Italian Republic v Commission of the European Communities.
Date: 2004-04-29
31. The Commission points out, inter alia, that, firstly, the order for recovery of the aid already paid out is only one of the aspects of the contested decision, which continues to apply to all recipients, including those which are only potentially so. It maintains, secondly, that it will be possible to determine the actual existence of an obligation imposed on each undertaking to repay the aid received only at the conclusion of complex investigations. Finally, if all the undertakings which received aid granted under schemes declared illegal and incompatible with the common market and recovery of which was ordered by a Commission decision were allowed to bring actions contesting that decision before the Court of First Instance, in cases where those undertakings did not bring actions, any reference for a preliminary ruling concerning the recovery of such aid would be declared inadmissible (see Case C‑188/92 TWD Textilwerke Deggendorf  [1994] ECR I‑833, paragraphs 25 and 26). The Commission is of the opinion that the perverse effect of such a situation would be to oblige recipient undertakings to contest the decision before th e Court of First Instance within the limited period laid down for bringing an action for annulment, even before knowing whether, under national law, they will actually be required to repay the aid received, such an effect potentially weakening the judicial protection of those undertakings.
35. Where a decision is not of individual concern to a natural or legal person within the meaning of that provision, which is an essential condition for having locus standi  in proceedings seeking judicial review of a Community act, such proceedings are inadmissible and that inadmissibility therefore constitutes a ground involving a question of public policy which may, and even must, be raised of its own motion by the Community judicature (see, with regard to a party having no interest in bringing or in maintaining an appeal, Case C‑19/93 P Rendo and Others  v Commission  [1995] ECR I‑3319, paragraph 13).
36. According to settled case‑law, persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (see, inter alia, judgments in Case 25/62 Plaumann  v Commission  [1963] ECR 95; Case C‑321/95 P Greenpeace Council and Others  v Commission  [1998] ECR I‑1651, paragraphs 7 and 28, and Italy and Sardegna Lines  v Commission , cited above, paragraph 32).
37. The Court has thus held that an undertaking cannot, in principle, contest a Commission decision prohibiting a sectoral aid scheme if it is concerned by that decision solely by virtue of belonging to the sector in question and being a potential beneficiary of the scheme. Such a decision is, vis-à-vis the undertaking should it seek to contest the decision, a measure of general application covering situations which are determined objectively and entails legal effects for a class of persons envisaged in a general and abstract manner ( Van der Kooy and Others  v Commission , cited above, paragraph 15; Case C-6/92 Federmineraria and Others  v Commission  [1993] ECR I‑6357, paragraph 14, and Italy and Sardegna Lines  v Commission , paragraph 33).
38. However, it is appropriate to recall the position adopted by the Court in the judgment in Italy and Sardegna Lines  v Commission with regard to Commission Decision 98/95/EC of 21 October 1997 concerning aid granted by the Region of Sardinia (Italy) to shipping companies in Sardinia (OJ 1998 L 20, p. 30), which required the Italian Republic to recover from each beneficiary of the loans and leases in question the element of aid which they contained. In paragraphs 34 and 35 of that judgment, the Court held that, since Sardegna Lines was not only concerned by Decision 98/95 by virtue of being an undertaking in the shipping sector in Sardinia and a potential beneficiary of the aid scheme for Sardinian shipowners, but also by virtue of being an actual beneficiary of individual aid granted under that scheme, the recovery of which had been ordered by the Commission, it was individually concerned by that decision and its action directed against that decision was admissible.
39. Contrary to what the Commission claims, that is precisely the case here, since the applicants are in a different position from that of applicants for whom a Commission decision is in the nature of a measure of general application. The former are not only concerned by the contested decision by virtue of being undertakings in the road haulage sector in the region and potential beneficiaries of the aid scheme in question, but also by virtue of being actual recipients of individual aid granted under that scheme, the recovery of which has been ordered by the Commission. As paragraphs 10 and 11 of the contested judgment show, the number of applications accepted and the amount budgeted for the aid in question during the periods from 1981 to 1985 and from 1985 to 1995 were specified in section II of the reasons for the contested decision and the Commission must therefore have known of the existence of those actual recipients.
47. With regard to existing aid, under the provisions of Article 93(1) and (2) of the Treaty and in accordance with the principle of legal certainty, in the context of its constant review of such aid, if, after giving notice to the parties concerned to submit their comments, the Commission finds that that aid is not compatible with the common market having regard to Article 92 of the Treaty, or that such aid is being misused, it is to decide that the State concerned must abolish or alter such aid within a period of time to be determined by the Commission. Such aid may therefore be lawfully put into effect as long as the Commission has not found it to be incompatible (see judgments in Italy  v Commission , cited above, paragraphs 23 and 25, and Banco Exterior de España , cited above, paragraph 20).
49. As the Court of First Instance held inter alia, in paragraphs 77 to 79 of the contested judgment, in the course of the Commission’s assessment of new aid which, pursuant to Article 93(3) of the Treaty, is to be notified to it before being put into effect, the Commission is required to establish, not whether such aid has a real impact on trade between Member States and on competition, but whether that aid could affect that trade. If the Commission had to demonstrate in its decision the real effect of aid already granted, such a requirement would have the effect of favouring Member States which grant aid in breach of the obligation 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-301/87 France  v Commission  [1990] ECR I-307, ‘ Boussac Saint Frères ’, paragraphs 32 and 33).
