European Road Transport Telematics Implementation Coordination Organisation - Intelligent Transport Systems & Services Europe (Ertico - ITS Europe) v European Commission.
Date: 2021-03-10
68


It should be borne in mind that it is apparent from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the appeal is limited to points of law. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts. The appraisal of those facts thus does not, save where they are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 26 March 2019, Commission v Italy, C‑621/16 P, EU:C:2019:251, paragraph 97 and the case-law cited).
69


According to the settled case-law of the Court, the distortion must be obvious from the documents in the case file without there being any need to carry out a new assessment of the facts and the evidence (judgments of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission vScuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 86 and the case-law cited, and of 14 January 2021, ERCEA v Aristoteleio Panepistimio Thessalonikis, C‑280/19 P, not published, EU:C:2021:23, paragraph 46).
70


Moreover, the General Court’s examination of a contractual term cannot be considered to be an interpretation of law and cannot therefore be reviewed in the context of an appeal without encroaching upon the jurisdiction of the General Court to establish the facts (judgments of 29 October 2015, Commission v ANKO, C‑78/14 P, EU:C:2015:732, paragraph 23, and of 14 January 2021, ERCEA v Aristoteleio Panepistimio Thessalonikis, C‑280/19 P, not published, EU:C:2021:23, paragraph 43 and the case-law cited).
71


In addition, it is apparent from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment that the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed or rejected as inadmissible (judgments of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraph 140 and the case-law cited, and of 24 January 2018, EUIPO v European Food, C‑634/16 P, EU:C:2018:30, paragraph 63).
78


In the second place, the wording of the SME Recommendation is unambiguous and, thus, leaves no room for interpretation. The conclusion drawn from that wording cannot be challenged in the light of the alleged purpose and spirit of that recommendation, as this would result in that wording being deprived of all effectiveness. In addition, it is apparent from the case-law of the Court derived from, inter alia, the judgment of 15 July 2010, Commission v United Kingdom (C‑582/08, EU:C:2010:429, paragraph 51), that the Court cannot, in the face of the clear and precise wording of a provision, interpret that provision with the intention of correcting it.
80


Regarding recitals 9 and 12 of the SME Recommendation, it is settled case-law, as can be seen from, inter alia, the judgment of 10 January 2006, IATA and ELFAA (C‑344/04, EU:C:2006:10, paragraph 76), that the preamble to an EU act has no binding legal force and cannot be relied on as a ground either for derogating from the actual provisions of the act in question or for interpreting those provisions in a manner clearly contrary to their wording.
85


Regarding the appellant’s line of argument that the General Court was wrong to find that the decision at issue was well founded even though the appellant formally met the SME Recommendation’s criteria, it should be borne in mind that the Commission is bound, first, by the guidelines and notices that it issues in the area of supervision of State aid where they do not depart from the rules in the FEU Treaty and are accepted by the Member States (judgment of 29 April 2004, Italy v Commission, C‑91/01, EU:C:2004:244, paragraph 45 and the case-law cited).
86


In that regard, the Court has observed that the Commission takes a favourable approach to State aid to SMEs on account of the market failures which result in them having to contend with a number of handicaps which limit their socially and economically desirable development (see, to that, effect, judgments of 29 April 2004, Italy v Commission, C‑91/01, EU:C:2004:244, paragraph 46, and of 24 September 2020, NMI Technologietransfer, C‑516/19, EU:C:2020:754, paragraph 31).
87


However, the Court has also held that the SME Recommendation must be interpreted by taking into account the reasons for its adoption (judgment of 27 February 2014, HaTeFo, C‑110/13, EU:C:2014:114, paragraph 30).
88


In that regard, as is apparent from recitals 9 and 12 of the SME Recommendation and from Article 1(1) thereof, that recommendation aims to adopt an SME definition used in the EU policies applied within the European Union and the EEA which takes into account the real economic position of SMEs in order to remove from that category groups of enterprises whose economic power may exceed that of genuine SMEs, with a view to ensuring that only those enterprises which really need the advantages accruing to SMEs from the different rules or measures in their favour actually benefit from them (see, to that effect, judgments of 27 February 2014, HaTeFo, C‑110/13, EU:C:2014:114, paragraph 31, and of 24 September 2020, NMI Technologietransfer, C‑516/19, EU:C:2020:754, paragraph 34).
89


As the General Court observed, in essence, in paragraph 100 of the judgment under appeal, the advantages afforded to SMEs are in most cases exceptions to the general rules, such as for example in the area of State aid, and therefore the definition of an SME must be interpreted strictly (judgments of 27 February 2014, HaTeFo, C‑110/13, EU:C:2014:114, paragraph 32, and of 24 September 2020, NMI Technologietransfer, C‑516/19, EU:C:2020:754, paragraph 65).
90


On this view, the purpose of the independence criterion is to ensure, as the General Court correctly noted in paragraphs 102 and 149 of the judgment under appeal, that the measures intended for SMEs genuinely benefit enterprises for which size represents a handicap and not enterprises belonging to a large group which, as a result, have access to funds and assistance not available to competitors of equal size. In those circumstances, in order to include only enterprises that are genuinely independent SMEs, it is necessary to examine the structure of SMEs which form an economic group, the power of which exceeds the power of an SME, and to ensure that the SME definition is not circumvented by purely formal means (see, to that effect, judgments of 29 April 2004, Italy v Commission, C‑91/01, EU:C:2004:244, paragraph 50, and of 27 February 2014, HaTeFo, C‑110/13, EU:C:2014:114, paragraph 33).
91


Accordingly, the independence criterion must be interpreted in the light of that purpose, as the General Court recalled in paragraph 103 of the judgment under appeal, so that an enterprise which formally meets the criterion, but in reality belongs to a large group of enterprises, may not nevertheless be regarded as meeting that criterion (see, to that effect, judgment of 29 April 2004, Italy v Commission, C‑91/01, EU:C:2004:244, paragraph 51). Article 3 of the Annex to the SME Recommendation must thus be interpreted in the light of that purpose (see, to that effect, judgment of 27 February 2014, HaTeFo, C‑110/13, EU:C:2014:114, paragraph 34).
98


In the first place, the argument that no intention to circumvent the SME definition has been established on the part of the appellant in the present case does not enable it to be shown that the General Court erred in law in its assessment of that definition. Whether the condition that, from an economic standpoint, an enterprise belongs de facto to a large economic group and, as a result, has access to funds and assistance not available to competitors of equal size is satisfied depends on the circumstances of the case, and is not necessarily conditional on a finding that that enterprise intended to circumvent the SME definition (see, to that effect, judgment of 27 February 2014, HaTeFo, C‑110/13, EU:C:2014:114, paragraphs 35 and 39).