Achemos Grupė UAB and Achema AB v European Commission.
Date: 2021-04-29
Relying on the judgment of 15 February 2005, Commission v Tetra Laval (C‑12/03 P, EU:C:2005:87, paragraph 39), the appellants submit that the review of legality of a Commission decision by the General Court must include inter alia a review whether the information relied on by the Commission is factually accurate, reliable and consistent. In that regard, they submit that the General Court must review the legality of the Commission’s decision by taking into consideration not only information in the Commission’s possession but also information available to the Commission at the time when it adopted its decision, and in particular information in the public domain that was without doubt available to the Commission at that time. However, the General Court did not carry out such a review and failed to take into account the information available to the Commission when it adopted the contested decision. The Commission started from the premiss that there was no LNG terminal project in Lithuania other than the subsidised LNG terminal project, whereas, according to the appellants, there was clear information in the public domain, that was without doubt available to the Commission at the time it adopted the decision at issue, proving that the appellants had their own LNG terminal project. Consequently, in their view, if the General Court had carried out an adequate review of the decision at issue, it would have taken that information into consideration and would have established that the information on which the Commission had relied was incorrect and that the preliminary examination procedure for the aid measures was flawed.
It should be borne in mind that the lawfulness of a decision not to raise objections, based on Article 4(3) of Regulation No 659/1999, depends on whether the assessment of the information and evidence which the Commission had at its disposal during the preliminary examination of the notified measure should objectively have raised doubts as to the compatibility of that measure with the internal market (judgment of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission, C‑817/18 P, EU:C:2020:637, paragraph 80 and the case-law cited), 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.
It should also be borne in mind that the lawfulness of a decision concerning State aid falls to be assessed by the EU judicature, not only in the light of the information available to the Commission at the time when the decision was adopted, but also information which could have been available to the Commission (see, to that effect, judgments of 10 July 1986, Belgium v Commission, 234/84, EU:C:1986:302, paragraph 16; of 15 April 2008, Nuova Agricast, C‑390/06, EU:C:2008:224, paragraph 54; and of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 70).
However, the information ‘available’ to the Commission includes that which seemed relevant to the assessment to be carried out in accordance with the case-law referred to in paragraph 40 above and which could have been obtained, upon request by the Commission, during the administrative procedure (see, to that effect, judgment of 20 September 2017, Commission v Frucona Košice, C‑300/16 P, EU:C:2017:706, paragraph 71).
The Commission is required to conduct a diligent and impartial examination of the contested measures, so that it has at its disposal, when adopting the final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible for that purpose (see, to that effect, judgments of 2 September 2010, Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 90; of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217 paragraph 63; and of 26 March 2020, Larko v Commission, C‑244/18 P, EU:C:2020:238, paragraph 67).
In addition, if the examination carried out by the Commission during the preliminary examination procedure is insufficient or incomplete, this constitutes evidence of the existence of serious difficulties (judgment of 12 October 2016, Land Hessen v Pollmeier Massivholz, C‑242/15 P, not published, EU:C:2016:765, paragraph 38).
Admittedly, it is clear from the case-law of the Court of Justice that, when the existence and legality of State aid is being examined, it may be necessary for the Commission, where necessary, to go beyond a mere examination of the matters of fact and law brought to its knowledge (judgment of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 62).
It should be noted that, according to settled case-law, the statement of the reasons on which the judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (see, inter alia, judgments of 26 May 2016, Rose Vision v Commission, C‑224/15 P, EU:C:2016:358, paragraph 24, and of 13 December 2018, European Union v Kendrion, C‑150/17 P, EU:C:2018:1014, paragraph 80).
The obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case. The General Court’s reasoning may therefore be implicit, on condition that it enables the persons concerned to know the grounds of the General Court’s decision and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraph 72).
It should also be borne in mind that the obligation to state reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 62; of 30 April 2009, Commission v Italy and Wam, C‑494/06 P, EU:C:2009:272, paragraph 33; and of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 79).