OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 5 March 2020 ( 1 )

Case C‑212/19

Ministre de l’Agriculture et de l’Alimentation

v

Compagnie des pêches de Saint-Malo

(Request for a preliminary ruling from the Conseil d’État (Council of State, France))

(Reference for a preliminary ruling – State aid – Recovery of unlawful aid – Decision 2005/239/EC – Fish farmers and fishermen – Social security contribution – Distinction between employers’ contributions and employees’ contributions – Question of who is liable for repayment – Recovery from the employees of the undertaking)

1. By its request for a preliminary ruling, the Conseil d’État (Council of State, France) asks the Court, on the one hand, to interpret Commission Decision 2005/239/EC of 14 July 2004 concerning certain aid measures applied by France to assist fish farmers and fishermen ( 2 ) (‘the contested decision’) and, on the other, to clarify the extent of the recovery obligation imposed on the French Republic pursuant to that decision.

2. The request has been made in the context of an appeal brought by the ministre de l’Agriculture et de l’Alimentation (Minister for Agriculture and Food) (‘the Minister’) against a judgment of the cour administrative d’appel de Nantes (Administrative Court of Appeal, Nantes, France) by which that latter court upheld the annulment of an order for payment issued by the directeur régional des finances publiques de Bretagne (Regional Director of Public Finances for Brittany) against Compagnie des pêches de Saint-Malo (‘the Company’) for recovery of a sum of money in respect of aid allegedly received by that company pursuant to national measures which are the subject of the contested decision.

I. The background to the dispute in the main proceedings

3. By letter of 21 June 2000, the French Republic informed the European Commission of the compensation measures which it had adopted for fishermen and fish farmers adversely affected by the oil pollution caused by the wreck of the vessel Erika in the Bay of Biscay on 12 December 1999 and the violent storms of 27 and 28 December 1999. ( 3 ) Those measures consisted, on the one hand, of a series of exceptional aid measures, adopted by circular of 2 February 2000, intended to assist the fishermen and aquaculture producers of six departments of western France (Finistère, Morbihan, Loire-Atlantique, Vendée, Charente-Maritime and Gironde) adversely affected by these events and, on the other, of a decision to reduce social security contributions by 50% for a period of three months for aquaculture producers and six months for fishermen, adopted by two new circulars of 15 April and 13 July 2000. This second measure applied to mainland France and overseas departments.

4. The Commission considered most of the measures adopted by the circular of 2 February 2000 to be compatible with the common market. ( 4 ) By contrast, by letter of 11 December 2001, the Commission notified the French Republic of its decision to initiate the formal investigation procedure provided for in Article 88(2) of the EC Treaty in respect of the other measures including, inter alia, the ‘additional measure reducing social security contributions’ for fishermen, implemented for the period from 15 April to 15 October 2000. ( 5 )

5. This reduction applied to ‘employers’ and employees’ contributions’ ( 6 ) paid to the Établissement National des Invalides de la Marine (ENIM). ( 7 ) With regard to the procedures for applying the reduction, the Commission explains in recital 20 of the contested decision that ‘the rate of reduction of contributions to the ENIM was 50% for both employees’ and employers’ contributions. However, in the case of certain vessels for which the share payment system is not applied, the part of the employers’ contributions taken over was increased to 75%. France explained this different rate by the fact that, in the case of share payment, there is a close financial solidarity between the owners and the crew in the face of difficulties encountered in the course of fishing activities, particularly as regards reduced turnover, whereas in the case of industrial ship owners, in which this type of payment does not exist, the owners de facto bear the greater part of economic difficulties’.

6. The measure reducing social security contributions for fishermen was intended, with other additional measures, to take account, in particular, of the damage suffered by undertakings in the fisheries sector because of the deterioration of the market. ( 8 ) According to the French authorities, there had been a general downturn in the market for fisheries products, with a sustained fall in demand because of consumers’ concerns about the health implications of the oil pollution. ( 9 ) According to the Commission, however, the statistics provided by the French Republic were contradicted by other official data which had come to its knowledge. ( 10 ) In the light of those data, the Commission formed the view that serious doubts existed as to the compatibility of that measure with common market rules, since the measure had the characteristics of operating aid.

7. It was not possible to dispel those doubts during the formal investigation procedure. After a thorough examination of the market situation for fisheries products during the first quarter of 2000, ( 11 ) the Commission concluded, in recital 98 of the contested decision, that, on the basis of the information at its disposal, ‘the nationwide reduction of social security contributions granted to fishermen for the period 15 April to 15 October [could not] be considered compatible with the common market under Article 87(2)(b) [EC]’. In recital 99 of that decision, it held that ‘as operating aid granted to all fishing businesses without any obligation on the part of the recipients, this aid [was] incompatible with the common market by virtue of the third indent of the fourth paragraph of section 1.2 of the 1997 Guidelines’. ( 12 )

8. Article 3 of the contested decision thus found ‘the aid granted by France to fishermen in the form of a reduction of social security contributions for the period 15 April to 15 October 2000 … incompatible with the common market’. Under Article 4(1) of that decision, ‘France shall take all necessary measures to recover from the beneficiaries the aid referred to in [Article] 3 and unlawfully made available to the beneficiaries’. Article 4(2) provided that ‘recovery shall be effected without delay and in accordance with the procedures of national law provided that they allow the immediate and effective execution of the Decision. The aid to be recovered shall include interest from the date on which it was at the disposal of the beneficiaries until the date of its recovery’.

9. The contested decision was not challenged before the General Court.

10. On 23 December 2009, after having repeatedly asked the French Republic to comply with the contested decision, the Commission brought an action for failure to fulfil obligations under Article 108(2) TFEU. By judgment of 20 October 2011, Commission v France ( 13 ) (‘the Commission v France judgment’), the Court held that, ‘by failing to implement, within the prescribed period, [the contested decision], by recovering from the recipients of the aid declared unlawful and incompatible with the common market by [Article] 3 of that decision, the French Republic has failed to fulfil its obligations under the fourth paragraph of Article 288 TFEU and Article 4 of that decision’. ( 14 ) In paragraphs 42 and 43 of that judgment, the Court rejected the argument put forward by the French Republic according to which the sums corresponding to the reductions in social security contributions, paid by the undertakings to the competent authorities on behalf of employees, should not have to be repaid. It stated, first of all, in paragraph 42, that ‘that argument [amounted] in reality to calling into question the Commission’s assessment in the [contested] decision of whether the reduction of employers’ and employees’ contributions constitutes State aid within the meaning of Article 107(1) TFEU’. Next, in paragraph 43, in accordance with settled case-law, the Court held that ‘in the context of [an] action which concerns the failure to implement a decision on State aid which has not been referred to the Court by the Member State to which it is addressed, that Member State is not justified in challenging the lawfulness of such a decision’. ( 15 )

II. The dispute in the main proceedings and the proceedings before the Court

11. On 22 February 2013, an order for payment was issued against the Company for EUR 84 550.08, corresponding to the reductions in employees’ contributions due between 15 April and 15 July 2000, together with interest for late payment. By judgment of 25 June 2015, the tribunal administratif de Rennes (Administrative Court, Rennes, France) annulled that order for payment. By judgment of 14 April 2017, the cour administrative d’appel de Nantes (Administrative Court of Appeal, Nantes) dismissed the appeal brought by the ministre de l’Environnement, de l’Énergie et de la Mer (Minister for the Environment, Energy and the Sea) against the judgment of the Administrative Court.

12. The Minister appealed on a point of law against that judgment before the referring court, claiming, inter alia, that the appeal court had, on the one hand, erred in law in finding that the exemptions from employees’ contributions had not benefited fisheries undertakings despite the fact that they had been classified as State aid by the Commission, and, on the other, distorted the evidence before it in finding that it was apparent from the file that the reduction in employees’ contributions had automatically had the effect of increasing the amount of net salary paid to employees.

13. The Conseil d’État (Council of State), on the one hand, set aside the judgment of the Cour administrative d’appel de Nantes (Administrative Court of Appeal, Nantes), in so far as the latter had omitted to rule on the ground of appeal seeking annulment on the basis that the tribunal administratif de Rennes (Administrative Court, Rennes) had not ruled on the plea raised by the Minister that the application brought by the Company was inadmissible due to its complaint having been made out of time and, on the other, set aside the judgment of the tribunal administratif de Rennes (Administrative Court, Rennes) by reason of that omission. Le Conseil d’État (Council of State) thus decided to consider and to rule forthwith on the claim made by the Company before the tribunal administratif de Rennes (Administrative Court, Rennes).

14. Having rejected the plea of inadmissibility raised by the Minister, the Conseil d’État (Council of State) rejected the two pleas in law raised by the Company, alleging, first, that the order for payment at issue in the main proceedings infringed the principles of protection of legitimate expectations and legal certainty and, second, a delay on the part of the State to recover the sums of money covered by that order. Next, in accordance with the Court’s case-law pursuant to the judgment of 9 March 1994 in TWD Textilwerke Deggendorf ( 16 ) (‘the TWD judgment’), it rejected the request made by the Company that a question concerning the validity of the contested decision be referred to the Court for a preliminary ruling under Article 267 TFEU. The Conseil d’État (Council of State) took the view that, as the actual beneficiary of individual aid granted under an aid scheme, recovery of which had been ordered by the Commission, the Company was directly and individually concerned by the contested decision within the meaning of Article 263 TFEU and that, having failed to challenge it before the General Court, it could not challenge its validity in contentious proceedings directed against the measures implementing that decision taken by the national authorities.

