Mediaset SpA v European Commission.
Date: 2011-07-28
36. According to settled case-law, Article 87(1) EC prohibits State aid ‘favouring certain undertakings or the production of certain goods’, that is to say, selective aid (see Case C‑66/02 Italy v Commission [2005] ECR I‑10901, paragraph 94, and Case C‑88/03 Portugal v Commission [2006] ECR I‑7115, paragraph 52). As regards appraisal of the condition of selectivity, Article 87(1) EC requires assessment of whether, under a particular legal regime, a national measure is such as to favour ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation (see, to that effect, Case C‑143/99 Adria-Wien Pipeline and Wietersdorfer & Peggauer Zementwerke  [2001] ECR I‑8365, paragraph 41; Case C‑308/01 GIL Insurance and Others  [2004] ECR I‑4777, paragraph 68; and Case C‑172/03 Heiser  [2005] ECR I‑1627, paragraph 40). In order to determine whether a measure is selective, it is therefore appropriate to examine whether, within the context of a particular legal system, that measure constitutes an advantage for certain undertakings in comparison with others which are in a comparable factual and legal situation ( Portugal v Commission , paragraph 56).
51. It is unnecessary to rule on the admissibility of this ground of appeal since it is clearly unfounded (see, by analogy, Joined Cases C‑465/09 P to C‑470/09 P Diputación Foral de Vizcaya and Others v Commission [2011] ECR I‑0000, paragraph 115).
73. As is clear from Article 58 of the Statute of the Court of Justice of the European Union, an appeal is to be limited to points of law. The General Court therefore has sole jurisdiction to establish and assess the relevant facts and to assess the evidence, save where such facts and evidence have been distorted (see, to that effect, Case C‑136/92 P Commission  v Brazzelli Lualdi and Others  [1994] ECR I‑1981, paragraphs 49 and 66; Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others  v Commission  [2002] ECR I‑8375, paragraph 194; and Case C‑182/99 P Salzgitter v Commission  [2003] ECR I‑10761, paragraph 43).
88. According to settled case-law, the obligation on the General Court to state reasons does not require it to provide an account which follows exhaustively, one after the other, all the arguments put forward by the parties to the case. The reasoning of the General Court may therefore be implicit on condition that it enables the persons concerned to know the reason for the General Court’s decision and provides the Court of Justice with sufficient material for it to exercise its power of review (see, inter alia, the judgment of 22 May 2008 in Case C‑266/06 P Evonik Degussa  v Commission , paragraph 103; Case C‑583/08 P Gogos v Commission  [2010] ECR I‑0000, paragraph 30; and Case C‑260/09 P Activision Blizzard Germany v Commission [2011] ECR I‑0000, paragraph 84).
89. Further, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court and Article 112(1)(c) of the Rules of Procedure of the Court 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 (Case C‑248/99 P France  v Monsanto and Commission [2002] ECR I‑1, paragraph 68 and the case-law cited). A ground of appeal put forward in support of an appeal wherein the appellant does no more than merely refer back to its arguments put forward in another context does not meet that requirement, and must therefore be rejected as insufficiently substantiated (order in Case C‑51/95 P Unifruit Hellas v Commission [1997] ECR I‑727, paragraph 33).
111. As a preliminary point, it must be observed that the seventh ground of appeal concerns whether the General Court was justified in rejecting the third plea put forward at first instance, set out in paragraph 133 et seq. of the application, which alleged an infringement of an essential procedural requirement in relation to the statement of reasons for measures, pursuant to Article 253 EC. The seventh ground of appeal concerns therefore the examination by the General Court of a plea relating to an alleged breach of the obligation to state reasons, which is a plea distinct from those concerning the substantive legality of a measure (see, to that effect, Case C‑367/95 P Commission  v Sytraval and Brink’s France [1998] ECR I‑1719, paragraphs 66 and 67).
113. Furthermore, it has been consistently held that the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure adopted and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations ( Commission  v Sytraval and Brink’s France , paragraph 63 and the case-law cited).
122. The General Court first observed, in paragraph 169 of the judgment under appeal, that, according to settled case-law, the removal of unlawful State aid by means of recovery is the logical consequence of a finding that that aid is unlawful. The aim of obliging the Member State concerned to abolish aid found by the Commission to be incompatible with the common market is to restore the previous situation, causing the recipient to forfeit the advantage which it had enjoyed over its competitors (see Case C‑310/99 Italy  v Commission  [2002] ECR I‑2289, paragraph 99, and Case C‑277/00 Germany  v Commission  [2004] ECR I‑3925, paragraph 75 and the case-law cited).
126. In that regard, the General Court correctly pointed out, in paragraphs 181 to 183 of the judgment under appeal, that no provision of EU law requires the Commission, when ordering the recovery of aid declared incompatible with the common market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission’s decision to include information enabling the addressee of the decision to work out itself, without overmuch difficulty, that amount (see, inter alia, Case C‑480/98 Spain  v Commission  [2000] ECR I‑8717, paragraph 25, and Case C‑441/06 Commission  v France  [2007] ECR I-8887, paragraph 29). The recovery of aid which has been declared incompatible with the common market is to be carried out in accordance with the rules and procedures laid down by national law (Case C‑382/99 Netherlands v Commission [2002] ECR I‑5163, paragraph 90 and the case-law cited). Further, the obligation on a Member State to calculate the exact amount of aid to be recovered forms part of the more general reciprocal obligation incumbent upon the Commission and the Member States of sincere cooperation in the implementation of Treaty rules concerning State aid ( Netherlands  v Commission , paragraph 91).
127. Thus, in accordance with the Court’s case-law, the Commission can legitimately confine itself to declaring that there is an obligation to repay the aid in question and leave it to the national authorities to calculate the exact amounts to be repaid (Case C‑415/03 Commission  v Greece [2005] ECR I‑3875, paragraph 40).