OPINION OF ADVOCATE GENERAL

TRSTENJAK

of 16 December 2010 ( )

Joined Cases C‑71/09 P, C‑73/09 P and C‑76/09 P

Comitato ‘Venezia vuole vivere’

v

European Commission





Hotel Cipriani Srl

v

European Commission





Società Italiana per il gas SpA (Italgas)

v

European Commission









(Appeal – Article 87 EC – Multisectoral aid regime – Relief from social security contributions for firms in Venice and Chioggia – Decision declaring an aid scheme incompatible with the common market and requiring recovery of the aid paid out – Admissibility – Lis pendens – Locus standi – Individual concern – Organisation bringing together professional associations – Interest in bringing proceedings – Article 87(1) EC – Definition of aid – Advantage – Measure compensating for structural disadvantages – Effect on trade between Member States and competition – Scope of assessment in the case of a multisectoral aid scheme – Procedural obligations – Obligation to state the reasons on which the decision is based – Compatibility with the common market – Article 87(3)(c) EC– Article 87(3)(d) EC – Regulation (EC) No 659/1999 – Article 14 – Categorisation as new aid or as existing aid – Article 15 – Principles of legal certainty, protection of legitimate expectations, equal treatment and proportionality)





Table of contents





I – Legal framework

II – Facts and administrative procedure

A – The scheme for relief from social security contributions

B – The procedure before the Commission

C – The contested decision

III – Procedure before the General Court and the judgment under appeal

A – Procedure before the General Court

B – The judgment under appeal

IV – Procedure before the Court of Justice

V – The Commission’s cross-appeal

A – Lis pendens

1. Grounds of the judgment under appeal

2. Main arguments of the parties

3. Legal assessment

a) Need to examine the admissibility of the Committee’s action

b) Inapplicability of lis pendens upon withdrawal of the earlier action

c) Identity of the pleas

d) Conclusion

B – Individual concern to the appellants

1. Grounds of the judgment under appeal

2. Main arguments of the parties

3. Legal assessment

a) Case-law of the Court of Justice

b) The Commission’s objections

i) Link to the obligation to make repayment

ii) Sufficient identifiability

iii) Lack of legitimate interest in bringing proceedings

iv) Undesired consequences

v) Possibility of contradictory rulings

c) Conclusion

C – Locus standi of the Committee

1. Grounds of the judgment under appeal

2. Main arguments of the parties

3. Legal assessment

D – Legal interest in bringing an action

E – Conclusion

VI – The appeals of Italgas, Hotel Cipriani and the Committee

A – Compensatory nature of the social security relief

1. Grounds of the judgment under appeal

2. Main arguments of the parties

3. Legal assessment

a) Interpretation of the concept of favourable treatment

b) Failure to state reasons

c) The private economic operator criterion

d) Conclusion

B – Examination of the condition of distorting competition and affecting trade between Member States

1. Grounds of the judgment under appeal

2. Main arguments of the parties

3. Legal assessment

a) Assessment of the social security relief scheme

i) Assessment criterion and burden of proof

– Assessment criterion

– Burden of proof

– Interim conclusion

ii) Application of the assessment criterion

– Evidence of distortion of competition and of an effect on trade between Member States

– Need to examine all individual cases

– Need to investigate the individual situations of Italgas and Hotel Cipriani

– Need to investigate specific economic sectors

– Principle of non-discrimination

– Distortion of evidence

iii) Interim conclusion

b) Recovery order

i) Errors of law in the General Court’s reasoning

– The General Court’s grounds

– Legally flawed nature of that interpretation

– Interim conclusion

ii) Replacement of the grounds

– Content of the recovery order

– Compatibility of such an approach with Article 87 EC and the system for reviewing aid

iii) Interim conclusion

c) Conclusion

C – Services of general economic interest

1. Grounds of the judgment under appeal

2. Main arguments of the parties

3. Legal assessment

D – Application of Article 87(3)(c) EC

1. Grounds of the judgment under appeal

2. Main arguments of the parties

3. Legal assessment

E – Application of Article 87(3)(d) EC

1. Grounds of the judgment under appeal

2. Main arguments of the parties

3. Legal assessment

F – Application of Article 15 of Regulation No 659/1999

1. Grounds of the judgment under appeal

2. Main arguments of the parties

3. Legal assessment

G – Application of Article 14 of Regulation No 659/1999

1. Grounds of the judgment under appeal

2. Main arguments of the parties

3. Legal assessment

VII – Summary

VIII – Conclusion

1. The present appeals concern the judgment of the Court of First Instance (now ‘the General Court’) of 28 November 2008 in Joined Cases T‑254/00, T‑270/00 and T‑277/00 Hotel Cipriani and Others v Commission ( ) (‘the judgment under appeal’). In that judgment, although the General Court found the actions brought under those case numbers against Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 ( ) (‘the contested decision’) to be admissible, it dismissed them as unfounded.

2. All the participants in the appeal proceedings are seeking to have the judgment under appeal set aside. The Commission considers that the General Court should have dismissed as inadmissible at the outset the actions in Cases T‑254/00, T‑270/00 and T‑277/00. The other parties to the proceedings consider that the General Court should have upheld those actions and annulled the contested decision.

I – Legal framework ( )

3. Article 87(1) and (3) EC provides:

‘(1) Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market.

…

(3) The following may be considered to be compatible with the common market:

…

(c) aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest;

(d) aid to promote culture and heritage conservation where such aid does not affect trading conditions and competition in the Community to an extent that is contrary to the common interest;

…’

4. Article 88(2) EC provides:

‘If, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State or through State resources is not compatible with the common market having regard to Article 87, or that such aid is being misused, it shall decide that the State concerned shall abolish or alter such aid within a period of time to be determined by the Commission.

If the State concerned does not comply with this decision within the prescribed time, the Commission or any other interested State may, in derogation from the provisions of Articles 226 and 227, refer the matter to the Court of Justice direct.’

5. Articles 13, 14 and 15 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty ( ) provide:

‘Article 13

Decisions of the Commission

(1) The examination of possible unlawful aid shall result in a decision pursuant to Article 4(2), (3) or (4). In the case of decisions to initiate the formal investigation procedure, proceedings shall be closed by means of a decision pursuant to Article 7. If a Member State fails to comply with an information injunction, that decision shall be taken on the basis of the information available.

…

Article 14

Recovery of aid

(1) Where negative decisions are taken in cases of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary (hereinafter referred to as a “recovery decision”). The Commission shall not require recovery of the aid if this would be contrary to a general principle of Community law.

…

(3) Without prejudice to any order of the Court of Justice of the European Communities pursuant to Article 185 of the Treaty, recovery shall be effected without delay and in accordance with the procedures under the national law of the Member State concerned, provided that they allow the immediate and effective execution of the Commission’s decision. To this effect and in the event of a procedure before national courts, the Member States concerned shall take all necessary steps which are available in their respective legal systems, including provisional measures, without prejudice to Community law.

Article 15

Limitation period

(1) The powers of the Commission to recover aid shall be subject to a limitation period of ten years.

(2) The limitation period shall begin on the day on which the unlawful aid is awarded to the beneficiary either as individual aid or as aid under an aid scheme. Any action taken by the Commission or by a Member State, acting at the request of the Commission, with regard to the unlawful aid shall interrupt the limitation period. Each interruption shall start time running afresh. The limitation period shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Communities.

(3) Any aid with regard to which the limitation period has expired, shall be deemed to be existing aid.’

II – Facts and administrative procedure

A – The scheme for relief from social security contributions

6. The Italian Ministerial Decree of 5 August 1994 laid down the allocation criteria for the relief from social security contributions provided for in Article 59 of the Decree of the President of the Italian Republic of 6 March 1978 setting up a special scheme for relief from social security contributions owed by employers to the Istituto Nazionale de la Previdenza Sociale (‘INPS’) (National Institute of Social Insurance) in the Mezzogiorno for the period between 1994 and 1996. Article 1 of the Ministerial Decree of 5 August 1994 provided for a general reduction in the social security contributions owed by employers. Article 2 of the decree provided for an exemption from social security contributions for net job creation in undertakings for a period of one year from the date on which an unemployed worker is taken on.

7. Following the notification of that Ministerial Decree, by Decision 95/455/EC of 1 March 1995 on the arrangements for reducing the social security contributions paid by firms in the Mezzogiorno and for assigning to the State some of those contributions, ( ) the Commission declared the scheme for relief from social security contributions to be compatible with the common market, subject to certain conditions.

8. Italian Law No 206/1995 extended the aid scheme under the Ministerial Decree for 1995 and 1996 to undertakings located in the island territory of Venice and Chioggia. Italian Law No 30/1997 extended the period of validity of the scheme for 1997.

9. The reductions in social security contributions accorded to undertakings located in the urban territory of Venice and Chioggia pursuant to Article 1 of the Ministerial Decree amounted to an average of EUR 37.7 million ( ) per year, shared between 1 645 undertakings, while the exemptions accorded pursuant to Article 2 of the Ministerial Decree amounted to EUR 292 831 ( ) per year shared, between 165 undertakings.

