Case T‑139/09

French Republic

v

European Commission

(State aid — Fruit and vegetable sector — ‘Contingency plans’ seeking to support the fruit and vegetable market in France — Decision declaring the aid incompatible with the common market — Concept of State aid — State resources — Co-financing by a public institution and by voluntary contributions from farmers’ organisations — Arguments not raised during the administrative procedure — Duty to state reasons)

Summary — Judgment of the General Court (Sixth Chamber), 27 September 2012

1.      Acts of the institutions — Statement of reasons — Obligation — Scope — Commission decision on State aid

(Arts 87 EC and 253 EC)

2.      State aid — Commission decision finding aid incompatible with the common market — Duty to state reasons — Scope — Assessment of the concept of State resources where measures are financed by both State contributions and voluntary contributions from professionals in a sector

(Art. 87 EC)

3.      State aid — Commission decision — Assessment of legality by reference to the information available at the time of adoption of the decision — Member State’s duty to cooperate

(Art. 87 EC; Council Regulation No 659/1999, Art. 13(1))

4.      State aid — Concept — Aid coming from State resources

(Art. 87 EC)

5.      State aid — Concept — Aid coming from State resources — Measures financed by both State contributions and voluntary contributions from professionals in a sector — Relevant criterion — Degree of intervention of the public authority in the definition of measures financed by professional contributions and their methods of financing

(Art. 87 EC)

1.      See the text of the decision.

(see paras 37-39)

2.      See the text of the decision.

(see paras 41-46)

3.      A Member State which has granted or seeks to be allowed to grant aid under one of the exceptions provided for in the Treaty rules has a duty to cooperate with the Commission in the proceeding in which it takes part, pursuant to which it must in particular provide all the information necessary to enable the Commission to verify that the conditions for the derogation sought are fulfilled. The legality of a decision concerning State aid falls to be assessed in the light of the information available to the Commission at the time when the decision was adopted. It follows therefrom in particular that, since the concept of State aid must be applied to an objective situation appraised on the date on which the Commission takes its decision, it is the appraisals carried out on that date which must be taken into account in the conduct of the review. Thus, where there is no information to the contrary from interested parties, the Commission is empowered to take as its basis the factual elements it has at the time it adopts its final decision, even if they are incorrect, provided that the factual elements in question were the subject of an information injunction issued by the Commission to the Member State to provide it with the necessary information.

It is apparent from Article 13(1) of Regulation (EC) No 659/1999, laying down detailed rules for the application of Article 88 EC, that, at the end of the formal investigation procedure into unlawful aid, the decision shall be taken by the Commission on the basis of the information available, in particular that supplied by the Member State in response to the Commission’s requests for information.

It follows from the principle of effectiveness of the administrative procedure that a Member State cannot for the first time at the judicial stage challenge the contents of factual observations made by an interested third party during the administrative procedure, when in fact the observations had been sent to it.

(see paras 52-53, 55)

4.      See the text of the decision.

(see paras 57-60)

5.      The fact that a subsidy scheme benefiting certain economic operators in a given sector is wholly or partially financed by contributions imposed by the public authority and levied on the undertakings concerned is not sufficient to take away from that scheme its status of aid granted by the State within the meaning of Article 87(1) EC.

Conversely, funds collected by a public body by way of contributions taken only from the economic operators who benefit from the measures in question but which have never been made available to the national authorities and which were used to finance specific actions by those operators alone cannot be categorised as State resources.

Thus, the relevant criterion in order to assess whether the resources are public, whatever their initial origin, is that of the degree of intervention of the public authority in the definition of the measures in question and their methods of financing. The mere fact that the contributions of the economic operators concerned to the partial financing of the measures in question are only voluntary and not obligatory is not sufficient to call that principle into question. The degree of intervention of the public authority as regards those contributions may be great, even where those contributions are not obligatory.

As regards the assessment of the role of the public authority in the definition of the disputed measures, it is for the General Court to make an overall assessment, without it being possible to draw a distinction according to their method of financing, since the public and private contributions have been put together and mixed in an operational fund.

Where the definition of the disputed measures and how they were financed was carried out by a public industrial and commercial institution under the supervision of the State and the beneficiaries of the measures had the power only to participate or not in the system thus defined by the institution, by agreeing or refusing to pay the sectoral contribution which it fixed, the view must be taken that those measures constituted State aid within the meaning of Article 87(1) EC.

(see paras 61-64, 66, 88)