Scuola Elementare Maria Montessori Srl v European Commission, European Commission v Scuola Elementare Maria Montessori Srl and European Commission v Pietro Ferracci.
Date: 2018-11-06
22


In the first place, it should be recalled that by the Treaty of Lisbon a third limb was added to the fourth paragraph of Article 263 TFEU, relaxing the conditions of admissibility of actions for annulment brought by natural and legal persons. That limb, without subjecting the admissibility of actions for annulment brought by natural and legal persons to the condition of individual concern, allows such actions to be brought against ‘regulatory acts’ which do not entail implementing measures and are of direct concern to the applicant (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 57).
23


As regards the concept of ‘regulatory acts’, the Court has held that its scope is more restricted than that of the concept of ‘acts’ used in the first and second limbs of the fourth paragraph of Article 263 TFEU and refers to acts of acts of general application other than legislative acts (see, to that effect, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraphs 58 to 61).
29


In the second place, it should be recalled that, according to settled case-law of the Court, an act is of general application if it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in a general and abstract manner (judgments of 11 July 1968, Zuckerfabrik Watenstedt v Council, 6/68, EU:C:1968:43, p. 415; of 15 January 2002, Libéros v Commission, C‑171/00 P, EU:C:2002:17, paragraph 28 and the case-law cited; and of 17 March 2011, AJD Tuna, C‑221/09, EU:C:2011:153, paragraph 51 and the case-law cited).
31


As regards the second limb of the fourth paragraph of Article 263 TFEU, the Court has repeatedly held in the field of State aid that decisions of the Commission authorising or prohibiting a national scheme are of general application. That general application derives from the fact that such decisions apply to objectively determined situations and produce legal effects with respect to a category of persons envisaged in a general and abstract manner (see, to that effect, judgments of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 31; of 17 September 2009, Commission v Koninglijke Friesland/Campina, C‑519/07 P, EU:C:2009:556, paragraph 53 and the case-law cited; and of 28 June 2018, Lowell Financial Services v Commission, C‑219/16 P, not published, EU:C:2018:508, paragraph 42 and the case-law cited).
34


In the third place, as regards the first part of the decision at issue, it is true that, according to settled case-law of the Court, a recovery order is of individual concern to the beneficiaries of the aid scheme in question, in that, once such an order is adopted, they are exposed to the risk that the benefits they have received will be recovered and are therefore members of a restricted class (see, to that effect, judgments of 19 October 2000, Italy and Sardegna Lines v Commission, C‑15/98 and C‑105/99, EU:C:2000:570, paragraphs 33 to 35; of 29 April 2004, Italy v Commission, C‑298/00 P, EU:C:2004:240, paragraph 39; and of 9 June 2011, Comitato Venezia vuole vivere and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 56).
42


According to settled case-law of the Court, the condition that a natural or legal person must be directly concerned by the decision against which the action is brought, laid down in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met, namely, first, the contested measure must directly affect the legal situation of the individual and, second, it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from the EU rules alone without the application of other intermediate rules (judgments of 5 May 1998, Glencore Grain v Commission, C‑404/96 P, EU:C:1998:196, paragraph 41 and the case-law cited; of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 66; and order of 19 July 2017, Lysoform Dr. Hans Rosemann and Ecolab Deutschland v ECHA, C‑666/16 P, not published, EU:C:2017:569, paragraph 42).
43


As regards specifically the rules on State aid, it must be noted that their objective is to preserve competition (see, to that effect, judgments of 15 June 2006, Air Liquide Industries Belgium, C‑393/04 and C‑41/05, EU:C:2006:403, paragraph 27 and the case-law cited, and of 17 July 2008, Essent Network Noord and Others, C‑206/06, EU:C:2008:413, paragraph 60). So, in that field, the fact that a Commission decision leaves intact all the effects of the national measures which the applicant, in a complaint addressed to that institution, claimed were not compatible with that objective and placed it in an unfavourable competitive position makes it possible to conclude that the decision directly affects its legal situation, in particular its right under the provisions on State aid of the FEU Treaty not to be subject to competition distorted by the national measures concerned (see, to that effect, judgment of 28 January 1986, Cofaz and Others v Commission, 169/84, EU:C:1986:42, paragraph 30).
46


