Comitato «Venezia vuole vivere» (C-71/09 P), Hotel Cipriani Srl (C-73/09 P) and Società Italiana per il gas SpA (Italgas) (C-76/09 P) v European Commission.
Date: 2011-06-09
31. It is true that, as the Commission argues, the admissibility of an action must be assessed, as a general rule, with reference to the situation at the time when it is brought (see, to that effect, Joined Cases C‑61/96, C‑132/97, C‑45/98, C‑27/99, C‑81/00 and C‑22/01 Spain  v Council  [2002] ECR I‑3439, paragraph 23). The fact remains, however, that, in accordance with the case-law, where an action is dismissed as inadmissible, the dispute arising from it, which was pending, ceases to exist, so that the situation of lis alibi pendens disappears (see, to that effect, Joined Cases 146/85 and 431/85 Diezler and Others  v ESC  [1987] ECR 4283, paragraph 12).
34. Concerning the second and third limbs of this plea, with regard to lis alibi pendens in relation to Case T‑231/00, it should be recalled that, according to settled case-law, a complaint directed against a ground included in a decision of the General Court purely for the sake of completeness cannot lead to the decision being set aside and is therefore nugatory (Case C‑399/08 P Commission  v Deutsche Post  [2010] ECR I‑0000, paragraph 75 and case-law cited).
52. In the first place, and in accordance with consistent case-law, persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision 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 and by virtue of these factors distinguishes them individually just as in the case of the person addressed (Case 25/62 Plaumann  v Commission  [1963] ECR 95; Case C‑298/00 P Italy  v Commission  [2004] ECR I‑4087, paragraph 36 and case-law cited).
53. Secondly, the actual beneficiaries of individual aids granted under a system of aids of which the Commission has ordered recovery are, by that fact, individually concerned within the meaning of the fourth paragraph of Article 230 EC (see, to that effect, Joined Cases C‑15/98 and C‑105/99 Italy and Sardegna Lines  v Commission  [2000] ECR I‑8855, paragraph 34, and Italy  v Commission , paragraphs 38 and 39).
56. As the Advocate General has pointed out in points 71 to 82 of her Opinion, the order for recovery already concerns all the beneficiaries of the system in question individually in that they are exposed, as from the time of the adoption of the contested decision, to the risk that the advantages which they have received will be recovered, and thus find their legal position affected. Those beneficiaries thus form part of a restricted circle (see, to that effect, Case C‑519/07 P Commission  v Koninklijke FrieslandCampina  [2009] ECR I‑8495, paragraph 54), without it being necessary to examine additional conditions, concerning situations in which the Commission’s decision is not accompanied by a recovery order. Moreover, the eventuality that, subsequently, the advantages declared illegal may not be recovered from their beneficiaries does not exclude the latter from being regarded as individually concerned.
57. The Court must also dismiss the Commission’s argument that recognition of the admissibility of actions against a decision of the latter ordering the recovery of State aid had the ‘paradoxical and perverse’ effect of requiring the beneficiaries of the State aid to challenge that decision immediately, before even knowing whether it would lead to a recovery order concerning them. That argument has already been invoked in almost identical terms by the Commission in the case of Italy  v Commission  (paragraph 31), but was not accepted.
58. The possibility for a person to argue in the context of a national proceeding the invalidity of provisions contained in acts of the Union does, it is true, presuppose that the party in question had no right of direct action under Article 230 EC by which it could challenge provisions, the consequences of which it is suffering without having been able to seek their annulment (see, to that effect, TWD Textilwerke Deggendorf , paragraph 23, and Case C‑550/09 E and F  [2010] ECR I‑0000, paragraphs 45 and 46). However, that same case-law shows that such a direct action must be admissible beyond any doubt ( E and F , paragraph 48; Case C‑494/09 Bolton Alimentari  [2011] ECR I‑0000, paragraph 23).
63. It should be recalled that, in the case of an aid programme, the Commission may merely study the characteristics of the programme at issue in order to assess, in the grounds for its decision, whether, by reason of the arrangements provided for under the programme, the latter gives an appreciable advantage to beneficiaries in relation to their competitors and is likely to benefit in particular undertakings engaged in trade between Member States. Thus, in a decision which concerns such a programme, the Commission is not required to carry out an analysis of the aid granted in individual cases under the scheme. It is only at the stage of recovery of the aid that it is necessary to look at the individual situation of each undertaking concerned (Case C‑310/99 Italy  v Commission  [2002] ECR I‑2289, paragraphs 89 and 91).
