Commission of the European Communities v Département du Loiret and Scott SA.
Date: 2008-12-11
43. First of all, the Court finds that the Court of First Instance, in paragraph 35 of the judgment under appeal, correctly set out the settled case-law according to which the statement of reasons required by Article 253 EC must be appropriate to the act 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 and to enable the competent Community 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. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, inter alia, Case C‑367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I‑1719, paragraph 63, and Case C‑413/06 P Bertelsmann and Sony Corporation of America  v Impala  [2008] ECR I‑0000, paragraph 166).
44. It is also apparent from the case-law that, although a decision of the Commission which fits into a well-established line of decisions may be reasoned in a summary manner, for example by a reference to those decisions, if it goes appreciably further than the previous decisions, the Commission must give an account of its reasoning (see, to that effect, Groupement des fabricants de papiers peints de Belgique and Others  v Commission , paragraph 31, and Case C‑301/96 Germany  v Commission  [2003] ECR I-9919, paragraphs 88 and 92).
46. It is, moreover, common ground that, when the contested decision was adopted, there was no provision of Community law or case-law of the Court of Justice or the Court of First Instance which specified that the necessary interest on aid to be recovered is to be calculated on a compound basis. On the contrary, as noted by the Court of First Instance in paragraph 40 of the judgment under appeal, in its 2003 communication, the Commission expressly acknowledged that the question had arisen as to whether such interest ought to be simple or compound and considered it necessary to clarify urgently its position on the matter. It accordingly informed the Member States and interested parties that, in any decision ordering the recovery of unlawful aid that it might adopt in the future, it would apply a compound interest rate.
55. The Court observes, as a preliminary point, that the question of what the Commission’s decision-making practice was prior to the contested decision is, as a rule, a question of fact on which the Court of Justice cannot rule on appeal, as the Court of First Instance has exclusive jurisdiction to find and appraise the relevant facts and also to assess the evidence (see, to that effect, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others  v Commission  [2005] ECR I‑5425, paragraphs 177 and 180).
56. By contrast, the Court of Justice does have jurisdiction to ascertain whether the rules of procedure in relation to the burden of proof and the taking of evidence have been observed (see, to that effect, Case C‑185/95 P Baustahlgewebe  v Commission  [1998] ECR I‑8417, paragraph 24, and Bertelsmann and Sony Corporation of America  v Impala , paragraph 29).
57. However, it should be noted at the outset that an inadequate statement of reasons in breach of Article 253 EC constitutes an infringement of essential procedural requirements for the purposes of Article 230 EC and is a plea which may, and even must, be raised by the Community judicature of its own motion (Case C‑166/95 P Commission  v Daffix  [1997] ECR I‑983, paragraph 24, and Bertelsmann and Sony Corporation of America  v Impala , paragraph 174).
82. As found in paragraph 46 of the present judgment, when the contested decision was adopted, there was no provision of Community law or case-law of the Court of Justice or the Court of First Instance which specified whether the necessary interest on aid to be recovered is to be calculated on a simple or compound basis.
83. Although it is true that the method for calculating the present-day value of unlawful aid is a substantive and not a procedural matter, the Court nevertheless finds, as rightly pointed out by the département du Loiret, that the Commission stated in its letter to the Member States SG(91) D/4577 of 4 March 1991 that the final decision by which it declares aid to be incompatible with the common market will ‘entail recovery of the amount of aid already paid unlawfully, to be effected in accordance with national law, including the provisions concerning interest due for late payment of amounts owing to the government, interest which should normally run from the date of the award of the unlawful aid in question’.
84. That letter thus linked the matter of charging interest to the procedural rules for recovery and referred in that regard to national law. It is only by the Commission communication concerning the obsolescence of certain State aid policy documents (OJ 2004 C 115, p. 1) that the Commission informed the Member States and interested third parties that it no longer intended to apply that letter, which, moreover, like the other documents covered by that communication, it referred to as ‘texts concerning procedural issues in the field of State aid’.
95. In that regard, it must be borne in mind that, according to settled case-law, the jurisdiction of the Court of Justice is, in principle, confined to review of the findings of law on the pleas argued before the Court of First Instance (Case C‑136/92 P Commission  v Brazzelli Lualdi and Others  [1994] ECR I‑1981, paragraph 59, and Case C‑266/05 P Sison  v Council  [2007] ECR I‑1233, paragraph 95).
104. In that regard, the Court finds, first, that the Court of First Instance may not, merely because it considers a plea relied on by the appellant in support of its action for annulment to be well founded, automatically annul the challenged act in its entirety. Annulment of the act in its entirety is not acceptable where it is obvious that that plea, directed only at a specific part of the challenged act, is such as to provide a basis only for partial annulment.
105. Second, it must be borne in mind that, in accordance with settled case-law, partial annulment of a Community act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act (Case C‑244/03 France  v Parliament and Council  [2005] ECR I-4021, paragraph 12 and case-law cited).
106. That requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance ( France  v Parliament and Council , paragraph 13).