European Commission v Italian Republic and Others.
Date: 2021-03-02
It is apparent from Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal is to be limited to points of law and that the General Court therefore has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The assessment of the facts and evidence does not, save where the facts or evidence are distorted, constitute a point of law, which is subject, as such, to review by the Court of Justice on appeal. Such a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and evidence (judgment of 10 July 2019, VG v Commission, C‑19/18 P, EU:C:2019:578, paragraph 47 and the case-law cited).
However, where the General Court has found or appraised the facts, the Court of Justice has jurisdiction to carry out a review, provided that the General Court has defined their legal nature and determined the legal consequences (judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 65 and the case-law cited). The jurisdiction of the Court of Justice to review extends, inter alia, to the question whether the rules relating to the burden of proof and the taking of evidence have been observed and whether the General Court has taken the right legal criteria as the basis for its appraisal of the facts and evidence (see, to that effect, judgment of 18 January 2017, Toshiba v Commission, C‑623/15 P, not published, EU:C:2017:21, paragraph 39 and the case-law cited).
Secondly, with regard to the plea of inadmissibility mentioned in paragraph 49 above, it must be recalled that it follows from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union as well as from Article 168(1)(d) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 29 and the case-law cited). In the present case, it is sufficient to note that the Commission made clear, in its appeal, that it challenged, inter alia, paragraph 126 of the judgment under appeal.
As regards the first limb of the first ground of appeal, it must be recalled, at the outset, that classification as ‘State aid’ for the purposes of Article 107(1) TFEU requires four conditions to be satisfied, namely, that there be intervention by the State or through State resources, that the intervention be liable to affect trade between Member States, that it confer a selective advantage on the beneficiary and that it distort or threaten to distort competition (judgment of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 46 and the case-law cited).
As regards the existence of an intervention by the State or through State resources, which is the only condition at issue in the present case, it should be borne in mind that, in order for it to be possible to classify advantages as ‘aid’ within the meaning of Article 107(1) TFEU, they must be granted directly or indirectly through State resources and be imputable to the State (see, to that effect, judgment of 15 May 2019, Achema and Others, C‑706/17, EU:C:2019:407, paragraph 47 and the case-law cited).
Concerning specifically the imputability to the State of a measure, the Court has held that this may not be inferred from the mere fact that the measure was taken by a public undertaking. Even if the State is in a position to control a public undertaking and to exercise a dominant influence over its operations, actual exercise of that control in a particular case cannot be automatically presumed. It is also necessary to examine whether the public authorities must be regarded as having been involved, in one way or another, in the adoption of the measure in question (see, to that effect, judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraphs 50 to 52; of 23 November 2017, SACE and Sace BT v Commission, C‑472/15 P, not published, EU:C:2017:885, paragraph 34; and of 10 December 2020, Comune di Milano v Commission, C‑160/19 P, EU:C:2020:1012, paragraph 46).
Thus, the imputability to the State of an aid measure taken by a public undertaking may be inferred from a set of indicators arising from the circumstances of the case and the context in which that measure was taken. In that regard it cannot be demanded that it be demonstrated, on the basis of a precise instruction, that the public authorities specifically incited the public undertaking to take the measure in question (see, to that effect, judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraphs 53 and 55; of 23 November 2017, SACE and Sace BT v Commission, C‑472/15 P, not published, EU:C:2017:885, paragraph 35; and of 10 December 2020, Comune di Milano v Commission, C‑160/19 P, EU:C:2020:1012, paragraph 47 and the case-law cited).
Specifically, any indication, in the particular case, either, on the one hand, of the involvement by the public authorities in the adoption of a measure or the unlikelihood of their not being involved, having regard also to the compass of the measure, its content or the conditions which it contains, or, on the other hand, the absence of those authorities’ involvement in the adoption of that measure is relevant (judgment of 10 December 2002, Comune di Milano v Commission, C‑160/19 P, EU:C:2020:1012, paragraph 48).
Evidence supporting the conclusion that the measure is imputable to the State includes, in addition, the fact that the public undertaking in question could not have taken the decision at issue without taking account of the requirements of the public authorities or the directives emanating from the public authorities, the integration of the public undertaking into the structures of the public administration, the nature of its activities and the exercise of those activities on the market in normal conditions of competition with private operators, the legal status of the undertaking as well as the intensity of the supervision exercised by the public authorities (see, to that effect, judgments of 16 May 2002, France v Commission, C‑482/99, EU:C:2002:294, paragraphs 55 and 56, and of 23 November 2017, SACE and Sace BT v Commission, C‑472/15 P, not published, EU:C:2017:885, paragraph 36).
In the first place, it should be noted, first of all, that in paragraphs 63 to 68 and 83 to 86 of the judgment under appeal the General Court recalled the case-law of the Court of Justice on the imputability of aid to public authorities where advantages are granted by entities distinct from the State. In particular, in paragraph 68 of the judgment under appeal, the General Court pointed out, by referring to paragraphs 50 to 52 and 55 of the judgment of 16 May 2002, France v Commission (C‑482/99, EU:C:2002:294), that, even in a situation where aid is granted by a public undertaking, the exercise of the public authorities’ control cannot be presumed and that the Commission must have a set of indicators arising from the circumstances of the case and the context in which the financial assistance was given in order to establish the degree of involvement by the public authorities in granting the aid through the intermediary of a public undertaking.
In the second place, as regards the Commission’s arguments relating to the nature of the FITD, it must be recalled, as noted by the Advocate General in points 128 and 129 of his Opinion, that the concept of ‘emanation of the State’ was developed by the Court with a view to allowing individuals to rely on unconditional and sufficiently precise provisions of a directive that is not transposed or is incorrectly transposed, against organisations or bodies which are subject to the authority or control of the State or which possess special powers beyond those which result from the normal rules applicable to relations between individuals (see, to that effect, judgment of 10 October 2017, Farrell, C‑413/15, EU:C:2017:745, paragraph 33). Thus, that concept has not been developed for the purpose of classifying as State aid the measures adopted by such organisations or bodies and cannot, therefore, be applied to the question whether aid measures are imputable to the State.
Similarly, with respect to the examination, in the context of an appeal, of the General Court’s findings with regard to national law, the Court of Justice has jurisdiction only to determine whether that law was distorted (see, to that effect, judgment of 9 November 2017, TV2/Danmark v Commission, C‑649/15 P, EU:C:2017:835, paragraph 49 and the case-law cited).
Lastly, as recalled in paragraph 52 above, distortion must be obvious from the documents in the Court’s file without any need for a new assessment of the facts and the evidence (judgment of 9 November 2017, TV2/Danmark v Commission, C‑649/15 P, EU:C:2017:835, paragraph 50 and the case-law cited).