Keywords

Summary



Keywords

1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision prohibiting a sectoral aid scheme – Action by a recipient undertaking of individual aid granted under that scheme and having to be recovered – Admissibility

(Art. 230, fourth para., EC)

2. Acts of the institutions – Statement of reasons – Obligation – Scope – Commission decision on State aid

(Arts 87 EC and 253 EC)

3. Acts of the institutions – Statement of reasons – Obligation – Scope – Commission decision on State aid

(Arts 87(1) EC and 253 EC)

4. State aid – Concept – Tax reduction granted to investors in specialised investment vehicles – Reduction leading to an indirect transfer of State resources for an undertaking which is separate from the exempt taxpayer

(Art. 87(1) EC)

5. State aid – Examination by the Commission – Examination of an aid scheme in its totality – Lawfulness – Consequence

(Art. 87(1) EC)

6. State aid – Concept – Selective nature of the measure – Tax reduction limited to specialised investment vehicles and their managing undertakings – Included

(Art. 87(1) CE)

7. State aid – Concept – Measure allowing the recipients to increase their own resources on more favourable terms – Included

(Art. 87(1) EC)

8. State aid – Concept – Selective nature of the measure

(Art. 87(1) EC)

9. State aid – Recovery of unlawful aid – Obligation resulting from the unlawfulness

(Art. 88(2) EC; Council Regulation No 659/1999, Art. 14(1))

Summary

1. Persons other than those to whom a decision is addressed may claim to be individually concerned only if the decision affects them by reason of certain attributes peculiar to them or by reason of circumstances in which they are differentiated from all other persons and if, by virtue of those factors, it distinguishes them individually in the same way as the person addressed. Thus, an undertaking cannot, as a general rule, contest a decision of the Commission which prohibits a sectoral aid scheme if it is concerned by that decision solely by virtue of belonging to the sector in question and being a potential beneficiary of the scheme. Such a decision is, vis-à-vis the applicant undertaking, a measure of general application covering situations which are determined objectively and entails legal effects for a class of persons envisaged in a general and abstract manner.

In the case of a Commission decision which does not identify the undertaking or undertakings in receipt of the aid in question and which therefore applies to situations which are determined objectively and entails legal effects for a class of persons envisaged in a general and abstract manner, an undertaking may, however, be concerned by that decision not only as an undertaking in the relevant sector as a potential beneficiary of the aid scheme, but also as an actual recipient of individual aid granted under that scheme, recovery of which has been ordered by the Commission. That undertaking is individually concerned by that decision and its action against the decision is admissible.

(see paras 45-48)

2. The statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review. The requirement to state reasons must be assessed according to the circumstances of the case. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and all the legal rules governing the matter in question. In particular, the Commission is not obliged to adopt a position on all the arguments relied on by the parties concerned; rather, it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision.

In the case of a State aid scheme, the Commission may confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case.

(see paras 67-68)

3. Although the Commission is required, in the reasons for its decision, to refer at least to the circumstances in which aid has been granted where those circumstances show that the aid is such as to affect trade between Member States, it is not required to demonstrate the actual effect of aid already granted. If it were so required, that requirement would ultimately give Member States which grant unlawful aid an advantage over those which notify aid at the planning stage.

The Commission is not under a duty to carry out an economic analysis of the actual situation on the relevant market, or of the market share of the beneficiary undertakings, or of the position of competing undertakings, or of trade flows between Member States in the services in question, once it has explained how the aid at issue distorts competition and affects trade between Member States. As the aid was not notified, the Commission was not required to establish the actual effects of that aid.

(see paras 102, 109)

4. Article 87 EC prohibits aid granted by a State or through State resources in any form whatsoever, without drawing a distinction as to whether the aid-related advantages are granted directly or indirectly. Thus, an advantage granted directly to certain natural or legal persons who are not necessarily undertakings may constitute an indirect advantage, hence aid, for other natural or legal persons who are undertakings.

It is not necessary, in order to found a finding of the existence of intervention by means of State resources in favour of an undertaking, that the undertaking must be the direct beneficiary. Even if specialised investment vehicles do not benefit directly from the tax reduction granted to their investors, they may none the less receive an indirect economic benefit.

(see paras 127, 131)

5. In the case of an aid scheme, the Commission may, in order to assess whether that scheme comprises aid elements, confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies. Accordingly, where it is not disputed that the tax provision under consideration operates to the benefit of certain undertakings, the fact that, in some circumstances, it may also benefit entities which are not undertakings does not call into question that finding, which is sufficient for Article 87(1) EC to apply to an aid scheme.

(see para. 136)

6. A State measure providing for a tax reduction limited to specialised investment vehicles and their managing undertakings, being thus limited to well-defined investment vehicles which fulfil specific conditions to the detriment of other undertakings offering alternative forms of investment, favours certain investment vehicles as compared with others which are in a comparable legal and factual situation. Such a measure, which cannot be regarded as a general measure of fiscal or economic policy, but as an exception to the general tax scheme, is therefore selective for the purposes of Article 87(1) EC.

Moreover, the mere fact that the advantage may benefit any investment vehicle fulfilling the conditions laid down does not suffice to establish that the measure at issue is general in scope and does not preclude the measure at issue from being selective in nature.

Furthermore, aid may be selective for the purposes of Article 87(1) EC even if it concerns a whole economic sector.

(see paras 150, 152, 155-156)

7. A State measure allowing the undertakings concerned to increase their own resources on more favourable terms, such as a mere increase in liquidity, constitute an advantage within the meaning of Article 87(1) EC.

(see para. 163)

8. If it were to be considered that a selective State measure could escape Article 87(1) EC if it pursued an economic or industrial policy objective, such as the promotion of investment, that provision would have no practical effect. The objective pursued by such a measure cannot therefore enable it to escape being categorised as State aid within the meaning of Article 87(1) EC.

(see para. 170)

9. Article 14(1) of Regulation No 659/1999 relating to the application of Article 88 EC provides that, where negative decisions are taken in cases of unlawful State aid, the Commission is to decide that the Member State concerned is to take all necessary measures to recover the aid from the beneficiary. The Commission is not to require recovery of the aid if this would be contrary to a general principle of Community law. Removing unlawful aid by means of recovery is the logical consequence of a finding that the aid is unlawful, the purpose of which is to re-establish the previous situation. By repaying, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored. It follows that the main objective pursued in requiring the repayment of unlawfully paid State aid is to eliminate the distortion of competition caused by the competitive advantage afforded by the unlawful aid.

(see paras 190-193)