Nuova Agricast Srl v Ministero delle Attività Produttive.
Date: 2008-04-15
43. According to established case-law, in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59; Case C‑208/05 ITC [2007] ECR I-181, paragraph 48; and Case C-305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I‑5305, paragraph 18).
44. That being so, even though Nuova Agricast put forward other grounds of invalidity as regards the contested decision in the main proceedings, it is inappropriate to extend the inquiry into the validity of that decision to those other grounds of invalidity, which the national court has not referred to (see, by way of analogy, Ordre des barreaux francophones et germanophone and Others , paragraphs 17 to 19).
Admissibility
50. In that regard, it is clear from the general scheme of the Treaty that the procedure under Article 88 EC must never produce a result which is contrary to the specific provisions of the Treaty (see, inter alia, Case C‑204/97 Portugal v Commission  [2001] ECR I‑3175, paragraph 41, and Case C-456/00 France v Commission [2002] ECR I-11949, paragraph 30). Accordingly, State aid, certain conditions of which contravene other provisions of the Treaty, cannot be declared by the Commission to be compatible with the common market (see Case C-113/00 Spain v Commission [2002] ECR I-7601, paragraph 78 and the case-law cited there).
51. Similarly, State aid, certain of the conditions of which contravene the general principles of Community law, such as the principle of equal treatment, cannot be declared by the Commission to be compatible with the common market.
54. In that regard, it is established case-law that the lawfulness of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted (see, inter alia, Case 234/84 Belgium v Commission [1986] ECR 2263, paragraph 16; Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraph 168; and Case C-276/02 Spain v Commission  [2004] ECR I‑8091, paragraph 31).
55. Even though that case-law has, until now, been applied only in the case of an action directed against a decision taken by the Commission at the end of the procedure laid down under Article 88(2) EC, it is all the more relevant where what is at issue is the validity of a decision not to raise objections against an aid measure or an aid scheme, such as the contested decision.
56. With respect more particularly to the latter category of decisions, that case-law appears justified in the light of the general scheme of the review procedure for State aids laid down by the Treaty.
57. Under the procedure for reviewing State aid, it is necessary to distinguish between the preliminary stage of the procedure for reviewing aids under Article 88(3) EC, which is governed by Articles 4 and 5 of Regulation No 659/1999 and is intended merely to allow the Commission to form a prima facie opinion on the partial or complete conformity of the aid in question, and the investigation stage envisaged by Article 88(2) EC, which is governed by Articles 6 and 7 of that regulation and is designed to enable the Commission to be fully informed of all the facts of the case (Case C-198/91 Cook  v Commission  [1993] ECR I‑2487, paragraph 22; Case C-225/91 Matra  v Commission  [1993] ECR I-3203, paragraph 16; Case C-367/95 P Commission  v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 38; and Case C-176/06 P Stadtwerke Schwäbisch Hall and Others v Commission  [2007] ECR I-0000, paragraph 20).
58. The Commission may restrict itself to the preliminary stage under Article 88(3) EC in order to take a decision favourable to an aid measure if can satisfy itself, after having undertaken a preliminary investigation, that the project concerned is compatible with the Treaty.
59. It is only where that preliminary investigation has led the Commission to the opposite conclusion or if such an investigation does not permit all the difficulties involved in determining whether the aid is compatible with the common market to be overcome, that 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 to that effect, inter alia, Case 84/82 Germany v Commission  [1984] ECR 1451, paragraph 13; Cook  v Commission , paragraph 29; Matra  v Commission , paragraph 33; Commission  v Sytraval and Brink’s France , paragraph 39; and Portugal  v Commission , paragraph 33).
60. If the validity of a decision not to raise objections against an aid measure or an aid scheme were to fall to be determined by reference to information which could not have been available to the Commission after the preliminary investigation has been concluded, the Commission would be encouraged systematically to initiate the investigation procedure under Article 88(2) EC and to give the parties concerned notice to submit their comments, in order to prevent the information which could not be available to it leading to the annulment of its decision to authorise the aid measure or the aid scheme in question. As the Advocate General noted in point 71 of his Opinion, this would undermine the division of the review of State aid into two distinct stages, the second of which is not always required. Such a division was intended by the authors of the Treaty and confirmed by the Community legislature in Regulation No 659/1999.
