Commission of the European Communities v Freistaat Sachsen.
Date: 2008-12-11
43. According to settled case-law, new rules apply, as a matter of principle, immediately to the future effects of a situation which arose under the old rule (see to that effect, inter alia, Case 68/69 Brock  [1970] ECR 171, paragraph 7, and Case 270/84 Licata  v ESC  [1986] ECR 2305, paragraph 31). The Court has also held that the principle of legitimate expectations cannot be extended to the point of generally preventing a new rule from applying to the future effects of situations which arose under the earlier rule (see, inter alia, Case 278/84 Germany  v Commission  [1987] ECR 1, paragraph 36, and Case 203/86 Spain  v Council  [1988] ECR 4563, paragraph 19).
44. By contrast, the substantive rules of Community law must be interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, their objectives or their general scheme that such effect must be given to them (see, inter alia, Case C‑162/00 Pokrzeptowicz-Meyer  [2002] ECR I‑1049, paragraph 49).
45. The notification of proposed State aid, provided for in Article 88(3) EC, is a central element of Community rules for supervising that aid and undertakings to which such aid has been granted may not entertain a legitimate expectation that the aid is lawful if it has not been granted in compliance with that procedure (Case C‑24/95 Alcan Deutschland  [1997] ECR I‑1591, paragraph 25, and Case C‑408/04 P Commission  v Salzgitter  [2008] ECR I-0000, paragraph 104).
47. The prohibition laid down by that provision is designed to ensure that a system of aid cannot become operational before the Commission has had a reasonable period in which to study the proposed measures in detail and, if necessary, to initiate the procedure provided for in Article 88(2) EC (Case C‑301/87 France  v Commission  [1990] ECR I‑307 (‘ Boussac Saint Frères ’), paragraph 17, and Case C-199/06 CELF and Ministre de la Culture et de la Communication  [2008] ECR I-0000, paragraph 36).
50. By contrast, the question whether aid is State aid within the meaning of the Treaty must be determined on the basis of objective elements, which must be appraised on the date on which the Commission takes its decision (see, to that effect, Joined Cases C‑182/03 and C-217/03 Belgium and Forum 187  v Commission  [2006] ECR I‑5479, paragraph 137, and Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste  v UFEX and Others  [2008] ECR I-0000, paragraph 95). Accordingly, it is the appraisal of the situation carried out by the Commission on that date which is to be reviewed by the Community Courts ( Chronopost and La Poste  v UFEX and Others , paragraph 144).
55. It must be noted, however, that it follows from Article 88(2) EC and Article 1(h) of Regulation No 659/1999 that, where the Commission decides to initiate the formal investigation procedure in respect of proposed aid, it must give interested parties, including the undertaking(s) concerned, an opportunity to submit their comments. This rule is in the nature of an essential procedural requirement.
56. It follows that, where the legal rules under which a Member State notified proposed aid change before the Commission takes its decision, the Commission must, with a view to giving its decision, as it is obliged to do, on the basis of the new rules, ask the interested parties to express their views on the compatibility of that aid with those rules. The situation is different only if the new legal rules do not contain any substantial amendments in relation to those previously in force (see, to that effect, judgment of 8 May 2008, Case C-49/05 P Ferriere Nord  v Commission , paragraphs 68 to 71).