Kingdom of Belgium (C-182/03) and Forum 187 ASBL (C-217/03) v Commission of the European Communities.
Date: 2006-06-22
56. An association such as Forum 187 which is responsible for protecting the collective interests of coordination centres established in Belgium is, as a rule, entitled to bring an action for annulment against a final decision of the Commission in matters of State aid only if the undertakings which it represents or some of those undertakings themselves have locus standi (Case C-6/92 Federmineraria and Others v Commission [1993] ECR I‑6357, paragraphs 15 and 16) or if it can prove an interest of its own (Case C-313/90 CIRFS and Others v Commission  [1993] ECR I‑1125, paragraphs 29 and 30).
58. As regards the second condition laid down under Article 230 EC, the Court has repeatedly held that the fact that a disputed provision is, by its nature and scope, a provision of general application inasmuch as it applies to the traders concerned in general, does not of itself prevent it being of individual concern to some (see, to that effect, Case C-309/89 Codorniu  [1994] ECR I‑1853, paragraph 19).
59. Natural or legal persons may claim that a contested provision is of individual concern to them only if it affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons (see Case 25/62 Plaumann v Commission  [1963] ECR 95).
60. In that regard, the Court has held that, where a contested measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of traders (see Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraph 31, and Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraph 11).
69. In order to determine whether the Commission was entitled to carry out such a new investigation, it should be noted not only that the principle of legal certainty requires that Community legislation must be certain and its application foreseeable by those subject to it (Case 325/85 Ireland v Commission  [1987] ECR 5041, paragraph 18, and Case C‑63/93 Duff and Others [1996] ECR I‑569, paragraph 20), but also that its application must be combined with that of the principle of legality (Joined Cases 42/59 and 49/59 SNUPAT v High Authority [1961] ECR 53, 87).
71. That concept, which may be understood as a change in the economic and legal framework of the sector concerned by the measure in question, does not apply in a situation where, as in the present case, the Commission alters its appraisal on the basis only of a more rigo rous application of the Treaty rules on State aid.
72. It must however be noted that the Regulation constitutes a measure of secondary legislation adopted for the purposes of the application of Article 87 EC and Article 88 EC, which cannot restrict the scope of those articles, particularly as the Commission derives its powers directly from them.
82. Secondly, in the case of an aid programme, the Commission may confine its examination to the characteristics of the programme in question in order to determine whether it gives an appreciable advantage to the recipients in relation to their competitors (Case C‑75/97 Belgium v Commission  [1999] ECR I‑3671, paragraph 48). It is not required to examine each particular case in which the regime applies (Case C-278/00 Greece v Commission  [2004] ECR I-3997, paragraph 24, and the case-law cited there).
84. The first point to be noted is that it is settled case-law that classification as aid requires that all the conditions set out in Article 87(1) EC be met (Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I‑7747, paragraph 74).
86. The concept of aid may cover not only positive benefits, such as subsidies, loans or the taking of shares in undertakings, but also action which, in various forms, mitigates the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect (Case C-126/01 Gemo  [2003] ECR I‑13769, paragraph 28, and the case-law cited there).
87. Furthermore, the Court has held that a measure by which the public authorities grant to certain undertakings a tax exemption which, although not involving a transfer of State resources, places the persons to whom it applies in a more favourable financial situation than other taxpayers constitutes State aid (Case C‑387/92 Banco Exterior de España  [1994] ECR I‑877, paragraph 14).
119. It must be observed that, according to settled case-law, Article 87(1) EC requires that it be determined whether, under a particular statutory scheme, a State measure is such as to favour ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued by the system in question, are in a comparable legal and factual situation. If so, the measure concerned fulfils the condition of selectivity which is a defining characteristic of the concept of State aid as set out by that provision (see Case C-172/03 Heiser [2005] ECR I-1627, paragraph 40, and the case-law cited there).
127. For advantages to be capable of being categorised as aid within the meaning of Article 87(1) EC, they must, first, be granted directly or indirectly through State resources and, second, be imputable to the State ( GEMO , paragraph 24)
131. It is clear from the case-law of the Court that competition is distorted where a measure mitigates the burden imposed on a beneficiary undertaking and thereby strengthens its position as regards competing undertakings (see, to that effect, Case 730/79 Philip Morris v Commission [1980] ECR 2671, paragraph 11, and Case 259/85 France v Commission [1987] ECR 4393, paragraph 24).
137. It should be pointed out in that regard that, while the obligation to state reasons for a Community measure must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion laid down under Article 253 EC 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 (Case 1/69 Italy v Commission  [1969] ECR 277, paragraph 9, and Case C-310/99 Italy v Commission [2002] ECR I‑2289, paragraph 48), the Commission is not required to state the reasons why it made a different assessment of the regime in question in its previous decisions. The concept of State aid must be applied to an objective situation, which falls to be appraised on the date on which the Commission takes its decision.
147. The Court has repeatedly held that the right to rely on the principle of the protection of legitimate expectations extends to any person in a situation where a Community authority has caused him to entertain expectations which are justified. However, a person may not plead infringement of the principle unless he has been given precise assurances by the administration (Case C-506/03 Germany v Commission [2005] ECR I‑0000, paragraph 58). Similarly, if a prudent and alert economic operator could have foreseen the adoption of a Community measure likely to affect his interests, he cannot plead that principle if the measure is adopted (Case 265/85 Van den Bergh en Jurgens and Van Dijk Food Products Lopik v Commission [1987] ECR 1155, paragraph 44).
148. Furthermore, even if the Community had first created a situation capable of giving rise to legitimate expectations, an overriding public interest may preclude transitional measures from being adopted in respect of situations which arose before the new rules came into force but which are still subject to change (Case C‑183/95 Affish [1997] ECR I-4315, paragraph 57).
149. However, the Court has also held that, in the absence of an overriding public interest, the Commission infringed a superior rule of law by failing to couple the repeal of a set of rules with transitional measures for the protection of the expectations which a trader might legitimately have derived from the Community rules (see, to that effect, Case 74/74 CNTA v Commission [1975] ECR 533, paragraph 44).
170. According to the case-law of the Court, the general principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (Joined Cases 66/79, 127/79 and 128/79 Salumi and Others [1980] ECR 1237, paragraph 14, and Case C‑14/01 Niemann [2003] ECR I-2279, paragraph 49, and the case-law cited there).