 15 and 26.

59 First, it submits, the General Court erred in not taking account of the fact that the appellant was not in a position to identify any restrictions in the documents on the authorised programmes as published. The appellant was therefore justified in taking the view that the grants constituting those measures had been properly awarded, in compliance with the conditions imposed by the Commission concerning the authorised programmes, with the result that the appellant could not have expected that a decision would be taken requiring the recovery of those grants.

60 Second, the appellant criticises the General Court for holding that ‘it remained under an obligation to keep itself informed as to whether the grant of the aid that it had been awarded was lawful’ (paragraph 150 of the judgment under appeal). Such an obligation to keep itself informed is imposed on an aid beneficiary only when – unlike the situation in the present case – there is an identifiable uncertainty on the part of the interested party as to the scope of the authorisation to which that type of aid is subject.

61 The Commission contends that, since the appellant is neither an addressee of the contested decision nor directly covered by the authorised schemes – the latter being liable, on the contrary, to apply to an indeterminate number of undertakings – the appellant cannot validly invoke the principle of the protection of legitimate expectations.

62 Furthermore, according to the Commission, the appellant ought, in any event, to have expected the withdrawal of the grants constituting measures 15 and 26 in view of the fact that the German authorities had awarded those grants in clear contravention of the conditions set out in the notified programmes.

Findings of the Court

63 In accordance with settled case-law, to which the General Court, moreover, correctly referred in paragraph 146 of the judgment under appeal, the right to rely on the principle of the protection of legitimate expectations applies to any individual in a situation in which an institution of the European Union, by giving that person precise assurances, has led him to entertain well-founded expectations (see, inter alia, judgment of 24 November 2005 in Case C-506/03 Germany v Commission, not published in the ECR, paragraph 58, and judgment in Case C‑213/06 P EAR v Karatzoglou [2007] ECR I‑6733, paragraph 33). Such assurances, in whatever form they are given, constitute precise, unconditional and consistent information (see, to that effect, judgment in Case C-47/07 P Masdar (UK) v Commission [2008] ECR I‑9761, paragraphs 34 and 81).

64 It must be held that the General Court correctly applied that case-law in the judgment under appeal.

65 As the General Court noted, the absence of explicit restrictions in the aid schemes concerned could not, by definition, be deemed to constitute precise, unconditional and consistent information provided by the Commission to the appellant with regard to the fact that those schemes allowed the award of grants, respectively, to firms in difficulty, in the case of measure 15, or to private undertakings, in the case of measure 26, and could not therefore give rise to a legitimate expectation on the appellant’s part that the grants which had been awarded to it were lawful.

66 Quite on the contrary, since the possibility of granting aid to those firms was at the very least, uncertain, that absence of any explicit restriction could not therefore be the source of precise assurances capable of giving rise to any legitimate expectation on the appellant’s part.

67 It follows from the foregoing that the judgment under appeal does not infringe the principle of the protection of legitimate expectations, and therefore that the second plea must also be rejected as unfounded.

The third plea: infringement of Article 87(1) EC

Arguments of the parties

68 By its third plea, which is raised in the alternative, the appellant claims that the General Court infringed Article 87(1) EC by finding, in paragraphs 193 to 201 of the judgment under appeal, that the grants constituting measure 26 had to be regarded as constituting State aid up to their full amount.

69 In reaching that conclusion, however, according to the appellant, the General Court infringed, first, the principle of the division of powers between itself and the Commission, regard being had to the fact that the contested decision leaves the Member State free to calculate the actual advantage received by the appellant. Second, the General Court did not comply with the case-law according to which the advantage received by a beneficiary is to be calculated, not on the basis of the costs incurred by the Member State concerned, but in accordance with the savings actually made by that beneficiary by reason of its receipt of the unlawful aid measure.

70 The Commission, taking the opposite view, denies that there was any infringement whatsoever of that principle, arguing, first, that the General Court did not examine the amount of the advantages granted to the appellant, but referred clearly to the amount of aid as mentioned in the contested decision. Second, it considers that the General Court correctly applied the criteria established in the case-law when calculating the advantage obtained by the appellant by virtue of measure 26 inasmuch as it based itself, in paragraphs 196 to 198 of the judgment under appeal, on the savings actually made by the appellant by virtue of the wages subsidies which it had received.

Findings of the Court

71 It must first be pointed out that, contrary to the appellant’s submission, the General Court did not state, in paragraphs 193 to 201 of the judgment under appeal, that the grants constituting measure 26 had to be regarded as constituting State aid up to their full amount.

72 On the contrary, as the Commission rightly submits, it follows from a reading of those paragraphs that, without examining the amount of the advantages granted to the appellant, the General Court clearly referred to that amount as mentioned by the Commission in the contested decision and, moreover, specifically indicated in paragraphs 18 and 192 of the judgment under appeal.

73 In these circumstances, it cannot validly be argued that the General Court infringed the principle of the division of powers between itself and the Commission by going beyond what the Commission had determined within the framework of the contested decision.

74 Second, with regard to the alleged failure to follow the Community case-law to the effect that the advantage is to be determined by reference to the savings actually made by the beneficiary due to the fact that the unlawful aid measure was received, it must be stated that the judgment under appeal is in fact based on the correct assumption that the income constituted by the grants in question represent the advantage from which the appellant benefited.

75 In that regard, it is important to note that, in paragraph 196 of the judgment under appeal, the General Court found that the appellant had been ‘relieved of some of the financial burden (wage costs)’ relating to works which it had carried out in its own interest. Similarly, in paragraph 198 of the judgment under appeal, the General Court found, as the Commission had argued, that the appellant ‘[had] not actually [borne] the part of the costs corresponding to the amount of the grant it [had] received’.

76 In the light of all of the foregoing considerations, the third plea must also be rejected as unfounded.

77 Since none of the pleas in the appeal has been successful, the appeal must be dismissed.

Costs

78 The first paragraph of Article 122 of the Rules of Procedure of the Court states that, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings pursuant to Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the appellant has been unsuccessful, the appellant must be ordered to pay the costs.

On those grounds, the Court (First Chamber) hereby:

1. Dismisses the appeal;

2. Orders Kahla Thüringen Porzellan GmbH to pay the costs.

[Signatures]