Club Hotel Loutraki AE and Others v European Commission.
Date: 2016-12-21
26


According to settled case-law of the Court, the points of law examined at first instance may be discussed again in the course of an appeal because, if a party could not base its appeal on pleas in law and arguments already relied on before the General Court, the appeal procedure would be deprived of part of its purpose (judgment of 4 September 2014, Spain v Commission, C‑192/13 P, EU:C:2014:2156, paragraph 45).
30


As regards the merits of the arguments put forward in the context of the first part of the first ground of appeal, it should be borne in mind that, according to settled case-law, the procedure under Article 108(2) TFEU is essential whenever the Commission has serious difficulties in determining whether aid is compatible with the internal market. Thus, the Commission may confine itself to the preliminary investigation under Article 108(3) TFEU when taking a decision in favour of aid only if it is able to satisfy itself, after an initial examination, that that aid is compatible with the internal market. If, by contrast, the initial examination leads the Commission to the opposite conclusion or even if it does not enable it to resolve all the difficulties involved in determining whether the aid is compatible with the internal market, the Commission is under a duty to carry out all the requisite consultations and for that purpose to initiate the procedure under Article 108(2) TFEU (judgment of 27 October 2011, Austria v Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 70 and the case-law cited).
31


As the criterion of serious difficulties is objective in nature, the existence of such difficulties must be looked for not only in the circumstances in which the Commission’s decision was adopted after the preliminary investigation but also in the assessments upon which the Commission relied (judgment of 27 October 2011, Austria v Scheucher‑Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 71 and the case-law cited).
32


It follows that the lawfulness of a decision not to raise objections, based on Article 4(3) of Regulation No 659/1999, depends on the question whether the assessment of the information and evidence which the Commission had at its disposal during the preliminary investigation phase of the measure notified should objectively have raised doubts as to the compatibility of that measure with the internal market, given that such doubts must lead to the initiation of a formal investigation procedure in which the interested parties referred to in Article 1(h) of that regulation may participate (judgment of 27 October 2011, Austria v Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 72 and the case-law cited).
33


The same principles apply where the Commission entertains doubts as to the actual classification of the measure under examination as aid, within the meaning of Article 107(1) TFEU (judgment of 10 May 2005, Italy v Commission, C‑400/99, EU:C:2005:275, paragraph 47).
34


In view of the legal consequences of initiating the procedure provided for in Article 108(2) TFEU with regard to measures treated as new aid, where the Member State concerned contends that those measures do not constitute aid within the meaning of Article 107(1) TFEU, the Commission must undertake a sufficient examination of the question on the basis of the information notified to it at that stage by that State, even if the outcome of that examination is not definitive. By virtue of the principle of sincere cooperation between Member States and institutions, as embodied in Article 4(3) TEU, and in order not to delay the procedure, it is the responsibility of a Member State which considers that the measures in question do not constitute aid to provide the Commission, at the earliest possible moment after the Commission has drawn its attention to those measures, with the information on which its position is based. If those elements are such as to remove any doubts as to the absence of any element of aid in the measures examined, the Commission cannot initiate the procedure provided for in Article 108(2) TFEU (judgment of 10 May 2005, Italy v Commission, C‑400/99, EU:C:2005:275, paragraph 48).
35


In that regard, in accordance with the objective of Article 108(3) TFEU and its duty of sound administration, the Commission may, amongst other things, engage in a dialogue with the notifying State or with third parties in an endeavour to overcome, during the preliminary procedure, any difficulties encountered. However, that power presupposes that the Commission may adjust its position in accordance with the results of the dialogue in which it engages, without that adjustment having to be interpreted, a priori, as establishing the existence of serious difficulties (judgment of 13 June 2013, Ryanair v Commission, C‑287/12 P, not published, EU:C:2013:395, paragraph 71).
36


Accordingly, the Commission may lawfully adopt, on the basis of Article 4(2) of Regulation No 659/1999, a decision whereby, while finding that there is no State aid, it takes note of commitments entered into by the Member State (see, to that effect, judgment of 13 June 2013, Ryanair v Commission, C‑287/12 P, not published, EU:C:2013:395, paragraph 72).
45