15. The Conseil d’État (Council of State) then observed that, under Article L. 741‑9 of the code rural et de la pêche maritime (Rural and Maritime Fishing Code) and Article 4 of the décret du 17 juin 1938 relatif à la réorganisation et à l’unification du régime d’assurance des marins (Decree of 17 June 1938 relating to the reorganisation and consolidation of the insurance scheme for mariners) (JORF of 29 June 1938, p. 7500), employers’ contributions to the agricultural workers’ scheme and the mariners’ scheme are payable by employers, while employee contributions are payable by employees. Employees’ contributions are not borne by the employer but are merely deducted by him from the earnings of the insured persons every payday and reductions in employees’ contributions are passed on to employees, who receive a higher net wage and are the direct beneficiaries thereof. The Conseil d’État (Council of State) noted, however, that this reduction in employees’ contributions could be regarded as having constituted an indirect advantage for the undertaking since, during the relevant period, it gained a certain attractiveness through the higher salaries received by its employees over the period of six months.

16. It is in those circumstances that the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must the [contested] decision be interpreted as declaring that only the reductions in employers’ contributions are incompatible with the common market, on the ground that the reduction in employees’ contributions do not benefit the undertakings and therefore cannot come within the scope of Article 107 [TFEU], or as also declaring the reductions in employees’ contributions to be incompatible? (2) In the event that the Court finds that the [contested] decision is to be interpreted as also declaring the reductions in employees’ contributions to be incompatible, must the undertaking be regarded as having received the full amount of those reductions or only a part thereof? In the latter case, how is that part to be assessed? Is the Member State required to order recovery from the employees concerned of the part of the aid from which they benefited?’

17. The Company, the French Government and the Commission lodged written observations before the Court. At the hearing on 20 November 2019, those interested parties made oral submissions.

III. Analysis

A. Admissibility of the request for a preliminary ruling

1. The plea of inadmissibility raised by the Commission

18. The Commission submits, as its principal argument, that the request for a preliminary ruling from the Conseil d’État (Council of State) is inadmissible. It considers that the two questions referred for a preliminary ruling, whilst formulated as questions of interpretation, in fact call into question the validity of the contested decision, in so far as it also classified as State aid the reductions in employees’ contributions and ordered the recovery of the amounts corresponding to those reductions. As questions of validity, they are, however, inadmissible in the light of the case-law arising from the TWD judgment. The Company is not entitled to challenge the validity of the contested decision in the context of national proceedings relating to its enforcement, in so far as it did not challenge that decision in good time before the General Court even though it undoubtedly had standing to bring proceedings under the fourth paragraph of Article 263 TFEU.

19. I note at the outset that the Commission’s reading of the questions referred fails to convince me.

20. It is, admittedly, true that the first question referred is not limited to asking the Court to clarify whether the reduction in employees’ contributions is affected by the declaration of incompatibility set out in the contested decision, but suggests that an interpretation of that decision along those lines might be contrary to Article 107(1) TFEU on the ground that that reduction does not benefit the undertakings. However, the mere fact that the referring court raises the possibility that a particular reading of the contested decision is contrary to a provision of primary law does not have the effect of altering the nature of that request, by which the Court is called upon to rule on the interpretation of subordinate legislation and not to assess the validity thereof. Accordingly, even if the Court were to conclude that several interpretations of the contested decision are possible and that the interpretation according to which the reductions in employees’ contributions are constitutive of State aid should be rejected on the ground that it infringes Article 107(1) TFEU, that finding would be within the limits of a simple interpretation in line with EU law, which would not lead to a (partial) declaration of invalidity in respect of that decision.

21. The intention of the referring court to submit an application for interpretation is, moreover, confirmed by the fact that, as I have noted in point 14 of this Opinion, the referring court expressly rejected the request made by the Company that a question concerning the validity of the contested decision be referred to the Court for a preliminary ruling, on the same grounds as those invoked by the Commission in support of its submission that the request for a preliminary ruling is inadmissible.

22. In addition, I note that, even if, by virtue of its wording, the first question referred for a preliminary ruling must be read as a question concerning the validity of the contested decision, the second question referred is clearly a request for interpretation. It follows that, contrary to what the Commission maintains and notwithstanding the fact that that second question referred is raised only if the first question referred is answered to the effect that the contested decision also covers the reductions in employees’ contributions, the request for a preliminary ruling cannot, in any event, be declared inadmissible in its entirety.

23. In the light of all of the foregoing, I propose that the Court should reject the plea of inadmissibility raised by the Commission.

24. That being said, it is not inconceivable that the Court may question the validity of the contested decision of its own motion. I will therefore examine below whether the conditions for such a point to be raised by the Court of its own motion have been met in the present case.

2. The possibility for the Court to question the validity of the contested decision of its own motion

25. The Court has previously raised questions of validity of its motion, either by adding a question of validity to the questions of interpretation submitted by the referring court, ( 17 ) or by reformulating a question of interpretation and reading it as a question pertaining to validity. ( 18 )

26. As far back as 1965, the Court claimed such jurisdiction to raise a point of its own motion in holding, in the Schwarze judgment, ( 19 ) that ‘if it appears that the real purpose of the questions submitted by a national court is concerned rather with the validity of Community measures than with their interpretation, it is appropriate for the Court of Justice to inform the national court at once of its view without compelling the national court to comply with purely formal requirements which would uselessly prolong the procedure under Article 177 [of the EEC Treaty] and would be contrary to its very nature’. ( 20 )

27. In order not to encroach on the principle that it is for the referring court alone to determine the subject matter of the questions which it intends to refer, the Court tends, however, not to exercise that power where the referring court seeks solely to obtain an interpretation of a secondary act of EU law, without stating that it has any doubts as to its validity or that any such question was raised before it in the case in the main proceedings. ( 21 )

28. Furthermore, the Court has held that it is important that the national court should indicate, in particular, the precise reasons which have led it to question the validity of certain provisions of EU law and set out the grounds of invalidity which appear to it capable of being upheld. ( 22 ) The existence of a challenge to the validity of an EU act before the national court is not therefore sufficient by itself to justify the submission of a request for a preliminary ruling to the Court. ( 23 )

29. In the present case, it is apparent from the order for reference and from the national case file lodged with the Registry of the Court that the action brought by the Company before the tribunal administratif de Rennes (Administrative Court, Rennes) directly challenged the validity of the contested decision, in so far as it also declared the reductions in employees’ contributions to be incompatible with the common market. The Conseil d’État (Council of State), on the assumption that the Company had failed to question the validity of the contested decision in good time, has not expressly adopted a position on this point. However, by stating that reductions in employees’ contributions did not directly benefit the undertakings and could not therefore come within the scope of Article 107 TFEU, that court indirectly raises doubts as to the validity of the contested decision.

30. In a different context, however, those circumstances were, until recently, considered sufficient by the Court for it to raise of its own motion the question of the validity of a measure the interpretation alone of which has been sought by the referring court. ( 24 )

31. On the basis of the foregoing considerations, I therefore take the view that the conditions have been met for the Court to raise of its own motion the complaint that the contested decision is invalid, which has been the subject of discussion in the present proceedings.

32. However, in the circumstances of the present case, the Court’s raising of a point of its own motion would be possible only if, contrary to what the Commission maintains and what the Conseil d’État (Council of State) has held, the time-barring effect provided for by the case-law arising from the TWD judgment cannot be invoked against the Company, ( 25 ) an issue which will be examined below.

3. Applicability of the case-law arising from the TWD judgment to the circumstances of the case in the main proceedings

33. In paragraph 17 of the TWD judgment, the Court noted that, in particular for reasons of legal certainty, it is not possible for a recipient of State aid – which was the subject of a Commission decision that was directly addressed solely to the Member State from which that recipient comes – which could undoubtedly have challenged that decision on the basis of Article 263 TFEU and which allowed the mandatory time limit laid down in the sixth paragraph of that provision in order to bring such an action to pass, effectively to call into question the lawfulness of that decision before national courts in an action brought against measures taken by the national authorities for the purpose of implementing that decision. ( 26 ) According to the Court, to accept that in those circumstances the recipient of the aid could challenge the implementation of such a decision in proceedings before the national court on the ground that the decision was unlawful would in effect enable the person concerned to overcome the definitive nature which the decision assumes as against that person once the time limit for bringing an action has passed. ( 27 )

34. The Court has recalled and confirmed on several occasions the principles established in the TWD judgment, ( 28 ) including in very different legal and factual circumstances to those giving rise to that judgment. ( 29 ) However, it is only in a limited number of cases that the Court has found the request for a preliminary ruling on validity to be inadmissible on the basis of those principles. ( 30 )

35. In accordance with the TWD case-law, the time-barring effect of the passing of time limits provided for in the sixth paragraph of Article 263 TFEU, in the absence of the bringing of an action for annulment within the meaning of that article before the court with jurisdiction to hear such an action (the General Court), applies only where the natural or legal person pleading the unlawfulness of an EU act in national proceedings, in order to encourage the national court to submit a request for a preliminary ruling to the Court concerning the validity of that act, ‘undoubtedly’ has ‘manifest and unquestioned standing’ ( 31 ) to bring an action for annulment of that act. ( 32 )

36. It is therefore necessary to determine whether that is the case with regard to the Company, which, in so far as it is not the addressee of the contested decision, could have had standing to institute proceedings against it only under the second limb of the fourth paragraph of Article 263 TFEU (formerly the fourth paragraph of Article 230 EC), that is to say, only if it could have demonstrated that the decision was of direct and individual concern to it.