While it is not for the EU judicature, at the stage of the examination of admissibility, to rule definitively on the competitive relationships between an applicant and the beneficiaries of the national measures assessed in a decision of the Commission on State aid, such as the decision at issue (see, to that effect, judgments of 28 January 1986, Cofaz and Others v Commission, 169/84, EU:C:1986:42, paragraph 28, and of 20 December 2017, Binca Seafoods v Commission, C‑268/16 P, EU:C:2017:1001, paragraph 59), a direct effect on such an applicant cannot be deduced from the mere potential existence of a competitive relationship, such as that found in the judgments under appeal.
48


It must nonetheless be recalled that, if the grounds of a decision of the General Court reveal an infringement of EU law but the operative part of the judgment can be seen to be well founded on other legal grounds, that infringement is not capable of leading to the annulment of that decision and a substitution of grounds must be made (judgment of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 75 and the case-law cited).
58


According to settled case-law of the Court, the expression ‘does not entail implementing measures’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU must be interpreted in the light of the objective of that provision, which, as is apparent from its drafting history, is to ensure that individuals do not have to break the law in order to have access to a court. Where a regulatory act directly affects the legal situation of a natural or legal person without requiring implementing measures, that person could be denied effective judicial protection if he did not have a legal remedy before the EU judicature for the purpose of challenging the lawfulness of the regulatory act. In the absence of implementing measures, a natural or legal person, although directly concerned by the act in question, would be able to obtain judicial review of the act only after having infringed its provisions, by pleading that those provisions are unlawful in proceedings initiated against them before the national court (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 27, and of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 35 and the case-law cited).
59


By contrast, where a regulatory act entails implementing measures, judicial review of compliance with the EU legal order is ensured irrespective of whether those measures were adopted by the European Union or the Member States. Natural or legal persons who are unable, because of the conditions of admissibility in the fourth paragraph of Article 263 TFEU, to challenge an EU regulatory act directly before the EU judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which the act entails (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 28, and of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 36 and the case-law cited).
60


Where responsibility for the implementation of such acts lies with the institutions, bodies, offices or agencies of the European Union, natural or legal persons are entitled to bring a direct action before the EU judicature against the implementing acts under the conditions stated in the fourth paragraph of Article 263 TFEU, and to plead in support of that action, pursuant to Article 277 TFEU, the unlawfulness of the basic act concerned. Where that implementation is a matter for the Member States, those persons may plead the invalidity of the basic act concerned before the national courts and cause them to refer questions to the Court for a preliminary ruling under Article 267 TFEU (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 29, and of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 37 and the case-law cited).
61


The Court has, moreover, repeatedly held that the question whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings under the third limb of the fourth paragraph of Article 263 TFEU. It is therefore irrelevant whether the act in question entails implementing measures with regard to other persons. Furthermore, in that assessment, reference should be made exclusively to the subject matter of the action (see, to that effect, judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraphs 30 and 31; of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraphs 50 and 51; and of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraphs 38 and 39 and the case-law cited).
63


As regards the second and third parts of the decision at issue, in which the Commission found that Article 149(4) of the TUIR and the exemption under the IMU scheme did not constitute State aid within the meaning of Article 107(1) TFEU, it must be recalled that the Court has indeed repeatedly held that, for the beneficiaries of an aid scheme, the national provisions establishing the scheme and the measures implementing those provisions, such as a tax notice, constitute implementing measures entailed by a decision declaring the aid scheme incompatible with the internal market or declaring it compatible with the internal market subject to compliance with commitments entered into by the Member State concerned (see, to that effect, judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraphs 35 and 36; of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraphs 52 and 53; and of 27 February 2014, Stichting Woonlinie and Others v Commission, C‑133/12 P, EU:C:2014:105, paragraphs 39 and 40).
64


