Republic of Austria v European Commission.
Date: 2011-10-27
40. As the Court noted in Case C-83/09 P Commission v Kronoply and Kronotex [2011] ECR I-0000, Article 4 of Regulation No 659/1999 provides for a phase during which the aid measures notified undergo a preliminary examination, the purpose of which is to enable the Commission to form an initial view as to whether that aid is compatible with the common market. On completion of that phase, the Commission is to make a finding either that the measure does not constitute aid or that it falls within the scope of Article 87(1) EC. In the latter case, it may be that the measure does not raise doubts as to its compatibility with the common market; on the other hand, it is also possible that the measure may raise such doubts ( Commission v Kronoply and Kronotex , paragraph 43).
41. If, following the preliminary examination, the Commission finds that, notwithstanding the fact that the measure notified falls within the scope of Article 87(1) EC, it does not raise any doubts as to its compatibility with the common market, the Commission is to adopt a decision not to raise objections under Article 4(3) of Regulation No 659/1999 ( Commission v Kronoply and Kronotex , paragraph 44).
42. Where the Commission adopts such a decision, it declares not only that the measure is compatible with the common market, but also – by implication – that it refuses to initiate the formal investigation procedure laid down in Article 88(2) EC and Article 6(1) of Regulation No 659/1999 ( Commission v Kronoply and Kronotex , paragraph 45).
43. However, the lawfulness of a decision not to raise objections, adopted under Article 4(3) of Regulation No 659/1999, depends on whether there are doubts as to the compatibility of the aid with the common market. Since such doubts must trigger the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of Regulation No 659/1999 can participate, it must be held that any interested party within the meaning of the latter provision is directly and individually concerned by such a decision ( Commission v Kronoply and Kronotex , paragraph 47).
44. The beneficiaries of the procedural guarantees provided for in Article 88(2) EC and Article 6(1) of Regulation No 659/1999 cannot ensure that those guarantees are respected, unless it is possible for them to challenge before the EU judicature the decision not to raise objections, and, consequently, the specific status of ‘interested party’ within the meaning of Article 1(h) of Regulation No 659/1999, in conjunction with the specific subject-matter of the action, is sufficient to distinguish individually, for the purposes of the fourth paragraph of Article 230 EC, the applicant contesting a decision not to raise objections ( Commission v Kronoply and Kronotex , paragraphs 47 and 48).
50. Where an applicant seeks the annulment of a decision not to raise objections, it essentially contests the fact that the Commission adopted the decision in relation to the aid at issue without initiating the formal investigation procedure, thereby infringing the applicant’s procedural rights. In order to have its action for annulment upheld, the applicant may invoke any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should have raised doubts as to the compatibility of that measure with the common market. The use of such arguments cannot, however, have the consequence of changing the subject-matter of the application or altering the conditions of its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 88(2) EC and Article 6(1) of Regulation No 659/1999 ( Commission v Kronoply and Kronotex , paragraph 59).
57. In that regard, according to settled case-law, it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see Case C‑487/06 P British Aggregates v Commission  [2008] ECR I-10515, paragraph 96 and case-law cited).
58. However, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. That appraisal does not therefore constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice (see British Aggregates  v Commission , paragraph 97).
59. In addition, it is important to note that distortion must be obvious from the documents in the Court’s file, without any need to carry out a new assessment of the facts and the evidence (see Case C‑399/08 P Commission  v Deutsche Post  [2010] ECR I-0000, paragraph 64 and case-law cited).
70. First of all, it should be borne in mind that, according to settled case-law, the procedure under Article 88(2) EC is essential whenever the Commission has serious difficulties in determining whether aid is compatible with the common market. It follows that the Commission may restrict itself to the preliminary examination under Article 88(3) EC when taking a decision in favour of aid only if it is able to satisfy itself after an initial examination that the aid is compatible with the common market. If, on the other hand, the initial examination leads the Commission to the opposite conclusion or if it does not enable it to resolve all the difficulties involved in determining whether the aid is compatible with the common market, the Commission is under a duty to carry out all the requisite consultations and for that purpose to initiate the procedure under Article 88(2) EC (see Case C‑431/07 P Bouygues and Bouygues Télécom v Commission [2009] ECR I‑2665, paragraph 61 and case-law cited).