37. In that regard, first, I observe that, according to the Court’s settled case-law, the condition that a natural or legal person must be directly concerned by the decision being challenged, as provided for in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met: (i) the contested measure must directly affect the legal situation of the individual; and (ii) it must leave no discretion to the addressees entrusted with the task of implementing it, such implementation being purely automatic and resulting solely from EU rules without the application of other intermediate rules. ( 33 ) The Court has thus held that a Commission decision ordering the recovery of State aid directly affects the recipients even though that decision still requires a national implementing measure. ( 34 )

38. Second, it is also settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned by that decision only if it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person to whom such a decision is addressed. ( 35 )

39. The Court has repeatedly held in the field of State aid that decisions of the Commission authorising or prohibiting a national scheme are of general application, resulting from the fact that such decisions apply to objectively determined situations and produce legal effects with respect to a category of persons envisaged in a general and abstract manner. ( 36 ) Thus, the Court has held that an undertaking cannot, as a general rule, challenge a decision of the Commission which prohibits a sectoral aid scheme if that undertaking is concerned by that decision solely by virtue of belonging to the sector in question and being a potential beneficiary of that scheme. ( 37 )

40. However, according to equally well-established case-law, the actual beneficiaries of individual aid granted under a State aid scheme which the Commission has ordered to be recovered ( 38 ) are, accordingly, individually concerned within the meaning of the fourth paragraph of Article 263 TFEU, ( 39 ) even if actual recovery will be implemented only in a subsequent phase in which it is to be established whether the advantages received actually constitute State aid which has to be repaid. ( 40 ) According to the Court, the order for recovery already concerns all the beneficiaries of the system in question individually ‘in that they are exposed, as from the time of the adoption of the contested decision [by the Commission], to the risk that the advantages which they have received may be recovered, and thus find their legal position affected’. ( 41 ) Those beneficiaries are therefore members of a limited class within the meaning of the case-law arising from the judgment of 17 January 1985 in Piraiki-Patraiki and Others v Commission. ( 42 ) The mere possibility that, subsequently, the advantages declared unlawful may not be recovered from their beneficiaries ‘does not exclude the latter from being regarded as individually concerned’. ( 43 ) In the Comitato ‘Venezia vuole vivere’ judgment, the Court also expressly rejected the Commission’s argument that recognition of the admissibility of actions against a decision of the Commission ordering the recovery of State aid would have the ‘paradoxical and perverse’ effect of requiring the beneficiaries of the State aid to challenge that decision immediately, before even knowing whether it would lead to a recovery order concerning them. ( 44 ) That case-law has recently been confirmed, in the context of applying the time-barring effects resulting from the TWD judgment, by the Georgsmarienhütte judgment, ( 45 ) pursuant to which the referring court rejected the request of the Company that a preliminary ruling be sought from the Court as to the validity of the contested decision.

41. Although the case-law cited in the previous point was clarified after the time limit for challenging the contested decision had passed, ( 46 ) its principles had already been affirmed in the Italy and Sardegna Lines v Commission ( 47 ) and Italy v Commission ( 48 ) judgments, with the result that it can easily be stated that the admissibility of any action brought by the Company in 2004 against the contested decision would, most likely, have been admitted by the General Court.

42. It is true that the aid scheme which is the subject of the contested decision differs from the corresponding schemes in the cases which gave rise to the judgments in Italy and Sardegna Lines v Commission and Italy v Commission. The arrangements at issue in those cases had been implemented through different administrative measures, involving the exercise of a certain margin of discretion, by virtue of which the applicants were granted actual aid, ( 49 ) whereas the aid declared incompatible by the contested decision consisted of exemptions from social security contributions applicable to all operators in the sector.

43. However, first, the characteristics of the aid schemes in question do not appear to have been especially taken into account by the Court in the judgments in Italy and Sardegna Lines v Commission, and Italy v Commission. Second, in the judgment of 28 November 2008, Hotel Cipriani and Others v Commission, ( 50 ) relating to actions brought in 2000, the relevance of the criterion concerning the detailed arrangements for the implementation of the aid scheme, strongly supported at the time by the Commission, was expressly rejected. ( 51 )

44. Likewise, while, in paragraph 39 of the Italy v Commission judgment, the Court stated that the fact that the number of applications accepted and the amount budgeted for the aid in question in the case giving rise to that judgment had been specified in the contested decision, with the result that ‘the Commission must … have known of the existence of [the] actual recipients’ of the aid in question, the idea that it is not essential, in order to establish individual concern, to know the number or even the identity of the persons to whom the contested decision applies, but rather that the group of persons affected by the measure is a closed one, such as the actual beneficiaries of an aid scheme the application of which has been discontinued, was already well-established in the case-law. ( 52 ) Thus, the fact that the aid at issue in the contested decision consists in the nationwide reduction of social security contributions granted to fishermen applied to the whole of metropolitan France and to the overseas departments and that the decision does not therefore contain specific information concerning the number of beneficiaries or the precise amount of the aid, ( 53 ) would probably not, in itself, have been a sufficient reason for the General Court to depart from the solution upheld in the Italy and Sardegna Lines v Commission and Italy v Commission judgments. That finding is, moreover, supported by the judgment in Hotel Cipriani and Others v Commission. ( 54 )

45. In my view, however, the foregoing considerations are not sufficient for the time-barring effects provided for by the case-law arising from the TWD judgment to be capable of being invoked against the Company.

46. On the one hand, I am not convinced that, in 2005, the Company would ‘undoubtedly’ have been able to bring an admissible challenge against the contested decision before the General Court. The case-law cited in point 40 of this Opinion was not yet, at that time, sufficiently consolidated to enable such a conclusion to be drawn.

47. On the other, I note that, in the field of State aid, with the exception of the Georgsmarienhütte judgment, the Court has recognised that time-barring effect only in respect of beneficiaries of individual aid. ( 55 ) In the judgment of 23 February 2006, Atzeni and Others, ( 56 ) relating to a decision which concerns aid schemes intended for categories of persons defined in a general manner, the Court held, by contrast, that it was not self-evident that an action for annulment of the contested decision brought by those aid recipients would have been admissible. ( 57 )

48. With regard to the Georgsmarienhütte judgment, it should be noted that the circumstances of the case giving rising to that judgment were very specific. The actual beneficiaries of aid granted by the German authorities in the form of surcharge reductions in the energy sector had challenged the Commission decision to initiate the formal investigation procedure in respect of those measures. In the context of those actions, they had taken cognisance of the final decision declaring that aid to be incompatible with the internal market and ordering recovery of the aid already granted. ( 58 ) Unlike the other undertakings concerned by the aid in question, instead of bringing a separate action for the annulment of that decision and before the expiry of the period for bringing an action, they challenged the orders for recovery of the aid which had been granted to them, communicated to them by the German authorities several days after the adoption of that decision. ( 59 )

49. Lastly, given the characteristics of the aid scheme which is the subject of the contested decision, and having regard to the fact that that decision was taken four years after the aid had been granted and that, on the date of expiry of the period for challenging that decision, the French Republic had not yet started to identify the beneficiaries of the aid in question, ( 60 ) it is not inconceivable that questions concerning the inclusion of the Company in the recovery proceedings could have been raised before the General Court, thus leading the latter to doubt whether the applicant had a genuine and real legal interest in bringing proceedings, as was the case with regard to the applicants in the cases which gave rise to the order of 10 March 2005, Gruppo ormeggiatori del porto di Venezia and Others v Commission. ( 61 )

50. In the light of all the foregoing reasons, I consider that the Conseil d’État (Council of State) erred in its view that the time-barring effects provided for in the case-law resulting from the TWD judgment could be invoked against the Company. Consequently, if the Court, contrary to my view set out in points 18 to 23 of this Opinion, were to interpret the first question referred for a preliminary ruling as concerning the validity of the contested decision, that question should, in my opinion, be considered admissible. Likewise, if the Court were to decide to examine the validity of the contested decision of its own motion, the TWD judgment would not preclude its doing so.

B. Substance

51. I will examine, first of all, the first question referred, since it concerns the interpretation of the contested decision and, therefore, it is logically the first issue to be addressed. Next, I will discuss the validity of that decision, in so far as the Court should interpret it as also declaring the reductions in employees’ contributions to be incompatible with the common market. Lastly, I will answer the second question referred.

1. The first question referred

52. By its first question, which, I reiterate, raises, in my view, only a question as to interpretation of the contested decision, ( 62 ) the referring court asks the Court, in essence, whether that decision must be interpreted as declaring that only the reductions in employers’ contributions are incompatible with the common market. The Company considers that that question should be answered in the affirmative, taking into account both the wording of the contested decision and the Commission’s decision-making practice. In addition, it submits, such a reading is also necessary in order to ensure an interpretation that is in line with Article 87(1) EC (now Article 107(1) TFEU). By contrast, the French Government and the Commission, basing themselves on a largely systematic reading of the contested decision, consider that that decision must be interpreted as covering the reductions in both employers’ contributions and employees’ contributions. Those parties claim that the Court has already ruled to that effect in the Commission v France judgment.

