1. By their appeal, Nuova Agricast Srl (‘Nuova Agricast’) and Cofra Srl (‘Cofra’) seek to have set aside the judgment of the Court of First Instance of the European Communities (now ‘the General Court’) of 2 December 2008 in Joined Cases T‑362/05 and T-363/05 Nuova Agricast and Cofra v Commission (‘the judgment under appeal’) by which it dismissed their actions for damages in respect of losses allegedly suffered as a result of the adoption by the Commission of the European Communities of the decision of 12 July 2000 not to raise objections to an aid scheme for investment in the less-favoured regions of Italy (State aid No N 715/99 - Italy) (‘the contested decision’), a summary notice of which was published in the Official Journal of the European Communities (OJ 2000 C 278, p. 26), and as a result of the Commission’s conduct during the procedure which led to the adoption of that decision. Legal framework The aid schemes for investment in the less-favoured regions of Italy authorised up to 31 December 1999
2. By Decree-Law No 415 relating to the refinancing of Law No 64 of 1 March 1986 laying down provisions governing special intervention measures in the Mezzogiorno (rifinanziamento della legge 1° marzo 1986, n. 64, recante disciplina organica dell’intervento straordinario nel Mezzogiorno) of 22 October 1992 (GURI No 249 of 22 October 1992, p. 3), converted into law, following amendment, by Law No 488 of 19 December 1992 (GURI No 299 of 21 December 1992, p. 3, and corrigendum in GURI No 301 of 23 December 1992, p. 40), itself amended by Legislative Decree No 96 of 3 April 1993 (GURI No 79 of 5 April 1993, p. 5) (‘Law No 488/1992’), the Italian legislature provided for financial measures intended to encourage undertakings to develop certain productive activities in the less-favoured regions of the country.
3. On 1 March 1995 and 21 May 1997, the Commission adopted two decisions not to raise objections, initially until 31 December 1996 and subsequently until 31 December 1999, to the successive aid schemes based on Law No 488/1992 and on various provisions implementing that law (State aid No N 40/95 and No N 27/A/97). Summary notices regarding those decisions were published in the Official Journal of the European Communities on 18 July 1995 in relation to the decision of 1 March 1995 (OJ 1995 C 184, p. 4) and on 8 August 1997 in relation to the decision of 21 May 1997 (OJ 1997 C 242, p. 4) (‘the 1997 decision’).
4. The detailed rules relating to the aid scheme authorised by the 1997 decision (‘the 1997-1999 aid scheme’) were put in place, first, by resolution of the Comitato interministeriale per la programmazione economica (Interministerial committee for economic planning) laying down provisions regulating the award of grants for the purposes of Article 1(2) of Law No 488/1992 (direttive per la concessione di agevolazioni ai sensi dell’art. 1, comma 2, del decreto-legge 22 ottobre 1992, n. 415, convertito nella legge 19 dicembre 1992, n. 488, in tema di disciplina organica dell’intervento straordinario nel Mezzogiorno) of 27 April 1995 (GURI No 142 of 20 June 1995, p. 17), as amended by resolution of that committee of 18 December 1996 (GURI No 70 of 25 March 1997, p. 35), second, by Decree No 527 of the Ministero dell’Industria, del Commercio e dell’Artigianato (Ministry of Industry, Commerce and Craft Trades) (‘MICA’) laying down provisions governing the detailed rules and the procedures for the award and allocation of grants for productive activities in the less-favoured regions of the country (regolamento recante le modalità e le procedure per la concessione ed erogazione delle agevolazioni in favore delle attività produttive nelle aree depresse del Paese) of 20 October 1995 (GURI No 292 of 15 December 1995, p. 3), as amended by Decree No 319 of that ministry of 31 July 1997 (GURI No 221 of 22 September 1997, p. 31) and, third, by Circular No 234363 of the MICA of 20 November 1997 (Ordinary Supplement to GURI No 291 of 15 December 1997).
5. Those detailed rules provided inter alia as follows: - the financial resources for each year were divided into two equal parts, each of which was allocated through an invitation to apply; however, on the basis of the funds available in the year to which the resources related, the rules for their distribution could be modified by decree, in particular by allowing the funds in question to be allocated through a single invitation to apply; - the applications submitted under an invitation to apply were examined by banks appointed for that purpose, which awarded a number of marks on regulatory criteria, known as ‘indicatori’ (‘indicators’); - on the basis of the results of the banks’ investigations, the MICA drew up regional ranking lists, in which the applications were recorded in descending order by reference to the number of marks awarded, and adopted a decree awarding the aid, starting with the first applicant on the list, until the funds allocated to the invitation to apply in question were exhausted; - expenditure was eligible on condition that it had been incurred on or after the day following the closing date of the invitation to apply preceding the invitation to which the application referred, except for expenditure on engineers’ reports and on other reports, and for expenditure incurred in connection with the acquisition and development of land belonging to the undertaking, which was eligible with effect from the 12th month preceding the date on which the application was lodged; - undertakings whose applications had been placed on a regional list but which had been unable to obtain grants because the funds allocated to the invitation to apply in question were less than the total amount of aid applied for, could either resubmit the same project, once only, under the first relevant invitation to apply immediately following the invitation under which their application had originally been submitted, without amending the information in the application taken into account by the indicators (a procedure known as ‘automatic inclusion’ of the application), or waive the right to such automatic inclusion and resubmit the same project under the first relevant invitation to apply following the invitation in respect of which they had waived their right to automatic inclusion, but with amendments to some or all of the indicators in order to make the application more competitive, provided that those amendments did not alter the substance of the project (a procedure known as ‘reformulation’ of the application); in both cases, the conditions applicable to the original applications remained in effect for the purposes of determining the eligibility of the expenditure. The contested decision and the aid scheme for investment in the less-favoured regions of Italy authorised for the period from 1 January 2000 to 31 December 2006
6. On 18 November 1999, the Italian authorities notified to the Commission, pursuant to Article 88(3) EC, a planned aid scheme which was to be applicable from 1 January 2000 and was based on Law No 488/1992. The Commission registered the scheme under number N 715/99.