64. The assessments by the General Court appearing in paragraphs 104 to 106 of the judgment under appeal thus fail to take account of the case-law according to which, where the Commission rules in a general and abstract way on a scheme of State aids, which it declares incompatible with the common market ordering recovery of the amounts received under that scheme, it is for the Member State to verify the individual situation of each undertaking concerned by such a recovery operation.
65. However, the Commission’s claims concerning the reasoning of the General Court set out in paragraphs 100 to 111 of that judgment have, in any event, no relevance to the operative part of that judgment, and must therefore be regarded as ineffective (see to that effect, in particular, Joined Cases C‑302/99 P and C‑308/99 P Commission and France  v TF1 [2001] ECR I‑5603, paragraphs 27 to 29).
72. That consideration, based on the capacity of Coopservice to bring an action, which the Commission does not challenge before the Court, is in accordance with the case-law arising from the judgment in CIRFS and Others  v Commission , as has been established in paragraphs 37 to 40 of this judgment.
91. In that regard, it should be noted that, according to settled case-law, measures which, whatever their form, are likely directly or indirectly to favour certain undertakings or are to be regarded as an economic advantage which the recipient undertaking would not have obtained under normal market conditions are regarded as State aid ( Commission  v Deutsche Post , paragraph 40 and case-law cited).
92. The Court has, it is true, held that in so far as a State measure must be regarded as compensation for the services provided by undertakings entrusted with performing a service in the general public interest in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them, that measure is not caught by Article 87(1) EC (see, to that effect, Commission  v Deutsche Post , paragraph 41 and case-law cited).
94. In that respect, it should first be noted that the grounds underlying an aid measure do not suffice to exclude the measure at the outset from classification as aid within the meaning of Article 87 EC. Article 87(1) does not distinguish between measures of State intervention by reference to their causes or their aims but defines them in relation to their effects (see, to that effect, Case C‑172/03 Heiser [2005] ECR I‑1627, paragraph 46 and case-law cited).
95. It should be added that, according to settled case-law, the fact that a Member State seeks to approximate, by unilateral measures, the conditions of competition in a particular sector of the economy to those prevailing in other Member States cannot deprive the measures in question of their character as aid (Case C‑298/00 P Italy v Commission , paragraph 61 and case-law cited; Heiser , paragraph 54).
96. As the General Court correctly pointed out in paragraphs 183 and 184 of the judgment under appeal, that case-law also applies to measures designed to compensate for possible disadvantages to which undertakings established in a certain region of a Member State are exposed. The very wording of the EC Treaty, which in Article 87(3)(a) and (c) classifies ‘aid to promote the economic development of areas’ and ‘aid to facilitate the development of certain areas’ as compatible with the common market, indicates that advantages whose scope is limited to part of the territory of the Member State subject to aid discipline are capable of constituting selective advantages (Case C‑88/03 Portugal  v Commission  [2006] ECR I‑7115, paragraph 60).
113. Under Article 5 of the contested decision, the Italian Republic is to take all measures necessary to ensure the repayment, by the beneficiaries, of ‘aid incompatible with the common market’. Performance of that obligation presupposes, therefore, that it has first been established that the advantages granted may be classified as State aid. Articles 1 to 3 of that decision designate aid which is compatible with the common market and aid which is not, and Article 4 of the said decision finds that, for the companies mentioned therein, the advantages granted do not constitute aid. Moreover, as has been relevantly pointed out by the General Court in paragraph 103 of the judgment under appeal, advantages complying with the de minimis rule are excluded from the classification as State aid.
115. Consequently, before proceeding to the recovery of an advantage, the national authorities were necessarily required to verify, in each individual case, whether the advantage granted was, in the hands of its beneficiary, capable of distorting competition and affecting intra-Community trade, as otherwise that additional verification, essential to the classification of individual advantages received as State aid, could not be made.
118. However, it should be noted that, if the grounds of a judgment of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that judgment, and a substitution of grounds must be made (see, to that effect, Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others  v Council and Commission  [2008] ECR I‑6513, paragraph 187 and case-law cited).
121. The contested decision appears, in the light of those principles, to be supported by sufficient reasoning. As the Advocate General has stated in points 197 and 198 of her Opinion, it is sufficiently clear from the grounds for that decision that, with regard to the question whether the reductions in social security contributions were capable of distorting competition and affecting intra-Community trade, the Commission clearly limited itself to an assessment of the aid scheme in question as such. Thus, the national authorities were required to examine in each individual case whether the advantages granted were capable of distorting competition and affecting intra-Community trade. On the other hand, as regards the possible compensatory nature of the advantages granted, the finding in the contested decision that that nature did not call into question the classification of those advantages as aid is generally valid, thus binding the national authorities.
