3F, formerly Specialarbejderforbundet i Danmark (SID) v European Commission.
Date: 2013-01-24
24. In examining the present plea, it should be noted first of all that Article 4 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88] of the EC Treaty (OJ 1999 L 83, p. 1) provides for a stage at which the aid measures notified undergo a preliminary examination, the purpose of which is to enable the Commission to form an initial view as to whether that aid is compatible with the common market. On completion of that stage, the Commission is to make a finding either that the measure does not constitute aid or that it falls within the scope of Article 87(1) EC. In the latter case, it may be that the measure does not raise doubts as to its compatibility with the common market; on the other hand, it is also possible that the measure may raise such doubts (judgment of 24 May 2011 in Case C‑83/09 P Commission  v Kronoply and Kronotex , not yet published in the ECR, paragraph 43; order of 9 June 2011 in Case C‑451/10 P TF1  v Commission , paragraph 47; judgment of 22 September 2011 in Case C‑148/09 P Belgium  v Deutsche Post and DHL International , not yet published in the ECR, paragraph 53; and judgment of 27 October 2011 in Case C‑47/10 P Austria  v Scheucher-Fleisch and Others , not yet published in the ECR, paragraph 40).
25. Where the Commission, after the preliminary examination, finds that no doubts are raised as to the compatibility with the common market of a notified measure in so far as it falls within the scope of Article 87(1) EC, it is to adopt a decision not to raise objections under Article 4(3) of Regulation No 659/1999 ( Commission v Kronoply and Kronotex , paragraph 44; TF1  v Commission , paragraph 48; and Austria  v Scheucher-Fleisch and Others , paragraph 41).
26. Where the Commission adopts such a decision, it declares not only that the measure is compatible with the common market, but also – by implication – that it refuses to initiate the formal investigation procedure laid down in Article 88(2) EC and Article 6(1) of Regulation No 659/1999 ( Commission  v Kronoply and Kronotex , paragraph 45, and Austria  v Scheucher-Fleisch and Others , paragraph 42).
27. If, following the preliminary examination, it finds that the measure notified raises doubts as to its compatibility with the common market, the Commission is required to adopt, on the basis of Article 4(4) of Regulation No 659/1999, a decision initiating the formal investigation procedure under Article 88(2) EC and Article 6(1) of that regulation ( Commission  v Kronoply and Kronotex , paragraph 46; TF1  v Commission , paragraph 50; and Belgium  v Deutsche Post and DHL International , paragraph 77).
28. According to settled case-law, the procedure under Article 88(2) EC is essential whenever the Commission has serious difficulties in determining whether aid is compatible with the common market. The Commission may therefore restrict itself to the preliminary examination under Article 88(3) EC when taking a decision in favour of aid only if it is able to satisfy itself after an initial examination that the aid is compatible with the common market (see Case C‑431/07 P Bouygues and Bouygues Télécom  v Commission  [2009] ECR I‑2665, paragraph 61 and the case-law cited, and Austria  v Scheucher-Fleisch and Others , paragraph 70).
30. Where an applicant seeks the annulment of a decision not to raise objections, he must prove the existence of doubts as to the aid’s compatibility ( Commission  v Kronoply and Kronotex , paragraph 59).
31. That proof may be furnished by reference to a body of consistent evidence: the question whether or not a doubt exists requires investigation of both the circumstances in which the decision not to raise objections was adopted and its content, comparing the assessments upon which the Commission relied in that decision with the information available to it when it ruled on the compatibility of the aid in question with the common market (see, to that effect, Case C‑198/91 Cook  v Commission  [1993] ECR I‑2487, paragraphs 30 and 31; Bouygues and Bouygues Télécom  v Commission , paragraph 63; TF1  v Commission , paragraph 52; and Austria  v Scheucher-Fleisch and Others , paragraphs 71 and 72).
32. It follows that, while the length of the preliminary examination procedure can constitute an indication that the Commission may have had doubts regarding the compatibility of the aid in question with the common market, its length cannot of itself lead to the conclusion that the Commission should have initiated the formal investigation procedure (see, to that effect, Case 84/82 Germany  v Commission  [1984] ECR 1451, paragraphs 14 to 17, and Belgium  v Deutsche Post and DHL International , paragraph 81).
51. However, according to settled case-law, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice and Articles 168(1)(d) and 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate 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 (see, in particular, Case C‑352/98 P Bergaderm and Goupil  v Commission  [2000] ECR I‑5291, paragraph 34, and Case C‑240/03 P Comunità montana della Valnerina  v Commission  [2006] ECR I‑731, paragraph 105 and the case-law cited).
52. This requirement is not satisfied by a plea which complains that the General Court reached a certain conclusion without specifying the legal basis on which it ought to have reached a different one (Case C‑257/98 P Lucaccioni  v Commission  [1999] ECR I‑5251, paragraph 62, and order of 26 January 2005 in Case C‑153/04 P Euroagri  v Commission , paragraph 38).
63. According to settled case-law, the obligation to state reasons owed by the General Court under Article 36 of the Statute of the Court of Justice, which applies to the General Court by virtue of the first paragraph of Article 53 of the Statute, and Article 81 of the Rules of Procedure of the General Court requires it to disclose clearly and unequivocally the reasoning followed by it, in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (see, inter alia, Case C‑280/08 P Deutsche Telekom  v Commission  [2010] ECR I‑9555, paragraphs 135 and 136 and the case-law cited).
64. However, the requirement that the General Court give reasons for its decisions cannot be interpreted as meaning that it is obliged to respond in detail to every single argument advanced by the applicant, particularly if the argument was not sufficiently clear and precise (see, inter alia, Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others  v Council and Commission  [2008] ECR I‑6513, paragraph 91 and the case-law cited).
71. Also, in so far as, by its arguments set out in the alternative, 3F now seeks to put forward separate and specific grounds to demonstrate that the Commission infringed the principle of good administration, essentially alleging that the duration of the preliminary examination stage was unreasonable, it is to be recalled that, according to Article 170(1) of the Rules of Procedure of the Court of Justice, the subject-matter of the proceedings before the General Court may not be changed in the appeal. The Court of Justice’s jurisdiction in an appeal is confined to a review of the findings of law on the pleas argued before the General Court. A party may not, therefore, put forward for the first time before the Court of Justice a plea which it could have raised before the General Court but has not raised, since to do so would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court (see judgment of 29 September 2011 in Case C‑520/09 P Arkema  v Commission , not yet published in the ECR, paragraph 64 and the case-law cited).
73. According to settled case-law, an appeal which merely repeats or reproduces verbatim the pleas in law and arguments submitted to the General Court, including those based on facts expressly rejected by that Court, does not satisfy the requirements to state reasons under the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice and Articles 168(1)(d) and 169(2) of the Rules of Procedure of the Court of Justice, requirements which are recalled in paragraph 51 of the present judgment. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (see, inter alia, Bergaderm and Goupil  v Commission , paragraph 35, and Comunità montana della Valnerina  v Commission , paragraph 106 and the case-law cited).