Alcoa Trasformazioni Srl v European Commission.
Date: 2011-07-21
39. In accordance with Article 225 EC and Article 58 of the Statute of the Court of Justice, in an appeal, the Court of Justice does not have jurisdiction to establish and assess the relevant facts, save where it is alleged that those facts are distorted (see, to that effect, Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraphs 49 and 66, and Joined Cases C‑24/01 P and C‑25/01 P Glencore and Compagine Continentale v Commission  [2002] ECR I‑10119, paragraph 65).
48. That assessment of the General Court reflects the approach adopted by the Court of Justice that the method by which aid is financed may render the entire aid scheme incompatible with the common market, necessitating, in such a case, an examination of the aid which takes into account the method of its financing (see Joined Cases C‑261/01 and C‑262/01 van Calster and Others [2003] ECR I‑12249, paragraph 49).
57. The preliminary stage of the procedure for reviewing aid under Article 88(3) EC, which is governed by Articles 4 and 5 of Regulation No 659/1999, is intended to allow the Commission to form a prima facie opinion as to whether the aid in question is compatible in whole or in part with the common market. That stage is separate from 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 (see Case C‑390/06 Nouva Agricast [2008] ECR I‑2577, paragraph 57).
61. The General Court correctly inferred from this, at paragraph 61 of the judgment under appeal, that any review by that Court of the legality of a decision to initiate the formal investigation p rocedure must necessarily be limited and rightly concluded, at paragraph 62 of that judgment, that in an action against such a decision, where the applicants challenge the Commission’s assessment classifying the disputed measure as State aid, review by the European Union judicature is limited to ascertaining whether or not the Commission has made a manifest error of assessment.
67. The General Court found, at paragraph 24 of the judgment in Italy v Commission , that when the Commission has before it a specific grant of aid alleged to be made in pursuance of a previously authorised scheme, it cannot at the outset examine it directly in relation to the Treaty. Prior to the initiation of any procedure, it must first examine whether the aid is covered by the general scheme and satisfies the conditions laid down in the decision approving it. If it did not do so, the Commission could, whenever it examined an individual grant of aid, go back on its decision approving the aid scheme and jeopardise the principles of the protection of legitimate expectations and legal certainty.
71. It is established case‑law that the principle of legal certainty requires that European Union legislation must be certain and its application foreseeable by those subject to it (see, in particular, Belgium and Forum 187 v Commission , paragraph 69, and Case C‑67/09 P Nuova Agricast and Cofra v Commission  [2010] ECR I‑0000, paragraph 77). The right to rely on the principle of the protection of legitimate expectations extends to any person in a situation in which a European Union institution has caused him to entertain expectations which are justified by precise assurances provided to him. However, if a prudent and alert economic operator could have foreseen the adoption of a European Union measure likely to affect his interests, he cannot plead that principle if the measure is adopted (see Belgium and Forum 187 v Commission, paragraph 147; Case C‑519/07 P Commission v Koninklijke FrieslandCampina [2009] ECR I‑8495, paragraph 84; and Case C‑537/08 P Kahla Thüringen Porzellan  v Commission [2010] ECR I‑0000, paragraph 63).
84. Moreover, the General Court was entitled to state, at paragraph 58 of the judgment under appeal, that if an initial examination does not enable the Commission to overcome all the difficulties raised by the question whether the measure examined constitutes aid for the purposes of Article 87(1) EC, it is required to open the formal investigation procedure, unless, in the course of that initial examination, the Commission is able to satisfy itself that the measure at issue would in any event be compatible with the common market, even if it were aid (see also, by analogy, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 39 and the case‑law cited, and Case C‑431/07 P Bouygues and Bouygues Télécom  v Commission [2009] ECR I‑2665, paragraph 61). In those circumstances, the General Court was in a position properly to conclude, in essence, at paragraph 70 of the judgment under appeal, by reference in particular to paragraph 58, that the question whether the tariff granted to the plants was a market tariff called for a complex economic assessment giving rise to doubts which could be more effectively addressed under the formal investigation procedure.
88. In an appeal the jurisdiction of the Court of Justice is in principle confined to review of the findings of law on the pleas argued before the General Court (see, in particular, Case C‑266/05 P Sison v Council  [2007] ECR I‑1233, paragraph 95 and the case‑law cited). Therefore, a party cannot in principle put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court because that would amount to allowing the Court of Justice to review the legality of the findings of the General Court, in the light of pleas of which the latter did not take cognisance.
96. It is settled case-law 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 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 (see, inter alia, Case C‑89/08 P Commission  v Ireland [2009] ECR I‑11245, paragraph 77 and the case-law cited).