European Commission v MOL Magyar Olaj- és Gázipari Nyrt.
Date: 2015-06-04
27. Finally, the General Court observed in paragraph 67 of the judgment under appeal that, for the purposes of Article 107(1) TFEU, a combination of elements may be categorised as State aid if, having regard to their chronology, their purpose and the circumstances of the undertaking at the time of their intervention, those elements are so closely linked to each other that they are inseparable from one another (see, to that effect, judgment in Bouygues and Bouygues Télécom  v Commission and Others and Commission v France and Others , C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraphs 103 and 104).
46. According to settled case-law of the Court, for a measure to be categorised as aid within the meaning of Article 107(1) TFEU, all the conditions set out in that provision must be fulfilled (see judgment in Commission  v Deutsche Post , C‑399/08 P, EU:C:2010:481, paragraph 38 and the case-law cited).
47. It is thus well established that, for a national measure to be categorised as State aid within the meaning of Article 107(1) TFEU, there must, first, be an intervention by the State or through State resources; second, the intervention must be liable to affect trade between Member States; third, it must confer an advantage on the recipient and, fourth, it must distort or threaten to distort competition (see judgment in Commission  v Deutsche Post , C‑399/08 P, EU:C:2010:481, paragraph 39 and the case-law cited).
54. That conclusion contradicts the case-law of the Court of Justice, in particular the judgment in France  v Commission (C‑241/94, EU:C:1996:353, paragraphs 23 and 24), in which the Court of Justice found that, by virtue of its aim and general scheme, the system at issue was liable to place certain undertakings in a more favourable situation than others since the competent authority enjoyed a degree of latitude which enabled it to adjust its financial assistance having regard to various considerations such as, in particular, the choice of the beneficiaries, the amount of financial assistance and the conditions under which it was provided. It also disregarded the judgment in P (C‑6/12, EU:C:2013:525, paragraph 27), in which the Court of Justice held that, when national legislation confers a discretion on national authorities with regard to the detailed rules for the application of the measure at issue, the decisions of those authorities lack selectivity only if that discretion is limited by objective criteria, which are not connected with the system put in place by the legislation in question.
56. According to the Commission, the reasons given by the General Court in paragraph 72 of the judgment under appeal, that the margin of assessment is such as to enable the administration to preserve equal treatment between operators, are not presented in the national legislative framework as factors determining the measure in which the mining fee must be increased and therefore constitute mere suppositions. Consequently, the General Court disregarded the case-law of the Court of Justice, in particular, the judgments in France  v Commission (C‑241/94, EU:C:1996:353); Ecotrade (C‑200/97, EU:C:1998:579); Piaggio (C‑295/97, EU:C:1999:313); DM Transport (C‑256/97, EU:C:1999:332); P (C‑6/12, EU:C:2013:525); Ministerio de Defensa and Navantia (C‑522/13, EU:C:2014:2262); and British Telecommunications  v Commission (C‑620/13 P, EU:C:2014:2309).
59. It must be observed at the outset that, as the Advocate General stated in point 47 of his Opinion, the requirement as to selectivity under Article 107(1) TFEU must be clearly distinguished from the concomitant detection of an economic advantage, in that, where the Commission has identified an advantage, understood in a broad sense, as arising directly or indirectly from a particular measure, it is also required to establish that that advantage specifically benefits one or more undertakings. It falls to the Commission to show that the measure, in particular, creates differences between undertakings which, with regard to the objective of the measure, are in a comparable situation. It is necessary therefore that the advantage be granted selectively and that it be liable to place certain undertakings in a more favourable situation than that of others.
60. It must, however, be noted that the selectivity requirement differs depending on whether the measure in question is envisaged as a general scheme of aid or as individual aid. In the latter case, the identification of the economic advantage is, in principle, sufficient to support the presumption that it is selective. By contrast, when examining a general scheme of aid, it is necessary to identify whether the measure in question, notwithstanding the finding that it confers an advantage of general application, does so to the exclusive benefit of certain undertakings or certain sectors of activity.
61. It follows that the appropriate comparator for establishing the selectivity of the measure at issue in the present case was to ascertain whether the procedure for concluding and setting the terms and conditions of the agreement extending mining rights, laid down in Article 26/A(5) of the Mining Act, draws a distinction between operators that are, in the light of the objective of the measure, in a comparable factual and legal situation, a distinction not justified by the nature and general scheme of the system at issue.
