AceaElectrabel Produzione SpA v European Commission.
Date: 2010-12-16
28. It is settled case‑law that the General Court is obliged to reject as inadmissible a head of claim in an application brought before it if the essential matters of law and of fact on which the head of claim is based are not indicated coherently and intelligibly in the application itself (Case C‑214/05 P Rossi  v OHIM  [2006] ECR I‑7057, paragraph 37, and order of 13 March 2007 in Case C‑150/06 P Arizona Chemical and Others  v Commission , not published in the ECR, paragraph 45).
47. According to the established case‑law of the Court, following a restructuring entailing a transfer of production facilities from one company to other newly constituted manufacturing companies, since the former company continues to have an interest in those newly constituted manufacturing companies, all those companies may, as far as the aid granted is concerned, together form a single group, notwithstanding the fact that each of the newly constituted manufacturing companies has a legal personality separate from the former company (see, to that effect, Case 323/82 Intermills  v Commission  [1984] ECR 3809, paragraph 11).
48. The former company and the new operating companies can form an economic unit, inter alia, where the restructuring carried out constitutes an indivisible whole, from an industrial and economic point of view (see, to that effect, Intermills  v Commission , paragraph 12).
49. It is also apparent from the Court’s case‑law that an entity which, owning controlling shareholdings in a company, actually exercises that control by involving itself directly or indirec tly in the management thereof must be regarded as taking part in the economic activity carried on by the controlled undertaking (Case C‑222/04 Cassa di Risparmio di Firenze and Others  [2006] ECR I‑289, paragraphs 112 and 118).
50. If that is not the case, the simple separation of an undertaking into two different entities, the first of which pursues directly the former economic activity and the second of which controls the first, being fully involved in its management, would be sufficient to deprive the rules of the European Union relating to State aid of their practical effect. It would enable the second entity to benefit from subsidies or other advantages granted by the State or by means of State resources and to use them in whole or in part for the benefit of the former, in the interest, also, of the economic unit formed by the two entities ( Cassa di Risparmio di Firenze and Others , paragraph 114).
51. What may reveal that it is possible to exercise functions relating to control, direction and financial support – going beyond the simple placing of capital by an investor – and illustrate the existence of organic and functional links between an entity owning a controlling shareholding in a company and the controlled company itself, is the fact that members of the management committee and the controlling body of that entity are appointed to the equivalent bodies of the controlled company (see, to that effect, Cassa di Risparmio di Firenze and Others , paragraphs 116 and 117).
77. It is settled case‑law that the duty incumbent upon the General Court under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice to state reasons for its judgments does not require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the measures in question were taken and provides the Court of Justice with sufficient material for it to exercise its powers of review (Case C‑431/07 P Bouygues and Bouygues Télécom  v Commission  [2009] ECR I‑2665, paragraph 42, and order of 21 January 2010 in Case C‑150/09 P Iride and Iride Energia  v Commission , not published in the ECR, paragraph 42).
111. It is apparent from the case‑file that that argument did not expand on an argument raised previously, whether directly or by implication, in the original application which is closely connected to the original complaint. However, Articles 48(2) of the Rules of Procedure of the General Court provides that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure (see, to that effect, the judgment of 12 November 2009 in Case C‑564/08 P SGL Carbon v Commission , not published in the ECR, paragraphs 20 to 34).
113. Moreover, in so far as AEP presented that argument for the first time at the stage of the written procedure before the Court of Justice, it follows from settled case‑law that to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court would in effect allow that party to bring before the Court a wider case than that heard by the General Court. In an appeal, the Court’s jurisdiction is, as a general rule, confined to a review of the assessment by the General Court of the pleas argued before it (see, inter alia, Case C‑97/08 P Akzo Nobel and Others  v Commission  [2009] ECR I‑8237, paragraph 38, and the order in Iride and Iride Energia v Commission , paragraph 32).