53. First of all, that last argument must be rejected at the outset. It is clear, to my mind, that, in the Commission v France judgment, not only did the Court not rule in any way on the validity of the contested decision, ( 63 ) but it also did not adopt a position on the interpretation of that decision, at least not with regard to the point raised in the first question referred. It is apparent from paragraph 23 of that judgment, as well as from the case file in the proceedings which gave rise to that judgment, that, by its argument, the French Republic sought to challenge the obligation to repay the sums corresponding to the reductions in employees’ contributions and not to ask the Court to clarify whether the order for recovery set out in that decision also related to those reductions. ( 64 ) It is true that, in paragraph 42 of the Commission v France judgment, the Court held that the ‘argument’ put forward by the French Republic concerning ‘the recovery of employees’ contributions’ ‘amounted to contesting the Commission’s assessment in the [contested] decision that the reductions in employers’ contributions and employees’ contributions are constitutive of State aid within the meaning of Article 107(1) TFEU’. However, leaving aside its wording, and given the context in which it was made, I take the view that that statement can be seen only as being a position adopted on the qualification of the argument raised by the French Republic as a ground of challenge relating to the validity of the contested decision. By contrast, it would be misconceived, in my judgement, to view that statement as being a position adopted by the Court, which is unreasoned and the product of circular reasoning, on the interpretation of the contested decision which is, moreover, final.

54. That said, like all the interested parties which lodged written observations before the Court, I note that it is not entirely clear on the basis of the operative part of the contested decision alone whether ‘the aid granted by France to fishermen in the form of a reduction of social security contributions’, referred to in Articles 3 and 4 of that decision, covers the reductions in both employers’ and employees’ contributions. As the French Government has rightly observed, the operative part of an act is indissociably linked to the statement of reasons for it and must, if need be, be interpreted by taking account of the reasons which led to its adoption. ( 65 )

55. Although Part II of the contested decision, which is entitled ‘Description’, does not, stricto sensu, form part of the grounds on which the operative part was reached, reference should nevertheless be made to it in order to determine which measures are actually covered by the operative part. In recital 4 of the contested decision, the Commission lists the measures in respect of which ‘the formal investigation procedure was initiated’. Among these, point 2 of recital 4 includes ‘additional measures to assist fish farmers and fishermen throughout France’. The first indent of point 2 refers to the ‘additional measure reducing social security contributions for all … fishermen (from 15 April to 15 October 2000) of mainland France and the overseas departments’. ( 66 ) Section II.B of the contested decision sets out the additional measures referred to in point 2 of recital 4. Recital 17 of that decision, set out in point 2 of that section, which is entitled ‘Reduction of social security contributions for fish farmers and fishermen’, states that ‘the Minister … decided (decisions issued in [two] circulars …) to grant all undertakings in the sector a 50% reduction in social security contributions for the period 15 April 2000 to 15 October 2000 for fishermen’. ( 67 ) Recital 18 provides that ‘this reduction applied to employers’ and employees’ contributions’. ( 68 ) Lastly, recital 20 states that ‘the rate of reduction of contributions to the ENIM was 50% for both employees’ and employers’ contributions’. Thereafter, the contested decision makes no further mention of employers’ and employees’ contributions separately, but refers only to ‘social security contributions’.

56. It is apparent from the passages set out above that the contested decision describes the ‘additional measure reducing social security contributions’ for fishermen as applying to both employers’ and employees’ contributions. That description, which helps to define the subject of the formal investigation procedure, is not called into question at any point in the contested decision. In the scheme of that measure, the definition of the concept of ‘social security contributions’ therefore also covers employees’ contributions. The argument to the contrary put forward by the Company is not convincing. Even if there is, as that party maintains, a decision-making practice on the part of the Commission (and the Court) according to which the concept of ‘social security contributions’ covers only employers’ contributions, that could not call into question the indication to the contrary given by a reading of the contested decision itself.

57. If we now turn to Part IV of that decision, dealing with the assessment of the measures which were the subject of the formal investigation procedure, it must be observed that there is nothing in that assessment to justify the view that the Commission sought to exclude from its analysis the part of the social security contribution relief measures which related to employees’ contributions.

58. It follows from the foregoing considerations that, when read in the light of the reasoning behind it, the operative part of the contested decision must be considered to relate to both the reductions in employers’ contributions and the reductions in employees’ contributions. A reading of that decision as meaning that the reductions in employees’ contributions are excluded from the declaration of incompatibility and from the order for recovery set out in the operative part would run counter to the letter and general scheme of that decision. For that reason alone, the argument put forward by the Company, based on the requirement to ensure an interpretation of the contested decision that is in line with Article 87(1) EC (now Article 107(1) TFEU), must be rejected.

59. In the light of all the foregoing, I take the view that the answer to the first question referred by the Conseil d’État (Council of State) is that Article 3 of the contested decision must be interpreted as also declaring the reductions in employees’ contributions granted by the French Republic to assist fishermen for the period from 15 April to 15 October 2000 to be constitutive of State aid incompatible with the common market and subject to the order for recovery set out in Article 4 of that decision.

2. The validity of the contested decision, in so far as it classifies the reductions in employees’ contributions as State aid

60. In order for a State measure to be able to come under Article 107(1) TFEU, it must be capable of being regarded as an advantage conferred on the recipient undertaking. ( 69 )

61. Measures which, whatever their form, are likely directly or indirectly to favour certain undertakings ( 70 ) or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as aid. ( 71 ) Accordingly, it is settled case-law that the concept of ‘aid’ encompasses advantages granted by public authorities which, in a variety of ways, mitigate the charges which are normally included in the budget of an undertaking and which, therefore, without being subsidies in the strict sense of the word, are similar in character and have the same effect. ( 72 )

62. It is also settled case-law that a partial reduction of social security contributions devolving upon undertakings in a particular industrial sector constitutes aid within the meaning of Article 107(1) TFEU if that measure is intended partially to exempt those undertakings from the financial charges arising from the normal application of the general social security system, without there being any justification for that exemption on the basis of the nature or general scheme of that system. ( 73 )

63. So far as concerns the concept of a ‘burden normally included in the budget of an undertaking’, the Court has taken the view that the existence of an advantage cannot be ruled out where the State finances supplementary pay that the undertaking is under no legal obligation to pay to its employees. ( 74 ) In that regard, in the judgment of 12 December 2002, Belgium v Commission, ( 75 ) the Court held that ‘the costs linked to employee pay naturally place a burden on the budgets of undertakings, irrespective of whether or not those costs stem from legal obligations or collective agreements’ and that the fact that the measures funded by the public authorities excluded from the outset any salary increase to be borne by the undertaking ‘does not prevent the … supplement [in question] from being a salary cost which would normally be incurred by that undertaking’.

64. It also follows from the case-law that an economic advantage, which might give rise to State aid, may be granted even indirectly, by means of a measure directly benefitting other undertakings or subjects, including natural or legal persons, not engaging in any economic activity. ( 76 ) Accordingly, the fact that the direct beneficiaries of the aid to individuals are employees is not sufficient to demonstrate that no aid had been provided to their employer. ( 77 )

65. It is in the light of those principles that it is necessary to assess whether, in taking the view that the reductions in employees’ contributions granted by the French Republic to assist fishermen for the period from 15 April to 15 October 2000 had the effect of reducing the burden normally included in their budget, the Commission vitiated the contested decision, as interpreted in points 18 to 23 of this Opinion, by an error of law, as maintained by the Company and, indirectly, by the referring court.

66. Employees’ social security contributions, in the same way as employers’ social security contributions, help to determine the labour costs (or salary costs) of undertakings, which cover total expenditure incurred by the undertaking in return for the labour input of one employee. While the former are paid by employees and set against the gross earnings by the employer, the latter are borne by the employer. The employer is responsible for paying the sums corresponding to employers’ and employees’ social security contributions to the competent authorities. If a reduction in employers’ social security contributions is liable to confer a direct economic advantage on undertakings benefitting from that reduction, to the extent to which it reduces, by means of a measure corresponding to that reduction, the social security burden normally included in the budget of those undertakings, ( 78 ) can the same be said with regard to a reduction in employees’ social security contributions?

67. I take the view that that question cannot be answered in the affirmative solely on the basis of the assertion that such a reduction in social security contributions reduces labour costs and, therefore, the burden normally included in the budget of the undertaking. The arguments put forward by the French Government and the Commission in support of their position are not limited to that assertion. They claim, indeed, that the fact that employees’ contributions are paid by the employer ‘on behalf’ of employees cannot rule out the possibility that a reduction in those contributions may confer a direct economic advantage on the undertaking benefitting from it, in so far as, first, it is the responsibility of the undertaking to pay the sums corresponding to employees’ social security contributions to the competent authorities, second, that reduction does not directly affect the salaries paid to employees, since it does not mean employees are paid the equivalent of their gross salary before the deduction of social security contributions or minus a lower amount of social security contributions, and third, the possibility of passing on, in whole or in part, a reduction in social security contributions necessarily requires a management decision to be taken by the undertaking and cannot have the effect that the employees replace the undertaking as the actual beneficiaries of the aid.