7. That notification was followed by an exchange of correspondence between the Commission and the Italian authorities and a meeting of representatives of the Italian Government and the Commission’s departments on 16 May 2000.
8. The correspondence includes a letter from the Italian authorities dated 3 April 2000. In that letter, the MICA stated that, if the Commission were to maintain its position that the rule that expenditure was eligible on condition that it had been incurred on or after the day following the closing date of the preceding invitation to apply was contrary to the principle of necessity of State aid, it was imperative, given the significant modification thus made to the aid scheme as applied in the past, that the possibility of taking retroactive account of expenditure incurred on or after the day following the closing date of the preceding invitation to apply should be the subject of a transitional measure, limited exclusively to the first application of the new scheme.
9. That correspondence also includes a letter from the Commission dated 29 May 2000 (‘the letter of 29 May 2000’).
10. In that letter, the Commission refers to the meeting of 16 May 2000, in the light of which the Italian authorities tabled ‘the proposal to lay down a transitional provision for the scheme in question, for the initial phase of application of that scheme only, on the basis of which the intention is to recognise the retroactive nature of expenditure eligible for aid as from the closing date of the most recent invitation to apply’. That proposal, according to the Commission, was intended ‘to avoid any lack of continuity between the preceding scheme and the new scheme, principally because of the legitimate expectation of the undertakings (initiatives) which would be concerned by that transitional rule, which belong to two distinct categories: (a) those for which an application was submitted pursuant to the last relevant invitation to apply, favourably investigated by the banks appointed for that purpose and placed on regional lists, but which did not obtain aid due to insufficient financial resources; (b) those for which an application has not yet been submitted, even though work has already started on the investment project.’
11. With respect to category (a), the Commission, in the letter of 29 May 2000, called on the Italian authorities, ‘to undertake to consider, solely for the initial phase of application of the new scheme, the applications in suspense under the most recent invitation to apply, exactly as having been investigated favourably and included in the most recent lists’. As regards category (b), it called on the Italian authorities to withdraw the proposal relating to the eligibility of the investment project where work on it had been commenced prior to the aid application, as that project did not comply with the Guidelines on national regional aid (OJ 1998 C 74, p. 9).
12. The Italian authorities subsequently modified their draft aid scheme.
13. By the contested decision, notified to the Italian Republic by letter of 2 August 2000, the Commission decided not to raise objections to that aid scheme until 31 December 2006 (‘the 2000-2006 aid scheme’).
14. The contested decision contains a provision designed specifically to give approval to the measures comprised in that aid scheme which provided for a transition with the 1997-1999 aid scheme (‘the transitional provision’). That provision reads as follows: ‘Only on the occasion of the first implementation of the scheme in question, that is to say, on the occasion of the first invitation to apply to be organised on the basis of that scheme - it being understood that applications for aid must in any case be submitted before work is started on the investment project - applications submitted under the last invitation to apply organised under [the 1997-1999 aid scheme] which were considered eligible for aid but in respect of which no aid was granted because insufficient funds were allocated to that invitation, will exceptionally be eligible.’
15. Following that decision, the MICA adopted the Decree specifying the maximum limits for grants to promote productive activities in the less-favoured regions of the country referred to in Law No 488/1992 for the regions of Basilicata, Calabria, Campania, Apulia, Sardinia and Sicily (misure massime consentite relative alle agevolazioni in favore delle attività produttive nelle aree depresse del Paese di cui alla legge n. 488/1992 per le regioni Basilicata, Calabria, Campania, Puglia, Sardegna e Sicilia) of 14 July 2000 (GURI No 166 of 18 July 2000, p. 49), and Circular No 9003 of 14 July 2000 (Ordinary Supplement to GURI No 175 of 28 July 2000), for the purpose of laying down the detailed rules for implementing the 2000-2006 aid scheme.
16. The first subparagraph of the second paragraph of the sole article of that decree provides that aid may be granted ‘on the basis … of the expenditure held to be eligible under programmes relating to the last relevant invitation to apply, which have been examined and approved but in respect of which grants were not awarded because the necessary funds were not available’. Background to the dispute
17. On 1 December 1997, the MICA published, under the 1997-1999 aid scheme, the third invitation to apply for aid in the industrial sector, relating to the first half of 1998 (‘the third invitation to apply’).
18. Undertakings having an interest had until 16 March 1998 to lodge their applications for aid. They could apply for the funding of expenditure incurred from the day after the expiry of the period for lodging applications under the previous invitation to apply (the second invitation to apply), that is to say, 1 January 1997.