With regard to the merits of this ground of appeal, first of all it must be stated that, when an applicant seeks the annulment of a decision not to raise objections, that applicant essentially contests the fact that the Commission adopted the decision in relation to the aid at issue without initiating the formal investigation procedure, thereby infringing the applicant’s procedural rights. In order to have its action for annulment upheld, the applicant may invoke any plea to show that the assessment of the information and evidence which the Commission had at its disposal during the preliminary investigation phase of the measure notified should have raised doubts as to the compatibility of that measure with the internal market. The use of such arguments cannot, however, have the consequence of changing the subject matter of the application or of altering the conditions of its admissibility. On the contrary, the existence of doubts concerning that compatibility is precisely the evidence which must be adduced in order to show that the Commission was required to initiate the formal investigation procedure under Article 108(2) TFEU and Article 6(1) of Regulation No 659/1999 (judgment of 27 October 2011, Austria v Scheucher-Fleisch and Others, C‑47/10 P, EU:C:2011:698, paragraph 50).
46


Next, the statement of reasons required by Article 296 TFEU and Article 41(2)(c) of the Charter must be appropriate to the act 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 of the European Union to exercise its power of review (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 147 and the case‑law cited).
47


The requirement that reasons be given must be assessed according to the circumstances of the case. It is not necessary for the reasoning to go into all of the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150 and the case-law cited).
48


However, the obligation laid down in Article 339 TFEU to preserve professional secrecy cannot justify deficiencies in the statement of reasons. In accordance with the case-law, the obligation to respect professional secrecy cannot be given so wide an interpretation that the obligation to provide a statement of reasons is thereby deprived of its essential content (see, to that effect, judgment of 13 March 1985, Netherlands and Leeuwarder Papierwarenfabriek v Commission, 296/82 and 318/82, EU:C:1985:113, paragraph 27).
49


Finally, it must be noted that the first paragraph of Article 47 of the Charter requires everyone whose rights and freedoms guaranteed by the law of the European Union have been infringed to have the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. Article 47 of the Charter constitutes a reaffirmation of the principle of effective judicial protection and the very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law (judgments of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 45, and of 6 October 2015, Schrems, C‑362/14, EU:C:2015:650, paragraph 95).
67


As a preliminary point, it should be observed that it is for the Court to assess whether, in the circumstances of the present case, the proper administration of justice justifies the rejection of the third ground of appeal on the merits without ruling on the plea of inadmissibility raised by the Commission (see, to that effect, judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 193 and the case-law cited).
68


The Court finds that that is the position here. As the General Court itself, in paragraphs 85 and 86 of the judgment under appeal, in the interests of economy of procedure, applied the principles stemming from the judgment of 26 February 2002, Council v Boehringer (C‑23/00 P, EU:C:2002:118, paragraph 52), economy of procedure also justifies the Court in examining the third ground of appeal on the merits without ruling beforehand on the plea of inadmissibility raised.
70


According to settled case-law of the Court, measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or which are to be regarded as constituting an economic advantage that the recipient undertaking would not have obtained under normal market conditions meet the conditions for the conferral of an economic advantage (judgment of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 83).
71


In the same way, the conditions which a measure must meet in order to be treated as ‘aid’ for the purposes of Article 107 TFEU are not met if the recipient undertaking could, in circumstances which correspond to normal market conditions, have obtained the same advantage as that which has been made available to it through State resources (judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 70).
74


As Article 107(1) TFEU is intended to prevent the recipient undertaking from being placed, by means of State resources, in a more favourable financial position than that of its competitors (judgment of 5 June 2012, Commission v EDF, C‑124/10 P, EU:C:2012:318, paragraph 90), the Commission may directly assess, where it proves to be possible, whether the State measure at issue is capable of placing its recipients in a more favourable financial position than that of their identified competitors or type of competitors.