That case-law reflects the fact that a beneficiary of an aid scheme can, where he satisfies the conditions under national law for being eligible for that scheme, request the national authorities to grant him the aid as it would have been granted if there were an unconditional decision declaring the scheme compatible with the internal market, and contest before the national courts a measure refusing that request, pleading the invalidity of the Commission’s decision declaring the scheme incompatible with the internal market or compatible with that market subject to compliance with commitments entered into by the Member State concerned, in order to cause those courts to refer questions to the Court for a preliminary ruling on its validity (see, to that effect, judgment of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraphs 36 and 59, and order of 15 January 2015, Banco Bilbao Vizcaya Argentaria and Telefónica v Commission, C‑587/13 P and C‑588/13 P, not published, EU:C:2015:18, paragraphs 49 and 65).
65


However, that case-law cannot be applied to the situation of the competitors of beneficiaries of a national measure that has been found not to constitute State aid within the meaning of Article 107(1) TFEU, such as Mr Ferracci and Scuola Elementare Maria Montessori. The situation of such a competitor differs from that of the beneficiaries of aid referred to by that case-law, in that the competitor does not satisfy the conditions laid down by the national measure in question for eligibility for that aid.
66


In those circumstances, as the Advocate General observes in point 71 of his Opinion, it would be artificial to require that competitor to request the national authorities to grant him that benefit and to contest the refusal of that request before a national court, in order to cause the national court to make a reference to the Court on the validity of the Commission’s decision concerning that measure.
77


It is settled case-law that the adoption of an order to recover unlawful aid is the logical and normal consequence of a finding that it is unlawful. The principal objective of such an order is to eliminate the distortion of competition caused by the competitive advantage conferred by the unlawful aid (see, to that effect, judgments of 15 December 2005, Unicredito Italiano, C‑148/04, EU:C:2005:774, paragraph 113 and the case-law cited; of 1 October 2015, Electrabel and Dunamenti Erőmű v Commission, C‑357/14 P, EU:C:2015:642, paragraph 111 and the case-law cited; and of 21 December 2016, Commission v Aer Lingus and Ryanair Designated Activity, C‑164/15 P and C‑165/15 P, EU:C:2016:990, paragraph 116).
79


As the Advocate General observes in points 107 and 110 of his Opinion, the principle that ‘no one is obliged to do the impossible’ is among the general principles of EU law (see, to that effect, order of 3 March 2016, Daimler, C‑179/15, EU:C:2016:134, paragraph 42).
80


While it follows from settled case-law of the Court that the only defence that may be relied on by a Member State against an action for failure to fulfil obligations brought by the Commission on the basis of Article 108(2) TFEU is the absolute impossibility of implementing correctly the Commission’s decision to order recovery of the aid in question (see, to that effect, judgments of 15 January 1986, Commission v Belgium, 52/84, EU:C:1986:3, paragraph 14; of 1 June 2006, Commission v Italy, C‑207/05, not published, EU:C:2006:366, paragraph 45; and of 9 November 2017, Commission v Greece, C‑481/16, not published, EU:C:2017:845, paragraph 28 and the case-law cited), that case-law relates, however, solely to the pleas that can be raised in defence by the Member State against an order for recovery made by the Commission, not to whether or not the absolute impossibility of recovering the aid may already be established at the stage of the formal investigation procedure.
82


The Court has previously held that the Commission cannot, on pain of its being invalid, adopt an order for recovery which, from the moment of its adoption, is objectively and absolutely impossible to implement (see, to that effect, judgment of 17 June 1999, Belgium v Commission, C‑75/97, EU:C:1999:311, paragraph 86).
83


In so far as Scuola Elementare Maria Montessori also bases the first part of its first ground of appeal on the principle of sincere cooperation, it must be recalled that under Article 4(3) TEU that principle applies throughout the procedure for the examination of a measure by reference to the provisions of EU law on State aid (see, to that effect, judgments of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 147 and the case-law cited, and of 21 December 2016, Club Hotel Loutraki and Others v Commission, C‑131/15 P, EU:C:2016:989, paragraph 34).
84