71. The concept of serious difficulties is an objective one and their existence must be looked for not only in the circumstances in which the contested measure was adopted but also in the assessments upon which the Commission relied (see Bouygues and Bouygues Télécom v Commission , paragraph 63).
72. It follows that, as has been recalled in paragraphs 43 and 50 of the present judgment, the lawfulness of a decision not to raise objections, based on Article 4(3) of Regulation No 659/1999, depends on the question whether the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination phase of the measure notified should objectively have raised doubts as to its compatibility with the common market, given that such doubts must lead to initiating a formal investigation procedure in which the interested parties referred to in Article 1(h) of that regulation may participate.
82. Moreover, the Court has consistently held in analogous contexts of infringement proceedings that the incompatibility of national legislation with EU provisions can be finally remedied only by means of national provisions of a binding nature which have the same legal force as those which must be amended, and mere administrative practices cannot be regarded as constituting the proper fulfilment of obligations under EU law (see, to that effect, Case C‑197/96 Commission v France  [1997] ECR I‑1489, paragraph 14, and Case C‑358/98 Commission v Italy  [2000] ECR I‑1255, paragraph 17).
84. In this respect, it must be recalled that, firstly, as regards the area of State aid, although the Commission enjoys a broad discretion the exercise of which involves economic assessments which must be made in a European Union context, that does not imply that the European Union judicature must refrain from reviewing the Commission’s interpretation of economic data (see Case C‑290/07 P Commission  v Scott  [2010] ECR I-0000, paragraph 64) and, a fortiori , from reviewing the interpretation of a question regarding the effects of the discrepancy between a basic law and its implementing regulation, such a review being of a strictly legal nature.
97. According to settled case-law, the rule laid down in the fourth paragraph of Article 230 EC that proceedings brought by a natural or legal person against a decision not addressed to that person are admissible only if the decision is of direct and individual concern to that person raises an absolute bar to proceedings which the Community judicature may examine at any time, even of its own motion (Case C‑362/06 P Sahlstedt and Others v Commission  [2009] ECR I-2903, paragraph 22 and the case-law cited).
99. Moreover, the General Court is the sole judge of any need to supplement the information available to it in respect of the cases before it. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the inaccuracy of the findings of the General Court is apparent from the documents in the case-file (see Case C‑385/07 P Der Grüne Punkt – Duales System Deutschland  v Commission [2009] ECR I‑6155, paragraph 163 and case-law cited).
104. As regards the fourth ground of appeal, it must be noted that the General Court’s duty 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 (see Bouygues and Bouygues Télécom  v Commission , paragraph 42 and case-law cited).
111. The Court of Justice has already had occasion to hold that the decision not to raise objections under Article 88(3) EC, which is taken within a short period of time, must simply set out the reasons for which the Commission takes the view that it is not faced with serious difficulties in assessing the compatibility of the aid at issue with the common market, and that even a succinct statement of reasons for that decision must be regarded as sufficient for the purpose of satisfying the requirement to state adequate reasons laid down in Article 253 TFEU if it nevertheless discloses in a clear and unequivocal fashion the reasons for which the Commission considered that it was not faced with serious difficulties, the question of whether the reasoning is well founded being a separate matter (see Case C‑333/07 Régie Networks  [2008] ECR I‑10807, paragraphs 65, 70 and 71).
123. To allow a party to put forward, for the first time before the Court of Justice, a plea in law regarding the measure contested before the General Court which it has not raised before that court would be to authorise it to bring before the Court of Justice a case of wider ambit than that which came before the General Court, the jurisdiction of the Court of Justice in an appeal being confined to review of the findings of law on the pleas argued before the General Court (see, to that effect, Case C‑266/05 P Sison v Council  [2007] ECR I‑1233, paragraph 95 and case-law cited).
132. It must, however, be noted that, under Article 1(h) of Regulation No 659/1999, ‘interested party’ means inter alia any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, that is to say, in particular competing undertakings of the beneficiary of that aid. In other words, that term covers an indeterminate group of addressees, which does not rule out that an indirect competitor of the beneficiary of the aid can be categorised as an interested party, provided that it demonstrates that its interests could be adversely affected by the grant of the aid, and that that undertaking establishes, to the requisite legal standard, that the aid is likely to have a specific effect on its situation (see, to that effect, Commission v Kronoply and Kronotex , paragraphs 63 to 65 and case-law cited).