Joined Cases T-254/00, T-270/00 and T-277/00
Hotel Cipriani SpA and Others
v
Commission of the European Communities
(State aid – Relief from social security contributions for firms in Venice and Chioggia – Decision declaring the aid scheme incompatible with the common market and requiring recovery of the aid paid out – Admissibility – Individual concern – Conditions concerning effect on trade between Member States and on competition – Derogations under Article 87(3)(b) to (e) EC and Article 87(2)(b) EC – Categorisation as new aid or as existing aid – Principles of legal certainty, protection of legitimate expectations, equal treatment and proportionality – Duty to state reasons)
Summary of the Judgment
1. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Possibility of a decision of general application being of individual concern
(Art. 230, fourth para., EC)
2. State aid – Prejudicial to competition – State measures intended to approximate the conditions of competition in a particular sector of the economy to those prevailing in other Member States – Exclusion of the characterisation as aid – Conditions
(Art. 87(1) EC)
3. State aid – Examination by the Commission – Examination of an aid scheme in its totality – Lawfulness
(Art. 88 EC)
4. State aid – Commission decision declaring an aid scheme incompatible with the common market – Obligation to state the reasons on which the decision is based – Limits
(Arts 87 EC and 88(2) EC)
5. State aid – Not allowed – Exceptions – Aid which may be considered compatible with the common market
(Arts 87(3)(c) EC and 88 EC)
6. State aid – Existing aid and new aid – Classification as new aid
(Art. 87 EC)
1. A Commission decision concerning an unlawful State aid scheme and requiring recovery of the aid paid out is of general application with regard to the actual beneficiaries of the scheme inasmuch as it applies to objectively determined situations and involves legal effects vis-à-vis the beneficiaries of such a scheme considered in a general and abstract manner. The mere fact that the actual beneficiaries of such a scheme can be identified does not oblige the Commission to take account of their individual situation. Consequently, a decision concerning an aid scheme is based, in principle, on a general and abstract review of the aid scheme at issue, which is itself a measure of general application.
However, it is possible that, in certain circumstances, the provisions of a measure of general application may be of individual concern to a natural or legal person pursuant to the fourth paragraph of Article 230 EC where that person is affected by reason of attributes peculiar to him or by reason of factual circumstances differentiating him from all other persons.
Thus, where the Commission finds that an aid scheme is incompatible with the common market and requires that the aid paid out be recovered, all the actual beneficiaries of the scheme are individually concerned by the Commission’s decision. The fact of belonging to a closed class of actual beneficiaries of an aid scheme, particularly affected by the obligation to recover the aid paid out imposed by the Commission on the Member State concerned, is sufficient to differentiate those beneficiaries from all other persons. Individualisation results, in such cases, from the specific adverse effect of the recovery order on the interests of the members of the closed class, who are fully identifiable.
(see paras 73-74, 77, 84)
2. 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 State aid.
Like all the rules of Community competition law, the Treaty rules on aid are intended to ensure, not perfect competition, but effective or efficient competition.
Under those circumstances, compensation for structural disadvantages makes it possible to avoid categorisation as aid only in certain specific situations. Thus, an advantage conferred on an undertaking with a view to correcting an unfavourable competitive situation is not State aid within the meaning of Article 87(1) EC if it is justified by economic criteria and if it does not discriminate between economic operators established in different Member States. In that sort of situation, the Community judicature in reality applies the criterion of a private operator in a market economy. Similarly, an advantage granted to an undertaking which mitigates the costs which are normally included in its budget does not constitute State aid within the meaning of Article 87(1) EC where the advantage is intended to remedy the fact that the beneficiary undertaking incurs additional costs resulting from special rules which are not incurred by competing undertakings subject to the ordinary law under normal market conditions.
(see paras 182,184-186)
3. In the case of an aid scheme, the Commission is not generally required to carry out an analysis of the aid granted in individual cases. It may confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies.
