European Commission v Jørgen Andersen.
Date: 2015-10-06
32. In that regard, it must be noted that, first, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice (judgment in Commerz Nederland , C‑242/13, EU:C:2014:2224, paragraph 26).
33. Secondly, pursuant to the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment in Commission and Others  v Kadi , C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 57).
38. The Commission states that the Court held in its judgment in Commission  v Freistaat Sachsen (C‑334/07 P, EU:C:2008:709) that the Commission can apply a new rule to any proposed aid, including where that aid is notified prior to the entry into force of that new rule.
41. The Commission adds that the Court observed in the judgment in Diputación Foral de Vizcaya and Others  v Commission (C‑465/09 P to C‑470/09 P, EU:C:2011:372, paragraphs 125 and 128), first of all, that the application of new rules to unlawful aid does not concern a previously existing situation but an ongoing situation; next, that the effective application of competition policy requires that the Commission may at any time adjust its assessment to the needs of that policy; and, lastly, that a Member State which has not notified an aid scheme to the Commission cannot reasonably expect that that scheme will be assessed in the light of the rules applicable at the time of its adoption.
42. According to the Commission, in paragraph 55 of the judgment under appeal, the General Court wrongly distinguished the present case from that giving rise to the judgment in Diputación Foral de Vizcaya  v Commission (C‑465/09 P to C‑470/09 P, EU:C:2011:372). While it is true that that judgment concerned the legality of transitional rules laid down in guidelines adopted by the Commission, the Court’s reasoning is broader in scope and applies a fortiori to regulations and other binding legal acts. Moreover, the Commission submits that it is clear from that judgment that the Court did not consider the guidelines to have been applied retroactively.
49. According to the settled case-law of the Court, new rules apply, as a matter of principle, immediately to the future effects of a situation which arose under the old rule. The Court has also held that the principle of legitimate expectations cannot be extended to the point of generally preventing a new rule from applying to the future effects of situations which arose under the earlier rule (judgment in Commission v Freistaat Sachsen , C‑334/07 P, EU:C:2008:709, paragraph 43 and the case-law cited).
50. By contrast, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, the substantive rules of EU law must be interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, their objectives or their general scheme that such effect must be given to them (judgments in Pokrzeptowicz-Meyer , C‑162/00, EU:C:2002:57, paragraph 49, and Commission  v Freistaat Sachsen , C‑334/07 P, EU:C:2008:709, paragraph 44).
57. First, the Commission cannot base any argument on paragraphs 51 and 52 of the judgment in Commission  v Freistaat Sachsen (C‑334/07 P, EU:C:2008:709), since the circumstances of the present case are fundamentally different from those of the case giving rise to that judgment, a case which concerned State aid that was not caught by a block exemption regulation at the time when the competent national authorities decided to grant it.
58. Secondly, for the same reasons, paragraphs 125 to 128 of the judgment in Diputación Foral de Vizcaya and Others  v Commission (C‑465/09 P to C‑470/09 P, EU:C:2011:372) do not in any way support the Commission’s view that the aid at issue in the present case had to be assessed in the light of Regulation No 1370/2007 alone.
69. According to DSB, the General Court was, on the contrary, required to consider whether the Commission’s interpretation of Regulation No 1191/69 and the conclusions drawn from that interpretation were correct. In that regard, DSB notes that, according to settled case-law, an error of law does not justify the annulment of a decision where, if the error had not been committed, the Commission would have adopted the same decision (judgments in Falck and Acciaierie di Bolzano  v Commission , C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraph 122; CMA CGM and Others  v Commission , T‑213/00, EU:T:2003:76, paragraphs 101 to 103; González y Díez  v Commission , T‑25/04, EU:T:2007:257, paragraph 74; and Diputación Foral de Álava and Others  v Commission , T‑30/01 to T‑32/01 and T‑86/02 to T‑88/02, EU:T:2009:314, paragraph 219).
82. The Court has consistently held that, in the context of an action for annulment, such an examination is not within the purview of the General Court, since the General Court must not substitute its own economic assessment for that of the Commission (see, to that effect, order in DSG  v Commission , C‑323/00 P, EU:C:2002:260, paragraph 43, and judgment in KME Germany and Others  v Commission , C‑272/09 P, EU:C:2011:810, paragraphs 93 and 103).