B – The procedure before the Commission

10. After the Italian authorities communicated Law No 30/1997 to the Commission by letter of 10 June 1997 in accordance with the provisions of Decision 95/455, ( ) the Commission asked by letter of 1 July 1997, followed by a reminder dated 28 August 1997, for additional information concerning the extension of the scope of the social security reductions and exemptions to undertakings located in the island territory of Venice and Chioggia (‘the social security relief’).

11. The Italian authorities suspended the scheme for relief from social security contributions under consideration with effect from 1 December 1997.

12. Since it received no reply, the Commission notified the Italian Republic by letter dated 17 December 1997 of its decision to initiate the formal assessment procedure laid down in the first subparagraph of Article 88(2) EC regarding that social security relief. The decision to initiate the procedure was published in the Official Journal on 18 February 1998.

13. By letter of 17 March 1998, Comitato ‘Venezia vuole vivere’ (‘the Committee’) submitted its comments and a report, accompanied by a study carried out by the Consorzio per la ricerca e la formazione (Consortium for Research and Training) (‘COSES’) dated March 1998, concerning the difficulties encountered by undertakings operating in the area of the lagoon as compared with those located on the mainland.

14. By letter of 18 May 1998 the City of Venice also submitted comments, accompanied by an earlier study carried out by COSES on the same subject, dated February 1998. In its observations, the City of Venice explained that municipal undertakings providing public services of general economic interest were also beneficiaries of the scheme and that Article 86(2) EC was applicable to them. All of those comments were forwarded to the Italian Republic.

15. The Italian authorities notified their comments by letter dated 23 January 1999. In that letter, they argued that undertakings active in the building industry, commerce, the hotel sector and services of general economic interest were unlikely to engage in such trade. By letter of 10 June 1999, the Italian authorities informed the Commission that they fully supported the comments submitted by the City of Venice.

16. By decision of 23 June 1999, the Commission gave the Italian Republic notice to provide it with all the documentation, information and data necessary to enable it to determine the role of the municipal undertakings and to assess the compatibility of the social security relief at issue with the common market. The Italian authorities replied by letter of 27 July 1999.

17. The Italian authorities met with the Commission’s representatives at a meeting in Brussels on 12 October 1999.

C – The contested decision

18. According to the first paragraph of Article 1 of the contested decision, except as provided by Articles 3 and 4 of that Decision, the aid which Italy has put into effect in favour of firms located in Venice and Chioggia, in the form of exemption from or reduction of social security contributions provided for by Laws Nos 30/1997 and 206/1995, which refer to Article 2 of the Ministerial Decree of 5 August 1994, is compatible with the common market where it is granted to the following firms:

(a) SMEs within the meaning of the Community guidelines on State aid for small and medium-sized enterprises;

(b) firms that do not comply with that definition but are located in an area eligible for exemption under Article 87(3)(c) EC;

(c) any other type of firm which hires groups of workers experiencing particular difficulties entering or re-entering the labour market as referred to in the Community guidelines on aid to employment.

19. In the second paragraph of Article 1 of the contested decision, the Commission established that such aid is incompatible with the common market where it is granted to firms which are not SMEs and are located outside areas eligible for exemption under Article 87(3)(c) EC.

20. According to Article 2 of the contested decision, except as provided by Articles 3 and 4 of that Decision, the aid which Italy has put into effect in the form of reductions in social security contributions provided for by Article 1 of the Ministerial Decree of 5 August 1994 is incompatible with the common market.

21. According to Article 3 of the contested decision, the aid measures which Italy has put into effect in favour of the companies ASPIV and Consorzio Venezia Nuova are compatible with the common market since they qualify for exemption under Article 86(2) and Article 87(3)(d) EC respectively.

22. According to Article 4 of the contested decision, the measures which Italy has put into effect in favour of the companies ACTV, Panfido SpA and AMAV do not constitute aid within the meaning of Article 87 EC.

23. Under the first paragraph of Article 5 of the contested decision, Italy is to take whatever steps are necessary to recover from the beneficiaries the incompatible aid referred to in the second paragraph of Article 1 and in Article 2 which has unlawfully been made available to them. The first sentence of the second paragraph of Article 5 of the contested decision orders that repayment is to be made in accordance with the procedures of Italian law.

III – Procedure before the General Court and the judgment under appeal

A – Procedure before the General Court

24. Apart from the actions that gave rise to the appeals, a further 56 actions were lodged with the General Court against the contested decision by the specified deadline.

25. By way of measures of organisation of procedure, the General Court inquired whether the Italian authorities felt obliged to recover the social security relief from the individual applicants on the basis of Article 5 of the contested decision. In so far as the Italian authorities denied this, the General Court, by orders of 10 March 2005, declared the actions to be inadmissible as there was no legitimate interest in bringing those actions. ( ) One of those actions was brought by the Committee’s co-applicant in Case T‑274/00, Verde Sport. The Committee subsequently withdrew its action in Case T‑274/00. ( )

26. With the agreement of the applicants and the other parties to the proceedings, the General Court then designated Cases T‑221/00, T‑254/00, T‑270/00 and T‑277/00 as test cases. ( ) In so far as the other actions had not been dismissed as inadmissible, the General Court stayed those proceedings.

B – The judgment under appeal

27. The General Court found in the judgment under appeal that the actions in Joined Cases T‑254/00, T‑270/00 and T‑277/00 were admissible. In this connection, it dismissed in particular the inadmissibility claims made by the Commission based on lis alibi pendens in respect of actions brought by the Committee and the applicants’ lack of locus standi. However, the General Court dismissed the actions as unfounded. In particular, it rejected the claim that the Commission had infringed Article 87(1), Article 86(2) and Article 87(3)(b), (c), (d) and (e) EC, Articles 14 and 15 of Regulation No 659/1999, the principle of equal treatment and the duty to state reasons.

IV – Procedure before the Court of Justice

28. By act of 11 February 2009 received at the Registry of the Court of Justice on 18 February 2009, the Committee lodged an appeal against the judgment under appeal. The Committee claims that the Court should:

– allow the appeal,

– consequently set aside the judgment under appeal and annul the contested decision; failing which annul Article 5 of the contested decision in so far as it imposes an obligation to recover the amounts accounted for by the social security relief in question and provides for interest to be applied to those amounts from the date when they were made available to the beneficiaries to the date when they are actually paid back,

– order the Commission to pay the costs of the proceedings both at first instance and before the Court of Justice.

29. The case number C‑71/09 P has been assigned to this appeal.

30. By act of 10 February 2009 received at the Registry of the Court of Justice on 18 February 2009, the Hotel Cipriani lodged an appeal against the judgment under appeal. It claims that the Court should:

– set aside the judgment under appeal,

– grant the form of order sought at first instance and, in particular:

– annul the contested decision,

– in the alternative, annul Article 5 of that decision in so far as the order for recovery provided for therein also covers aid which comes under the de minimis principle and/or annul Article 5 in so far as it provides for interest to be paid at a rate which is higher than that paid by the undertaking on its own debts.

31. The case number C‑73/09 P has been assigned to this appeal.

32. By act of 16 February 2009 received at the Registry of the Court of Justice on 24 February 2009, the Società Italiana per il gas SpA (‘Italgas’) lodged an appeal against the judgment under appeal. It claims that the Court should:

– annul the contested decision,

– annul Articles 1 and 2 of the contested decision, in so far as they declare that the social security relief granted by Italy is incompatible with the common market, and Article 5 thereof or, in the alternative, refer the case back to the General Court in accordance with Article 61 of the Statute of the Court of Justice,

– order the Commission to pay the costs of the proceedings both at first instance and before the Court of Justice.

33. The case number C‑76/09 P has been assigned to this appeal.

34. Coopservice, the Committee’s co-applicant in Case T‑277/00, also lodged an appeal against the judgment under appeal. However, that appeal was dismissed as out of time. By act of 1 July 2009, received at the Registry of the Court of Justice on 14 July 2009, Coopservice thereupon submitted observations on the appeals lodged by the Committee, Hotel Cipriani and Italgas.

35. By act of 16 July 2009, received at the Registry of the Court of Justice on 23 July 2009, the Italian Republic submitted observations on the appeals lodged by the Committee, Hotel Cipriani and Italgas. It proposes in those observations that the Court should grant the forms of order sought by the appellants and set aside the judgment under appeal and, consequently, annul the contested decision.

36. By act of 10 July 2009, received at the Registry of the Court of Justice on 22 July 2009, the Commission responded to the appeals in Cases C‑71/09 P, C‑73/09 P and C‑76/09 P and lodged a cross-appeal. It contends that the Court should:

– set aside the judgment under appeal in so far as the Court declares the actions to be admissible,

– grant the main form of order sought by the Commission at first instance,

– in the alternative, dismiss the appeals, replacing, where appropriate, the grounds of the judgment under appeal,

– in any event, order the appellants to pay the costs of the present proceedings and of the proceedings at first instance.

37. By act of 28 September 2009, received at the Registry of the Court of Justice on 6 October 2009, the Committee responded to the Commission’s cross-appeal. It claims that the Court should:

– dismiss the Commission’s cross-appeal.

38. By act of 9 October 2009, received at the Registry of the Court of Justice on 12 October 2009, Italgas responded to the Commission’s cross-appeal. It claims that the Court should:

– dismiss the Commission’s cross-appeal as manifestly unfounded by means of an order,

– in the alternative, dismiss the cross-appeal as partly serving no purpose and otherwise unfounded, or as completely unfounded,

– in any event, order the Commission to pay the additional costs arising from the cross-appeal.

