Keywords

Summary



Keywords

1. Procedure - Admissibility - Application for suspension of the operation of the contested decision - Application submitted in the same document as the main application - Inadmissibility

(Rules of Procedure of the Court of First Instance, Art. 104(3))

2. Actions for annulment - Jurisdiction of the Community judicature - Claim for the issue of directions to Community institutions or Member States, for a finding of liability of the Member States or for the Community judicature to substitute itself for those institutions - Inadmissibility

(EC Treaty, Art. 173 (now, after amendment, Art. 230 EC) and Art. 176 (now Art. 233 EC))

3. State aid - Effect on trade between Member States - Impairment of competition - Criteria of assessment - Actual effect on trade and actual distortion of competition - Scope

(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC) and Art. 93(1), (2) and (3) (now Art. 88(1), (2) and (3) EC))

4. State aid - Effect on trade between Member States - Impairment of competition - Criteria of assessment - Smallness of the aid - Scope

(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC))

5. State aid - Effect on trade between Member States - Impairment of competition - Criteria of assessment - Whether tax on the aid taken into consideration - Not taken into consideration

(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC))

6. State aid - Effect on trade between Member States - Impairment of competition - Criteria of assessment - Recipient of the aid not itself an exporter

(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC))

7. State aid - Existing and new aid - Aid introduced before liberalisation of a market initially closed to competition - Classification of existing aid

(EC Treaty, Art. 92(1) (now, after amendment, Art. 87(1) EC) and Art. 93(3) (now Art. 88(3) EC))

8. State aid - Existing aid - Commission decision finding aid incompatible with the common market - Temporal limits on its effects

(EC Treaty, Art. 93(1) and (2) (now Art. 88(1) and (2) EC))

9. Community law - Interpretation - Acts of the institutions - Statement of reasons - To be taken into account

10. State aid - Recovery of unlawful aid - Infringement of the principle of proportionality - None - Procedures for recovery

(EC Treaty, Art. 93(2), first para. (now Art. 88(2), first para., EC))

11. State aid - Recovery of unlawful aid - Aid granted in breach of the procedure under Article 93 of the Treaty (now Article 88 EC) - Legitimate expectations - Exceptional circumstances - None

(EC Treaty, Art. 93 (now Art. 88 EC))

12. Acts of the institutions - Statement of reasons - Obligation - Scope - Context and all legal rules taken into account

(EC Treaty, Art. 190 (now Art. 253 EC))

Summary

1. According to Article 104(3) of the Rules of Procedure of the Court of First Instance, any application to suspend the operation of a measure of an institution must be made by separate document. It follows that an application for a suspension made in the same document as the principal action is inadmissible.

( see paras 37-38 )

2. Within the framework of the power of annulment conferred by Article 173 of the EC Treaty (now, after amendment, Article 230 EC), it is not for the Community judicature to issue directions to Community institutions or Member States on whatever ground or to substitute itself for the Community institutions. It is for the institution concerned, under Article 176 of the EC Treaty (now Article 233 EC), to adopt the measures required to give effect to a judgment delivered in an action for annulment, exercising, subject to review by the Community Court, the discretion which it has for this purpose, complying with both the operative part and grounds of the judgment it is required to comply with and the provisions of Community law.

( see para. 42 )

3. An interpretation of Article 92(1) of the Treaty (now, after amendment, Article 87(1) EC) to the effect that only aid which has an actual effect on trade between Member States and distorts competition is covered by that provision is incompatible with the system for monitoring aid introduced by Article 92 et seq. of the Treaty. As part of its assessment of new aid, which pursuant to Article 93(3) of the Treaty (now Article 88(3) EC) is to be notified to the Commission before implementation, the Commission is in fact called on to review whether that aid might affect trade between Member States and distort competition.

A real effect on trade between Member States or actual distortion of competition do not have to be established in the context of the constant review of existing aid under Article 93(1) and (2) of the Treaty, when the Commission is required to verify, particularly in the event of a change in the competitive situation, whether the existing aid is still compatible with the Treaty and, where appropriate, to require the immediate discontinuance of the aid that has become incompatible.