19. Nuova Agricast and Cofra each lodged an application for aid for an investment project under the third invitation to apply. The total amounts of planned expenditure were ITL 9 516 000 000 and ITL 8 062 000 000, respectively. Each of those amounts included expenditure incurred before the corresponding application for aid had been lodged, but after the date on which the preceding invitation to apply had been closed.
20. Those applications, which were held to be eligible, were included in the ranking list for the Apulia Region by two decrees of the MICA of 14 August 1998. However, because of the ranking of those applications, the appellants did not obtain the aid applied for on the ground that insufficient funds were available.
21. Those decrees indicated that, in accordance with Decree No 527/95 of 20 October 1995, as amended by Decree No 319 of 31 July 1997, applications classified as not relevant for obtaining aid pursuant to the third invitation to apply would be automatically included, unchanged, in the list relating to the fourth invitation to apply for aid in the industrial sector, relating to the second half of 1998 (‘the fourth invitation to apply’), while maintaining valid, for the purposes of the aid eligibility of expenditure, the conditions applicable to the initial application. They also stated that, if an undertaking intended to keep valid the conditions governing aid eligibility of expenditure and, at the same time, reformulate its aid application, it would have to waive its right to that automatic inclusion and submit a fresh application within the time-limits relating solely to the fifth invitation to apply for aid, corresponding to the first half of 1999, which were to be fixed by decree.
22. In the meantime, the fourth invitation to apply had been published. Nuova Agricast and Cofra waived their right to automatic inclusion of their applications in the list relating to the fourth invitation to apply, in order to be able to lodge fresh, reformulated applications under the next relevant invitation to apply.
23. However, no relevant invitation to apply was published by the Italian authorities before 31 December 1999, the date up to which the 1997-1999 aid scheme had been approved by the Commission.
24. On 14 July 2000, that is, after the 2000-2006 aid scheme had come into effect, the Italian authorities published the eighth invitation to apply for aid in the industrial sector (‘the eighth invitation to apply’).
25. Given the conditions in force under the 2000-2006 aid scheme, the appellants’ reformulated applications, which could not benefit from the transitional provision contained in the contested decision, were held to be inadmissible and were not included in the list relating to the eighth invitation to apply.
26. The appellants, together with other Italian undertakings in the same situation, thereupon brought a first action before the General Court, seeking the annulment of the contested decision. By order of 15 June 2005 in Case T-98/04 SIMSA and Others v Commission , not published in the ECR, the General Court dismissed that action as inadmissible, on the ground that it had been brought after the expiry of the two-month period laid down by the fifth paragraph of Article 230 EC.
27. Nuova Agricast also brought an action before the Tribunale ordinario di Roma (Rome District Court) by which it sought compensation from the Ministero delle Attività Produttive, which had taken over the responsibilities of the MICA, in respect of the damage allegedly suffered by Nuova Agricast because of the non-payment of the aid applied for. It claimed inter alia in this context that, in its discussions with the Commission with a view to obtaining the renewal of the aid scheme after 31 December 1999, the Italian State had failed properly to safeguard the acquired rights of undertakings which, like it, had, at the time of the third invitation to apply, waived their right to automatic inclusion in the list relating to the fourth invitation to apply in order to lodge a reformulated application under the first relevant invitation to apply following that invitation.
28. In those proceedings, the Tribunale ordinario di Roma, by decision of 14 June 2006, made a reference for a preliminary ruling concerning the validity of the contested decision in the light of the principle of equal treatment and the obligation to provide a statement of reasons. By its judgment in Case C‑390/06 Nuova Agricast [2008] ECR I‑2577, the Court held, in its reply, that examination of the question referred revealed nothing which might affect the validity of the contested decision.
29. In its analysis of the validity of the contested decision in the light of the principle of equal treatment, the Court held, in paragraph 62 of its judgment, that the Commission must have been aware of the existence of, first, undertakings such as Nuova Agricast, whose application for aid had been included in the list relating to the third invitation to apply and which had not obtained the aid requested under that invitation by reason of the insufficiency of the funds available and which had then waived their right to automatic inclusion on the list relating to the fourth invitation to apply in order to lodge a reformulated application pursuant to the next relevant invitation to apply (‘undertakings in the first category’) and of, secondly, those whose application had been included in the list relating to the fourth invitation to apply and which had not obtained the aid requested by reason of the insufficiency of the funds available (‘undertakings in the second category’).
30. In paragraphs 77 and 78 of that judgment, however, the Court concluded that, in authorising the 2000-2006 aid scheme, under which only undertakings in the second category could benefit from the transitional provision contained in the contested decision, the Commission had not infringed the principle of equal treatment, as the undertakings in that category and those in the first category were not in a comparable situation. The proceedings before the General Court and the judgment under appeal
31. By applications lodged with the Registry of the General Court on 21 September 2005, Nuova Agricast and Cofra each brought an action seeking to have the Commission ordered to pay damages in respect of the loss which they had allegedly suffered as a result of the adoption of the contested decision. The two cases were joined for the purposes of the oral procedure and the judgment.
32. By decisions of 1 March 2006, the General Court allowed in part an application for a measure of organisation of procedure made by the Commission and called on it to concentrate, in its written pleadings, first, on the issue of admissibility of the actions and, second, on the questions as to whether there had been unlawful conduct on the Commission’s part, whether the alleged losses had occurred and, if so, the nature of those losses and, lastly, as to whether there was a causal link between the conduct complained of and those losses.
