Commission of the European Communities v MTU Friedrichshafen GmbH.
Date: 2009-09-17
46. As regards, first, the admissibility of this ground of appeal, it is clear from Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice that an appeal is limited to points of law and must be based on grounds of lack of jurisdiction of the Court of First Instance, breach of procedure before it which adversely affects the interests of the applicant, or infringement of Community law by the Court of First Instance (see, to that effect, inter alia Case C‑284/98 P Parliament  v Bieber [2000] ECR I‑527, paragraph 30; order in Case C‑420/04 P Gouvras v Commission [2005] ECR I‑7251, paragraph 48; and order of 20 March 2007 in Case C‑323/06 P Kallianos v Commission , paragraph 10).
50. Such an assessment is subject to review by the Court of Justice only where the facts and evidence put before the Court of First Instance have been distorted, but such distortion has not been shown or alleged by the Commission in the present case (see, to that effect, inter alia Case C‑53/92 P Hilti v Commission  [1994] ECR I‑667, paragraph 42; Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others  v Commission  [2004] ECR I‑123, paragraph 49; and Case C‑206/04 P Mülhens  v OHIM  [2006] ECR I‑2717, paragraph 28).
52. It is apparent from a reading of paragraphs 46 to 48 of the judgment under appeal that the Court of First Instance, far from requiring such a level of certainty, simply found that the decision at issue was adopted on the basis of a mere hypothesis, which was neither confirmed nor rebutted by the information at the Commission’s disposal, since the latter found merely that there was a lack of evidence enabling it to be ruled out that MTU benefited from a transfer of State resources.
53. By proceeding in that manner, the Court of First Instance did not err in law.
54. It is admittedly true that Article 13(1) of the regulation, codifying settled case‑law (see, in particular, Case C‑301/87 France  v Commission  [1990] ECR I‑307 ‘Boussac Saint-Frères’ , paragraph 22; Case C‑142/87 Belgium  v Commission  [1990] ECR I‑959, paragraph 18; and Germany and Pleuger Worthington  v Commission , paragraph 26), empowers the Commission, once it finds that aid has been granted or altered without notification, to adopt a decision on whether the aid is compatible or not with the common market on the basis of the information available, where it is faced with a Member State which does not fulfil its duty to cooperate and has not provided the Commission with the information requested. Furthermore, if appropriate, such a decision may, under the conditions laid down in Article 14 of the regulation, call for the recovery of the amount of the aid which has already been paid.
57. Such considerations are even more relevant where the Commission orders, as in the present case, the recovery of the aid from the beneficiary, since the very aim of such reimbursement is to eliminate the distortion of competition brought about by a certain competitive advantage and, thus, to re-establish the status quo before the aid was granted (see, to that effect, inter alia Joined Cases C‑328/99 and C‑399/00 Italy and SIM 2 Multimedia  v Commission  [2003] ECR I‑4035, paragraph 66, and Case C‑277/00 Germany  v Commission  [2004] ECR I‑3925, paragraphs 74 to 76).
58. It follows from the principles set out in the preceding paragraphs that the Commission cannot assume that an undertaking has benefited from an advantage constituting State aid solely on the basis of a negative presumption, based on a lack of information enabling the contrary to be found, if there is no other evidence capable of positively establishing the actual existence of such an advantage.