Nuova Agricast Srl and Cofra Srl v European Commission.
Date: 2010-10-14
48. It follows from Article 225 EC, the first paragraph of Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court that an appeal must state precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or plea concerned is inadmissible (see Case C‑352/98 P Bergaderm and Goupil  v Commission  [2000] ECR I‑5291, paragraph 34; Case C‑248/99 P France  v Monsanto and Commission  [2002] ECR I‑1, paragraph 68; and Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others  v Commission  [2005] ECR I‑5425, paragraph 426).
49. In that regard, the Court observes that, although admittedly certain portions of the line of argument put forward by the appellants in the context of their first and second grounds of appeal may lack rigour, that line of argument does, however, appear overall to be sufficiently clear for the purposes of identifying with the necessary precision the elements of the judgment under appeal which are being challenged, and the legal arguments relied on in support of that challenge, and thus enables the Court to carry out its review of the lawfulness thereof.
64. As part of that analysis, it is necessary to consider not only the actual wording of that decision, only a summary of which was published in the Official Journal of the European Communities , but also to take account of the 1997-1999 aid scheme, as notified (see, to that effect, Case C‑138/09 Todaro Nunziatina & C.  [2010] ECR I‑0000, paragraph 31).
65. It must also be borne in mind in this context that State aid which, in some of its detailed rules, infringes the general principles of European Union law, such as the principles of legal certainty, the protection of legitimate expectations and equal treatment, cannot be declared by the Commission to be compatible with the common market (see Nuova Agricast , paragraph 51).
67. Although the Court held in that judgment that the contested decision, which authorised the transitional measures under the 2000-2006 aid scheme, did not infringe the principle of equal treatment because it treated the undertakings in the first and second categories differently, it did not in any way rule on the compatibility of that decision or of the 1997 decision with other principles, such as, in particular, the principles of the protection of legitimate expectations and legal certainty. On the contrary, it stated in paragraph 44 of its judgment that, although Nuova Agricast had, in the main proceedings, put forward other grounds of invalidity of the contested decision, it was inappropriate to extend the examination of the validity of that decision in the light of those other grounds of invalidity, which had not been referred to by the national court.
68. Moreover, the Court’s finding in paragraphs 67 to 78 of its judgment in Nuova Agricast , to the effect that undertakings in the first category and those in the second category were not in a comparable situation in terms of the criterion of the need for the State aid, does not per se preclude the possibility of the Commission’s having an obligation to authorise transitional provisions for undertakings in the first category as well in order to comply with, inter alia, the principle of the protection of legitimate expectations.
69. Thus, provided that undertakings in the first category could in fact avail themselves of that principle, it may, as appropriate, have been necessary to authorise such transitional provisions, even though those undertakings were not in a situation comparable to that of undertakings in the second category. The Court has already held, inter alia, that, in the absence of an overriding public interest, the Commission infringes a superior rule of law if it fails to couple the repeal of a set of rules with transitional measures for the protection of the expectations which a trader might legitimately have derived from the European Union rules (see, to that effect, Belgium and Forum 187  v Commission , paragraph 149 and the case-law cited).
70. It should also be borne in mind that the Court has held that the Commission must have been aware of the existence of both the undertakings in the first category and those in the second category ( Nuova Agricast , paragraph 62).
71. As for the compatibility of the 1997 decision and the 1997-1999 aid scheme with the principle of the protection of legitimate expectations, the Court has repeatedly held that the right to rely on that principle extends to any person in a situation where a European Union institution has caused him to entertain expectations which are justified. However, a person may not plead infringement of that principle unless he has been given precise assurances by that institution. Similarly, if a prudent and alert economic operator could have foreseen the adoption of a measure likely to affect his interests, he cannot plead that principle if the measure is adopted (see, to that effect, Belgium and Forum 187  v Commission , paragraph 147 and the case-law cited, and Case C‑519/07 P Commission  v Koninklijke FrieslandCampina  [2009] ECR I‑8495, paragraph 84).
72. In the present case, the 1997 decision, as published in the Official Journal of the European Communities , indicated, under the title ‘Duration’, the date of 31 December 1999.
73. Contrary to the appellants’ submissions, a prudent and alert economic operator, who is supposed to be familiar with that decision, could have inferred from that statement that the possibility of submitting an application, through automatic inclusion or reformulation under the detailed rules of the 1997-1999 aid scheme, pursuant to an invitation to apply which was subsequent to that under which the aid application had been lodged, was limited by the duration of the authorisation granted for that scheme.
74. It should be observed, inter alia, in that regard that, given that the 1997 decision, in authorising that scheme, was derogating from the general principle, set out in Article 87(1) EC, that State aid is incompatible with the common market, such an operator could not reasonably expect that that decision would authorise the grant of aid even after the date indicated therein, contrary to the principle that such exceptions are to be strictly interpreted (see Case C-277/00 Germany  v Commission  [2004] ECR I‑3925, paragraph 20, and Joined Cases C‑346/03 and C‑529/03 Atzeni and Others  [2006] ECR I‑1875, paragraph 79).
77. Next, the principle of legal certainty requires that European Union legislation must be certain and its application foreseeable by those subject to it (Case 325/85 Ireland  v Commission  [1987] ECR 5041, paragraph 18; Case C‑63/93 Duff and Others  [1996] ECR I‑569, paragraph 20; and Belgium and Forum 187  v Commission , paragraph 69). It follows from paragraphs 73 to 75 of the present judgment that the 1997 decision indicated an expiry date, which made it foreseeable for the undertakings likely to avail themselves of the 1997-1999 aid scheme that, after that date, no further invitation to apply for aid could be launched under that scheme.
78. Concerning, lastly, the compatibility of the 1997 decision and of the 1997-1999 aid scheme with the principle of equal treatment, it must be remembered that that principle precludes, inter alia, comparable situations from being treated differently, unless such treatment is objectively justified (see, inter alia, Case C‑413/08 P Lafarge  v Commission  [2010] ECR I‑0000, paragraph 40 and the case-law cited).