Lastly, if a new aid has been granted without prior notification having been given, the Commission is not required to establish whether the aid has a real effect on trade and competition. Such a requirement would favour Member States which grant aid in breach of the obligation to notify, to the detriment of those which do notify aid at the planning stage.

( see paras 76-79 )

4. The small size of the recipient undertakings and the relatively small amount of aid allocated do not mean that there is no effect on competition and trade where, as in the road haulage sector, the presence of a large number of small-sized undertakings is a feature of the market structure. The effects on competition and trade of even relatively modest aid may not be negligible, and such aid cannot be regarded as of little importance.

( see para. 86 )

5. The Commission is not empowered, under the State aid monitoring system established by the Treaty, to take into consideration the incidence of tax on the amount of financial aid allocated when it assesses whether it is compatible with the Treaty. Such charges are not levied specifically on the aid itself but are levied downstream and apply to the aid in question in the same way as to any income received. They cannot therefore be relevant when assessing the specific effect of the aid on trade and competition and, in particular, when estimating the benefit obtained by the recipients of such aid by comparison with competing undertakings which have not received such aid and whose income is also liable to tax. Furthermore, the Commission does not as a general rule have the data needed to assess the effect of tax on the benefit obtained by the recipient undertaking. In principle, that assessment occurs only when aid unduly paid is recovered in accordance with procedures under national law, and therefore falls solely within the competence of the authorities of the Member State concerned.

( see para. 89 )

6. Aid may be of such a nature as to affect trade between Member States and to distort competition even if the recipient undertaking that is competing with producers from other Member States does not itself export. A situation of that kind may also arise when there is no over-capacity in the particular sector. Where a Member State grants aid to an undertaking, domestic production may for that reason be maintained or increased, with the result that undertakings established in other Member States have less chance of exporting their products to the market in that Member State.

( see para. 91 )

7. Existing aid is aid introduced before the Treaty came into force or before the accession of the Member State concerned to the European Communities and aid which has been properly put into effect under the conditions laid down in Article 93(3) of the Treaty (now Article 88(3) EC).

Likewise, a system of aid established in a market that was initially closed to competition must, when that market is liberalised, be regarded as an existing aid system, since at the time of its establishment it did not come within the scope of Article 92(1) of the Treaty (now, after amendment, Articles 87(1) EC), which, having regard to the requirements set out in that provision regarding effect on trade between Member States and repercussions on competition, applies only to sectors open to competition.

( see paras 142-143 )

8. Existing aid within the meaning of Article 93(1) and (2) of the Treaty (now Article 88(1) and (2) EC) can be the subject, if at all, only of a decision finding it incompatible as to the future. Pursuant to those provisions and in accordance with the principle of legal certainty, the Commission is, as part of its constant review of existing aid, only empowered to require the elimination or modification of such aid within a period which it is to determine. That aid can, therefore, lawfully be implemented as long as the Commission has not found it to be incompatible with the common market.

( see paras 147-148 )

9. The operative part of a measure is indissociably linked to the statement of reasons and, when it has to be interpreted, account must be taken of the reasons that led to its adoption.

( see para. 163 )

10. As the elimination of an illegal aid through recovery of the amount of aid disbursed plus interest is the logical consequence of a finding that that aid is incompatible with the common market, its sole purpose being to restore the previously existing situation, that obligation cannot in principle be disproportionate to the objectives of Articles 92 of the Treaty (now, after amendment Article 87 EC) 93 and 94 of the Treaty (now Articles 88 EC and 89 EC). It is for the Member State concerned, when recovering the aid, to determine the procedures for its recovery in such a way as to restore the competitive situation previously existing, without detracting from the effectiveness of Community law.

( see para. 169 )

11. Only exceptional circumstances can legitimately be the foundation for recipients' expectations that aid is lawful. Furthermore, recognition of such legitimate expectation presupposes in principle that the aid has been granted in compliance with the procedure laid down by Article 93 of the Treaty (now Article 88 EC). A diligent economic operator should normally be able to determine whether that procedure has been complied with.

( see para. 171 )

12. The question whether the statement of reasons for a measure satisfies the requirements of Article 190 of the EC Treaty (now Article 253 EC) must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

( see para. 175 )