130. Those considerations are in accordance with the case-law of the Court of Justice, according to which the Commission may, in the case of an aid scheme, confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies (see, in particular, Italy and Sardegna Lines v Commission , paragraph 51, Case C‑278/00 Greece v Commission [2004] ECR I‑3997, paragraph 24, and Case C‑148/04 Unicredito Italiano  [2005] ECR I‑11137, paragraph 67), in order to determine whether that scheme comprises aid elements.
132. It is, admittedly, undisputed that the concept of State aid is a legal concept by nature and must be interpreted on the basis of objective elements and that the Commission does not have a discretion as to the classification of a measure as “State aid” within the meaning of Article 87(1) EC, but is subject to judicial review, in principle to the full extent (see, to that effect, Case C‑487/06 P British Aggregates  v Commission [2008] ECR I‑10515, paragraphs 111 and 112).
134. In the first place, according to the case-law, the Commission is not required to establish the existence of a real impact of the aid on trade between Member States and an actual distortion of competition, but is required only to examine whether that aid is capable of affecting such trade and distorting competition (Case C‑66/02 Italy  v Commission  [2005] ECR I‑10901, paragraph 111).
136. As to the second point, it should be borne in mind that operating aid – that is to say, aid which, like that at issue here, is intended to release an undertaking from costs which it would normally have to bear in its day-to-day management or normal activities – in principle distorts the conditions of competition (see Case C‑156/98 Germany v Commission [2000] ECR I‑6857, paragraph 30).
149. In so far as the applicants challenge those assessments of the General Court, it should be noted that, according to consistent case-law, it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. When the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them ( British Aggregates  v Commission , paragraph 96 and case-law cited).
150. By contrast, the Court of Justice does not have jurisdiction to ascertain the facts or, in principle, to examine the evidence which the General Court used in support of those facts (see, to that effect, British Aggregates  v Commission , paragraph 97 and case-law cited).
152. In so far as Italgas accuses the General Court of distorting the evidence, it should be noted that, pursuant to Article 225 EC, the first paragraph of Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of its Rules of Procedure, where an applicant alleges distortion of the evidence by the General Court, he must indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his view, led to such distortion (Case C‑413/08 P Lafarge  v Commission  [2010] ECR I‑0000, paragraph 16 and case-law cited).
153. Such distortion exists where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect ( Lafarge , paragraph 17).
155. Concerning, first, the letters of 23 January 1999 of the Italian authorities, and of 18 May 1998 of the City of Venice, it should be noted that Italgas does not submit in a sufficiently detailed manner that the General Court’s assessment of those letters is at odds with their wording, so as to permit the Court of Justice to verify whether the assessment of those letters appears to be clearly incorrect (see, by analogy, Case C‑260/09 P Activision Blizzard Germany v Commission [2011] ECR I‑0000, paragraph 52).
175. The complaints made by Coopservice in this plea must be dismissed. As regards Article 87(2)(b) EC, the General Court correctly held that the derogation provided for in that provision does not apply to this case, given that the reductions in social security contributions at issue are proportionate to the wage bill and are not designed to remedy damage caused by natural catastrophes or other events of an extraordinary nature, as the said provision requires. In accordance with the case-law, the only disadvantages which may be compensated for by virtue of that derogation are those directly caused by natural calamities or other extraordinary events (judgment of 11 November 2004 in Case C‑73/03 Spain  v Commission , paragraph 37; Joined Cases C‑346/03 and C‑529/03 Atzeni and Others  [2006] ECR I‑1875, paragraph 79).
181. These pleas must be dismissed as unfounded. The General Court acknowledged, in full conformity with the case-law of the Court of Justice, set out in paragraph 387 of the judgment under appeal, that an order for the recovery of unlawful aid is the logical consequence of it being found unlawful.
182. Moreover, examining the reasons put forward by the applicants, the General Court rightly held that, in this case, there was no cause for the Commission to refrain from ordering the recovery of the aid declared unlawful. The General Court pointed out, in paragraphs 391 to 394 of the judgment under appeal, that the applicants have not demonstrated the existence of particular circumstances to permit the conclusion that, notwithstanding the nature of the aid in question as operating aid, the Commission should have refrained from ordering its recovery.
183. Finally, it should also be noted that the order for recovery appearing in the operative part of the contested decision covers State aid declared incompatible with the common market by that decision, implying that it must first be established by the national authorities, having regard to the considerations set out in paragraphs 113 to 121 of this judgment, that the advantages granted constitute State aid in the hands of the beneficiaries.