39. By order of 8 April 2009, Cases C‑71/09 P, C‑73/09 P and C‑76/09 P were joined for the purposes of the written procedure, the oral procedure and the decision.

40. On 16 September 2010, a hearing took place at which the representatives of the Committee, Hotel Cipriani and Coopservice, Italgas, the Italian Republic and the Commission participated, supplemented their written submissions and answered questions.

V – The Commission’s cross-appeal

41. By its cross-appeal, the Commission is objecting to the General Court’s decision to declare the actions in Cases T‑254/00, T‑270/00 and T‑277/00 admissible. In this connection, the Commission complains, first of all, that the General Court made an error of law by rejecting the complaints on admissibility that it made in the proceedings before the General Court based on lis pendens (A), the lack of locus standi of all the applicants (B) and the lack of locus standi of the Committee (C). It also complains that the General Court did not sufficiently examine or wrongly assumed a legal interest on the part of the applicants in bringing the actions (D).

A – Lis pendens

1. Grounds of the judgment under appeal

42. The Commission’s first plea in law is directed against paragraphs 43 to 46 of the judgment under appeal. There, the General Court rejected the Commission’s complaint that the Committee’s action in Case T‑277/00 was inadmissible because of lis alibi pendens in respect of its actions in Cases T‑231/00 and T‑274/00. In this connection, the General Court found firstly that there was no lis pendens in respect of the action in Case T‑274/00, because the Committee had withdrawn its action in Case T‑274/00. ( ) It was therefore not obliged to examine the admissibility of the Committee’s action in Case T‑277/00, because the Committee had brought the action jointly with Coopservice. Since Coopservice’s action was admissible, it was obliged to examine the substantive pleas in law in any case. ( ) Finally, there was no lis pendens in respect of the Committee’s earlier action in Case T‑231/00, because the action in Case T‑231/00 and the action in Case T‑277/00 were not based on the same pleas in law. In fact, the Committee had raised a number of pleas only in Case T‑277/00, but not in Case T‑231/00. ( )

2. Main arguments of the parties

43. The Commission complains firstly that lis pendens was not removed by the withdrawal of the earlier action. The admissibility of an action should, in fact, be assessed at the time when the action is brought. It was also contrary to the principle of procedural economy for an applicant to lodge a series of identical actions and then to choose one of them retrospectively.

44. Secondly, it argues that only identity of the parties and of the forms of order sought are conditions for lis pendens. The pleas in law do not have to be identical. That argument is supported by Article 27 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. ( ) Even if identity of the pleas in law were regarded as a necessary condition for lis pendens, the Committee’s action in Case T‑277/00 would have to be dismissed as inadmissible in that the Committee had already relied on identical pleas in Case T‑231/00.

45. The Committee considers this plea to be inadmissible in that the Commission is relying on claims which it did not submit as such in the proceedings before the General Court. It is also precluded by the definitive nature of the orders of the General Court of 10 March 2005. ( ) In those orders, the General Court did not find the Committee’s action in Case T‑277/00 to be inadmissible.

46. The Committee also claims that the plea is unfounded. The General Court, it argues, rightly found that any lis pendens in respect of its earlier action in Case T‑274/00 had been removed because of the withdrawal of the action and that its actions in Cases T‑231/00 and T‑277/00 were not based on identical pleas.

3. Legal assessment

47. The plea is admissible. Firstly, it is not an inadmissible new plea. In fact, in an appeal, an error of law can be pleaded that arises directly from the judgment under appeal. This is the case with the error of law pleaded, as the General Court must examine of its own motion the admissibility of an action and hence also the existence of lis pendens. The Court of Justice may also examine on appeal, of its own motion, an error of law of that kind. ( ) Secondly, the plea is not precluded by the definitive nature of the orders of the General Court of 10 March 2005. ( ) In fact, the General Court did not rule in those orders on the admissibility of the action in Case T‑277/00.

48. The plea is in part well founded.

a) Need to examine the admissibility of the Committee’s action

49. The General Court’s assumption that the admissibility of the Committee’s action does not need to be examined because the action of the co-applicant Coopservice is admissible does not convince me. Admittedly, the Court of Justice proceeded in the same manner in a comparable case. ( ) However, in my view, that case-law cannot necessarily be transferred to an action before the General Court. First, it seems to me designed for a court of last instance. As an appeal can be brought before the Court of Justice against the General Court’s judgment, the decision on the admissibility of an action can affect the further proceedings before the Court of Justice. If the Committee’s action had been dismissed as inadmissible, its appeal would have had a different subject-matter. Moreover, the Commission’s cross-appeal would not have arisen in respect of the judgment relating to the Committee. The effects on the course of the proceedings before the Court of Justice are particularly clear in the present case. In fact, here, the Court of Justice has merely to adjudicate on the Committee’s action and not that of its co-applicant Coopservice. Second, that approach does not seem to me compatible with the division of tasks between the General Court and the Court of Justice. In the context of the Commission’s cross-appeal, the Court of Justice must examine the complaint of lis pendens, since it concerns a condition of admissibility of the Committee’s action before the General Court, that it must examine of its own motion. ( ) As the present case shows, the General Court’s approach, that it is not necessary to examine the admissibility of the Committee’s action, could lead to its being done for the first time in an appeal before the Court of Justice. Thirdly, I doubt that the General Court’s approach can always be justified by considerations of procedural economy. The fact that it is the Court of Justice which examines admissibility for the first time can cause problems, particularly where the Court must itself examine matters of fact in assessing admissibility. The Court has jurisdiction to carry out such an assessment of fact only where, under the first paragraph of Article 61 of the Statute, it gives final judgment in the matter. However, that is possible only where the state of the proceedings so permits. If that is not yet the case, then, under the first paragraph of Article 61, the Court must refer the case back to the General Court for judgment. Accordingly, the benefit in terms of procedural economy, which is supposed to justify the General Court’s not examining admissibility, is likely, on the contrary, in certain cases, to make the proceedings last longer. For the reasons set out above, I consider, contrary to the case-law, that the General Court’s approach, to the effect that, in a case such as the present, it is not necessary to examine the admissibility of the Committee’s action, ( ) is not permissible, even in the context of the main action. However, for the purposes of the present case, it is not necessary to determine whether the General Court erred in law since, in any event, the Court of Justice must examine the complaint of lis pendens of its own motion.

b) Inapplicability of lis pendens upon withdrawal of the earlier action

50. Contrary to the Commission’s view, the General Court rightly found that the Committee’s action in Case T‑277/00 is not inadmissible because of lis alibi pendens in respect of its action in Case T‑274/00. Indeed, the Committee withdrew its action in Case T‑274/00. Nevertheless, the Commission rightly observed that, in principle, the conditions for the admissibility of an action must be fulfilled at the time when the action is brought. ( ) However, inadmissibility because of lis pendens may not apply where the earlier action has been declared inadmissible. ( ) In my view, this must also be the case where the earlier action has been withdrawn. Inadmissibility because of lis pendens is, in fact, designed to prevent identical actions from being examined twice. This should, among other things, prevent contradictory decisions from being made. However, there is no longer any risk of that where the earlier action has been declared inadmissible or been withdrawn.

c) Identity of the pleas

51. In so far as the Commission complains that the General Court should have dismissed the Committee’s action in Case T‑277/00 as inadmissible because of lis alibi pendens in respect of its action in Case T‑231/00, this complaint is in part well founded.

52. The Commission’s complaint that the General Court erroneously regarded identical pleas as a condition for inadmissibility because of lis pendens is unfounded. In fact, according to the settled case-law of the Court of Justice, inadmissibility because of lis pendens arises only where the earlier action involves the same parties, seeks the same form of order and is based on the same submissions. ( ) Contrary to the Commission’s view, that case-law cannot be understood as meaning that the Court of Justice only mentioned the condition of identical submissions ad abundantiam. ( ) In France v Parliament, the Court of Justice fully dealt with the matter of identical submissions in two different actions, ( ) which tends to refute the assumption that identity of submissions is irrelevant. Moreover, in the Diezler judgment, the Court of Justice found that an action was inadmissible because of lis pendens on the ground that, apart from the fact that the subject-matter of the two disputes was identical, the submissions made by the applicant in the two actions were essentially the same. ( ) Nor, in my view can it be inferred from Bode ( ) and Perinciolo ( ) that lis pendens exists where the parties and the forms of order sought are identical. Those judgments arose from a special situation in which the applicants had brought an action firstly against an initial decision and then against a second decision substantively confirming the first one. It cannot automatically be inferred from the fact that, in that particular situation, the Court of Justice declared the action against the second decision to be inadmissible because the applicant had merely ‘reiterated’ ( ) the form of order sought that the Court of Justice already assumed that the action was inadmissible on account of lis pendens because the parties and the forms of order sought were identical. As is apparent from the observations of the parties in the two cases, the two actions were based on the same submissions.