33. By the judgment under appeal, the General Court dismissed the actions and ordered the present appellants to pay the costs.
34. In paragraphs 48 to 51 of the judgment under appeal, the General Court, first, held to be inadmissible the form of order by which the Commission sought to have the words ‘falso ideologico’ (intentionally false statement), used by the appellants to describe to the letter of 29 May 2000, removed from their written submissions.
35. In that context, the General Court noted that the appellants alleged, essentially, that in that letter the Commission deliberately masked the fact that the Italian authorities had attempted to protect not only the situation of undertakings which had made applications pursuant to the fourth invitation to apply, but also that of undertakings which had made applications pursuant to the third invitation to apply. It found, in that regard, that the ‘false’ aspect which the appellants claimed to have identified in that letter was non-existent, given that that letter drew a distinction between the broad scope of application of the transitional measure envisaged by the Italian authorities and the Commission’s calling on those authorities to restrict the scope of application of that measure solely to those undertakings which had participated in the most recent invitation to apply. The General Court took the view, however, that it was not its role to restrict the parties’ freedom of expression in so far as rules governing professional conduct had been complied with, which was the position in the instant case inasmuch as the appellants had expressly stated that they were not alleging that the Commission had made a ‘falso ideologico’ (intentionally false statement) within the terms of Italian criminal law.
36. Turning, next, to the applications for damages, the General Court, after finding that it was appropriate to rule first on the merits of the actions and not on their admissibility, which had been disputed by the Commission, examined in paragraphs 76 to 96 of the judgment under appeal whether the alleged unlawfulness of the Commission’s conduct had been established.
37. The appellants’ principal line of argument, to the effect that the Commission had engaged in various forms of unlawful conduct arising from the fact that, in the letter of 29 May 2000, it had called on the Italian authorities to amend their draft transitional measure and had adopted the contested decision, was rejected in paragraphs 80 to 84 of the judgment under appeal in the following terms: ‘80 Regarding the applicants’ principal line of argument …, it is, essentially, based on the premiss that, by the 1997 decision, the Commission decided not to raise objections to the applicants’ second application for aid in response to a notice of implementation of an aid scheme based on Law No [488/1992] launched after 31 December 1999. It should be borne in mind in that regard that the general principle under Article 87(1) EC is that State aid is not permitted. According to the case-law, exceptions to that general principle are to be interpreted restrictively (Case T‑109/01 Fleuren Compost v Commission [2004] ECR II‑127, paragraph 75). In order to determine whether aid comes within the temporal scope of a decision not to raise objections to an aid scheme, it is necessary to examine whether that aid can be regarded as having been granted before the expiry date of that decision, the relevant criterion in that regard being the legally binding act by which the competent national authority undertakes to grant the aid (see, to that effect, Fleuren Compost v Commission , paragraphs 68 and 71 to 74). It follows that a decision not to raise objections to an aid scheme concerns only the actual granting of the aid under that scheme, and the relevant national authority must undertake to grant the aid in question before that decision expires. 81 Consequently, in the present case, even though in the 1997 decision the Commission did not object to the fact that the [1997-1999] aid scheme allowed the applicants to submit a reformulated application for aid pursuant to a relevant invitation subsequent to the fourth invitation to apply, it was necessary, in order to come within the scope of application of that decision, that, first, that second application be made before the authorisation granted by that decision expired and that, second, the Italian authorities undertake to grant the aid requested pursuant to that second application, also before that expiry. It is common ground that, by the 1997 decision, the Commission decided not to raise objections to the [1997-1999] aid scheme until 31 December 1999. It is also common ground that no invitation to apply allowing the applicants to submit a second application was published before 1 January 2000 and that, before that date, the Italian authorities did not adopt any binding act by which they undertook to grant the applicants the aid requested. 82 Furthermore, as rightly pointed out by the Commission, the mere possibility of submitting a second application pursuant to an invitation to apply under which aid might be granted is not sufficient to justify the view that the aid requested was granted when that opportunity was offered. Both the wording of the 1997 decision and the rule that exceptions to the general principle under Article 87(1) EC that State aid is not permitted are subject to strict interpretation preclude such an extension of the temporal scope of application of the approved aid scheme. It is, moreover, common ground that the applicants could not in any way be certain that, if they submitted a reformulated application, they would be granted the aid requested. 83 Consequently, the “right of reformulation” to which the applicants refer, even if it did exist, was covered by the 1997 decision only if it was exercised before 1 January 2000 and if the Italian authorities undertook, before that date, to grant the applicants the aid requested by them for the second time. As indicated above, however, it is common ground that that did not happen. 84 Since the 1997 decision cannot be regarded as authorising the applicants to submit a reformulated application pursuant to an invitation to apply published after the expiry of that decision, the premiss underlying the applicants’ reasoning is incorrect. It follows that the applicants’ arguments based on that premiss must be rejected as unfounded.’
38. In paragraphs 85 to 87 of the judgment under appeal, the General Court added that that finding was not affected by the approach adopted in Joined Cases C‑182/03 and C‑217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479, relied on by the present appellants, as the circumstances in the two cases were quite different.
