Giuseppe Atzeni and Others (C-346/03), Marco Scalas and Renato Lilliu (C-529/03) v Regione autonoma della Sardegna.
Date: 2006-02-23
26. It must be pointed out in this regard that the Court may, of its own motion, on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure, if it takes the view that it lacks sufficient information or that the case should be decided on the basis of an argument which has not been debated between the parties (see Case C-309/99 Wouters and Others  [2002] ECR I-1577, paragraph 42, and Case C-210/03 Swedish Match  [2004] ECR I-11893, paragraph 25).
30. The issue of the admissibility of the questions referred for a preliminary ruling arises because Atzeni and Others already brought an action for annulment of the contested decision on 25 January 2002 before the Court of First Instance of the European Communities. By order of 29 May 2002 in Case T‑21/02 Atzeni and Others  v Commission , not published in the ECR, the Court of First Instance dismissed the action as inadmissible because it had been brought after the time-limit, without, however, ruling on a second ground of inadmissibility raised by the Commission, relating to the applicants’ lack of standing to bring proceedings before the Court of First Instance. If they had had standing to bring proceedings but had merely failed to bring their action within the prescribed time-limits, the present references for a preliminary ruling, relating to the validity of the contested decision, would be inadmissible before this Court.
31. It follows from the requirements of legal certainty, and more specifically those deriving from the principle of the force of res judicata, that it is not possible for a recipient of aid, forming the subject-matter of a Commission decision adopted on the basis of Article 93 of the Treaty, who could have challenged that decision and who allowed the mandatory time-limit laid down in this regard by the fifth paragraph of Article 173 of the Treaty (now, after amendment, the fifth paragraph of Article 230 EC) to elapse, to call in question the lawfulness of that decision before the national courts in an action brought against the measures taken by the national authorities for implementing that decision. To accept that in such circumstances the person concerned could challenge the implementation of the decision in proceedings before the national court on the ground that the decision was unlawful would in effect enable the person concerned to overcome the definitive nature which the decision assumes as against that person once the time-limit for bringing an action has elapsed (see Case C‑188/92 TWD Textilwerke Deggendorf  [1994] ECR I‑833, paragraphs 17 and 18).
32. The Court notes that, in the circumstances giving rise to the judgment in TWD Textilwerke Deggendorf , the Commission’s decision addressed to the Member State concerned made explicit reference to the recipient of the individual aid in question and that State had communicated the decision to the recipient, stating that it could bring an action for annulment thereof.
33. In the main proceedings here, by contrast, the contested decision, addressed to the Italian Republic, concerns aid schemes intended for categories of persons defined in a general manner and not explicitly identified recipients. Nor was the decision notified by the Italian Republic to Atzeni and Others or to any other recipients of the aid in question.
34. Thus, unlike the circumstances giving rise to the judgment in TWD Textilwerke Deggendorf , it was not self-evident that an action for annulment brought against the contested decision brought by the recipients of the four aid measures would have been admissible. Accordingly, the Court finds that the references for a preliminary ruling are admissible.
The legal basis of the contested decision and the effect thereof on the Commission’s competence to adopt that decision
Observations submitted to the Court
51. Measures taken after the entry into force of the Treaty to grant or alter aid, whether the alterations relate to existing aid or to initial plans notified to the Commission, must be regarded as new aid (see, to that effect, Case C‑295/97 Piaggio  [1999] ECR I‑3735, paragraph 48).
61. Second, even though the Commission’s procedure for examining Law No 44/88 and the four aid measures may appear to have been relatively lengthy, it should be borne in mind that until the adoption 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 (OJ 1999 L 83, p. 1), the Commission was not bound by any specific time-limits. In the absence of any provision in that regard, the fundamental requirement of legal certainty nevertheless had the effect of preventing the Commission from indefinitely delaying the exercise of its powers (see Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano  v Commission  [2002] ECR I‑7869, paragraph 140).
64. In view of the mandatory nature of the monitoring of State aid by the Commission under Article 93 of the Treaty, undertakings to which aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that article. A diligent businessman should normally be able to determine whether that procedure has been followed (see Case C‑24/95 Alcan Deutschland  [1997] ECR I‑1591, paragraph 25).
65. Where aid is paid without prior notification to the Commission, so that it is unlawful under Article 93(3) of the Treaty, the recipient of the aid cannot have at that time a legitimate expectation that its grant is lawful (see Alcan Deutschland , paragraphs 30 and 31, and Joined Cases  C‑183/02 P and C‑187/02 P Demesa and Territorio histórico de Álava  v Commission  [2004] ECR I‑10609, paragraph 45).
73. Article 190 of the Treaty requires that the statement of reasons be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. Depending on the circumstances of each case, it is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and all the legal rules governing the matter in question (see, inter alia, Case C‑113/00 Spain  v Commission  [2002] ECR I‑7601, paragraphs 47 and 48).
74. Thus, in the case of aid which was not notified to the Commission at the planning stage, in the statement of reasons for its decision the Commission is bound to refer at least to the circumstances in which aid has been granted where those circumstances show that the aid is such as to affect trade between Member States, but it is not bound to demonstrate the real effect of aid already granted. If it were, that requirement would ultimately favour Member States which grant aid in breach of the duty to notify laid down in Article 93(3) of the Treaty, to the detriment of those which do notify aid at the planning stage (Case C-113/00 Spain  v Commission , paragraph 54).
79. Article 92(2)(b) of the Treaty provides that aid to make good damage caused by natural disasters or exceptional occurrences is compatible with the common market. Since this is an exception to the general principle that State aid is incompatible with the common market, that provision must be interpreted narrowly. The Court has held that only damage caused by natural disasters or exceptional occurrences may be compensated for under that provision. It follows that there must be a direct link between the damage caused by the exceptional occurrence and the State aid and that as precise an assessment as possible must be made of the damage suffered by the producers concerned (judgment of 11 November 2004 in Case C‑73/03 Spain  v Commission , not published in the ECR, paragraph 37).
84. As regards the assessment of the validity of the aid in the light of the provisions of Article 92(3)(a) and (c) of the Treaty, relating to aid to promote or facilitate the economic development of certain regions or certain activities, it should be remembered that for the purposes of applying those provisions the Commission enjoys a wide discretion, the exercise of which involves assessments of an economic and social nature which must be made within a Community context, and that the Court, in reviewing whether that freedom was lawfully exercised, cannot substitute its own assessment for that of the competent authority but must restrict itself to examining whether the authority’s assessment is vitiated by a manifest error or misuse of powers (see Case C‑456/00 France  v Commission  [2002] ECR I‑11949, paragraph 41).