68. In that regard, I note, in the first place, that while the undertakings benefitting from the reductions at issue in the main proceedings were required to pay sums corresponding to the social security contributions deducted at source from their employees’ salaries to the competent authorities, they were not liable for the contributions that, as confirmed by the referring court and not disputed by the parties to the dispute in the main proceedings, are to be borne by the employees. From that point of view, the situation of those undertakings differs from that of the beneficiary of a tax reduction in respect of an excise duty which was at issue in the cases giving rise to the judgment of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity (‘the Ryanair judgment’), ( 79 ) to which the French Government refers. Such a duty, although intended to be passed on to consumers who will bear the economic burden of that duty, have an impact on the budget of the undertaking concerned, which is directly liable to pay that duty. ( 80 )

69. In the second place, the existence of an obligation to pay sums corresponding to employees’ contributions to the competent authorities does not, by itself, permit the inference that the reduction in those contributions confers on the undertaking concerned a direct advantage equivalent to the amount corresponding to that reduction, as is apparent, albeit in a different context, from the judgment of 11 September 2014, Greece v Commission. ( 81 )

70. In the third place, the fact that the reduction in employees’ social security contributions has no direct bearing on the salaries of the employees of the undertaking, but that it is only by the mechanism for withholding those contributions, operated by the undertaking, that that reduction is liable to be reflected in salary levels is also not, in my view, decisive, at least if and to the extent to which passing on the reduction is to be considered mandatory.

71. The possibility that there was a legal obligation upon fisheries undertakings to adjust employees’ contributions by taking into account the reduction granted by the measures which are the subject of the contested decision is highly contentious in the present case. While the Company maintains that, had it not passed on that reduction to employees, the employer would have left itself open to the possible imposition of criminal penalties, ( 82 ) the French Government, relying on the Ryanair judgment, claims that such a passing on of the reduction is the result of a decision of the undertaking. The referring court also takes the view that the passing-on mechanism is the subject of a legal obligation, in accordance with the social security arrangements for fishermen.

72. This is a crucial point. If the undertakings concerned by the reduction at issue in the main proceedings had no other option than to pass it on to their employees’ salaries, they cannot, in my opinion, be considered to be direct beneficiaries of that reduction.

73. The Ryanair judgment, relied on by the French Government, does not make it possible to call that conclusion into question but, on the contrary, supports it. First of all, it should be noted, as a preliminary point, that that judgment is relevant to the question being discussed only to a limited extent, since the case giving rise to that judgment concerned the scope of the recovery obligation and not the existence of aid. ( 83 ) Next, I would point out that the issue in that case was whether the quantification and recovery of aid consisting in the reduction, for certain airlines, of an excise duty levied by Ireland in respect of every passenger embarking on a flight departing from an Irish airport should take account of the fact that the tax, and therefore the advantage resulting from that reduction, was normally passed on to air passengers. The Court answered that question in the negative, without adopting a definitive position on the question of whether there was a legal obligation to pass on the tax in question. ( 84 ) In so doing, the Court relied on, inter alia, the possibility that airlines which pass on that duty could retain the advantage obtained from the reduction in the rate of the duty by increasing the ticket price, excluding VAT, for flights subject to the lower rate. ( 85 ) Consequently, the economic passing-on of the aid, by keeping the ticket prices unchanged, or retaining it in whole or in part by increasing those prices, was a decision to be taken by the airlines on how to exploit the advantage granted to them. ( 86 )

74. However, even if, as the Company claims and the referring court affirms, the undertakings concerned by the reductions in employees’ contributions at issue in the main proceedings were legally required to pass on, albeit retroactively, ( 87 ) that reduction to their employees’ salaries, it is clear that the situation of those undertakings differs from that of the airlines in the Ryanair judgment.

75. It is true that the reductions in question could provide those undertakings with the opportunity to renegotiate the net salaries of their employees, as the French Government submits. However, I do not think it can be seriously argued that the discretion of an undertaking – even one subject to the constraints of a highly competitive market – to increase its prices is comparable to the discretion of an employer to revise downwards the gross salaries of its employees, in order to take advantage of a reduction in employees’ contributions, a fortiori in circumstances such as those at issue in the main proceedings, in which the reduction was applied only over a period of six months.

76. In any event, neither the reality of such a discretion, nor, upstream, the existence of a legal obligation to pass on, even retroactively, the reduction in employees’ contributions to the salaries of employees of fisheries undertakings have been taken into account by the Commission in the contested decision in order to establish the existence of aid designed to effect that reduction and directly to benefit those undertakings. In my view, without taking, at the very least, those two factors into account, the Commission could not have arrived at such a conclusion.

77. While it is true that neither the French Republic nor any other party concerned within the meaning of Article 108(2) TFEU challenged the aid character of the reductions at issue in the main proceedings during the formal investigation procedure which led to the adoption of the contested decision, the fact still remains that it is for the Commission to provide proof of the existence of State aid within the meaning of Article 107(1) TFEU. In particular, it is apparent from the Court’s case-law relating to the principles governing the administration of proof in the sector of State aid that the Commission is required to conduct a diligent and impartial examination of the contested measures, in order that it can have at its disposal, when adopting a final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible for that purpose. ( 88 )

78. It should be noted that the foregoing considerations do not exclude the possibility that the reduction in employees’ contributions at issue in the main proceedings conferred an indirect advantage on the undertakings concerned by those measures such as, as observed by the Conseil d’État (Council of State), greater attractiveness as an employer through the higher salaries received by its employees for six months, or even the possibility of recruiting at lower gross salaries during that period, and, generally, a decrease is production costs or an increase in productivity.

79. However, I take the view that it is clear from the contested decision, in particular from recital 55 thereof, and it is confirmed by the Commission in its written and oral observations before the Court, that the advantage identified did not consist in an indirect benefit, but rather in the fact that the undertakings in question were exempt from charges that they would normally have had to pay, in so far as they were required to pay employees’ contributions of a lower amount. ( 89 ) Otherwise, it is for the Commission, at the very least, to clarify the character of such an indirect advantage. ( 90 )

80. In the light of all the foregoing considerations, I propose that the Court should declare the contested decision invalid in so far as it classifies as State aid the reductions in employees’ contributions granted by the French Republic to assist fishermen for the period from 15 April to 15 October 2000.

3. The second question referred

81. If the Court were to decide, as I suggest, to declare the contested decision invalid in part, it would not be necessary to answer the second question referred for a preliminary ruling. It is therefore in the alternative, in case the Court might not follow my suggestion, that I will briefly address that question.

82. As I have already stated in point 79 of this Opinion, the advantage identified by the Commission in the contested decision consists in the fact that the undertakings concerned are required to pay to the competent authorities a lower amount in terms of employees’ contributions. It is logical that the recovery must therefore relate to an amount corresponding to the difference between the contributions paid at the normal rate and those paid at the reduced rate.

83. Thus, if the Court were to decide not to address the question of the validity of the contested decision discussed in points 60 to 80 of this Opinion or if, having raised it of its own motion, the Court were to declare that decision valid, the only possible conclusion, in my opinion, would be that the undertakings concerned by the reductions at issue in the main proceedings are required to repay those contributions in full.

84. The question whether, and to what extent, that reduction has been passed on by the recipient undertakings to their employees is, in such a context, in which only the question of recovery is to be taken into account, irrelevant, in accordance with the reasoning to be derived from the Ryanair judgment. ( 91 )

85. Likewise, the judgment of 13 February 2014, Mediaset, ( 92 ) relied on by the Company, is irrelevant. In that judgment, the Court held, on the one hand, that when the Commission, faced with an aid scheme, is not in a position to identify exactly the amount of aid received by individual recipients, the specific circumstances of each of the recipients of that aid scheme can be assessed only at the stage of recovery of the aid, and, on the other, that it is for the national court, if the matter is brought before it, to rule on the amount of aid to be recovered by taking into account all the relevant information of which it has been made aware, and it cannot be excluded that, having regard to all those factors, the calculations made by the national court as regards the quantification of the amounts of aid to be repaid result in an amount equal to zero.

86. However, the case in the main proceedings giving rise to that judgment concerned the recovery of aid in the form of the subsidised purchase of certain goods which indirectly benefited economic operators involved in the provision of services linked to the use of the subsidised goods. The quantification therefore involved complex calculations aimed at identifying the indirect advantage from which those operators had benefited as a result of the increase in sales of subsidised goods.

87. By contrast, the contested decision, as I have already noted, identifies a direct advantage in favour of the undertakings concerned by the reductions at issue in the main proceedings, consisting in the exemption from the payment of charges that they would normally have had to pay. As the Court held in the judgment of 13 February 2014, Mediaset, ( 93 ) in order to ensure the effective implementation of a Commission decision declaring an aid scheme unlawful and incompatible with the internal market and ordering the recovery of the aid in question, the national court is bound by that decision.

88. Lastly, whatever solution may be accepted by the Court, the recovery of the aid at issue in the main proceedings cannot in any event be requested from the employees of the undertakings to which the contested decision relates.

89. On the basis of all of the foregoing considerations, in the event that the Court should not follow my proposal that it declare the contested decision invalid, I suggest that the answer to the second question referred should be that the undertakings benefiting from the reductions in employees’ contributions declared incompatible with the common market by the contested decision must be regarded as having received the full amount of those reductions.