39. Having then dismissed, in paragraphs 88 to 95 of the judgment under appeal, the arguments put forward in the alternative by the appellants, the General Court went on to hold, in paragraphs 96 and 97 of that judgment, that they had not established that the Commission had committed a sufficiently serious infringement such as to incur non-contractual liability for the European Community and that, consequently, the actions had to be dismissed. Forms of order sought before the Court
40. By way of principal head of claim, Nuova Agricast and Cofra claim that the Court should: - set aside the judgment under appeal, also in so far as it holds that no false statement was made in the letter of 29 May 2000 and, therefore, dismiss on its merits the Commission’s counterclaim relating to the removal of the expression ‘falso ideologico’; - in ruling on the questions included in the measures of organisation of procedure taken by the General Court by decisions of 1 March 2006, hold that, in engaging in the conduct referred to in the applications at first instance, the Commission committed a serious and manifest infringement of European Union law and caused the appellants material loss; - refer the case back to the General Court for it to rule on the questions not included in those measures of organisation of procedure, - and, with respect to costs: (i) if the Court’s judgment may be considered as definitive, at least as regards the questions included in the measures of organisation of procedure taken by the General Court by decisions of 1 March 2006, order the Commission to pay the costs of both instances, or (ii) in the event that that judgment, even though it rules on all the questions included in those measures of organisation of procedure, cannot be considered definitive because a reference back to the General Court is, in any event, necessary in order to have resolved the questions not included in those measures of organisation of procedure, reserve the costs.
41. Nuova Agricast and Cofra claim, in the alternative, should the Court hold that the state of the proceedings does not permit judgment to be given, that it should refer the case back to the General Court.
42. The Commission contends that the Court should: - dismiss the appeal as inadmissible; - in the alternative, dismiss the appeal as unfounded; - in the further alternative, dismiss the claim for damages put forward at first instance as inadmissible; - in the further alternative, refer the case back to the General Court to have the case reheard, in accordance with Article 61 of the Statute of the Court of Justice; and - order the appellants to pay the costs. The appeal
43. The appellants put forward three grounds in support of their appeal. By the first and second grounds of appeal, they argue that the General Court was wrong to reject, in paragraphs 80 to 84 of the judgment under appeal, the premiss on which their principal line of argument was based, to the effect that the 1997 decision must be interpreted as authorising undertakings in their situation to submit a reformulated application pursuant to an invitation to apply published even after 31 December 1999. The third ground of appeal alleges that, in paragraphs 50 and 51 of that judgment, the General Court distorted the content of the letter of 29 May 2000. Admissibility Arguments of the parties
44. The Commission argues that the appeal is inadmissible on the ground that the three grounds of appeal put forward by the appellants in support of their appeal are inadmissible.
45. It argues that the first and second grounds are inadmissible because they do not state with sufficient clarity which elements of the judgment under appeal are being challenged. Those grounds, it submits, are also inadmissible because they do not concern an infringement of European Union law, but rather points of Italian law or, at the very least, the conduct of the Italian authorities. An error by the General Court in the interpretation of national law is not an infringement of European Union law, but may be equated with an error as to the facts which, unless there has been distortion, may not be raised at the appeal stage.
46. The third ground of appeal, the Commission argues, is inadmissible because it concerns a decision against which an appeal does not lie and challenges assessments of fact made by the General Court. Nor do the appellants have any interest in bringing an appeal in that regard, as they were not unsuccessful on that point.
47. The appellants take the view that the appeal is admissible and state, inter alia, that the first and second grounds of appeal call into question the General Court’s incorrect interpretation of the 1997 decision and, in particular, of the provision establishing the expiry date of the authorisation for the 1997-1999 aid scheme as laid down in that decision. Findings of the Court
48. It follows from Article 225 EC, the first paragraph of Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court that an appeal must state precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or plea concerned is inadmissible (see Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraph 34; Case C‑248/99 P France v Monsanto and Commission [2002] ECR I‑1, paragraph 68; and Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 426).
49. In that regard, the Court observes that, although admittedly certain portions of the line of argument put forward by the appellants in the context of their first and second grounds of appeal may lack rigour, that line of argument does, however, appear overall to be sufficiently clear for the purposes of identifying with the necessary precision the elements of the judgment under appeal which are being challenged, and the legal arguments relied on in support of that challenge, and thus enables the Court to carry out its review of the lawfulness thereof.
50. Regarding the second plea of inadmissibility, based on the argument that the first and second grounds of appeal seek to establish an error on the part of the General Court in the interpretation of a national measure, namely the 1997-1999 aid scheme, the Court finds that this is not the case. As the appellants have pointed out, they are referring, by those grounds of appeal, to the allegedly incorrect interpretation of the temporal scope of application of the 1997 decision, and thus of a measure of the Commission.