54. In the first place, it should be recalled that, according to settled case‑law, the relatively small amount of aid or the relatively small size of the undertaking which receives it do not as such exclude the possibility that intra-Community trade might be affected (see Case C-142/87 Belgium  v Commission  [1990] ECR I-959, ‘ Tubemeuse ’, paragraph 43; Joined Cases C‑278/92 to C‑280/92 Spain  v Commission  [1994] ECR I‑4103, paragraph 42, and Case C‑280/00 Altmark Trans and Regierungspräsidium Magdeburg  [2003] ECR I‑7747, paragraph 81). Aid of a relatively small amount is liable to affect competition and trade between Member States where there is strong competition in the sector in which the undertakings which receive it operate (see Case 259/85 France  v Commission  [1987] ECR 4393, paragraph 24, and Case C‑351/98 Spain  v Commission  [2002] ECR I‑8031, paragraph 63).
61. In the third place, according to settled case-law, the fact that a Member State seeks to approximate, by unilateral measures, conditions of competition in a particular sector of the economy to those prevailing in other Member States cannot deprive the measures in question of their character as aid (Joined Cases 6/69 and 11/69 Commission  v France  [1969] ECR 523, paragraphs 20 and 21, and Case C-6/97 Italy  v Commission  [1999] ECR I-2981, paragraph 21).
75. According to settled case‑law, correctly cited by the Court of First Instance in paragraph 169 of the contested judgment, abolishing unlawful aid by means of recovery is the logical consequence of a finding that it is unlawful. Consequently, the recovery of State aid unlawfully granted, for the purpose of restoring the previously existing situation, cannot in principle be regarded as disproportionate to the objectives of the Treaty in regard to State aids (see Tubemeuse , cited above, paragraph 66, and Case C‑169/95 Spain  v Commission  [1997] ECR I-135, paragraph 47).
76. By repaying the aid, the recipient forfeits the advantage which it had enjoyed over its competitors on the market, and the situation prior to payment of the aid is restored (see Case C‑350/93 Commission v Italy  [1995] ECR I‑699, paragraph 22). It also follows from that function of repayment of aid that, as a general rule, save in exceptional circumstances, the Commission will not exceed the bounds of its discretion, recognised by the case-law of the Court, if it asks the Member State to recover the sums granted by way of unlawful aid since it is only restoring the previous situation (see Case C‑75/97 Belgium  v Commission [1999] ECR I‑3671, paragraph 66, and Case C‑310/99 Italy  v Commission  [2002] ECR I‑2289, paragraph 99).
78. In accordance with the case‑law of the Court, the apprehension of internal difficulties cannot justify a failure by a Member State to comply with its obligations under Community law (see, inter alia, Case C‑404/97 Commission  v Portugal  [2000] ECR I‑4897, paragraph 52; Case C‑310/99 Italy  v Commission , cited above, paragraph 105, and Case C‑404/00 Commission  v Spain  [2003] ECR I‑6695, paragraph 55).
86. It must be pointed out that a recipient of illegally granted aid is not precluded from relying on exceptional circumstances on the basis of which it had legitimately assumed the aid to be lawful and thus declining to refund that aid. If such a case is brought before a national court, it is for that court to assess the material circumstances, if necessary after obtaining a preliminary ruling on interpretation from the Court of Justice (Case C‑5/89 Commission  v Germany  [1990] ECR I‑3437, paragraph 16, and Case C‑310/99 Italy  v Commission , cited above, paragraph 103).
89. Finally, in so far as the Italian Republic claims that, since the recipient undertakings had relied on the lawfulness of aid instituted and paid out over many years, the Court of First Instance should have concluded that that long period had given rise to legitimate expectations on the part of those recipients with regard to recovery of the aid in dispute, which, as the Court of Justice has already held, justified a temporal limitation of the power held by the Commission, it is sufficient to reply that, in order to fulfil its function, such a limitation period must be fixed in advance, the fixing of its duration and the detailed rules for its application coming within the powers of the Community legislature (see, to that effect, Case 52/69 Geigy  v Commission  [1972] ECR 787, paragraph 21). On the date of the contested decision, the latter had not yet acted to fix a period of limitation in connection with the monitoring of aid granted under the Treaty, since Regulation No 659/1999, having only entered into force on 16 April 1999, does not apply to the facts of this case.
90. However, the fundamental requirement of legal certainty has the effect of preventing the Commission from indefinitely delaying the exercise of its powers (see Geigy  v Commission , cited above, paragraphs 20 and 21, and Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano  v Commission  [2002] ECR I‑7869, paragraph 140). In that regard, a delay by the Commission in deciding that an aid is illegal and must be abolished and recovered by a Member State could in certain circumstances establish a legitimate expectation on the part of the recipients of that aid so as to prevent the Commission from requiring that Member State to order the refund of the aid (see Case 223/85 RSV  v Commission  [1987] ECR 4617, paragraph 17). However, the facts of the case giving rise to that judgment were exceptional and bear no resemblance to those in the present case. The measure at issue in that judgment concerned a sector which had for some years been receiving State aid approved by the Commission and its object was to meet the additional costs of an operation which had already received authorised aid (Case C‑334/99 Germany  v Commission  [2003] ECR I‑1139, paragraph 44).
97. In any event, it should be pointed out that, in paragraph 163 of the contested judgment, the Court of First Instance started from the general principle that the operative part of an act is indissociably linked to the statement of reasons for it, so that, when it has to be interpreted, account must be taken of the reasons which led to its adoption (see, inter alia, Case C‑355/95 P TWD  v Commission  [1997] ECR I‑2549, paragraph 21, and Case C‑404/97 Commission  v Portugal , cited above, paragraph 41).