62. Consequently, even though the Italian authorities did not inform the Commission’s services specifically and in detail of the legal situations of the undertakings having an interest in obtaining grants under Law No 488/1992, the order for reference shows that the Commission must have been aware of the existence of both the undertakings in the first category and those in the second category.
66. The principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Case C-248/04 Koninklijke Coöperatie Cosun  [2006] ECR I‑10211, paragraph 72 and the case‑law cited there).
67. It is apparent that in the main proceedings the undertakings in the first category and those in the second category were not in a comparable situation as regards the requirement that State aid be necessary, which is set out inter alia in the third subparagraph of point 4.2 of the guidelines.
68. As is clear from Case 730/79 Philip Morris Holland v Commission [1980] ECR 2671, paragraph 17, aid which improves the financial situation of the recipient undertaking without being necessary for the attainment of the objectives specified in Article 87(3) EC cannot be considered compatible with the common market (see also, to that effect, Case 310/85 Deufil  v Commission  [1987] ECR 901, paragraph 18, and Case C-400/92 Germany v Commission  [1994] ECR I‑4701, paragraphs 12, 20 and 21).
69. A finding that an aid measure is not necessary can arise in particular from the fact that the aid project has already been started, or even completed, by the undertaking concerned prior to the application for aid being submitted to the competent authorities. In such a case, the aid concerned cannot operate as an incentive.
70. Under the 1997-1999 aid scheme, undertakings in the second category had an absolute right to have their application included automatically, without amendment of any kind, in the list relating to the appropriate invitation to apply immediately following the invitation under which it had first been submitted. No action on their part was required in this regard.
71. Conversely, the undertakings in the first category had to submit an application under the first appropriate invitation to apply following the invitation in respect of which they had waived automatic inclusion of their original application. The application in question was, moreover, a reformulated one.
72. It is true, as Nuova Agricast claims, that the original application and the amended application both sought to obtain funding in respect of the same project and that the reformulation could not relate to the essential elements of the project but only to the elements taken into account by the indicators, which served to establish the ranking of the application in the list drawn up under the invitation to apply under which it was lodged.
73. However, the indicators were themselves representative of significant elements contained in the application. In particular, they related to the share of own funds invested by the undertaking concerned, by comparison with the total investment, to the number of jobs created by the project by comparison with the total investment and by comparison with the amount of the grant applied for and the maximum grant that could be awarded.
74. Moreover, the mere fact that the amendment of the factors taken into account by the indicators increases the possibility of the aid applied for being granted suffices to show that the true position was that the reformulation of the application resulted in the application being a different one from that which was originally lodged.
75. In addition, in so far as, by changing the information that would be reflected in the indicators, the reformulation was designed to improve the ranking of the amended application in order for it to be included in the list with a ranking that would enable it to be successful when the funds were allocated to the invitation to apply concerned in descending order, the result of extending the benefit of the transitional provision to the undertakings  in the first category would be that the chances of those undertakings’ projects of obtaining the aid applied for would be better than those of undertakings competing for the first time, for which the necessity of the aid was not in doubt.
76. Conversely, such a result could not arise with the automatic inclusion in the list under the eighth invitation to apply of applications already made under the fourth invitation by undertakings in the second category because, there being no possibility of those applications being amended, the indicators remained unchanged.
77. In the light of the above, it must be held that the undertakings in the first category and those in the second category were not in a comparable situation.
78. Accordingly, it does not appear that, in authorising the 2000-2006 aid scheme, the Commission infringed the principle of equal treatment.
The validity of the contested decision in the light of the obligation to state reasons
79. As is clear from established case-law, 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, Commission  v Sytraval and Brink’s France , paragraph 63; Joined Cases C-346/03 and C-529/03 Atzeni and Others [2006] ECR I‑1875, paragraph 73; and Case C-266/05 P Sison  v Council  [2007] ECR I‑1233, paragraph 80).