51. It follows that the first and second grounds of appeal are admissible. Consequently, and without its being necessary to consider at this stage the pleas put forward concerning the admissibility of the third plea, the Commission’s plea of inadmissibility must be rejected in so far as it relates to the appeal as a whole. Substance The first and second grounds of appeal - Arguments of the parties
52. By the first ground of appeal, the appellants argue that the General Court erred in law in interpreting the 1997 decision in a manner incompatible with the principles of legal certainty, the protection of legitimate expectations and equal treatment. They submit, inter alia, that if the 1997 decision is interpreted, as it was by the General Court, as meaning that it did not authorise publication of an invitation to submit ad hoc applications for aid after 31 December 1999 exclusively for those undertakings which, under the 1997-1999 aid scheme, had been given the assurance that they could submit a fresh application, through automatic inclusion or reformulation, pursuant to a subsequent invitation to apply, that decision is unlawful because it authorised an aid scheme which infringed those principles. An aid scheme, as thus construed, in regard to its duration, by the General Court would, by its very nature, inevitably set aside favourable legal positions attributed by duly authorised measures.
53. The appellants refer in that context to the scenario in which an invitation to submit applications for aid was launched in the second half of 1999. Undertakings which submitted applications for the first time pursuant to that invitation in qualifying for a non-relevant rank for receiving the aid would have received the assurance that they, in the same way as the undertakings which had submitted an application pursuant to a previous invitation to submit applications, would be able to submit a second application through automatic inclusion or reformulation. However, it would have been impossible from the outset for that second application to be lodged before 31 December 1999.
54. The appellants conclude that an aid scheme which provides specific assurances that an undertaking will be able to submit an application for aid, but which is interpreted and applied in such a manner as to make it logically impossible to lodge that application, cannot be said to comply with the principles of legal certainty and the protection of legitimate expectations. Such a scheme also infringes the principle of equal treatment because only certain undertakings, notably those which submitted an application for the first time pursuant to an invitation launched in the second half of 1999, would have been unable to avail themselves of a second opportunity to submit an application.
55. Lastly, the appellants submit that the Court, in paragraphs 50 and 51 of its judgment in Nuova Agricast , has already indirectly refuted the Commission’s argument that the expectation arising from the national provisions governing an aid scheme cannot be attributed to it, by ruling, inter alia, that aid which, by some of its detailed rules, infringes the general principles of European Union law cannot then be held by the Commission to be compatible with the common market. The detailed rules to which the Court refers are necessarily those provided for in the national provisions governing that aid scheme. In authorising those provisions, therefore, the Commission must assume the liability which may arise therefrom.
56. By the second ground of appeal, the appellants argue that the General Court erred in law by failing in its obligation to prefer an interpretation of the 1997 decision which complies with the principles of legal certainty, the protection of legitimate expectations and equal treatment. They consider that that decision is sufficiently ambiguous to allow for an interpretation along the lines which they themselves propose, which was the only one in keeping with those principles.
57. According to the appellants, the mere fact that that decision states, without further explanation, that the expiry date of the authorisation given for the 1997-1999 aid scheme is 31 December 1999, was not sufficient, in the specific context of that scheme, to remove all ambiguity as to whether the undertakings which had been given assurances under that scheme that they would be able to submit their aid application a second time, through automatic inclusion or reformulation, could exercise that right in the context of an invitation to apply launched after that date in the case where there had been no relevant invitation to apply before then. A decision not to raise objections to a State aid scheme should be read in conjunction with the specific detailed rules for implementing the scheme in question. Where, as in the present case, those detailed rules provide for the possibility of submitting a second application with the conditions of expenditure eligibility under the first application remaining unchanged and without an expiry date being indicated, that fact must be taken into account in the interpretation of the temporal scope of application of that decision.
58. The appellants add that, in a letter of 15 September 2006, the Italian Government, in response to a request for clarification from the Commission in respect of the aid scheme applicable as from 2007 for which authorisation was sought, embraced the view advocated by the appellants, to the effect that the first aid application determines the procedure and rules to apply also to the second application, which is merely the continuation of the procedure already begun under the first application. The Commission did not challenge this view and authorised that scheme.
59. The Commission contends that the first and second grounds of appeal are unfounded.
60. In its submission, even though the General Court did not mention it in its analysis of the appellants’ premiss, the solution which it reached was inevitable, in the light of the judgment in Nuova Agricast . Even if the Court had examined ex professo only the alleged infringement of the principle of equal treatment and the obligation to state reasons, the reasoning set out in paragraphs 66 to 78 of that judgment is based on the interpretation of the 1997 decision and the approval of the 1997-1999 aid scheme resulting from that decision. The Court held that only undertakings in the second category had an absolute right to have their applications included automatically in relation to the next invitation to apply for aid. It is therefore only for those undertakings that the Commission was required to authorise, on a transitional basis, the submission of an application pursuant to the next invitation to apply, even though it was launched after 31 December 1999, the date on which the authorisation granted by the 1997 decision expired.
61. Referring to paragraph 75 of that judgment, the Commission further states that allowing the applications from undertakings in the first category, such as the appellants, under the first invitation to apply in respect of the new aid scheme would have given them a better chance of receiving the aid requested as compared with undertakings vying for aid for the first time, for which the necessity of the aid was in doubt. In order to avoid such unacceptable consequences, the Commission would have been obliged, under the principle of necessity, to declare the new aid scheme incompatible if it had allowed for the admission of reformulated applications from undertakings which had submitted applications pursuant to the third invitation to apply. It therefore followed, according to the Commission, from that judgment that the appellants could not, under any circumstances, have been authorised to submit an application pursuant to an invitation under that new scheme. An approach which is legally required cannot at the same time be unlawful, a fact which excludes at the outset any liability on the part of the Commission. - Findings of the Court
62. By their first and second grounds of appeal, the appellants submit, essentially, that the General Court, in order to ensure compliance with the principles of legal certainty, the protection of legitimate expectations and equal treatment, was required to interpret the 1997 decision as comprising the authorisation for the launching of an invitation to submit ad hoc applications for aid after 31 December 1999, the date on which the authorisation given by that decision for the 1997-1999 aid scheme expired, exclusively for undertakings in the first and second categories, with the result that the appellants ought to have been regarded as being authorised to submit their reformulated application pursuant to the next relevant invitation to apply under the 2000-2006 aid scheme, namely the eighth invitation to apply.