53. However, the Commission rightly objects that the General Court did not take into account the fact that the submissions in Cases T‑231/00 and T‑277/00 were partly identical. The General Court found that the Committee submitted some of its pleas only in its later action in Case T‑277/00, but not in its earlier action in Case T‑231/00. The General Court should not have concluded from this that the Committee’s later action in Case T‑277/00 was fully admissible. Examining identical pleas twice could lead to contradictory rulings. This is not precluded by the fact that, after the judgment was delivered in Case T‑277/00, the identical pleas were not examined in Case T‑231/00. According to the case-law, the later action is inadmissible, not the earlier one. Nor can the General Court’s approach be justified by the fact that the General Court, with the agreement of all the parties, designated Case T‑277/00 as a test case. As the Commission rightly argues, the General Court must examine the admissibility of an action of its own motion, ( ) which leaves no scope for considerations of procedural economy in this regard.

d) Conclusion

54. As the General Court did not examine to what extent the Committee’s actions in the earlier Case T‑231/00 and in the later Case T‑277/00 were based on identical pleas in substance and did not in that respect dismiss the Committee’s action in Case T‑277/00 as inadmissible, it erred in law. To this extent, the Commission’s first plea is justified. It should be rejected as to the remainder.

B – Individual concern to the appellants

1. Grounds of the judgment under appeal

55. By its second plea, the Commission objects to the General Court’s finding, based on paragraphs 69 to 112 of the judgment under appeal, that the contested decision concerns the applicants in Cases T‑254/00, T‑270/00 and T‑277/00 individually.

56. There, the General Court found firstly that a Commission decision concerning an unlawful aid scheme was of general application inasmuch as it applied to objectively determined situations and involved legal effects considered in a general and abstract manner. ( ) However, in certain circumstances, the provisions of a measure of general application could be of individual concern to a natural or legal person where that person was affected by reason of attributes peculiar to him or by reason of factual circumstances differentiating him from all other persons. ( )

57. The General Court then rejected the approach advocated by the Commission whereby the actual beneficiaries of the aid scheme are individually concerned only where the aid scheme has been implemented by means of individual decisions. ( ) Such an approach was compatible neither with the case-law ( ) nor with the system for review of State aid. ( ) Finally, the General Court examined the Commission’s argument that the national authorities had the power, when implementing the contested decision, to assess in each individual case whether all the conditions for the application of Article 87(1) EC had been satisfied. The General Court rejected that argument. ( )

2. Main arguments of the parties

58. The Commission considers that the General Court’s reasoning is vitiated by errors of law. Firstly, it regards the contested decision as an act of general application. When deciding on an unlawful, multisectoral aid scheme, the Commission considers that it is not, in fact, obliged to take individual cases into account. For this reason, it did not determine in the contested decision whether the applicants were the beneficiaries of aid. This will not be clarified until the contested decision is implemented. The contested decision does not therefore concern the applicants individually. The recovery order made in Article 5 of the contested decision changes nothing in this respect.

59. The General Court also erroneously linked the individual concern to the applicants with their obligation to repay the aid. Locus standi must be assessed at the time when the action is brought. However, at that time, it was still not certain whether the applicants were obliged to make repayment. It only emerged as a result of the investigations made by the national authorities in connection with the implementation of the contested decision which beneficiaries were actually obliged to make repayment. This is also supported by the fact that a firm has no legitimate interest in bringing an action where it is obvious that it is not obliged as a beneficiary to make repayment.

60. The General Court also wrongly found that the class of persons who were concerned by the contested decision was identifiable. It is identifiable only where the number or the identity of the persons can be determined fairly precisely. The mere fact that they can be determined is not sufficient. The Commission must at least be able to determine who is obliged to repay the aid, which was clearly not the case in the present proceedings. At the time when the decision was made and when the action was brought, it did not actually have the information necessary to do so.

61. The Commission also complains that there are errors in the part of the grounds of the judgment under appeal where the General Court found that the Commission’s approach was not compatible with the system for the review of State aid, as well as in the part where it explained why the national authorities were not authorised to assess the existence of aid in each individual case when implementing the recovery order.

62. Italgas argues that the Commission’s second plea should be rejected. Contrary to the Commission’s view, the General Court did not link the individual concern to the applicants with their obligation to repay the aid, but to the fact that the contested decision had a directly adverse effect on their legal position. Moreover, only the identifiability of the class of persons is relevant, not whether the Commission could identify the class of persons. The Commission is also confusing locus standi with legitimate interest in bringing an action. The Commission’s approach also results in the applicants’ access to EU courts being controlled by the Commission. According to the Commission’s approach, it could deny the individual locus standi by taking its decision in the abstract. Furthermore, there are no effective remedies against directions given by the Commission to national authorities in the context of the execution of the contested decision.

63. Italgas argues that the Commission’s complaints against the General Court’s finding that the Commission’s approach is incompatible with the system for the review of State aid serve no purpose, since that finding is not an essential part of the grounds. This also applies to the complaints against the General Court’s finding that national authorities are not empowered to assess the existence of aid in each individual case when implementing the contested decision. In any case, the complaints made against these findings are unfounded.

64. The Committee also argues that the Commission’s second plea should be rejected. ( ) In contrast to the situation with potential beneficiaries, the contested decision is not an act of general application in the case of the actual beneficiaries, since it affects the legal position of an identifiable number of firms. The actual beneficiaries are identified as addressees of the national authorities’ decision to recover payment. Their position is therefore comparable to that of a beneficiary of individual aid.

3. Legal assessment

65. As the General Court primarily based its reasoning on an analysis of the case-law of the Court of Justice, ( ) I shall first examine the Commission’s complaints in respect of that part of the General Court’s statement of grounds.

66. Those complaints are unfounded. The General Court rightly found that, according to the case-law of the Court of Justice, the actual beneficiaries of the social security relief must be regarded as individually concerned (a). The objections made by the Commission against that case-law must be dismissed (b).

a) Case-law of the Court of Justice

67. As the General Court rightly stated, ( ) a decision may be of individual concern to persons other than the addressees of the decision where that decision affects them by reason of attributes peculiar to them or by reason of factual circumstances differentiating them from all other persons and by virtue of these factors distinguishes them just as in the case of the person addressed (so-called Plaumann formula). ( )

68. Where the Commission, in a decision, describes a national multisectoral scheme as aid incompatible with the common market, the potential beneficiaries of that scheme are not, according to the Plaumann formula, individually concerned by such a decision. The potential beneficiaries of a multisectoral aid scheme are, in fact, a class of persons who are described in a general and abstract manner. ( )

69. However, in so far as the Commission orders in such a decision that the Member State should pay back the aid provided under the national scheme, the actual beneficiaries under that scheme are, according to the Plaumann formula, directly concerned by it. As the General Court rightly noted, ( ) the actual beneficiaries are, in fact, a class of persons who can be identified at the time when the decision was made and are therefore a closed class. The contested decision also affects their legal position. They must fear that the national authorities will ask them for the return of the aid received under the scheme. ( )

b) The Commission’s objections

70. The objections that the Commission has raised against that case-law, which may now be regarded as established, especially after Italy and Sardegna Lines v Commission ( ) and Italy v Commission, ( ) and against the application of that case-law to the present case, are unconvincing.

i) Link to the obligation to make repayment

71. In so far as the Commission objects firstly that the General Court makes the individual concern to the actual beneficiaries conditional on their obligation to repay the aid received, although the obligation was not yet established at the time when the decision was made or when the action was brought, the objection cannot be upheld.

72. Contrary to the Commission’s view, the actual beneficiaries are not concerned individually only where they are asked by the national authorities to make repayment. The Commission’s recovery order itself, in fact, individually concerns all persons who have been actual beneficiaries under the social security relief system, unless the Commission has established in the contested decision, in respect of their case or of certain categories of case that also include them, that the social security relief is compatible with Article 87 EC. Such a decision affects the legal position of the actual beneficiaries, however that decision is understood.

73. In so far as Article 5 in conjunction with the second paragraph of Article 1 and Article 2 of the contested decision is understood as meaning that the Italian Republic is asked to recover all social security relief that is not expressly declared under the first paragraph of Article 1, Article 3 and Article 4 or in the grounds of the contested decision to be compatible with Article 87 EC, the applicants’ legal position is clearly directly affected by the contested decision. According to that understanding, it is only a matter of time before the national authorities ask them to repay the aid.

74. On the other hand, the Commission’s view of Article 5 in conjunction with the second paragraph of Article 1 and Article 2 of the contested decision is that recovery of the social security relief is ordered only in so far as the relief in the individual case constitutes aid within the meaning of Article 87(1) EC. This is not assessed by the national authorities until the decision is implemented. However, according to this understanding too, the contested decision concerns the actual beneficiaries individually.

75. Firstly, when implementing the contested decision, the national authorities are bound by the Commission’s findings contained in it. Even where the Commission indicates that it has not examined in the individual case whether the social security relief distorts competition or affects trade between Member States, it has nevertheless made a finding in respect of other conditions of Article 87(1) EC which is also binding on the national authorities when they are examining individual cases. Thus, the Commission found in recitals 52 to 56 of the contested decision that the social security relief constitutes favourable treatment within the meaning of Article 87(1) EC even though the Italian legislature intended by it to compensate for competitive disadvantages. The contested decision therefore contains a Commission finding which is binding on the national authorities when they are implementing the recovery decision. Accordingly, it directly affects the legal position of the actual beneficiaries.