However, the Commission is required, in the context of Article 88 EC, to conduct a diligent and impartial assessment of the aid measure under consideration in the interests of sound administration of the fundamental rules of the Treaty on State aid. In particular, in a formal investigation procedure, the principle of sound administration, which is one of the general principles that are observed in a State governed by the rule of law and are common to the constitutional traditions of the Member States, requires the Commission to comply with the principle of equal treatment as between the parties concerned.
In that legal framework, possible recognition of an obligation on the part of the Commission to assess individually the situation of certain beneficiaries when examining an aid scheme is connected, on the one hand, to compliance with the procedural obligations incumbent upon the Commission and the Member State concerned respectively and, on the other, to the content of the specific information concerning those beneficiaries communicated to the Commission by the national authorities or the interested third parties.
(see paras 209-211)
4. The requirements concerning statements of reasons and the analysis by the Commission of the effect of a State aid measure on trade between the Member States and on competition vary, very logically, according to the individual or general nature of the measure.
With regard to multisectoral aid schemes, the Commission may merely study the characteristics of a programme in order to assess whether, by reason of the large amounts or high percentage of the aid, the characteristics of the investments being supported or other arrangements provided for under the programme, the latter gave an appreciable advantage to recipients in relation to their competitors and was likely to benefit in particular undertakings engaged in trade between Member States. Thus, in the case of an aid scheme applicable to all undertakings located in a particular territory, the Commission cannot be required to show, on the basis of even a summary examination of the situation in the markets, that the scheme will have a foreseeable effect on trade between the Member States and on competition in all the sectors of activity concerned.
In that regard, it is for the Member State concerned, by virtue of its duty to cooperate with the Commission, and for interested parties properly invited to submit their comments pursuant to Article 88(2) EC, to put forward their arguments and provide the Commission with all the information likely to provide clarification concerning all the circumstances of the case.
In the case of a multisectoral aid scheme, the Commission is merely required to ascertain, on the basis of specific factors, whether, in given sectors, the measure under consideration fulfils the two conditions for the application of Article 87(1) EC, namely, that it is likely to affect trade between the Member States or competition, where sufficient relevant information for that purpose has been communicated to it during the administrative procedure.
The scope of the Commission’s duty to state reasons in the case of a multisectoral aid scheme depends – particularly as regards the effect of the scheme on trade between the Member States and on competition – on the data and information communicated to the Commission within the framework of the administrative procedure.
(see paras 227, 230-231, 233, 235, 237)
5. The Commission has a wide discretion when applying Article 87(3)(c) EC, the exercise of which involves complex economic and social assessments which must be made in a Community context.
It is clear from the very wording of Article 87(3)(c) EC and Article 88 EC that the Commission ‘may’ consider aid covered by the first of those two provisions to be compatible with the common market. Accordingly, whilst the Commission must always determine whether State aid subject to review by it is compatible with the common market, even if that aid has not been notified to it, it is not bound to declare such aid compatible with the common market.
The Commission may adopt a policy as to how it will exercise its discretion in the form of measures such as frameworks, communications or guidelines, in so far as those measures contain rules indicating the approach which the institution is to take and do not depart from the rules of the Treaty. Where the Commission adopts such measures which are consistent with the Treaty and are designed to specify the criteria which it intends to apply in the exercise of its discretion, it itself limits that discretion in that it must comply with the indicative rules which it has imposed upon itself. In that context, it is for the Community judicature to verify whether those rules have been observed by the Commission.
(see paras 290-292)
6. Measures to grant or alter State aid must be regarded as new aid. In particular, where the alteration affects the actual substance of the original scheme, the latter is transformed into a new aid scheme. On the other hand, if the alteration is not substantive, only the alteration as such is liable to be classified as new aid.
Thus, the extension to undertakings located in a territory of exemptions intended for another territory introduces a new aid scheme. Even supposing that the new scheme merely extends an existing aid scheme to new beneficiaries, without making a substantive alteration to the existing scheme, such an extension, which is severable from the initial scheme, constitutes new aid which is subject to the obligation to notify.
(see paras 358-359, 362)