63. Those cases relate to provisions of national law granting relief on taxes or other charges (judgments in France  v Commission , C‑241/94, EU:C:1996:353; Piaggio , C‑295/97, EU:C:1999:313; DM Transport , C‑256/97, EU:C:1999:332; P , C‑6/12, EU:C:2013:525; Ministerio de Defensa and Navantia , C‑522/13, EU:C:2014:2262; and British Telecommunications  v Commission , C‑620/13 P, EU:C:2014:2309), or exceptions in matters of insolvency (judgment in Ecotrade , C‑200/97, EU:C:1998:579).
72. The Commission claims that, in holding in paragraphs 76 to 78 of the judgment under appeal that the presence of objective criteria necessarily rules out any possibility of selectivity, the General Court disregarded the case-law of the Court of Justice to the effect that reliance on objective criteria in order to determine whether certain undertakings are covered by a national measure does not necessarily lead to the conclusion that there was no selectivity (see, to that effect, judgments in Spain  v Commission , C‑409/00, EU:C:2003:92, paragraph 49, and GEMO , C‑126/01, EU:C:2003:622, paragraphs 35 and 39).
77. It follows from those arguments that, in criticising the General Court for holding that the presence of objective criteria necessarily rules out any possibility of selectivity and for having consequently disregarded the case-law to the effect that a particular aid scheme cannot be cleared of being selective solely on the ground that the beneficiaries are selected on the basis of objective criteria (judgments in Spain  v Commission , C‑409/00, EU:C:2003:92, paragraph 49, and GEMO , C‑126/01, EU:C:2003:622, paragraphs 35 and 39), the Commission misreads the judgment under appeal.
78. In any event, it must be stated that, as MOL contends, in the cases giving rise to those judgments, the Court of Justice addressed the issue of whether or not the beneficiaries of State aid schemes were selected on the basis of objective criteria. Thus, in particular in the judgment in GEMO (C‑126/01, EU:C:2003:622), the Court found that, despite the fact that the beneficiaries of the scheme adopted by national law were defined on the basis of objective and apparently general criteria, the benefits of that law accrued largely to farmers and slaughterhouses.
83. The Commission argues that, in doing so, the General Court disregarded the case-law to the effect that, for the purposes of the application of Article 107(1) TFEU, it makes no difference whether the situation of the presumed beneficiary of the measure in question is better or worse over time (judgments in Greece  v Commission , 57/86, EU:C:1988:284, paragraph 10, and Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke , C‑143/99, EU:C:2001:598, paragraph 41).
86. According to the Commission, the General Court thus disregarded the settled case-law of the Court of Justice to the effect that Article 107(1) TFEU defines State interventions on the basis of their effects, and independently of the techniques used by the Member States to implement their interventions (see, inter alia, judgments in Belgium  v Commission , C‑56/93, EU:C:1996:64, paragraph 79; Belgium  v Commission , C‑75/97, EU:C:1999:311, paragraph 25; British Aggregates  v Commission , C‑487/06 P, EU:C:2008:757, paragraph 89; and Commission v Government of Gibraltar and United Kingdom , C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 91, 92 and 98).
92. Moreover, the General Court stated, in paragraph 67 of the judgment under appeal, that the case-law of the Court of Justice, according to which, for the purposes of Article 107(1) TFEU, a single aid measure may consist of combined elements on condition that, having regard to their chronology, their purpose and the circumstances of the undertaking at the time of their intervention, they are so closely linked to each other that they are inseparable from one another (judgment in Bouygues and Bouygues Télécom  v Commission and Others  and Commission  v France and Others , C‑399/10 P and C‑401/10 P, EU:C:2013:175, paragraphs 103 and 104 and the case-law cited).
97. By those preliminary explanations, the General Court merely applied the case-law laid down by the Court of Justice in the judgment in Bouygues and Bouygues Télécom  v Commission and Others  and Commission  v France and Others (C‑399/10 P and C‑401/10 P, EU:C:2013:175), to which the General Court also expressly referred in paragraph 67 of the judgment under appeal, and according to which, since State interventions take various forms and have to be assessed in relation to their effects, it cannot be excluded that several consecutive measures of State intervention must, for the purposes of Article 107(1) TFEU, be regarded as a single intervention. That could be the case, in particular when consecutive interventions, having regard to their chronology, their purpose and the circumstances of the undertaking at the time of those interventions, are so closely related to each other that they are inseparable from one another.