63. In order to determine whether those grounds of appeal are well founded, it is appropriate to consider whether the 1997 decision, when interpreted as not comprising an authorisation for launching such an invitation to submit ad hoc applications, infringes those principles, as the appellants contend.
64. As part of that analysis, it is necessary to consider not only the actual wording of that decision, only a summary of which was published in the Official Journal of the European Communities , but also to take account of the 1997-1999 aid scheme, as notified (see, to that effect, Case C‑138/09 Todaro Nunziatina & C. [2010] ECR I‑0000, paragraph 31).
65. It must also be borne in mind in this context that State aid which, in some of its detailed rules, infringes the general principles of European Union law, such as the principles of legal certainty, the protection of legitimate expectations and equal treatment, cannot be declared by the Commission to be compatible with the common market (see Nuova Agricast , paragraph 51).
66. Moreover, contrary to the Commission’s submission, it does not follow from the judgment in Nuova Agricast that the 1997 decision and the 1997-1999 aid scheme are compatible with those principles.
67. Although the Court held in that judgment that the contested decision, which authorised the transitional measures under the 2000-2006 aid scheme, did not infringe the principle of equal treatment because it treated the undertakings in the first and second categories differently, it did not in any way rule on the compatibility of that decision or of the 1997 decision with other principles, such as, in particular, the principles of the protection of legitimate expectations and legal certainty. On the contrary, it stated in paragraph 44 of its judgment that, although Nuova Agricast had, in the main proceedings, put forward other grounds of invalidity of the contested decision, it was inappropriate to extend the examination of the validity of that decision in the light of those other grounds of invalidity, which had not been referred to by the national court.
68. Moreover, the Court’s finding in paragraphs 67 to 78 of its judgment in Nuova Agricast , to the effect that undertakings in the first category and those in the second category were not in a comparable situation in terms of the criterion of the need for the State aid, does not per se preclude the possibility of the Commission’s having an obligation to authorise transitional provisions for undertakings in the first category as well in order to comply with, inter alia, the principle of the protection of legitimate expectations.
69. Thus, provided that undertakings in the first category could in fact avail themselves of that principle, it may, as appropriate, have been necessary to authorise such transitional provisions, even though those undertakings were not in a situation comparable to that of undertakings in the second category. The Court has already held, inter alia, that, in the absence of an overriding public interest, the Commission infringes a superior rule of law if it fails to couple the repeal of a set of rules with transitional measures for the protection of the expectations which a trader might legitimately have derived from the European Union rules (see, to that effect, Belgium and Forum 187 v Commission , paragraph 149 and the case-law cited).
70. It should also be borne in mind that the Court has held that the Commission must have been aware of the existence of both the undertakings in the first category and those in the second category ( Nuova Agricast , paragraph 62).
71. As for the compatibility of the 1997 decision and the 1997-1999 aid scheme with the principle of the protection of legitimate expectations, the Court has repeatedly held that the right to rely on that principle extends to any person in a situation where a European Union institution has caused him to entertain expectations which are justified. However, a person may not plead infringement of that principle unless he has been given precise assurances by that institution. Similarly, if a prudent and alert economic operator could have foreseen the adoption of a measure likely to affect his interests, he cannot plead that principle if the measure is adopted (see, to that effect, Belgium and Forum 187 v Commission , paragraph 147 and the case-law cited, and Case C‑519/07 P Commission v Koninklijke FrieslandCampina [2009] ECR I‑8495, paragraph 84).
72. In the present case, the 1997 decision, as published in the Official Journal of the European Communities , indicated, under the title ‘Duration’, the date of 31 December 1999.
73. Contrary to the appellants’ submissions, a prudent and alert economic operator, who is supposed to be familiar with that decision, could have inferred from that statement that the possibility of submitting an application, through automatic inclusion or reformulation under the detailed rules of the 1997-1999 aid scheme, pursuant to an invitation to apply which was subsequent to that under which the aid application had been lodged, was limited by the duration of the authorisation granted for that scheme.
74. It should be observed, inter alia, in that regard that, given that the 1997 decision, in authorising that scheme, was derogating from the general principle, set out in Article 87(1) EC, that State aid is incompatible with the common market, such an operator could not reasonably expect that that decision would authorise the grant of aid even after the date indicated therein, contrary to the principle that such exceptions are to be strictly interpreted (see Case C-277/00 Germany v Commission [2004] ECR I‑3925, paragraph 20, and Joined Cases C‑346/03 and C‑529/03 Atzeni and Others [2006] ECR I‑1875, paragraph 79).