76. The concept of effective judicial protection also supports the assumption of individual concern in such a case. Such protection would not exist where a firm that wished to take action against a finding such as that already contained in the contested decision was referred to the national courts. As the national courts, like the national authorities, are bound by the Commission’s finding, all they can do is refer the matter to the Court of Justice. ( )

77. Finally, I consider that the actual beneficiaries cannot be disadvantaged by the fact that the Commission did not examine in the grounds of the contested decision the fulfilment of specific conditions laid down in Article 87(1) EC, such that it is unclear to an individual actual beneficiary whether a recovery order is directed against it.

78. Therefore the contested decision, however it is to be understood, concerns the actual beneficiaries individually.

ii) Sufficient identifiability

79. The Commission’s further objection that the actual beneficiaries of the social security relief are not sufficiently identifiable must also be dismissed. Contrary to the Commission’s view, it does not matter whether the Commission knew or could have known who they were when the decision was issued or when the action was brought. According to the Plaumann formula, all that matters is that the class of actual beneficiaries can be determined. ( ) Therefore the General Court rightly found in paragraphs 81 et seq. and 84 of the judgment under appeal that the actual beneficiaries were a closed and therefore identifiable class of persons. Although the General Court also stated in paragraph 91 et seq. of the judgment under appeal that the Commission was aware of the precise number of beneficiary undertakings, this is mentioned merely by way of additional information that does not call into question the accuracy of the General Court’s reasoning in paragraphs 81 et seq. and 84 of the judgment under appeal.

iii) Lack of legitimate interest in bringing proceedings

80. The Commission’s statement that, as a result of the national authorities’ further enquiries when implementing a Commission measure, the action of an actual beneficiary was no longer admissible, is unconvincing. In this connection, a distinction should be drawn between locus standi on the one hand and legitimate interest in bringing an action on the other.

81. The individual concern to a natural or legal person, which is the condition for locus standi under the fourth paragraph of Article 230 EC, is determined only by the contested decision. As has been explained above, the recovery order in the contested decision directly and individually concerned all persons who had been actual beneficiaries under the social security relief system except for those persons in respect of whom the Commission had established that the social security relief was compatible with Article 87 EC. It was therefore already established when the contested decision was issued, and consequently also when the action was brought, who was individually concerned by it.

82. Where, following the adoption of the contested decision, a person individually concerned by it is not asked to repay the social security relief, this does not affect the fact that that person is individually concerned. As the General Court rightly stated in paragraph 88 et seq. of the judgment under appeal, that person may then have no legitimate interest in bringing an action against the contested decision, because he no longer has any interest in seeing the contested decision annulled.

iv) Undesired consequences

83. The Commission also objects that the assumption that the actual beneficiaries are individually concerned would have undesired consequences for them. They could contest a Commission decision to recover aid only through an action brought under Article 230 EC; a review of the validity of such a decision following a reference for a preliminary ruling under the first alternative in letter (b) of the first paragraph of Article 234 EC would no longer be possible.

84. That objection is also unconvincing. As the General Court rightly held in paragraph 90 of the judgment under appeal, it cannot be inferred from the case-law of the Court of Justice ( ) that all natural or legal persons with locus standi under the fourth paragraph of Article 230 EC can challenge the validity of a Commission decision only by means of an action for annulment and that they are prevented from challenging the validity of that decision within the context of a reference for a preliminary ruling.

85. Where the Commission refers to Deggendorf, it should be noted that there were special circumstances in that case that supported the inadmissibility of a request for a preliminary ruling. Firstly, the beneficiary of the aid was expressly mentioned in the Commission decision in that case, if not by name, in such a manner that there was no doubt as to its identity. ( ) Secondly, the national authorities informed it of the Commission decision and of the possibility of contesting it before the Court of Justice. ( )

86. The situation is different in the present case. Firstly, the applicants were not mentioned by name in the contested decision. Secondly, it was still unclear at the time when the decision was issued from which actual beneficiaries the national authorities would recover the social security relief. In such a case, an actual beneficiary cannot, in my view, be criticised for the fact that, even where it has locus standi under the fourth paragraph of Article 230 EC, it does not immediately bring an action against the contested decision but first awaits the measures taken by the national authorities.

87. Atzeni ( ) also seems to me to point in this direction. Contrary to the Commission’s view, the Court of Justice did not actually cast doubt on its case-law, confirmed in Italy and Sardegna Lines ( ) and Italy v Commission, ( ) on the individual concern to actual beneficiaries. In that case, it merely emphasised that where a person cannot be blamed for not taking a clear opportunity to bring an action against a Commission decision, a reference for a preliminary ruling asking the Court of Justice to determine the validity of the Commission decision is admissible. ( ) Consequently the Commission’s objection must be dismissed.

v) Possibility of contradictory rulings

88. Finally, I am not convinced by the Commission’s objection that the assumption of individual concern to the actual beneficiaries might lead to contradictory rulings, because firms would then be better treated merely because the Member State did not fulfil its duty of notification. The idea that a Member State should derive no advantage from the non-fulfilment of that duty might well be taken into consideration when the Commission assesses the legality of multisectoral aid schemes. ( ) However, I do not consider it right to transpose that idea unreservedly to the locus standi of natural and legal persons and especially to the criteria for assessing their individual concern, which, under settled case-law, are governed by the criteria of the Plaumann formula.

c) Conclusion

89. To conclude, it must be noted firstly that the General Court rightly followed the case-law of the Court of Justice. The General Court’s finding that the applicants in Joined Cases T‑254/00, T‑270/00 and T‑277/00 are, as actual beneficiaries of the social security relief, individually concerned by the contested decision is therefore sufficiently justified by the General Court’s reference to the case-law of this Court.

90. It follows from this that the Commission’s further complaints serve no purpose. ( ) Neither the part of the grounds of the judgment under appeal in which the General Court stated the reasons for which the approach adopted by the Commission is incompatible with the system for review of State aid, nor the part in which the General Court explained why the national authorities, when implementing the contested decision, should not have the power to assess whether the conditions for application of Article 87(1) EC are fulfilled in each individual case, is relevant to the General Court’s finding that the applicants are individually concerned by the contested decision. An error of law in those parts of the judgments would therefore not be such as to call into question the General Court’s finding.

91. The Commission’s second plea must therefore be rejected in full.

C – Locus standi of the Committee

1. Grounds of the judgment under appeal

92. The Commission’s third plea challenges the General Court’s finding in paragraph 114 et seq. of the judgment under appeal that the Committee, as an organisation bringing together professional associations, has locus standi. There, the General Court stated firstly that there was no need to consider whether the Committee’s action in Case T‑277/00 was admissible, since the action of the co-applicant Coopservice was admissible. Also, the Committee, as an organisation bringing together professional associations representing undertakings which were located in Venice or Chioggia, was directly and individually concerned by the contested decision. The Committee was acting on behalf of its members, whose actions were admissible.

2. Main arguments of the parties

93. In the Commission’s view, the General Court should have assessed the admissibility of the Committee’s claim. It argues, moreover, that the case-law on the locus standi of professional associations is not transferable to an organisation of professional associations. There was also no evidence that the members of the professional associations would have appointed the associations to represent their interests before the General Court and that the professional associations would, in turn, have appointed the Committee to represent them for this purpose.

94. The Committee contends that this plea should be rejected. Under its articles of association, it is especially charged with coordinating action against the prohibition of social security relief. This includes the bringing of legal proceedings. It also took an active part in the formal investigation procedure.

3. Legal assessment

95. It should be stated, first of all, that, for the reasons already explained above, ( ) the General Court should have examined the Committee’s locus standi in Case T‑277/00 even though the action of its co-applicant Coopservice in that case was admissible.

96. However, the Commission’s objections to the General Court’s finding in the alternative that the Committee had locus standi cannot, in the event, be upheld.

97. According to settled case-law, a professional association that defends the individual interests of certain of its members whilst at the same time attempting to protect those of the sector as a whole has locus standi if those members have locus standi. ( ) The Commission’s doubts as to the transferability of that case-law to an organisation of professional associations carry no weight. The rationale of that case-law is that potential actions by individual undertakings can be combined in an action by a professional association. In the case of an organisation that brings together professional associations, the idea of combining actions applies even more strongly than with a professional association. This is not opposed by the fact that the Committee has been active as a co-applicant in Case T‑277/00, as it cannot be ruled out that the Committee’s action as a co-applicant is also aimed at protecting the interests of the sector as a whole.

98. The Commission’s further complaint that the Committee’s ‘stepped’ appointment was not sufficiently proven is admissible. The Commission is not, in fact, objecting to the General Court’s assessment of the facts, but that the General Court did not have the necessary facts at its disposal to be able to consider that the Committee had been instructed in this way. Such a complaint is admissible in the appeal. ( )

99. The Commission’s complaint cannot immediately be rejected by reference to the fact that the General Court’s reasoning was sufficient, because it is not necessary for its judgment to include detailed reasoning on every point. That would presuppose that the General Court actually examined the existence of a ‘stepped’ appointment and merely kept its grounds short. However, the Committee has itself affirmed that it did not submit to the General Court the articles of association that gave rise to its appointment.

100. The Committee’s locus standi in the present case does not seem to me to be based solely on the fact that it is representing the interests of the professional associations. According to the aforementioned case-law, it seems to me to be sufficient that the Committee is defending the interests of certain firms with locus standi whilst at the same time attempting to protect the interests of the sector as a whole. In the present case, it can already be inferred from the fact that the Committee brought an action jointly with firms with locus standi such as Coopservice that the Committee acted with the agreement of those firms. Moreover, the Committee actively participated in the formal investigation procedure.