IV. Conclusion

90. In the light of all of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Conseil d’État (Council of State, France) as follows: Article 3 of Commission Decision 2005/239/EC of 14 July 2004 concerning certain aid measures applied by France to assist fish farmers and fishermen must be interpreted as meaning that the reduction in employees’ contributions granted by the French Republic to assist fishermen for the period from 15 April to 15 October 2000 should also be classified as State aid incompatible with the common market, subject to the order for recovery set out in Article 4 of that decision. That decision is invalid in so far as it classifies that reduction as State aid within the meaning of Article 107(1) TFEU.

( 1 ) Original language: French.

( 2 ) OJ 2005 L 74, p. 49.

( 3 ) As those measures were implemented before the Commission could decide whether they were compatible with common-market rules, the measures were registered as a non-notified aid scheme (see recital 1 of the contested decision).

( 4 ) The following measures applied to fishermen: aid for rebuilding vessels and equipment lost or damaged in the storm, compensation advances owed by the International Oil Pollution Compensation Funds (IOPCF), and flat-rate aid for loss of revenue resulting from damage (see recital 5 of the contested decision).

( 5 ) See the decision to initiate the formal investigation procedure (Aid C 91/2001, Compensation for aquaculture producers and fishermen affected by the oil pollution and storm in December 1999) reproduced in the invitation to submit comments pursuant to Article 88(2) and Article 6 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 88 of the EC Treaty (OJ 2002 C 39, p. 6, paragraph 1). The Commission received no comments (see recital 3 of the contested decision).

( 6 ) See recital 18 of the contested decision.

( 7 ) The ENIM is a public institution.

( 8 ) Recital 12 of the contested decision.

( 9 ) See recital 38 of the contested decision.

( 10 ) See recital 39 of the contested decision.

( 11 ) See recitals 84 to 97 of the contested decision.

( 12 ) Guidelines on the examination of State aid to fisheries and aquaculture (OJ 1997 C 100, p. 12).

( 13 ) C‑549/09, not published, EU:C:2011:672.

( 14 ) See operative part 1 of the Commission v France judgment.

( 15 ) Paragraph 43 of the Commission v France judgment refers to the judgment of 12 May 2005, Commission v Greece (C‑415/03, EU:C:2005:287, paragraph 38 and the case-law cited).

( 16 ) C‑188/92, EU:C:1994:90.

( 17 ) See judgments of 2 June 1976, Milch-, Fett- und Eier-Kontor (125/75, EU:C:1976:81, paragraph 7), and of 13 December 1979, Hauer (44/79, EU:C:1979:290, paragraphs 13 to 16), in which the Court’s assessment of the question referred did not lead to a declaration of invalidity; of 3 February 1977, Strehl (62/76, EU:C:1977:18, paragraph 10); of 7 June 1988, Roviello (20/85, EU:C:1988:283), and of 14 June 1990, Weiser (C‑37/89, EU:C:1990:254, paragraph 17 and the operative part), in which, by contrast, the Court declared the secondary legislation at issue to be invalid; and of 7 September 1999, De Haan (C‑61/98, EU:C:1999:393, paragraph 47), in which a Commission decision which was not the subject of the questions of interpretation submitted by the referring court was declared invalid (see point 3 of the operative part).

( 18 ) See judgments of 1 December 1965, Schwarze (16/65, EU:C:1965:117, p. 886); of 15 October 1980, Roquette Frères (145/79, EU:C:1980:234, paragraph 6); of 13 December 1989, Paris (C‑204/88, EU:C:1989:643, paragraph 8), in which the Court justified raising a question of validity of its own motion as follows: ‘it is apparent from the documents before the Court that although the question submitted expressly relates only to the interpretation of Article 15 of the contested regulation, the national court is in fact uncertain of the validity of that provision’; of 11 October 2001, Khalil and Others (C‑95/99 to C‑98/99 and C‑180/99, EU:C:2001:532, paragraph 29); and of 12 December 2002, Cipriani (C‑395/00, EU:C:2002:751, paragraph 50 and the operative part).

( 19 ) Judgment of 1 December 1965 (16/65, EU:C:1965:117, p. 886).

( 20 ) It should be noted that, in the case which gave rise to that judgment, the well-structured questions referred by the Hessisches Finanzgericht (Finance Court, Hesse, Germany) were based, in part, on the premiss that the Commission’s decision at issue in the main proceedings was invalid.

( 21 ) See, inter alia, judgment of 30 November 2006, Brünsteiner and Autohaus Hilgert (C‑376/05 and C‑377/05, EU:C:2006:753, paragraphs 25 to 29). It is apparent from settled case-law that Article 267 TFEU does not make available a means of redress to the parties to a case pending before a national court, and that the Court cannot be compelled to evaluate the validity of EU law on the sole ground that that question has been raised before it by one of the parties in its written observations (see, inter alia, judgments of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154, paragraph 27), and of 28 January 2016, CM Eurologistik and GLS (C‑283/14 and C‑284/14, EU:C:2016:57, paragraphs 44 to 46).

( 22 ) The information contained in orders for reference serves not only to enable the Court to give helpful answers, but also to allow the governments of Member States and other interested parties to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union (see, inter alia, judgment of 20 June 2019, K.P. (C‑458/15, EU:C:2019:522, paragraphs 36 and 37 and the case-law cited).

( 23 ) See, inter alia, order of 18 April 2013, Adiamix (C‑368/12, not published, EU:C:2013:257, paragraphs 16 to 25), in which the Court declared the request for a preliminary ruling for determining the validity of an EU act to be inadmissible because of a lack of even minimal information from the referring court as to why it had taken the view that the arguments put forward by the applicant in the main proceedings were likely to be well founded.

( 24 ) See judgment of 6 October 2015, Schrems (C‑362/14, EU:C:2015:650, paragraph 67); see also Opinion of Advocate General Bot in Schrems (C‑362/14, EU:C:2015:627, points 121 to 128).

( 25 ) See, to that effect, judgment of 18 July 2007, Lucchini (C‑119/05, EU:C:2007:434, paragraph 56).

( 26 ) The Court had already held, in its earlier case-law, that a decision adopted by the Community institutions which has not been challenged by the person to whom it is addressed within the period laid down becomes final vis-à-vis that person, in accordance with the consideration that the periods within which actions must be brought are intended to safeguard legal certainty by preventing Community measures which involve legal effects from being called into question indefinitely (see, inter alia, judgments of 17 November 1965, Collotti v Court of Justice (20/65, EU:C:1965:115, p. 850), and of 12 October 1978, Commission v Belgium (156/77, EU:C:1978:180, paragraphs 20 to 24)).

( 27 ) Paragraph 18 of the TWD judgment. As I observed in my Opinion in Trace Sport (C‑251/18, EU:C:2019:295, points 21 and 25), the TWD case-law establishes an exception to the general principle under which, in proceedings before national courts, every party has the right to plead the invalidity of the provisions contained in EU acts which serve as the basis for a decision or act of national law invoked against them and to request the national court to refer that question to the Court for a preliminary ruling. The rationale for that exception is the requirement to ensure legal certainty, as well as the need to ensure that the remedies made available to individuals by EU law are not abused.

( 28 ) See, inter alia, judgments of 30 January 1997, Wiljo (C‑178/95, EU:C:1997:46, paragraphs 15 to 25); of 18 July 2007, Lucchini, C‑119/05 (EU:C:2007:434, paragraphs 55 and 56); of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português (C‑667/13, EU:C:2015:151, paragraph 28); and of 25 July 2018, Georgsmarienhütte and Others (C‑135/16, EU:C:2018:582; ‘the Georgsmarienhütte judgment’; paragraph 14).

( 29 ) See, inter alia, judgments of 15 February 2001, Nachi Europe (C‑239/99, EU:C:2001:101, paragraphs 29 to 40); of 22 October 2002, National Farmers’ Union (C‑241/01, EU:C:2002:604, paragraphs 34 to 39), in which a Member State was found to have acted out of time; of 29 June 2010, E and F (C‑550/09, EU:C:2010:382, paragraphs 37 to 52); of 17 February 2011, Bolton Alimentari (C‑494/09, EU:C:2011:87, paragraphs 20 to 24); and of 27 November 2012, Pringle (C‑370/12, EU:C:2012:756, paragraph 41). I would point out that the operative part in the TWD judgment referred expressly to decisions adopted by the Commission in accordance with Article 93(2) of the EEC Treaty and to the fact that the applicant company in the main proceedings before the referring court had been informed in writing by the Member State of the Commission’s decision (indicating that it could bring an action for annulment before the General Court). In addition, I note that the aid at issue in the main proceedings giving rise to the TWD judgment was individual aid.

( 30 ) See, to that effect, inter alia, judgments of 30 January 1997, Wiljo (C‑178/95, EU:C:1997:46, paragraphs 15 to 25); of 15 February 2001, Nachi Europe (C‑239/99, EU:C:2001:101, paragraphs 29 to 40); of 22 October 2002, National Farmers’ Union (C‑241/01, EU:C:2002:604, paragraphs 34 to 39); of 18 July 2007, Lucchini (C‑119/05, EU:C:2007:434, paragraphs 55 and 56); and the Georgsmarienhütte judgment, paragraph 14.

( 31 ) See, to that effect, Opinion of Advocate General Campos Sánchez-Bordona in Georgsmarienhütte and Others (C‑135/16, EU:C:2018:120, point 38).