75. In any event, as an expiry date for the authorisation of the 1997-1999 aid scheme was indicated in the 1997 decision, it cannot be argued that the appellants were given a specific assurance by the Commission that they could submit their reformulated aid application pursuant to an invitation to apply launched after that date. Nor could the appellants legitimately expect that the Commission would, after that date, grant a fresh authorisation for a State aid scheme with the same detailed rules as those provided for under the 1997-1999 aid scheme.
76. In those circumstances, it is clear that, even though the national provisions governing the detailed rules of that scheme and the measures adopted pursuant to the third invitation to apply did not indicate a specific expiry date for submitting a fresh application, through automatic inclusion or reformulation, pursuant to a subsequent invitation to apply, the appellants could not have entertained a legitimate expectation that they would be able to avail themselves of that opportunity after 31 December 1999.
77. Next, the principle of legal certainty requires that European Union legislation must be certain and its application foreseeable by those subject to it (Case 325/85 Ireland v Commission [1987] ECR 5041, paragraph 18; Case C‑63/93 Duff and Others [1996] ECR I‑569, paragraph 20; and Belgium and Forum 187 v Commission , paragraph 69). It follows from paragraphs 73 to 75 of the present judgment that the 1997 decision indicated an expiry date, which made it foreseeable for the undertakings likely to avail themselves of the 1997-1999 aid scheme that, after that date, no further invitation to apply for aid could be launched under that scheme.
78. Concerning, lastly, the compatibility of the 1997 decision and of the 1997-1999 aid scheme with the principle of equal treatment, it must be remembered that that principle precludes, inter alia, comparable situations from being treated differently, unless such treatment is objectively justified (see, inter alia, Case C‑413/08 P Lafarge v Commission [2010] ECR I‑0000, paragraph 40 and the case-law cited).
79. In the present case, the appellants argue that, if the 1997 decision is interpreted as not authorising the launching of an invitation to submit ad hoc applications after 31 December 1999 exclusively for undertakings which did not receive the aid requested under the 1997-1999 aid scheme because insufficient funds were available, and which were no longer able to participate before that date, through automatic inclusion or reformulation, in a subsequent invitation to apply, that scheme infringes the principle of equal treatment because it then gave certain undertakings the opportunity to submit a second application, an opportunity from which others were excluded from the outset.
80. It is clear, in this regard, that such unequal treatment as between the undertakings which had that opportunity to submit an application before the expiry of the authorisation granted by the 1997 decision and those which could no longer avail themselves of that opportunity is objectively justified. Since a decision by the Commission not to raise objections to a State aid scheme under Article 87(3) EC constitutes a derogation from the general rule that such aid is incompatible with the common market, the duration of its validity must be limited in time. Moreover, any authorisation of limited duration by definition gives rise to unequal treatment according to whether a given situation does or does not come within the temporal scope of that authorisation decision.
81. It follows from all the foregoing considerations that the General Court did not disregard the principles of legal certainty, the protection of legitimate expectations and equal treatment in holding that the 1997 decision could not be considered as authorising the appellants to submit a reformulated aid application pursuant to an invitation to apply for aid published after the expiry date of that decision.
82. Consequently, the first and second grounds of appeal must be rejected as unfounded. The third ground of appeal - Arguments of the parties
83. By the third ground of appeal, the appellants argue that the General Court distorted the content of the letter of 29 May 2000 in holding, in paragraphs 50 and 51 of the judgment under appeal, that it did not contain a false statement.
84. The appellants submit inter alia that the General Court, in paragraph 12 of the judgment under appeal, to which the aforementioned paragraph 50 refers, misquoted the wording of that letter. It is, they submit, not correct that it was the Commission which distinguished in that letter the two categories of undertakings concerned by the transitional measure. In its use of the conditional tense, it attributed to the Italian authorities the identification of the only two categories of undertakings referred to in the draft transitional measure.
85. They go on to submit that the General Court therefore made an error in taking the view that, in that letter, the Commission stated that the Italian authorities had presented it with a wide-ranging transitional measure encompassing also undertakings in the first category. The situation, they argue, was quite the opposite: the Commission deliberately worded the letter of 29 May 2000 to state that the Italian authorities had informed it only of the two categories of undertakings referred to in points (a) and (b) of that letter, in order to give the impression that it was not aware of the existence of the undertakings in the first category.
86. The appellants consider that they still have an interest in having the judgment under appeal set aside also with respect to this aspect, since some of the arguments on which their actions are based presuppose an intentionally false statement on the part of the Commission. Consequently, should the appeal succeed, it may be necessary to determine whether the letter of 29 May 2000 contained such a false statement.
87. The Commission contends that the third ground of appeal is inadmissible or in any case unfounded. - Findings of the Court
88. The appellants’ line of argument summarised in paragraph 86 of this judgment indicates that they acknowledge that they have an interest in the setting-aside of the findings on the basis of which the General Court concluded that the letter of 29 May 2000 did not contain any false statement, only if their appeal is successful.
89. However, since the first and second grounds of appeal have been unsuccessful and the third ground of appeal, even if it is well founded, cannot by itself be a basis for setting aside the judgment under appeal, as it challenges findings which have no bearing on the operative part of that judgment, it must be held that that ground of appeal is, in any event, irrelevant and must be rejected, without its being necessary to consider whether it is admissible.
90. Consequently, the appeal must be dismissed. Costs
91. Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the appellants have been unsuccessful, the appellants must be ordered to pay the costs.