Comunidad Autónoma de Galicia and Redes de Telecomunicación Galegas Retegal, SA (Retegal) v European Commission.
Date: 2017-12-20
47


Under the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence therefore does not, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, order of 21 April 2016, Dansk Automat Brancheforening v Commission, C‑563/14 P, not published, EU:C:2016:303, paragraph 26 and the case-law cited).
48


Moreover, it follows from those provisions and from Article 168(1)(d) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support of the appeal. Where, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under the above provisions. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (see, inter alia, order of 21 April 2016, Dansk Automat Brancheforening v Commission, C‑563/14 P, not published, EU:C:2016:303, paragraph 27 and the case-law cited).
50


In the second place, as regards the distortions of the facts and of national law alleged by the appellants, it should be noted that, under the provisions mentioned in paragraph 47 above, the appellants must indicate precisely the elements alleged to have been distorted by the General Court and show the errors of appraisal which, in their view, led to that distortion. In addition, according to the Court of Justice’s settled case-law, that distortion must be obvious from the documents in the Court’s file, without any need to carry out a new assessment of the facts and the evidence (see, to that effect, judgment of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 99 and the case-law cited).
58


The condition relating to the selectivity of the advantage is a constituent factor in the concept of ‘State aid’ within the meaning of Article 107(1) TFEU, since this provision prohibits aid ‘favouring certain undertakings or the production of certain goods’. It is clear from the Court’s settled case-law that the assessment of that condition requires it to be determined whether, under a particular legal regime, a national measure is such as to favour ‘certain undertakings or the production of certain goods’ over others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation (judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 41 and the case-law cited).
59


It addition, it must be borne in mind that the General Court’s assessment as to the adequacy or inadequacy of the statement of reasons is reviewable by the Court on appeal (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 453, and of 26 July 2017, Council v Hamas, C‑79/15 P, EU:C:2017:584, paragraph 51 and the case-law cited). In that respect, the statement of reasons required under Article 296 TFEU 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 that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its jurisdiction to review legality (judgment of 8 March 2017, Viasat Broadcasting UK v Commission, C‑660/15 P, EU:C:2017:178, paragraph 43 and the case-law cited). As regards the examination of the condition relating to the selectivity of an aid measure, the Court has held that that examination must be supported by sufficient reasons to allow full judicial review, in particular of the question whether the situation of operators benefiting from the measure is comparable with that of operators excluded from it (judgment of 21 December 2016, Commission v World Duty Free Group SA and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 94).
61


That reasoning is vitiated by an error of law. The statement of reasons in the decision at issue — like, moreover, the statement of reasons in the judgment under appeal — contains no indication of the reasons why undertakings active in the broadcasting sector should be regarded as being in a factual and legal situation comparable to that of undertakings active in other sectors or why undertakings using terrestrial technology should be regarded as being in a factual and legal situation comparable to that of undertakings using other technologies. The Commission’s argument that no reasoning was necessary in that respect, since the selectivity condition is automatically satisfied if a measure applies exclusively to a specific economic sector or to undertakings in a particular geographic area, cannot be accepted. The Court has held that a measure which benefits only one economic sector or some of the undertakings in that sector is not necessarily selective. It is selective only if, within the context of a particular legal regime, it has the effect of conferring an advantage on certain undertakings over others, in a different sector or the same sector, which are, in the light of the objective pursued by that regime, in a comparable factual and legal situation (judgment of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 58).
88


According to settled case-law of the Court of Justice, in an appeal the jurisdiction of the Court is confined to reviewing the findings of law on the pleas argued before the General Court (order of 16 February 2017, Monster Energy v EUIPO, C‑502/16 P, not published, EU:C:2017:139, paragraph 5 and the case-law cited).