( 32 ) Thus, in numerous cases, the Court has concluded that manifest and unquestioned standing had not been established (see, inter alia, to that effect, judgments of 23 February 2006, Atzeni and Others (C‑346/03 and C‑529/03, EU:C:2006:130, paragraphs 30 to 34); of 8 March 2007, Roquette Frères (C‑441/05, EU:C:2007:150, paragraphs 35 to 48); of 29 June 2010, E and F (C‑550/09, EU:C:2010:382, paragraphs 37 to 52); of 17 February 2011, Bolton Alimentari (C‑494/09, EU:C:2011:87, paragraphs 20 to 24); of 18 September 2014, Valimar (C‑374/12, EU:C:2014:2231, paragraphs 24 to 38); of 5 March 2015, Banco Privado Português and Massa Insolvente do Banco Privado Português (C‑667/13, EU:C:2015:151, paragraphs 27 to 32); of 16 April 2015, TMK Europe (C‑143/14, EU:C:2015:236, paragraph 26); of 14 March 2017, A and Others (C‑158/14, EU:C:2017:202); and of 19 September 2019, Trace Sport (C‑251/18, EU:C:2019:766, paragraphs 28 to 44).

( 33 ) See, inter alia, judgment of 4 December 2019, Polskie Górnictwo Naftowe i Gazownictwo v Commission (C‑342/18 P, not published, EU:C:2019:1043, paragraph 66).

( 34 ) See, inter alia, judgments of 19 October 2000, Italy and Sardegna Lines v Commission (C‑15/98 and C‑105/99, EU:C:2000:570; ‘the Italy and Sardegna Lines v Commission judgment’; paragraph 36), and the Georgsmarienhütte judgment, paragraph 30.

( 35 ) See judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17, p. 107), and, inter alia, judgment of 9 June 2011, Comitato Venezia vuole vivere and Others v Commission (C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368; ‘the Comitato “Venezia vuole vivere” judgment’; paragraph 52).

( 36 ) See, inter alia, judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci (C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 31 and the case-law cited).

( 37 ) See judgment of 2 February 1988, Kwekerij van der Kooy and Others v Commission (67/85, 68/85 and 70/85, EU:C:1988:38, paragraph 15).

( 38 ) A recovery order of this kind had not been made in the case giving rise to the judgment of 2 February 1988, Kwekerij van der Kooy and Others v Commission (67/85, 68/85 and 70/85, EU:C:1988:38), as is apparent, inter alia, from the Opinion of Advocate General Slynn in those joined cases (not published, EU:C:1987:177, p. 240).

( 39 ) See, inter alia, the Comitato ‘Venezia vuole vivere’ judgment, paragraph 53 and the case-law cited. For a recent confirmation of that case-law, see judgment of 28 June 2018, Andres (Insolvency of Heitkamp BauHolding) v Commission (C‑203/16 P, EU:C:2018:505, paragraph 45).

( 40 ) See the Comitato ‘Venezia vuole vivere’ judgment, paragraph 55, in which the Court dismisses the arguments put forward by the Commission which claimed that, at the time of the adoption of the contested decision in the case giving rising to that judgment, the beneficiaries required to repay aid by virtue of that decision had not been identified.

( 41 ) See the Comitato ‘Venezia vuole vivere’ judgment, paragraph 56 (emphasis added).

( 42 ) 11/82, EU:C:1985:18, paragraph 31. In that judgment, the Court held that, where the contested measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of that group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of economic operators (see also order of 17 January 1992, Sofrimport v Commission (C‑152/88, EU:C:1992:21, paragraph 11), and judgment of 17 September 2009, Commission v Koninklijke FrieslandCampina (C‑519/07 P, EU:C:2009:556, paragraph 54 and the case-law cited).

( 43 ) See the Comitato ‘Venezia vuole vivere’ judgment, paragraph 56.

( 44 ) See the Comitato ‘Venezia vuole vivere’ judgment, paragraph 57. The same argument has been put forward by the Commission, but not upheld by the Court, in the judgment of 29 April 2004, Italy v Commission (C‑298/00 P, EU:C:2004:240; ‘the Italy v Commission judgment’; paragraph 31).

( 45 ) See paragraphs 31 to 37 of that judgment.

( 46 ) The contested decision was published in the Official Journal on 19 March 2005. In the absence of any indication that the Company was aware of that decision prior to that date (at the hearing, the representative of the Company stated that it had become aware of it by consulting the Official Journal), it should be found that the period for challenging that decision started to run, with regard to that undertaking, on the date of publication.

( 47 ) See paragraphs 34 and 35 of that judgment.

( 48 ) See paragraph 39 of that judgment, concerning an appeal brought by the Commission in which it claimed, inter alia, that the action brought before the General Court by undertakings in receipt of aid against its decision declaring the aid granted by the Friuli-Venezia Giulia Region (Italy) to road haulage companies in the region incompatible with the common market was inadmissible. It should be noted that, in that judgment, the Court rejected the same arguments as those put forward by the Commission, again without success, in the case which gave rise to the Comitato ‘Venezia vuole vivere’ judgment. The Commission had claimed, in particular, that the Italy and Sardegna Lines v Commission judgment was not relevant because the aid scheme at issue in the case giving rise to that judgment affected very few economic operators and because the Commission had examined the particular case of the applicant, Sardegna Lines, in the formal procedure for reviewing the aid in question (see, also, in that regard, Opinion of Advocate General Alber in Italy v Commission (C‑298/00 P, EU:C:2003:278, point 33).

( 49 ) See, inter alia, Opinion of Advocate General Alber in Italy v Commission (C‑298/00 P, EU:C:2003:278, point 70).

( 50 ) T‑254/00, T‑270/00 and T‑277/00, EU:T:2008:537; ‘the judgment in Hotel Cipriani and Others v Commission’.

( 51 ) See paragraphs 76 to 92 of the judgment in Hotel Cipriani and Others v Commission, the analysis of which was confirmed, on appeal, by the Comitato ‘Venezia vuole vivere’ judgment, paragraph 60; see also judgment of 21 December 2011, A2A v Commission (C‑320/09 P, not published, EU:C:2011:858, paragraphs 55 to 61), confirming on appeal the admissibility of actions brought before the General Court in 2002. In the judgment of 29 September 2000, CETM v Commission (T‑55/99, EU:T:2000:223), the General Court had already found admissible the action brought by an association responsible for protecting the collective interests of undertakings benefiting from an aid scheme consisting of interest subsidies intended to be applied automatically to any undertaking meeting the conditions for the grant of that aid.

( 52 ) See, in this regard, for an insight into the state of the case-law in 2003, Opinion of Advocate General Alber in Italy v Commission (C‑298/00 P, EU:C:2003:278, points 73 to 85).

( 53 ) The contested decision merely indicates, in recital 22, that the total value of those exemptions from social security contributions for fishermen and fish farmers was EUR 18.2 million (the figures set out in recitals 45 and 67 of the contested decision, to which the Commission refers in its observations, concern only fish farmers). It is apparent from the case file in the infringement proceedings which gave rise to the Commission v France judgment that, having regard to the exemption from social security contributions implemented by the aid scheme in question, the French authorities took the view that it was particularly difficult to determine either the total amount of the aid or the number of fishermen concerned, that latter figure potentially reaching a total of 28000 persons.

( 54 ) See paragraphs 76 to 92 of that judgment. See also judgment of 12 September 2007, Italy v Commission (T‑239/04 and T‑323/04, EU:T:2007:260, paragraphs 36 to 44), in which the General Court rejected the Commission’s argument that it is not clear from the judgment in Italy and Sardegna Lines v Commission that all beneficiaries of aid granted under an aid scheme are individually concerned by the Commission decision declaring that scheme incompatible with the common market, since in that context the Commission evaluated general and abstract national legislation, without examining individual cases.

( 55 ) See, in addition to the TWD judgment, judgment of 18 July 2007, Lucchini (C‑119/05, EU:C:2007:434, paragraphs 55 and 56).

( 56 ) C‑346/03 and C‑529/03, EU:C:2006:130.

( 57 ) See also Opinion of Advocate General Ruiz-Jarabo Colomer in Atzeni and Others (C‑346/03 and C‑529/03, EU:C:2005:256, points 61 to 99).

( 58 ) I note that, in the judgment of 23 February 2006, Atzeni and Others (C‑346/03 and C‑529/03, EU:C:2006:130), in order to preclude the application of the TWD judgment, the Court had pointed out, inter alia, that the contested decision had not been notified by the Member State concerned to the actual recipients of the aid in question. With regard to the significance, for the purposes of invoking the time-barring effect, of the information that the actual recipient of the aid granted under a general scheme may have had in respect of the decision ordering recovery of the aid in question, see the Opinion of Advocate General Ruiz-Jarabo Colomer in Joined Cases Atzeni and Others (C‑346/03 and C‑529/03, EU:C:2005:256, point 98).

( 59 ) See Opinion of Advocate General Campos Sánchez-Bordona in Georgsmarienhütte and Others (C‑135/16, EU:C:2018:120, points 59 and 60).

( 60 ) As is apparent from the case file in the infringement proceedings which gave rise to the Commission v France judgment.

