European Commission v Ireland and Others.
Date: 2009-12-02
34. In order to rule on the first part of this ground of appeal, according to which the Court of First Instance went outside the scope of the dispute as defined by the parties, it should be noted that it has consistently been held that an absence of or inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 230 EC and is a plea involving a matter of public policy which may, and even must, be raised by the Community judicature of its own motion (see, in particular, Case C‑166/95 P Commission  v Daffix  [1997] ECR I‑983, paragraph 24; Case C‑367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I‑1719, paragraph 67; Case C‑265/97 P VBA  v Florimex and Others  [2000] ECR I‑2061, paragraph 114; and Case C‑413/06 P Bertelsmann and Sony Corporation of America  v Impala  [2008] ECR I‑4951, paragraph 174).
35. By raising such a plea of its own motion – a plea which a priori has not been put forward by the parties – the Community judicature does not go beyond the scope of the dispute that has been brought before it, or in any way infringe the rules of procedure relating to the presentation in the application of the subject-matter of the dispute or of the pleas in law.
40. Accordingly, the Court of First Instance cannot be accused of having disregarded the distinction recognised by the case-law between a plea raised by the Community judicature of its own motion as to an absence of reasons or an inadequacy of the reasons stated and a plea going to the substantive legality of a decision which can be examined only if it is raised by the applicant (see Commission  v Sytraval and Brink’s France , paragraph 67).
50. The rule that the parties should be heard forms part of the rights of the defence. It applies to any procedure which may result in a decision by a Community institution perceptibly affecting a person’s interests (see, in particular, Case C‑315/99 P Ismeri Europa  v Court of Auditors  [2001] ECR I‑5281, paragraph 28 and the case-law cited, and Bertelsmann and Sony Corporation of America  v Impala , paragraph 61).
51. The Community Courts ensure that the rule that the parties should be heard is respected in proceedings before them and that they themselves respect that rule.
52. Thus, the Court has already held that the principle that the parties should be heard means, as a rule, that the parties have a right to a process of inspecting and commenting on the evidence and observations submitted to the court (Case C‑450/06 Varec  [2008] ECR I‑581, paragraph 47) and, moreover, that that basic principle of law is infringed where a judicial decision is founded on facts and documents which the parties, or one of them, have not had an opportunity to examine and on which they have therefore been unable to comment (Joined Cases 42/59 and 49/59 SNUPAT  v High Authority  [1961] ECR 53, 84; Case C‑480/99 P Plant and Others  v Commission and South Wales Small Mines  [2002] ECR I‑265, paragraph 24; and Case C‑199/99 P Corus UK  v Commission  [2003] ECR I‑11177, paragraph 19).
53. The rule that the parties should be heard must benefit all parties to proceedings before the Community judicature, irrespective of their legal status. The Community institutions may also, therefore, avail themselves of that principle when they are parties to such proceedings.
54. A court must itself observe the rule that the parties should be heard, in particular, when it decides a dispute on a ground it has identified of its own motion (see, by analogy, in the sphere of human rights, the judgments of the European Court of Human Rights in Skondrianos v. Greece , nos. 63000/00, 74291/01 and 74292/01, §29 and 30, 18 December 2003; Clinique des Acacias and Others v. France , nos. 65399/01, 65405/01 and 65407/01, §38, 13 October 2005; and Prikyan and Angelova v. Bulgaria , no. 44624/98, §42, 16 February 2006).
55. As the Advocate General stated at points 93 to 107 of his Opinion, the principle that the parties should be heard does not, as a rule, merely confer on each party to proceedings the right to be apprised of the documents produced and observations made to the Community Courts by the other party and to discuss them, and does not merely prevent the Community Courts from basing their decision on facts and documents which the parties, or one of them, have not had an opportunity to examine and on which they have therefore been unable to comment. It also, as a rule, implies a right for the parties to be apprised of pleas in law raised by those Courts of their own motion, on which they intend basing their decisions, and to discuss them.
56. In order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be apprised of, and to be able to debate and be heard on, the matters of fact and of law which will determine the outcome of the proceedings.
57. Accordingly, except in particular cases such as, inter alia, those provided for by the rules of procedure of the Community Courts, those Courts cannot base their decisions on a plea raised of their own motion, even one involving a matter of public policy and – as in the present case – based on the absence of a statement of reasons for the decision at issue, without first having invited the parties to submit their observations on that plea.
58. Moreover, in the analogous context of Article 6 of the ECHR, the Court of Justice has held that it is precisely in deference to that article and to the very purpose of every individual’s right to adversarial proceedings and to a fair hearing within the meaning of that provision that the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure be reopened, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see the order of 4 February 2000 in Case C‑17/98 Emesa Sugar  [2000] ECR I‑665, paragraphs 8, 9 and 18, and Joined Cases C‑270/97 and C‑271/97 Deutsche Post  [2000] ECR I‑929, paragraph 30).
71. The concept of evolution of the common market may be understood as a change in the economic and legal framework of the sector concerned by the measure in question, and does not apply, for example, in a situation where the Commission alters its appraisal on the basis of a more rigorous application of the rules on State aid (see Belgium and Forum 187  v Commission , paragraph 71).
72. More generally, the concept of State aid, whether existing or new, corresponds to an objective situation. As the Commission submits, that concept cannot depend on the conduct or statements of the institutions.
73. That is why, having pointed out that the obligation under Article 253 EC to state the reasons for a Community measure must be appropriate to the act at issue, the Court held, at paragraph 137 of the judgment in Belgium and Forum 187 v Commission , that the Commission is not required to state the reasons why it made a different assessment of the regime in question in its previous decisions.
77. 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 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, in particular, Commission  v Sytraval and Brink’s France , paragraph 63 and the case-law cited, and Bertelsmann and Sony Corporation of America  v Impala , paragraph 166 and the case-law cited).