France Télécom SA v European Commission.
Date: 2011-12-08
16. As regards whether that ground is well founded, according to settled case-law, the definition of aid is more general than that of a subsidy. It includes not only positive benefits but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of the word, are similar in character and have the same effect (see, Joined Cases C‑78/08 to C‑80/08 Paint Graphos and Others  [2011] ECR I‑0000, paragraph 45 and the case-law cited).
17. It should also be noted that the concept of advantage that is intrinsic to the classification of a measure as State aid is an objective one, irrespective of the motives of the persons responsible for the measure in question. Accordingly, the nature of the objectives pursued by State measures and their grounds of justification have no bearing whatsoever on whether such measures are to be classified as State aid. It is established case-law that Article 87(1) EC does not distinguish between the causes or the objectives of State aid, but defines them in relation to their effects (see Case C‑409/00 Spain v Commission  [2003] ECR I‑1487, paragraph 46 and the case-law cited).
43. While recognising that, when examining a measure likely to constitute State aid, the Commission is entitled to take account of the specific charges imposed on an advantage, the General Court nevertheless found, at paragraph 207 of the judgment under appeal, that a measure cannot be saved from categorisation as aid where the aid beneficiary is subject to a specific charge which is different from and unconnected with the aid in question. That affirmation on the part of the General Court is based on a correct interpretation of Article 87(1) EC (see Case 173/73 Italy v Commission  [1974] ECR 709, paragraph 34), notwithstanding the fact that it referred incorrectly in that regard to the judgment in Case C‑66/02 Italy v Commission .
48. In those circumstances, the General Court was entitled to find, at paragraph 213 of the judgment under appeal, that the fixed levy must be regarded not as a charge connected with the introduction of the special tax regime, but rather as a special tax mechanism for FT established for the years prior to 1994. In any event, as the General Court stated at paragraph 215 of the judgment under appeal, the mere fact that the fixed levy and the special tax regime were both introduced by Law No 90‑568 does not prove that FT’s liability to pay the fixed levy from 1991 to 1993 was connected with the creation of the special tax regime for the years after 1994.
58. It should be recalled, first, that the obligation to notify is one of the fundamental features of the system of control put in place by the Treaty in the field of State aid. Under that system, Member States are under an obligation, first, to notify to the Commission each measure intended to grant new aid or alter aid for the purposes of Article 87(1) EC and, second, not to implement such a measure, in accordance with Article 88(3) EC, until that institution has taken a final decision on the measure.
59. Consequently, in view of the mandatory nature of the review of State aid by the Commission, undertakings to which aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in Article 88 EC and a diligent business operator should normally be able to determine whether that procedure has been followed. In particular, where aid is implemented without prior notification to the Commission, with the result that it is unlawful under Article 88(3) EC, the recipient of the aid cannot have at that time a legitimate expectation that its grant is lawful (see Joined Cases C‑183/02 P and C‑187/02 P Demesa and Territorio Histórico de Álava  v Commission [2004] ECR I‑10609, paragraphs 44 and 45 and case-law cited).
80. As regards the principle of limitation, Article 15(1) of Regulation No 659/1999 provides that the powers of the Commission to recover aid are to be subject to a limitation period of 10 years. It is apparent from Article 15(2) of the regulation that the limitation period does not begin to run until on the day on which the unlawful aid is awarded to the beneficiary. Consequently, the decisive factor in determining the starting point of the limitation period referred to in Article 15 is when the aid was in fact granted.
81. It is apparent from Article 15(2) of Regulation No 659/1999 that, for the purpose of determining the date on which the limitation period starts to run, that provision refers to the grant of aid to a beneficiary, not the date on which an aid scheme was adopted.
82. The determination of the date on which aid was granted may vary depending on the nature of the aid in question. Thus, in the case of a multi-annual scheme, entailing payments or advantages granted on a periodic basis, the date on which an act forming the legal basis of the aid is adopted and the date on which the undertakings concerned will actually be granted the aid may be a considerable period of time apart. In such a case, for the purpose of calculating the limitation period, the aid must be regarded as not having been awarded to the beneficiary until the date on which it was in fact received by the beneficiary.
88. Lastly, as regards the argument that the General Court failed to have regard to the obligation to state reasons in relation to the principle of limitation, it is settled case-law that that court is not thereby required to provide an account that follows exhaustively and point by point all the reasoning 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 competent court with sufficient material for it to exercise its power of review (see Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Electrotechnisch Gebied v Commission [2006] ECR I‑8725, paragraph 72; and Case C‑3/06 P Groupe Danone v Commission  [2007] ECR I‑1331, paragraph 46).
100. The principle of legal certainty – which is one of the general principles of European Union law – requires that rules of law be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by European Union law (see, to that effect, Case C‑63/93 Duff and Others  [1996] ECR I-569, paragraph 20; Case C‑76/06 P Britannia Alloys & Chemicals  v Commission  [2007] ECR I‑4405, paragraph 79; and Case C‑158/07 Förster [2008] ECR I‑8507, paragraph 67).
101. As regards the argument relied on in support of the fifth ground of appeal, it should be observed that the General Court pointed out, at paragraph 301 of the judgment under appeal, that, on the basis of the Commission’s estimates, the aid at issue amounted to between EUR 798 million and EUR 1 140 million. Since those figures delimit the range within which the final amount was to be established, the General Court found, referring in particular to paragraphs 31 to 40 of Commission v France, that the contested decision contained the appropriate information to enable that amount to be determined without too much difficulty.
102. It should also be noted that the Court of Justice held, at paragraph 29 of Commission  v France , that no provision of European Union law requires the Commission, when ordering the recovery of aid declared incompatible with the common market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission’s decision to include information enabling the recipient to calculate the amount itself, without overmuch difficulty (see also Case C‑480/98 Spain v Commission  [2000] ECR I-8717, paragraph 25, and Case C‑415/03 Commission  v Greece  [2005] ECR I-3875, paragraph 39).
105. It follows from the foregoing that neither the French Republic nor FT can rely on that principle in order to prevent recovery of unlawful aid (see Case C‑148/04 Unicredito Italiano [2005] ECR I‑11137, paragraph 104).