Buonotourist Srl v European Commission.
Date: 2020-03-04
62


In so far as the second ground of appeal relates to the Altmark conditions, it should be noted, as the General Court also pointed out in paragraph 123 of the judgment under appeal, that, according to settled case-law of the Court of Justice, Article 107(1) TFEU does not apply to State intervention regarded as compensation for the services provided by the recipient undertakings 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 (judgments of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 87, and of 20 December 2017, Comunidad Autónoma del País Vascoand Others v Commission, C‑66/16 P to C‑69/16 P, EU:C:2017:999, paragraph 45, as well as the case-law cited).
63


Thus, a State measure which does not comply with one or more of the Altmark conditions may be regarded as State aid within the meaning of Article 107(1) TFEU (judgment of 20 December 2017, Comunidad Autónoma del País Vasco and Others v Commission, C‑66/16 P to C‑69/16 P, EU:C:2017:999, paragraph 48 and the case-law cited).
64


In that regard, in paragraph 125 of the judgment under appeal, the General Court rightly held that, in order for such compensation to escape classification as State aid in a particular case, the four conditions laid down in paragraphs 88 to 93 of the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415) must be satisfied (see, to that effect, judgment of 20 December 2017, Comunidad Autónoma del País Vasco and Others v Commission, C‑66/16 P to C‑69/16 P, EU:C:2017:999, paragraph 46).
67


In so far as, by its second ground of appeal, the appellant also challenges the General Court’s assessments in paragraphs 106 to 114 of the judgment under appeal, on the alleged existence of a PSO which the appellant is alleged to have held to exist under national law, it must be borne in mind that, in accordance with 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 is limited to points of law. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see judgment of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission, C‑70/16 P, EU:C:2017:1002, paragraph 47 and the case-law cited).
86


By the third part of the fourth ground of appeal, the appellant submits that the recognition by the General Court of the Commission’s power to rule on a measure which had been the subject of a decision of a national court having the force of res judicata also infringes the principle of the protection of legitimate expectations in so far as, in the present case, more than five years elapsed between the time when that national decision was adopted and the time when the Commission adopted its decision. Such a period has already been taken into account in the case-law of the Court of Justice for the purposes of assessing a situation in the light of that principle. In paragraph 192 of the judgment under appeal, the General Court held, on the basis of the judgment of 13 June 2013, HGA and Others v Commission (C‑630/11 P to C‑633/11 P, EU:C:2013:387, paragraph 134), that legitimate expectations may be relied upon only if the obligation to notify has been complied with. The General Court failed to have regard to the fact that, in the present case, that notification was not necessary since, contrary to what the General Court held, the measure at issue does not constitute new aid. Furthermore, a link may be established between the principle of res judicata and the principle of legal certainty, which constitutes a limit on the obligation to recover, as is apparent from Article 14 of Regulation No 659/1999. Furthermore, the appellant could, in its view, base a legitimate expectation on the fact that the Consiglio di Stato (Council of State) had not considered it necessary to refer a question to the Court of Justice for a preliminary ruling with regard to the measure at issue. In those circumstances, the appellant takes the view that it was entitled to rely on the legality of that measure, since all legal remedies had been exhausted.
90


Accordingly, in paragraph 185 of the judgment under appeal, the General Court rightly pointed out, in that regard, on the basis of the case-law of the Court of Justice, that proceedings may be brought before national courts in matters relating to State aid which require them to interpret and apply the concept of aid referred to in Article 107(1) TFEU, in particular with a view to determining whether a State measure has been introduced in infringement of Article 108(3) TFEU. In contrast, national courts do not have jurisdiction to give a decision on whether State aid is compatible with the internal market. The assessment of the compatibility of aid measures or an aid scheme with the internal market falls, in fact, within the exclusive competence of the Commission, subject to review by the EU courts (see, to that effect, judgments of 18 July 2007, Lucchini, C‑119/05, EU:C:2007:434, paragraphs 50 to 52, and of 15 September 2016, PGE, C‑574/14, EU:C:2016:686, paragraphs 30 to 32).
94


That conclusion cannot be invalidated by the fact that that court has adopted a decision having the force of res judicata. It should be emphasised that the rule of exclusive competence of the Commission is necessary in the internal legal order as a consequence of the principle of the primacy of Union law (see, to that effect, judgment of 18 July 2007, Lucchini, C‑119/05, EU:C:2007:434, paragraph 62).
95


Thus, as the General Court correctly pointed out in paragraph 188 of the judgment under appeal, on the basis of the exclusive competence of the Commission, EU law precludes the application of the principle of res judicata from preventing the recovery of State aid granted in infringement of that law, the incompatibility of which has been established by a Commission decision which has become final (see, to that effect, judgment of 18 July 2007, Lucchini, C‑119/05, EU:C:2007:434, paragraph 63).
99


It must be recalled that the right to rely on that principle extends to any person whom an institution of the European Union, by giving him or her precise assurances, has led him or her to entertain well-founded expectations (judgments of 16 December 2010, Kahla Thüringen Porzellan v Commission, C‑537/08 P, EU:C:2010:769, paragraph 63, and of 13 June 2013, HGA and Others v Commission, C‑630/11 P to C‑633/11 P, EU:C:2013:387, paragraph 132 and the case-law cited).
112


It follows from the above that paragraph 220 of the judgment under appeal, read in light of paragraphs 208 and 209 thereof, is likely to enable both the appellant to know the reasons for the General Court’s arguments and for the Court of Justice to have sufficient evidence to exercise its judicial review in the context of an appeal, so that it complies with the requirements of the Court of Justice’s settled case-law in this matter (see, to that effect, judgment of 24 October 2013, Land Burgenland and Others v Commission, C‑214/12 P, C‑215/12 P and C‑223/12 P, EU:C:2013:682, paragraph 81 and the case-law cited).