101. I therefore propose that the Commission’s third plea be rejected and that the grounds of the judgment under appeal be partly replaced.

D – Legal interest in bringing an action

102. In its fourth plea, the Commission complains that the General Court did not sufficiently assess the applicants’ interest in bringing an action. It argues that there was no such interest when the action was brought, as it was not certain at that time whether the applicants would be obliged to repay the social security relief. Italgas considers that this complaint should be rejected and that the General Court rightly stated that the interest in bringing the action arose directly from the contested decision.

103. The Commission’s fourth plea is unfounded. As the General Court rightly stated in paragraph 88 et seq. of the judgment under appeal, the applicants had a legitimate interest in bringing the action, as the annulment of the contested decision would have improved their legal position. The contested decision itself directly affected the legal position of the actual beneficiaries of the social security relief. ( ) This justifies not only the locus standi but also the legitimate interest of the actual beneficiaries in the present case, although that interest may no longer exist subsequently where it is established with sufficient certainty that the national authorities will not ask the actual beneficiaries to repay the social security relief. ( )

E – Conclusion

104. The Commission’s first plea is well founded in that the General Court did not examine to what extent the Committee also made the submissions that it is relying on in Case T‑277/00 in the earlier Case T‑231/00 and the General Court did not dismiss the Committee’s action in Case T‑277/00 as inadmissible on account of lis pendens to the extent that identical submissions had been made. As to the remainder, the Commission’s cross-appeal should be dismissed.

VI – The appeals of Italgas, Hotel Cipriani and the Committee

105. In the judgment under appeal, the General Court dismissed the actions in Cases T‑254/00, T‑270/00 and T‑277/00 as unfounded. Hotel Cipriani, Italgas and the Committee, which were applicants in those cases, are essentially claiming in their appeals that the General Court made errors of law in the application of Article 87(1) EC, Article 86(2) EC and Article 87(3)(c) and (d) EC, and of Articles 14 and 15 of Regulation No 659/1999. They also claim that the General Court infringed the principle of non-discrimination and wrongly found that the Commission had sufficiently justified the contested decision. I will examine together below the concurrent pleas in law of Hotel Cipriani, Italgas and the Committee (‘the appellants’). ( )

A – Compensatory nature of the social security relief

1. Grounds of the judgment under appeal

106. The appellants object firstly to the General Court’s finding that the social security relief must be regarded as favourable treatment for the purposes of Article 87(1) EC. The Commission found in the contested decision that the favourable nature of the social security relief was not removed because the social security relief was intended to compensate for the structural disadvantages to which firms located in Venice and Chioggia were exposed. The General Court confirmed the Commission’s finding in paragraphs 179 to 198 of the judgment under appeal.

107. The General Court relied firstly on the case-law of the Court of Justice and on the fact that the rules of competition law are intended to ensure, not perfect competition, but effective or efficient competition. ( ) Although the Court admitted that, in certain specific situations, favourable treatment intended to offset a disadvantage does not constitute aid within the meaning of Article 87(1) EC, such a specific situation does not apply in the present case, in which the social security relief is intended partly to compensate for the structural disadvantages of the firms associated with their location. ( )

108. The General Court relied in the alternative on the fact that there is no direct connection between the social security relief and the aim of offsetting additional costs in Venice and Chioggia. ( ) Moreover, the Italian Government had used a comparison not between an undertaking located in Venice or Chioggia and an average undertaking in the Community, but only between the costs of an undertaking located in Venice or Chioggia and the costs of an Italian undertaking on the mainland. ( )

2. Main arguments of the parties

109. The appellants object firstly to the General Court’s argument that the favourable nature of the social security relief is not removed because it is intended to offset structural disadvantages of the firms located in Venice and Chioggia. The Committee and the Italian Government complain in this connection that the General Court did not take the compensatory nature of the social security relief sufficiently into account. An advantage, they argue, which is merely intended to offset a competitive disadvantage is not aid. The national scheme was merely designed to maintain the competitiveness of the firms located in Venice and Chioggia. It is illogical to apply the prohibition on aid in such a manner that it leads to the removal of the firms and to the end of competition. Hotel Cipriani and Coopservice submit that the General Court did not take sufficient account of the objectives of the national legislature, which wanted to preserve the historical centre of Venice and promote employment. The Italian legislature had quantitatively and qualitatively assessed the greater burdens placed on firms located in Venice and Chioggia. That assessment is not available for detailed analysis by the Commission and the General Court. Moreover, reference cannot be made to the fact that higher costs can be offset by increasing hotel prices. Firstly, not all the benefiting firms are engaged in tourist activity. Secondly, competition should lead not to an increase but to a reduction in prices.

110. Italgas is claiming a failure to state reasons. The General Court admitted that there were specific situations in which compensating for a disadvantage could remove the favourable nature of a measure without explaining in a convincing manner why no such specific situation existed in the present case.

111. The Italian Government also claims, by comparing the Italian authorities with a private undertaking and social security contributions with insurance premiums, that a private undertaking would have reduced the insurance premiums in a case such as the present.

112. The appellants also object to the General Court’s reasoning in the alternative that there is no direct connection between the social security relief and the aim of offsetting additional costs incurred in Venice and Chioggia, ( ) and to the alternative reasoning that the Italian authorities had not used a comparison between an undertaking located on Venice or Chioggia on the one hand and an average undertaking in the Community on the other. ( )

113. The Commission considers that these complaints should be rejected. It argues firstly that the General Court rightly found that the aim of compensating for structural disadvantages does not eliminate the favourable nature of the social security relief for the purposes of Article 87(1) EC. The General Court’s grounds are legally flawed and must therefore be replaced. There is actually no specific situation in which a measure ceases to be aid because of the aim of compensating for structural disadvantages of a sector or region. The grounds of the judgment under appeal should therefore be replaced. The appellants’ objections to the General Court’s alternative reasoning should be dismissed.

3. Legal assessment

114. It should first be examined whether the General Court wrongly found that the social security relief constitutes favourable treatment for the purposes of Article 87(1) EC even though the Italian legislature intended to compensate for the competitive disadvantages of undertakings located in Venice and Chioggia.

a) Interpretation of the concept of favourable treatment

115. In so far as the appellants complain that the General Court did not correctly interpret the concept of favourable treatment for the purposes of Article 87(1) EC, the complaints must be rejected.

116. In fact, the General Court relied in paragraph 182 of the judgment under appeal on the settled case-law of the Court of Justice whereby a Member State’s attempt to compensate for the competitive disadvantages of undertakings of a specific economic sector or a specific region by granting them favourable treatment does not remove their character as aid. ( )

117. Assessment of whether a measure constitutes aid within the meaning of Article 87(1) EC is based, in principle, not on the aims pursued by a measure but on its effects. The aims that are pursued by a measure are considered only when examining whether aid is compatible with the common market. ( ) As the General Court stated in paragraphs 185 to 187 of the judgment under appeal, this principle is not adhered to without exception in the case-law. However, for the purposes of the present case, there is no need to conduct a thorough analysis of the special cases in which the case-law deviates from this principle. The Commission rightly points out that the aim of compensating for the competitive disadvantages of firms arising from their location does not justify any deviation from this principle.

118. This is already reflected in the structure of Article 87 EC. Under Article 87(3)(a) to (d) EC, such an aim may be considered when assessing the compatibility of an aid with the common market. The structure of that provision suggests that such an aim is not already to be taken into account when applying the conditions for aid laid down in Article 87(1) EC.

119. Consideration of such an aim within the context of Article 87(1) EC would also be incompatible with the meaning and purpose of that provision. As the Commission rightly maintained in recital 53 of the contested decision and as the General Court rightly held in paragraph 184 of the judgment under appeal, Article 87(1) EC protects all forms of competition from State intervention in the form of aid. So it protects not only competition between undertakings that operate under comparable conditions but also competition between undertakings operating under dissimilar conditions. Contrary to the view of the Committee and of the Italian Government, Article 87(1) EC also protects predatory competition. However, negative effects of predatory competition may be considered under Article 87(3) EC.

b) Failure to state reasons

120. The plea raised by Italgas, that the General Court did not sufficiently explain how the social security relief differed from the specific situations in which the aim pursued may exceptionally be considered when assessing the nature of the aid, must be rejected. The General Court rightly referred in paragraph 181 et seq. of the judgment under appeal to the settled case-law of the Court of Justice according to which a Member State’s attempt to offset the competitive disadvantages of undertakings of a specific economic sector or a specific region by granting them favourable treatment does not remove the character of those measures as aid. It also rightly stated in paragraph 184 of the judgment under appeal that Article 87(1) EC protects all forms of competition. It followed from this that the aim pursued with the social security relief was clearly not such as to remove its character as aid. In view of this, it was not necessary for the General Court to examine in more detail the specific situations in which the aim pursued by a measure may already be considered at the level of Article 87(1) EC. It was sufficient for the General Court to find, in paragraph 188 of the judgment under appeal, that the present case did not involve a special situation of that kind and that, in the light of the arguments put forward, it was clear that the social security relief constituted aid within the meaning of Article 87(1) EC.

c) The private economic operator criterion

121. The Italian Government’s assertion that the General Court should have applied the criterion of a private economic operator can be disregarded because the Italian Republic did not itself bring an appeal and none of the appellants is relying on this objection. In any case, comparison with a private economic operator is inapplicable, in particular because the social security relief did not pursue an aim of interest to a private operator, and the relief was granted to the undertakings in Venice and Chioggia regardless of their financial situation, which is not consistent with the principle of maximising profit that would be the aim of a private economic operator.

d) Conclusion

122. The appellants’ pleas in law against the General Court’s finding that the aim of compensating for the disadvantages of undertakings located in Venice and Chioggia cannot remove the character of the social security relief as aid must therefore be rejected.