Thus where, as in the present case, the Member State concerned already claims during the formal investigation procedure that recovery is absolutely impossible, the principle of sincere cooperation requires the Member State, at that stage, to submit to the Commission for assessment the reasons underlying that claim and requires the Commission to examine them scrupulously. Consequently, contrary to Scuola Elementare Maria Montessori’s submission, that principle does not require the Commission to attach an order for recovery to every decision declaring aid to be unlawful and incompatible with the internal market, but requires it to take into consideration the arguments put to it by the Member State concerned on the existence of absolute impossibility of recovery.
86


As regards the fourth part of this ground of appeal, it should be recalled that an appellant must, pursuant to Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and demonstrate the errors of appraisal which, in his view, led to that distortion. In addition, it is settled case-law of the Court that the distortion must be obvious from the documents in the case file without there being any need to carry out a new assessment of the facts and the evidence (see, to that effect, judgments of 9 June 2011, Comitato Venezia vuole vivere and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraphs 152 and 153, and of 8 March 2016, Greece v Commission, C‑431/14 P, EU:C:2016:145, paragraph 32 and the case-law cited).
90


As regards the second and third parts of this ground of appeal, which should be considered together, it must be recalled that, in accordance with the Court’s settled case-law on actions for failure to fulfil obligations brought on the ground of infringement of a decision ordering the recovery of unlawful aid, a Member State which encounters unforeseen and unforeseeable difficulties or becomes aware of consequences overlooked by the Commission must submit those problems to the Commission for consideration, together with proposals for suitable amendments to the decision at issue. In such a case, the Member State and the Commission must, by virtue of the principle of sincere cooperation, work together in good faith with a view to overcoming difficulties while fully observing the provisions of the FEU Treaty, in particular those on aid (see, to that effect, judgments of 2 July 2002, Commission v Spain, C‑499/99, EU:C:2002:408, paragraph 24, and of 22 December 2010, Commission v Italy, C‑304/09, EU:C:2010:812, paragraph 37 and the case-law cited).
91


However, the condition of absolute impossibility of implementation is not satisfied where the defendant Member State does no more than inform the Commission of the internal difficulties of a legal, political or practical nature, attributable to the national authorities’ own acts or omissions, raised by implementation of the decision at issue, without taking real steps to recover the aid from the undertakings concerned and without suggesting to the Commission alternative methods of implementing the decision which would allow those difficulties to be overcome (see, to that effect, judgments of 13 November 2008, Commission v France, C‑214/07, EU:C:2008:619, paragraph 50, and of 12 February 2015, Commission v France, C‑37/14, not published, EU:C:2015:90, paragraph 66 and the case-law cited).
103


According to the Court’s settled case-law, EU competition law, in particular the prohibition in Article 107(1) TFEU, applies to the activities of undertakings. In this context, the concept of ‘undertaking’ covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see, to that effect, judgments of 10 January 2006, Cassa di Risparmio di Firenze and Others, C‑222/04, EU:C:2006:8, paragraph 107, and of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraphs 39 and 41 and the case-law cited).
104


Any activity consisting in offering services on a given market, that is, services normally provided for remuneration, is an economic activity. The essential characteristic of remuneration lies in the fact that it is consideration for the service in question (see, to that effect, judgments of 11 September 2007, Schwarz and Gootjes-Schwarz, C‑76/05, EU:C:2007:492, paragraphs 37 and 38, and of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraphs 45 and 47).
105


As regards educational activities, the Court has held that courses provided by educational establishments financed essentially by private funds that do not come from the provider itself constitute services, since the aim of such establishments is to offer a service for remuneration (judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraph 48 and the case-law cited).
107


It must be recalled that, in the case of an interpretation of national law by the General Court, the Court of Justice has jurisdiction on appeal only to determine whether that law was distorted, and the distortion must be obvious from the documents in the case file (judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 20 and the case-law cited).