European Commission v Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo sp. z o.o.
Date: 2020-03-11
33


In the present case, it must be noted that the municipality of Gdynia and PLGK merely submit, in a very general manner, that the grounds of appeal are unclear in that different wording is used to describe them. However, they do not explain how such differences prevent the Commission’s arguments, as put forward in the appeal, from being understood. Furthermore, the Commission identifies precisely, in each of the grounds of its appeal, the disputed parts of the judgment under appeal and sets out in detail the legal arguments which specifically support its request that that judgment be set aside, thus enabling any normally diligent party to understand its content and the Court to carry out its review of legality (see, by analogy, judgment of 28 January 2016, Heli-Flight v AESA, C‑61/15 P, not published, EU:C:2016:59, paragraph 77). The arguments developed by the municipality of Gdynia and PLGK in their written pleadings demonstrate that they were able to understand the grounds of appeal.
58


The Republic of Poland contends that, although the Court of Justice did not explicitly state in its judgment of 8 May 2008, Ferriere Nord v Commission (C‑49/05 P, not published, EU:C:2008:259) that the right to submit comments constituted an essential procedural requirement, it did not exclude it either. As regards the judgment of 11 December 2008, Commission v Freistaat Sachsen (C‑334/07 P, EU:C:2008:709), the Commission did not take account of paragraph 55 of that judgment, in which the Court of Justice clearly stated that the Commission’s obligation to give the interested parties an opportunity to submit their comments is an essential procedural requirement. The Commission merely referred to paragraph 56 of that judgment, whereas paragraphs 55 and 56 of that judgment should be interpreted together.
62


As a preliminary point, it should be noted, in the first place, that the General Court examined the third complaint in the sixth plea in law in the action before it, not from the point of view of the rights of defence, which only Member States have as parties to the State aid investigation procedures (see, to that effect, judgment of 24 September 2002, Falck and Acciaierie di Bolzano v Commission, C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraphs 80 to 83), but by considering the right which the interested parties have, under Article 108(2) TFEU, to submit comments.
66


In the third place, as regards the Commission’s arguments set out in paragraphs 39 to 41 above, it should be borne in mind that, under Article 84(1) of the Rules of Procedure of the General Court, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. However, a plea or an argument which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the original application and which is closely connected therewith must be declared admissible (judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 46 and the case-law cited).
70


Those preliminary findings having been made, it must be borne in mind, as regards the right the infringement of which was held by the General Court to result in the annulment of Articles 2 to 5 of the decision at issue, that, according to the case-law of the Court of Justice, undertakings which may be beneficiaries of State aid are regarded as being interested parties and that the Commission has the duty, at the examination phase referred to in Article 108(2) TFEU, to invite those parties to submit their comments (judgments of 15 June 1993, Matra v Commission, C‑225/91, EU:C:1993:239, paragraph 16; of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 59; and of 11 September 2008, Germany and Others v Kronofrance, C‑75/05 P and C‑80/05 P, EU:C:2008:482, paragraph 37 and the case-law cited).
71


Although those interested parties cannot rely on the rights of defence, they have, by contrast, the right to be involved in the administrative procedure followed by the Commission, to an extent appropriate to the circumstances of the case (judgment of 8 May 2008, Ferriere Nord v Commission, C‑49/05 P, not published, EU:C:2008:259, paragraph 69).
72


The Court has ruled, in proceedings concerning the application of Article 108(2) TFEU, that publication of a notice in the Official Journal of the European Union is an appropriate means of informing all the parties concerned that a procedure has been initiated. That communication is intended to obtain from persons concerned all information required for the guidance of the Commission with regard to its future action. Such a procedure also guarantees to the other Member States and the sectors concerned an opportunity to make their views known (judgment of 24 September 2002, Falck and Acciaierie di Bolzano v Commission, C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraph 80 and the case-law cited).
73


The procedure for reviewing State aid is, however, in view of its general scheme, a procedure initiated in respect of the Member State responsible, in the light of its obligations under EU law, for granting the aid. Thus, in order to observe the rights of the defence, where the Member State concerned was not afforded an opportunity to comment on certain information, the Commission may not use it in its decision with regard to that Member State (judgment of 24 September 2002, Falck and Acciaierie di Bolzano v Commission, C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraph 81 and the case-law cited).
74


In the procedure for reviewing State aid, interested parties other than the Member State concerned have only the role mentioned in paragraph 72 above and, in that regard, they cannot themselves seek to engage in an adversarial debate with the Commission in the same way as is offered to the abovementioned Member State (judgment of 24 September 2002, Falck and Acciaierie di Bolzano v Commission, C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraph 82 and the case-law cited).
75


No special role is reserved to the recipient of aid, among all the interested parties, by any provision of the procedure for reviewing State aid. In that regard, it must be made clear that the procedure for reviewing State aid is not a procedure initiated against the recipient or recipients of aid entailing rights on which it or they could rely which are as extensive as the rights of the defence as such (judgment of 24 September 2002, Falck and Acciaierie di Bolzano v Commission, C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraph 83).
79


As the Court of Justice has held, the Commission cannot, without infringing the procedural rights of the interested parties, base its decision on new principles introduced by a new legal regime, without inviting those interested parties to submit their comments in that regard (see, to that effect, judgment of 8 May 2008, Ferriere Nord v Commission, C‑49/05 P, not published, EU:C:2008:259, paragraphs 70 and 71).
80


However, in principle, a procedural irregularity will entail the annulment of a decision in whole or in part only if it is shown that in the absence of such irregularity the decision being challenged might have been substantively different (judgment of 23 April 1986, Bernardi v Parliament, 150/84, EU:C:1986:167, paragraph 28, and the case-law cited).
81


More specifically, as regards the interested parties’ procedural rights, where there is a change in the legal regime after the Commission has given the interested parties the opportunity to submit their comments and before the Commission has adopted a decision on proposed aid, and where the Commission bases that decision on the new legal regime without inviting those parties to submit their comments on it, the mere existence of differences between the legal regime on which those parties were given the opportunity to submit their comments and that on which that decision is based is not, as such, capable of leading to the annulment of that decision. Even though the legal regimes at issue have changed, the question arises as to whether, in the light of the provisions of those regimes which are relevant to the case, that change was capable of altering the meaning of the decision in question (see, to that effect, judgment of 8 May 2008, Ferriere Nord v Commission, C‑49/05 P, not published, EU:C:2008:259, paragraphs 78 to 83).
87


The finding set out in the previous paragraph is not called into question by the other arguments put forward before the Court of Justice and, in particular, in the first place, by those relating to the judgment of 11 December 2008, Commission v Freistaat Sachsen (C‑334/07 P, EU:C:2008:709). It is true that, in paragraph 55 of that judgment, the Court noted, in essence, that it follows from Article 108(2) TFEU and Article 1(h) of Regulation No 659/1999 that, where the Commission decides to initiate the formal investigation procedure in respect of proposed aid, it must give interested parties, including the undertaking or undertakings concerned, the opportunity to submit their comments and that that rule is an essential procedural requirement.