HGA Srl and Others (C‑630/11 P), Regione autonoma della Sardegna (C‑631/11 P), Timsas srl (C‑632/11 P) and Grand Hotel Abi d’Oru SpA (C‑633/11 P) v European Commission.
Date: 2013-06-13
47. Where an appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (see, inter alia, judgment of 9 June 2011 in Joined Cases C‑465/09 P to C‑470/09 P Diputación Foral de Vizcaya and Others  v Commission , not published in the ECR, paragraph 79).
56. In that regard, it should be remembered that, according to settled case-law, the General Court’s obligation to state reasons under Article 36 of the Statute of the Court of Justice of the European Union, applicable to the General Court by virtue of the first paragraph of Article 53 of that statute and Article 81 of the Rules of Procedure of the General Court, does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case. The General Court’s reasoning may therefore be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, inter alia, Case C‑440/07 P Commission  v Schneider Electric  [2009] ECR I‑6413, paragraph 135).
74. As to the substance, as a preliminary point, it is unequivocally clear from the wording of Articles 4(5) and 7(6) of Regulation No 659/1999 that they apply only in the case of aid which has been notified. Moreover, Article 13(2) of that regulation provides expressly that, in cases of possible unlawful aid the Commission is not bound by the time-limits set out in, inter alia, Articles 4(5) and 7(6) of that regulation.
75. That conclusion is also clear in the light of the Court of Justice’s case-law to the effect that, where the scheme in question has not been notified, the Commission is not bound by the two-month time period provided for in Article 4(5) of Regulation No 659/1999 (judgment of 28 July 2011 in Joined Cases C‑471/09 P to C‑473/09 P Diputación Foral de Vizcaya and Others  v Commission, not published in the ECR, paragraph 129).
81. It should be remembered, however, that the Commission is required to act within a reasonable time in procedures for examining State aid and that it is not allowed to persist in refraining from taking action during the preliminary examination phase (see Joined Cases C‑471/09 P to C‑473/09 P Diputación Foral de Vizcaya and Others  v Commission , paragraph 129 and the case-law cited).
82. Moreover, the reasonableness of the period taken up by proceedings is to be appraised in the light of the circumstances specific to each case, such as its complexity and the conduct of the parties (see, to that effect, Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel  v Commission [2007] ECR I‑729, paragraph 116 and the case-law cited).
88. According to settled case-law, when the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see Case C‑551/03 P General Motors  v Commission  [2006] ECR I‑3173, paragraph 51, and Case C‑266/06 P Evonik Degussa  v Commission , judgment of 22 May 2008, paragraph 72).
91. In the present case, the General Court concluded, in paragraphs 178 and 179 of the judgment under appeal, that the alteration to the aid scheme introduced by Resolution No 33/6 was not minor or trivial and that, accordingly, the scheme in question fell to be considered as new aid within the meaning of Article 1(c) of Regulation No 659/1999 and not as existing aid.
94. Secondly, that alteration cannot be characterised as being of a purely formal or administrative nature within the meaning of Article 4(1) of Regulation No 794/2004, since it was liable to affect the evaluation of the compatibility of the aid measure with the common market. The General Court observed in that regard, in paragraph 178 of the judgment under appeal, that the approval decision referred expressly to the condition that the application for aid had to precede the commencement of work on the investment projects, a condition which the Commission regularly imposes for its approval of regional aid schemes, as is apparent from point 4.2 of the 1998 Guidelines.
104. Thus, the Commission is entitled to refuse the grant of aid where that aid does not induce the recipient undertakings to adopt conduct likely to assist attainment of one of the objectives referred to in Article 107(3) TFEU. Such aid must thus be necessary for the attainment of the objectives specified in that provision, with the result that, without it, market forces alone would not succeed in getting the recipient undertakings to adopt conduct likely to assist attainment of those objectives (see, to that effect, Case 730/79 Philip Morris Holland  v Commission  [1980] ECR 2671, paragraphs 16 and 17). Aid which improves the financial situation of the recipient undertaking without being necessary for the attainment of the objectives specified in Article 107(3) TFEU cannot be considered compatible with the internal market (see Case C‑390/06 Nuova Agricast  [2008] ECR I‑2577, paragraph 68).
105. It follows from the foregoing that, in the context of Article 107(3)(a) TFEU, in order to be compatible with the internal market, the planned aid must be necessary for the development of less favoured areas. To that end, it must be shown that, without the planned aid, the investment intended to support the development of the region in question would not take place. If, on the other hand, it appears that that investment would take place even without the planned aid, the conclusion must be that the aid serves merely to improve the situation of the recipient undertakings, without however meeting the requirement in Article 107(3)(a) TFEU that it be necessary for the development of less favoured areas.
114. In so doing, the General Court made no error in law. According to the Court of Justice’s case-law, in the case of an aid scheme, the Commission may merely study the characteristics of the scheme at issue in order to assess, in the grounds for its decision, whether that scheme is necessary for the attainment of one of the objectives specified in Article 107(3) TFEU. Thus, in a decision which concerns such a scheme, the Commission is not required to carry out an analysis of the aid granted in individual cases under the scheme. It is only at the stage of recovery of the aid that it is necessary to look at the individual situation of each undertaking concerned (see Joined Cases C‑71/09 P, C‑73/09 P and C‑76/09 P Comitato ‘Venezia vuole vivere’  v Commission  [2011] ECR I‑4727, paragraph 63 and the case-law cited).
126. It follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and from Article 168(1)(d) of the Court of Justice’s Rules of Procedure 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 (Joined Cases C‑465/09 P to C‑470/09 P Diputación Foral de Vizcaya and Others v Commission , paragraph 78).
132. As correctly observed by the General Court in paragraph 273 of the judgment under appeal, the right to rely on the principle of the protection of legitimate expectations presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union. In accordance with the Court of Justice’s settled case-law, that right applies to any individual in a situation in which an EU institution, body or agency, by giving that person precise assurances, has led him to entertain well-founded expectations. Precise, unconditional and consistent information, in whatever form it is given, constitutes such an assurance (see, inter alia, Case C‑537/08 P Kahla Thüringen Porzellan v Commission  [2010] ECR I‑12917, paragraph 63 and the case-law cited).
134. It should also be noted that, as rightly observed by the General Court in paragraphs 274 and 275 of the judgment under appeal, a legitimate expectation that aid granted is lawful cannot, barring exceptional circumstances, be entertained unless it has been granted in compliance with the procedure laid down in Article 108 TFEU. In the present case, the approval decision indicated that the Commission’s approval concerned only aid for projects commenced after the application for aid had been submitted and that the aid in question, which did not comply with that requirement, had not been granted in compliance with the procedure provided for in Article 108 TFEU. The recipients of the aid in question cannot therefore entertain a legitimate expectation that that aid was lawful.