123. Contrary to the Commission’s view, I do not consider it absolutely necessary to replace the grounds of the judgment. This would only be necessary if the appellants’ complaints could not be rejected on the basis of the grounds contained in the judgment under appeal. As has been explained above, the complaints can be rejected on the basis of the aforementioned evidence. It was not necessary for the General Court to examine in which particular cases the aim pursued may exceptionally be considered when assessing the nature of the aid. Therefore I do not consider it necessary to replace the General Court’s grounds in paragraphs 185 to 188 of the judgment even though the General Court’s statements at that point were wrong in law.

124. The appellants’ other complaints against the General Court’s arguments in the alternative in paragraphs 189 to 194 of the judgment under appeal must be rejected as serving no purpose. ( ) The General Court’s finding that the social security relief constitutes favourable treatment for the purposes of Article 87(1) EC is already justified by the fact that the aim of compensating for the competitive disadvantages of undertakings located in Venice and Chioggia cannot be considered within the context of Article 87(1) EC. An error of law in the General Court’s alternative grounds would therefore not be such as to cast doubt on its finding that the social security relief constitutes aid within the meaning of Article 87(1) EC.

125. The appellants’ complaints against this finding must therefore be rejected in their entirety.

B – Examination of the condition of distorting competition and affecting trade between Member States

1. Grounds of the judgment under appeal

126. The appellants also challenge the General Court’s findings that the Commission had sufficiently examined whether the social security relief scheme distorted competition and affected trade between Member States and had given sufficient reasons for this. The General Court based these findings on the grounds in paragraphs 222 to 252 of the judgment under appeal. There the General Court stated firstly that, with regard to multisectoral aid schemes, the Commission may merely study the characteristics of the scheme at issue without examining individual cases. ( ) The General Court also stated that the apportionment of the burden of proof in State aid cases is subject to compliance by the Commission and the Member States and/or the third parties concerned with the procedural obligations. ( ) It was for the Member State concerned and/or the third parties concerned to provide the Commission with all necessary information during the administrative procedure. ( ) Consequently, in the case of a multisectoral aid scheme, the Commission was merely required to examine the conditions of affecting trade between Member States and distorting competition where sufficient information for that purpose had been communicated to it during the administrative procedure. In the absence of sufficient information, the Commission could, in accordance with the case-law, rely on a presumption based on the analysis of the characteristics of the aid scheme under consideration. ( ) The extent of the Commission’s duty to state reasons also depended on the data and information communicated to it during the administrative procedure. ( ) The lawfulness of the Commission’s decision had to be assessed solely on the basis of the information available to it at the time when the decision was adopted. ( )

127. The General Court then examined whether, given these premisses, the Commission’s statement of reasons was sufficient, which it confirmed, in particular because the observations and documents communicated to the Commission during the administrative procedure contained no specific fact or datum of such a nature as to draw the Commission’s attention to the special situation of certain sectors and permit it in particular to establish that, in those sectors, the social security relief at issue was not likely to affect trade between Member States or competition. It was not, therefore, for the Commission to obtain additional information from the national authorities. ( )

128. The General Court then rejected the pleas alleging infringement of the principle of non-discrimination and the contradictory nature of the statement of reasons that were raised with regard to the fact that the situation of the municipal undertakings was taken into account by the Commission whereas the situation of the applicants or of certain economic sectors was not. In this connection, too, the General Court relied on the fact that the Commission had been given specific information on the municipal undertakings during the administrative procedure. ( )

129. The General Court also dismissed the complaint that the Commission should have taken greater account of the small amount of the social security relief and the local nature of the beneficiary undertakings’ activities. The small amount of social security relief did not exclude the possibility that trade between Member States might be affected. Even supposing that the beneficiary undertakings had exercised their activities solely at local level, trade between Member States could be affected and competition distorted. ( )

130. The General Court consequently found that the Commission’s decision contained an adequate statement of reasons. ( )

131. Finally, the General Court also rejected the plea that the contested decision was not specific enough to enable the national authorities to implement it. It stated in this regard that the statement of reasons of the contested decision was sufficient to permit the national authorities to determine which undertakings were required to repay the aid. It was also not for those authorities, when implementing the contested decision, to ascertain in each individual case whether the conditions for the application of Article 87(1) EC were satisfied. ( )

2. Main arguments of the parties

132. Italgas claims that the General Court breached the rules on the apportionment of the burden of proof by assuming that the national authorities or third parties concerned bore the burden of proof in respect of the conditions for the application of Article 87(1) EC.

133. It also claims that the General Court erred in law in holding that the Commission’s decision contained an adequate statement of reasons. Before the contested decision was adopted, the Commission had received information which called into question whether the social security relief was likely to distort competition and affect trade between Member States in respect of specific categories of undertaking or specific economic sectors. Although the Commission had asked the Italian authorities to provide all necessary information enabling the situation of the municipal undertakings to be assessed, the Commission should also have made further inquiries relating to other categories of undertaking of which it had been advised. It should at least have made clear what criteria the national authorities had to take into account when implementing the decision in order to prevent the national authorities from requesting the return of benefits that were not aid.

134. It also alleges that the General Court distorted evidence. The letter of the City of Venice of 18 May 1998, the Italian Government’s communication of 23 January 1999 and the letter of the Italian authorities of 10 June 1999 did not merely contain indications that the social security relief was not such as to distort competition and affect trade between Member States in the case of municipal undertakings but also contained information relating to other categories of undertaking.

135. It argues, finally, that the General Court’s finding that the contested decision was sufficiently specific to permit its implementation by the national authorities is legally flawed. As the Commission itself admitted, the contested decision was incomplete and had to be supplemented by the Commission’s letters of 29 August and 29 October 2001. The adoption of such incomplete decisions is incompatible with the system for the review of aid. Firstly, the Commission should already have indicated during the formal investigation procedure that in certain cases no aid existed or none that was incompatible with the common market, since only in this way would it have ensured that the national authorities were put in a position properly to implement the Commission decisions. Secondly, the inquiries could not be deferred to the decision implementation procedure, as there would then be no guarantee either of a proper inquiry by the Commission or of a review of the Commission decision by the Community courts.

136. Hotel Cipriani also objects to the General Court’s finding that the Commission decision’s statement of reasons was sufficient. Hotel and restaurant markets, it argues, have to be defined locally because tourists choose the territorial destination first and then the hotel or restaurant. As hotels in Venice are not in competition with hotels in other cities, the social security relief cannot affect trade between Member States.

137. The Committee argues that the General Court’s finding that the Commission had not failed to comply with its procedural obligations was contrary to the principle of non-discrimination. The Commission conducted a detailed analysis only in respect of the municipal undertakings and not in respect of other categories of undertaking.

138. The Committee and the Italian Government also object to the General Court’s finding that the Commission had not failed to state its reasons. They argue that, even in the case of an aid scheme with regional objectives, the Commission should not confine itself to findings of principle or rely on assumptions but must provide evidence that the conditions for application of Article 87(1) EC have been fulfilled. The Commission’s reasoning was limited to the finding that the social security relief had been granted to undertakings that were heavily engaged in trade between Member States, such as undertakings in the commercial and service sectors. It did not take into account the fact that the activity of many undertakings in Chioggia and Venice was merely local, although this was clear from the information that had been submitted to the Commission. In the Italian Government’s view, the Commission should have given greater consideration to the small amount of the social security relief, the local nature of the beneficiaries’ activities and the island status of Venice.

139. Finally, the Italian Government considers that the criteria for assessing individual aid should have been applied because the Commission could have identified the beneficiaries and the amount of the social security relief. After it adopted the contested decision, the Commission ruled out the existence of aid for certain firms because, in their case, trade between Member States was not affected. It should already have carried out that assessment during the formal investigation procedure.

140. The Commission considers that these objections should be dismissed. The General Court rightly found that the statement of reasons contained in the Commission decision was sufficient.

141. Firstly, it rightly stated that the Commission, when assessing the legality of a multisectoral aid scheme, may limit itself to a general consideration without analysing each individual economic sector. In that case, it is for the national authorities and the third parties concerned to provide the Commission with the necessary information for it to be able to assess whether, with regard to specific economic sectors, the measure was likely to distort competition or affect trade between Member States. However, the information supplied to the Commission would not have revealed any special situations affecting the hotel trade and gas supply sectors.

142. Secondly, the General Court rightly stated that even favourable treatment of purely local activities may distort competition and affect trade between Member States, as this may affect the supply of certain goods and services.

