Keywords

Summary



Keywords

1. Appeals - Pleas in law - Incorrect assessment of the facts - Inadmissible - Review by the Court of Justice of the assessment of the evidence before the Court of First Instance - Excluded unless the sense of the evidence has been distorted

(ECSC Statute of the Court of Justice, Art. 51(1))

2. ECSC - Aid to the steel industry - Definition - Private investor test - Prospects of profitability

(ECSC Treaty, Art. 4(c); General Decision No 3855/91, Art. 1(2))

3. ECSC - Aid to the steel industry - Commission decision requiring a complex economic assessment - Judicial review - Limits

(ECSC Treaty, Arts 4(c) and 33)

4. Appeals - Pleas in law - Mere repetition of pleas in law and arguments submitted to the Court of First Instance - Inadmissible - Appeal dismissed

(ECSC Statute of the Court of Justice, Art. 49; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

5. ECSC - Aid to the steel industry - Recovery of unlawful aid - Restoration of the previous situation

(ECSC Treaty, Art. 4(c))

Summary

1. The Court of First Instance has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not therefore, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal.

( see para. 34 )

2. In order to determine whether investment by the public authorities in the capital of an undertaking, in whatever form, is in the nature of State aid, it is necessary to consider whether in similar circumstances a private investor of comparable size with the bodies governing the public sector might have provided injections of capital of such an amount. Although the conduct of a private investor, with which the intervention of a public investor pursuing economic policy aims must be compared, need not be the conduct of an ordinary investor laying out capital with a view to realising a profit in the relatively short term, it must at least be the conduct of a private holding company or a private group of undertakings pursuing a structural policy - whether general or sectoral - and guided by prospects of profitability in the longer term.

( see para. 42 )

3. The Commission's examination of the question whether a given measure may be classified as State aid because the State did not act as an ordinary economic operator involves a complex economic assessment. Where it adopts a measure involving such assessments, the Commission has a wide discretion, and review of that measure by the courts must therefore be limited, as Article 33 of the ECSC Treaty shows, to checking that the rules of procedure and on the statement of reasons have been complied with, that the facts relied on in making the contested decision are accurate, and that there has been no obvious error in assessing those facts or any misuse of powers. In particular, the Court of First Instance must not substitute its own economic assessment for that of the Commission.

( see para. 43 )

4. An appeal in which the applicant merely repeats the same claims as at first instance in reality constitutes a request for a simple re-examination of the application before the Court of First Instance, which, in accordance with Article 49 of the ECSC Statute of the Court of Justice, is outside the latter's competence.

( see para. 54 )

5. As far as the system of aid laid down in the EC Treaty is concerned, the removal of unlawful State aid by means of recovery is the logical consequence of a finding that it is unlawful and that the aim of obliging the State concerned to abolish aid found by the Commission to be incompatible with the common market is to restore the previous situation. It follows that express competence for the Commission to demand repayment is not necessary. There is no reason in this respect for a different assessment to be made of aid subject to the system under the ECSC Treaty.

First, the system of aid established by the ECSC Treaty is not, as the applicant seeks to argue, less rigid than that of the EC Treaty. On the contrary, Article 4(c) of the ECSC Treaty establishes a system that is clearly more severe than that of the EC Treaty in so far as it authorises the Commission to prohibit all State aids from the outset, without there being any need to verify whether they distort or threaten to distort competition or whether they fall within exceptions to the general prohibition.

In addition, where a Member State does not comply with the Commission's decision to demand repayment of unlawful aid, the Commission must, under the system of the ECSC Treaty in the same way as under that of the EC Treaty, use the procedure for failure to fulfil obligations. It is only at a later stage of that procedure, namely where penalties are to be imposed by reason of non-compliance with obligations, that the third paragraph of Article 88 of the ECSC Treaty provides, unlike the procedure for failure to fulfil obligations established by the EC Treaty, that the Council is to become involved.

( see paras 65-68 )