Hellenic Republic v Commission of the European Communities.
Date: 2004-04-29
21. The Hellenic Republic maintains that the Commission’s review should have related to the aids which were actually paid, not Article 32(2) of Law No 2008/92. It submits that that provision was no longer applicable to individual cases when the Commission stopped considering the matter. The Hellenic Republic maintains that the Commission knew the number and identity of the agricultural cooperatives which were the recipients of the aid and, furthermore, based the contested decision on information about those cooperatives provided by the Greek Government. In those circumstances, the decisions taken pursuant to Article 32(2) of Law No 2008/92 should have been regarded as individual aid measures.
24. It must be pointed out that, in the case of an aid scheme, the Commission may confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies. That power cannot be altered by the fact that the aid scheme in question has ceased to apply (see inter alia Joined Cases C-15/98 and C-105/99 Italy and Sardegna Lines v Commission  [2000] ECR I-8855, paragraph 51).
30. In that regard, it should be pointed out that, under the first sentence of Article 88(3) EC, plans to introduce or alter aid measures must be notified to the Commission before they are implemented. The Commission then conducts an initial review of the planned aid. If at the end of that review it considers a plan to be incompatible with the common market, it must without delay initiate the consultative examination procedure under Article 88(2) EC.
31. It follows from the last sentence of Article 88(3) EC that throughout the preliminary period the Member State concerned may not put the planned aid into effect. Where the consultative examination procedure is initiated, that prohibition continues until the Commission reaches a decision on the compatibility of the planned aid with the common market (Case C-39/94 SFEI and Others  [1996] ECR I-3547, paragraph 38). However, if the Commission has not responded within two months of notification, the Member State concerned may implement the plan after informing the Commission (see the judgment in Lorenz , cited above, paragraph 4).
52. In that regard, it should be pointed out that Article 87(1) EC includes all the financial resources which the State may indeed use to support undertakings. The fact that those resources constantly remain under public control, and therefore available to the competent national authorities, is sufficient for them to be categorised as State resources and for the measure to fall within the scope of Article 87(1) EC (Case C-83/98 P France  v Ladbroke Racing and Commission  [2000] ECR I-3271, paragraph 50).
62. For reasons of legal certainty and equality of treatment, the Commission may consider, as a general rule, that it is legitimate to apply the reference rate in force during a certain period to all loans granted during that period (Case C-457/00 Belgium v Commission  [2003] ECR I-6931, paragraph 72).
69. As regards the argument that the overall amount of aid in question is small and that it is divided between a large number of farmers, each of whom receives a negligible sum in national or Community terms, it is settled case-law of the Court that the relatively small amount of aid or the relatively small size of the undertaking which receives it does not prima facie exclude the possibility that intra-Community trade may be affected or competition distorted (see inter alia Case 730/79 Philip Morris v Commission  [1980] ECR 2671, paragraphs 11 and 12; Case C-142/87 Belgium v Commission  (‘ Tubemeuse ’) [1990] ECR I-959, paragraph 43; Joined Cases C-278/92 to C-280/92 Spain v Commission  [1994] ECR I-4103, paragraph 42; Case C-310/99 Italy v Commission  [2002] ECR I-2289, paragraph 86, and Case C-113/00 Spain v Commission [2002] ECR I-7601, paragraph 30).
70. Other factors may be decisive when assessing the effect of aid on trade, such as whether the aid is cumulative and whether the undertakings that receive it are operating in a sector that is particularly exposed to competition (see Spain v Commission , cited above, paragraph 30).
74. However, it is apparent both from point 2.3 of the Guidelines and from the fourth paragraph of the Notice on the de minimis  rule for State aid that the de minimis  rule does not apply to the agriculture and fisheries sectors ( Spain  v Commission , cited above, paragraph 35).
81. Since it constitutes a derogation from the general principle laid down in Article 87(1) EC that State aid is incompatible with the common market Article 87(2)(b) EC must be construed narrowly (Case C-156/98 Germany v Commission  [2000] ECR I-6857, paragraph 49, and Case C-301/96 Germany v Commission  [2003] ECR I‑0000, paragraph 66).
82. Consequently, only economic disadvantages directly caused by natural disasters or by exceptional occurrences qualify for compensation as provided for in that provision(see to this effect Case C-156/98 Germany v Commission , cited above, paragraph 54, and Case C-301/96 Germany v Commission , cited above, paragraph 72).
97. In that regard it must be pointed out that, when applying Article 87(3) EC, the Commission has a wide discretion the exercise of which involves economic and social assessments which must be made in a Community context, and that the Court of Justice, when reviewing the legality of the exercise of that freedom, cannot substitute its own assessment for that of the competent authority but must confine itself to examining whether the latter assessment is vitiated by a manifest error or by a misuse of powers (Case C-456/00 France v Commission  [2002] ECR I-11949, paragraph 41).
98. It should be made clear, however, that the Commission may adopt a policy as to how it will exercise its discretion in the form of measures such as guidelines, in so far as those measures contain rules indicating the approach which the institution is to take and do not depart from the rules of the Treaty (see, in particular, Case C-288/96 Germany v Commission  [2000] ECR I-8237, paragraph 62, and Italy v Commission , cited above, paragraph 52).
104. As regards the principle of the protection of legitimate expectations, it should be stated that, in view of the mandatory nature of the supervision of State aid by the Commission under Article 88 EC, 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 (Case C-169/95 Spain  v Commission  [1997] ECR I-135, paragraph 51, and Case C-24/95 Alcan Deutschland  [1997] ECR I-1591, paragraph 25).
112. In that regard, it should be pointed out that, although unsurmountable difficulties may prevent a Member State from complying with its obligations under Community law (see to that effect Case 101/84 Commission v Italy  [1985] ECR 2629, paragraph 16), mere apprehension of such difficulties cannot justify the State’s failure to apply that law correctly (see Case C-52/95 Commission v France  [1995] ECR I-4443, paragraph 38, and Case C-265/95 Commissio n v France  [1997] ECR I-6959, paragraph 55).
114. It should also be pointed out that a Member State which encounters unforeseen and unforeseeable difficulties in implementing a Commission decision on State aid, or becomes aware of consequences not envisaged by the Commission, must submit those problems for consideration by the Commission and suggest appropriate amendments to the decision in question. In such a case the Commission and the Member State concerned must, in accordance with the duty of genuine cooperation between the Member States and the Community institutions stated in particular in Article 10 EC, work together in good faith with a view to overcoming the difficulties whilst fully observing the Treaty provisions, in particular the provisions on aid (see inter alia Case C-404/00 Commission v Spain  [2003] ECR I-6695, paragraph 46, and Case C-457/00 Belgium v Commission , cited above, paragraph 99).