143. Thirdly, although the General Court erred in law with regard to the burden of proof, its conclusions were correct, so that that complaint should be rejected but the grounds of the judgment under appeal replaced. The Commission actually provided the evidence that the social security relief was aid. The subject of the Commission’s assessment was the social security relief scheme, not the individual benefits granted under that scheme. If that scheme had been notified to the Commission beforehand, it could only have assessed that scheme in general terms without considering individual cases. It is for the Member State to draw the Commission’s attention to special situations. These principles must also apply where the Member State neglects its duty of notification. The Member States should not actually be rewarded for neglecting their duty of notification. As the judgment under appeal shows, the Commission was provided with no specific information about the applicant undertakings. The Commission points out in this respect that it asked the national authorities to submit information on repeated occasions.

144. Fourthly, the complaint that evidence was distorted must be rejected. In so far as Italgas is challenging the General Court’s factual assessment, this is inadmissible within the context of an appeal. In so far as Italgas is alleging distortion of evidence, this is, in principle, admissible. However, Italgas is in substance objecting not to the distortion of evidence, but to its assessment by the General Court. In any case, the General Court rightly found that the general information in the evidence contained no specific information that would have drawn the Commission’s attention to the special situation of specific sectors.

145. Fifthly, the complaint of Italgas regarding the incompleteness of the contested decision should also be dismissed. In so far as the grounds of the judgment under appeal are contradictory, this is the result of the errors of law that the General Court made when assessing locus standi. In any case, the Commission did not have to examine any individual cases when assessing a multisectoral aid scheme.

3. Legal assessment

146. The appellants contest the General Court’s finding that the Commission sufficiently examined in the contested decision whether the social security relief distorts competition and affects trade between Member States and that it adequately stated the reasons for this. In this respect, they allege errors of law both in the part of the General Court’s grounds in which it explained the assessment criterion to be applied and in the part of the grounds in which the General Court applied that criterion.

147. Firstly, I will examine the complaints regarding the General Court’s and the Commission’s assessment of the social security relief scheme (a). Then I will examine how these claims are to be considered in view of the fact that the Commission did not confine itself in the contested decision to assessing only the social security relief scheme but also ordered the recovery of the aid granted (b).

a) Assessment of the social security relief scheme

i) Assessment criterion and burden of proof

148. The appellants allege errors of law firstly in respect of the assessment criterion and the burden of proof.

– Assessment criterion

149. In so far as the appellants claim that the General Court erred in law in respect of the assessment criterion to be applied by the Commission, this complaint is unfounded.

150. As the General Court rightly found in paragraph 209 of the judgment under appeal, the assessment criterion to be applied by the Commission when reviewing aid primarily depends on the subject-matter to be reviewed. In a case where the Commission is examining the compatibility of an unlawful, multisectoral scheme with Article 87 EC, it is required in principle only to examine the provisions of the scheme. ( ) It may, therefore, in principle confine itself to assessing the national scheme without examining the individual benefits granted under that scheme. This is based on the idea that a Member State should not be rewarded for failing in its duty of notification. The Commission should not therefore be placed in a worse position than in a case where the Member State has notified the scheme in advance.

151. The General Court also rightly stated in paragraph 211 et seq. of the judgment under appeal that the subject-matter to be reviewed by the Commission may also be dependent on the information notified to the Commission during the procedure. If the Commission is given specific information about a specific beneficiary or a specific sector, it may be procedurally obliged to examine the specific case. If the information is complete, the Commission must take account of that beneficiary ( ) or that sector. If it is incomplete, the Commission must, as the second sentence of Article 13(1) of Regulation No 659/1999 indicates, notify the Member State that it must provide it with all necessary documents, information and data within the specified period.

152. The complaint that the General Court used an incorrect assessment criterion must therefore be dismissed as unfounded.

– Burden of proof

153. Italgas also complains that the General Court erred in law with regard to the burden of proof.

154. This complaint is well founded.

155. Contrary to the General Court’s statement in paragraph 232 of the judgment under appeal, neither the Italian Republic nor the applicants bear the burden of proving in this case that the social security relief does not distort competition or affect trade between Member States. In fact, the Commission bears the burden of proving that the conditions for the application of Article 87(1) EC have been fulfilled ( ) and hence also that competition has been distorted and trade affected between Member States.

156. In addition, where the General Court observed, in paragraph 233 of the judgment under appeal, that it is for the Member State concerned and interested third parties to put forward their arguments and provide the Commission with all the relevant information, that is at least misleading. The procedural obligations of the Commission, the Member States and the other parties concerned in the aid review process do not directly determine where the burden of proof rests. However, as has been explained above, they may influence the subject-matter of the assessment as well as the question of from when the evidence of fulfilment of the conditions of application of Article 87(1) EC is considered to be furnished. Accordingly, the second sentence of Article 13(1) of Regulation No 659/1999 provides that the Commission may take its decision on the basis of the information available if a Member State has failed to comply with an information injunction.

157. The General Court’s reasoning therefore contains an error of law regarding the apportionment of the burden of proof. However, as paragraph 239 of the judgment under appeal indicates, the General Court, in spite of that error of law, nevertheless examined whether the Commission had adequately shown that competition had been distorted and trade between Member States affected. Therefore the error of law ultimately had no impact. For this reason, the complaint of Italgas must be dismissed but the General Court’s grounds replaced.

– Interim conclusion

158. The complaints regarding the assessment criterion and the burden of proof cannot therefore succeed.

ii) Application of the assessment criterion

159. The appellants also object to the part of the grounds in which the General Court applied the assessment criterion to the present case. They claim, firstly, that the Commission did not prove that, or did not adequately state why, the scheme distorted competition and affected trade between Member States. They also allege that, in the present case, the Commission should have examined all individual cases, the individual situation of Italgas and Hotel Cipriani and/or the situation of specific economic sectors. Finally, they allege infringement of the principle of non-discrimination and distortion of evidence by the General Court.

– Evidence of distortion of competition and of an effect on trade between Member States

160. The complaint that the General Court wrongly found that the Commission had proved that there had been a distortion of competition and an effect on trade between Member States should be dismissed.

161. As has been explained above, when assessing an unlawful, multisectoral aid scheme, the Commission does not, in principle, have to examine in individual cases whether all benefits granted under that scheme are aid within the meaning of Article 87(1) EC. The Commission may, in fact, confine itself to showing that the scheme as such is incompatible with Article 87 EC. Therefore it also does not have to examine whether all benefits granted under the scheme distort competition and affect trade between Member States.

162. The General Court rightly found that the Commission provided such evidence. The requirements for evidence that the social security relief scheme as such is likely to distort competition and affect trade between Member States are not very demanding. It is sufficient to demonstrate that at least some of the benefits granted under the scheme are likely to have this effect. This is clearly the case for social security relief granted to all undertakings in a specific region.

163. Such operating aid releases an undertaking from costs which it would normally have had to bear. It therefore distorts competition between the beneficiary undertakings and other, non-beneficiary undertakings. ( ) The Italian Government’s objection that this should have been examined more closely owing to the small amount of the relief is mistaken. As the General Court rightly stated in paragraph 247 of the judgment under appeal, in recital 110 of the contested decision the Commission expressly excluded from the scope of Article 87(1) EC social security relief that complies with the de minimis rule. The General Court also rightly pointed out that, according to settled case-law, neither the proportionately small scale of a benefit nor the proportionately small size of the beneficiary undertaking excludes the likelihood that competition will be distorted. This particularly applies where the benefit, as here, is accorded with the aim of maintaining the activity of undertakings that would otherwise withdraw from the market.

164. As regards the effect on trade between Member States, the General Court rightly held that the Commission adequately stated its reasons in the decision. In recital 49 of the contested decision, the Commission explained firstly that the social security relief applied to all undertakings in Venice and Chioggia. It went on to explain that at least some of those undertakings were engaged in trade between Member States.

165. The Commission therefore provided the evidence that the social security scheme distorted competition and affected trade between Member States, because this was the case for at least some of the benefits accorded under that scheme. For the aforementioned reasons, the Commission did not have to provide evidence that all benefits accorded under the scheme distorted competition and affected trade between Member States.

– Need to examine all individual cases

166. In so far as it is alleged that the Commission should have examined whether all social security relief was likely to distort competition and affect trade between the Member States in individual cases, this complaint must be rejected.

167. It has already been established above that, in principle, the Commission is not obliged to provide such proof. Nevertheless, the question remains whether the fact that the Commission was provided with information during the administrative procedure that could have enabled it to determine the identity and the number of undertakings concerned establishes a procedural obligation on the part of the Commission to examine the individual situation of those undertakings.

168. A distinction must be made in this connection between incomplete evidence and information, on the one hand, and insufficiently specific evidence and information, on the other. Specific evidence can oblige the Commission to take into account certain situations. Where the evidence and information are sufficiently specific but incomplete, under the second sentence of Article 13(1) of Regulation No 659/1999 the Commission can be obliged to ask the Member States for information. On the other hand, unspecific, insufficiently substantiated evidence does not give rise to any corresponding procedural obligation on the part of the Commission. Otherwise, the principle that a Member State should not be rewarded for failing in its duty of notification and that the Commission should therefore confine itself in principle to examining the aid scheme as such could be too easily undermined. As the General Court found in paragraphs 240 and 242 et seq. of the judgment under appeal, the information given to the Commission on the individual undertakings was not specific enough to impose a procedural obligation on it.

– Need to inve