( 61 ) T‑228/00, T‑229/00, T‑242/00, T‑243/00, T‑245/00 to T‑248/00, T‑250/00, T‑252/00, T‑256/00 to T‑259/00, T‑265/00, T‑267/00, T‑268/00, T‑271/00, T‑274/00 to T‑276/00, T‑281/00, T‑287/00 and T‑296/00, EU:T:2005:90. With regard to the relevance of such a circumstance in order to preclude the application of the time-barring effects provided for by the TWD judgment, see the judgment in Hotel Cipriani and Others v Commission, paragraph 90.

( 62 ) See points 18 to 22 of this Opinion.

( 63 ) According to settled case-law, set out in paragraph 43 of the Commission v France judgment, a Member State to which a decision on aid is addressed and which has not referred the matter to the Court is not justified in challenging the lawfulness of such a decision in the context of an action concerning a failure to implement that decision (see, inter alia, judgment of 12 May 2005, Commission v Greece (C‑415/03, EU:C:2005:287, paragraph 38 and the case-law cited).

( 64 ) It is, moreover, with regard to the validity of that obligation, and not with regard to its existence, that the Commission addressed, in its reply, the argument put forward by the French Republic.

( 65 ) See, inter alia, the TWD judgment, paragraph 21.

( 66 ) Emphasis added.

( 67 ) Emphasis added.

( 68 ) Emphasis added.

( 69 ) See, inter alia, judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415, paragraph 83). According to the Court’s settled case-law, classification of a national measure as ‘State aid’, within the meaning of Article 107(1) TFEU, requires all the following conditions to be fulfilled. First, there must be an intervention by the State or through State resources. Second, the intervention must be liable to affect trade between Member States. Third, it must confer a selective advantage on the recipient. Fourth, it must distort or threaten to distort competition (see, inter alia, judgment of 28 June 2018, Andres (Insolvency of Heitkamp BauHolding) v Commission (C‑203/16 P, EU:C:2018:505, paragraph 82 and the case-law cited)).

( 70 ) See, inter alia, judgments of 15 July 1964, Costa (6/64, EU:C:1964:66, pp. 595 and 596); of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415, paragraph 84); and of 27 June 2017, Congregación de Escuelas Pías Provincia Betania (C‑74/16, EU:C:2017:496, paragraph 65 and the case-law cited).

( 71 ) See judgments of 11 July 1996, SFEI and Others (C‑39/94, EU:C:1996:285, paragraph 60), and of 29 April 1999, Spain v Commission (C‑342/96, EU:C:1999:210, paragraph 41).

( 72 ) See, inter alia, judgments of 23 February 1961, De Gezamenlijke Steenkolenmijnen in Limburg v High Authority (30/59, EU:C:1961:2, p. 19), and of 27 June 2017, Congregación de Escuelas Pías Provincia Betania (C‑74/16, EU:C:2017:496, paragraph 66 and the case-law cited).

( 73 ) See, inter alia, judgments of 2 July 1974, Italy v Commission (173/73, EU:C:1974:71, paragraph 33); of 26 September 1996, France v Commission (C‑241/94, EU:C:1996:353, paragraphs 20 to 24); of 5 October 1999, France v Commission (C‑251/97, EU:C:1999:480, paragraph 36); and of 7 March 2002, Italy v Commission (C‑310/99, EU:C:2002:143, paragraph 51).

( 74 ) See judgments of 12 December 2002, Belgium v Commission (C‑5/01, EU:C:2002:754, paragraphs 38 to 40), and of 11 September 2012, Corsica Ferries France v Commission (T‑565/08, EU:T:2012:415, paragraph 137), in which the General Court held that ‘the concept of aid does not necessarily mean that a legal obligation is borne, but rather that costs which are normally included in the budget of an undertaking are mitigated’.

( 75 ) C‑5/01, EU:C:2002:754, paragraphs 39 and 40. In the judgment of 23 February 1961, De Gezamenlijke Steenkolenmijnen in Limburg v High Authority (30/59, EU:C:1961:2, p. 25), the Court had already held that the financing of a shift bonus out of public funds for certain workers in the coal industry led to an increase in miners’ pay which artificially reduced the production costs of the undertakings concerned and that that bonus therefore had to be regarded as constituting aid.

( 76 ) See judgments of 19 September 2000, Germany v Commission (C‑156/98, EU:C:2000:467, paragraphs 26 and 27); of 13 June 2002, Netherlands v Commission (C‑382/99, EU:C:2002:363, paragraphs 62 to 67); of 28 July 2011, Mediaset v Commission (C‑403/10 P, not published, EU:C:2011:533, paragraph 81); and of 4 March 2009, Italy v Commission (T‑424/05, not published, EU:T:2009:49, paragraphs 132 to 139). See also Article 107(2)(a) TFEU.

( 77 ) Judgment of 11 September 2012, Corsica Ferries France v Commission (T‑565/08, EU:T:2012:415, paragraph 137).

( 78 ) See, to that effect, inter alia, judgment of 5 October 1999, France v Commission (C‑251/97, EU:C:1999:480, paragraph 38).

( 79 ) C‑164/15 P and C‑165/15 P, EU:C:2016:990.

( 80 ) See the Ryanair judgment, paragraph 98. See, also, Opinion of Advocate General Mengozzi in Commission v Aer Lingus and Ryanair Designated Activity (C‑164/15 P and C‑165/15 P, EU:C:2016:515, point 74).

( 81 ) T‑425/11, EU:T:2014:768, paragraphs 49 to 58 (in particular paragraph 57), upheld on appeal by order of 22 October 2015, Commission v Greece (C‑530/14 P, not published, EU:C:2015:727).

( 82 ) The Company refers to, inter alia, the judgment of the Cour de cassation chambre sociale (Court of Cassation (Social Division), France) of 4 December 2013, No 12-18.301 and 12-18.302, in which, on the basis of the principle, established by that court in 1990, that ‘the deductions made by the employer from employees’ salaries by withholding social security contributions cannot be greater than the amount of the contributions actually paid’, that court dismissed the appeal brought by a fisheries undertaking which had deducted from the salaries of seamen certain sums in salary costs, even though the ENIM had never had recourse to the withholding taxes in question (due to the reduction in employees’ contributions by means of ministerial direction following the difficulties faced by the fishing industry on account of the increase in oil prices), finding that the employer was required to repay those amounts to the seamen.

( 83 ) The Court expressly limited its assessment to the sole question of recovery, the applicants having failed to demonstrate that the Commission decision establishing that there had been aid was unlawful (see, inter alia, paragraphs 94, 98 and 99 of the Ryanair judgment).

( 84 ) The question was addressed in the Opinion of Advocate General Mengozzi in Commission v Aer Lingusand Ryanair Designated Activity (C‑164/15 P and C‑165/15 P, EU:C:2016:515, point 72).

( 85 ) See paragraph 104 of the Ryanair judgment.

( 86 ) See, in particular, paragraphs 101 and 102 of the Ryanair judgment.

( 87 ) It should be noted that it is not inconceivable that the reductions in question concerned, at least in part, sums which had already been deducted by the undertakings from their employees’ salaries at the full rate and which had yet to be paid to the competent authorities (I would point out that the circulars which provided for those measures were dated 15 April and 13 July 2000 and concerned the period from 15 April to 15 October 2000). In that case, the measure would have covered – at least in formal terms – the debt owed by the undertakings to social security institutions and not the employees’ contributions themselves. However, even if an obligation on the part of the employer to pass on the reduction to employees’ salaries retroactively could be excluded from such an arrangement, neither the French Republic nor the Commission claimed that the measures in question were of such a nature. In any event, that is not apparent from the contested decision.

( 88 ) See, inter alia, judgments of 3 April 2014, France v Commission (C‑559/12 P, EU:C:2014:217, paragraph 63), and of 19 September 2018, Commission v Franceand IFP Énergies nouvelles (C‑438/16 P, EU:C:2018:737, paragraph 110).

( 89 ) For that reason, I consider that the case-law cited by the Commission at the hearing, in so far as it relates to situations in which the undertakings concerned had been recognised as benefitting indirectly from the measures adopted in favour of their employees, is irrelevant. As for the decision, cited in the written observations submitted by the Commission, it is also irrelevant, in so far as the aid established in that decision consisted in the reduction in the VAT debt due from an undertaking which had unlawfully exempted certain transactions from that tax.

( 90 ) As the Commission stated in the cases giving rise to the judgments of 19 September 2000, Germany v Commission (C‑156/98, EU:C:2000:467) (see also the Opinion of Advocate General Saggio in that case (C‑156/98, EU:C:2000:47, point 22)); of 13 June 2002, Netherlands v Commission (C‑382/99, EU:C:2002:363, paragraph 63); of 28 July 2011, Mediaset v Commission (C‑403/10 P, not published, EU:C:2011:533, paragraph 63); and of 4 March 2009, Italy v Commission (T‑424/05, not published, EU:T:2009:49, paragraph 136). See also judgment of 11 September 2012, Corsica Ferries France v Commission (T‑565/08, EU:T:2012:415, paragraph 137 et seq.), in which the General Court, criticising the Commission for failing to classify as aid a public intervention in favour of former employees of certain undertakings, sought to identify the existence of an indirect economic advantage for those undertakings.

( 91 ) See paragraph 99 of the Ryanair judgment.

( 92 ) C‑69/13, EU:C:2014:71, paragraphs 22 and 35 to 37.

( 93 ) C‑69/13, EU:C:2014:71, paragraph 32 and point 1 of the operative part.