Keywords
Summary

Keywords

1. Appeals - Pleas in law - Mere repetition of the pleas and arguments raised before the Court of First Instance - Inadmissible - Challenge to the interpretation or application of Community law by the Court of First Instance - Whether admissible

(EC Statute of the Court of Justice, Arts 49 and 51; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

2. State aid - General aid scheme approved by the Commission - Individual aid which meets the conditions of the general aid scheme - Existing aid - Obligation to notify - None

(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Art. 93 (now Art. 88 EC))

3. Actions for annulment - Interest in bringing proceedings - Decision declaring that implementing measures meet conditions laid down in the decision approving the general State aid scheme - Action brought by competitors of the recipient undertakings - Whether admissible

(EC Treaty, Arts 92 and 173, second para. (now, after amendment, Art. 87 EC and Art 230, second para., EC), and Art. 93(2) and (3) (now Art. 88(2) and (3) EC))

4. State aid - General aid scheme approved by the Commission - Individual aid purporting to be covered by the approval - Scrutiny by the Commission - Scrutiny which can be carried out at any time

(EC Treaty, Art. 93(1) (now Art. 88(1) EC))

5. State aid - General aid scheme approved by the Commission - Individual aid purporting to be covered by the approval - Scrutiny by the Commission - Assessment primarily in the light of the approval decision and only secondarily in the light of the Treaty

(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Art. 93 (now Art. 88 EC))

6. Agriculture - Common agricultural policy - Sugar - Aid granted by the Portuguese Republic - Regulation No 1785/81 - Application of Article 92 of the Treaty (now, after amendment, Article 87 EC), Articles 93 and 94 of the Treaty (now Articles 88 EC and 89 EC)

(EC Treaty, Arts 39, 42, 93 and 94 (now Arts 33 EC, 36 EC, 88 EC and 89 EC), and Arts 43 and 92 (now, after amendment, Arts 37 EC and 87 EC); Council Regulations No 1785/81, Arts 24, 44 and 45, and No 866/90, Art. 16(5); Commission Decision 94/173, annex, point 2.8)

7. Appeals - Pleas in law - Plea put forward for the first time in the appeal - Inadmissible

(Rules of Procedure of the Court, Arts 42(2), and 118)

8. Agriculture - Common agricultural policy - EAGGF financing - Regulation No 866/90 - Examination under Article 92 of the Treaty (now, after amendment, Article 87 EC) and Article 93 thereof (now Article 88 EC) - Excluded

(EC Treaty, Art. 92 (now, after amendment, Art. 87 EC) and Art. 93(2) and (3) and 94 (now Arts 88(2) and (3) and 89 EC); Council Regulation No 866/90, Art. 16(3) to (5))

Summary

1. Where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements under Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure. In reality, such an appeal amounts to no more than a request for re-examination of the application submitted to the Court of First Instance, which, under Article 49 of the Statute of the Court of Justice, falls outside the jurisdiction of the Court of Justice.

However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose.

( see paras 48-49 )

2. Individual grants of aid under a general aid scheme approved by the Commission which meet the conditions of that scheme constitute existing aid which does not need to be notified. Since it is not notified before it is implemented, such aid does not require an express decision by the Commission and its legality can only be assessed by the national courts.

( see para. 60 )

3. If the Commission takes the view that individual measures implementing a general aid scheme meet the conditions laid down by the decision approving that scheme so that they can be classified as existing aid, exempt as such from formal notification and from examination of their compatibility with Article 92 of the Treaty (now, after amendment, Article 87 EC) and Article 93 of the Treaty (now Article 88 EC), it does not confine itself to recording that those measures are in the nature of existing aid. Taking the view that those measures are covered by its decision, it also decides not to open the procedure provided for by Article 93(2) of the Treaty. Undertakings which could have intervened as complainants in such a procedure if the Commission had opened it, would be deprived of that guarantee if they did not have the option of challenging before the Court of First Instance the assessment made by the Commission.

Accordingly, the fact that the individual implementing measures are in the nature of existing aid does not deprive those undertakings of an interest in bringing proceedings, on the ground that such aid might not be covered by the decision approving the general aid scheme and that those undertakings can secure compliance with the procedural guarantees under Article 93(2) of the Treaty only if they are able to challenge the Commission decision before the Community Court.

( see paras 61-62 )

4. The Commission is not prevented, after the adoption of a decision approving a general aid scheme, from examining the compatibility of an individual aid measure with that decision. Such an examination can be carried out at any time under Article 93(1) of the Treaty (now Article 88(1) EC), particularly in the event of any complaints which the Commission may receive.

( see para. 76 )

5. When the Commission has before it a specific grant of aid alleged to have been made in pursuance of a previously authorised scheme, that institution cannot at the outset examine it directly in relation to the Treaty. Prior to the initiation of any procedure, it must first examine whether the aid is covered by the general scheme and satisfies the conditions laid down in the decision approving it. If it did not do so, the Commission could, whenever it examined an individual aid measure, go back on its decision approving the aid scheme, which had already involved an examination in the light of Article 92 of the Treaty (now, after amendment, Article 87 EC), thus jeopardising the principles of the protection of legitimate expectations and legal certainty.

( see para. 83 )

6. Article 44 of Regulation No 1785/81 on the common organisation of the markets in the sugar sector provides that Article 92 of the Treaty (now, after amendment, Article 87 EC), Articles 93 and 94 of the Treaty (now Articles 88 EC and 89 EC) are to apply to the production of, and trade in, sugar. That article also provides that that general rule is to be applicable save as otherwise provided in this Regulation. Article 45 thereof provides that it is to be applied so that appropriate account is taken, at the same time, of the objectives set out in Articles 39 of the EC Treaty (now Article 33 EC). Moreover, Article 24 of that regulation was specifically amended by the Act of Accession of the Kingdom of Spain and the Portuguese Republic so as to allow to that Member State, on its mainland, the benefit of a production quota for sugar. It is clear from those provisions that, while it does not, per se, authorise the payment of State aid to a project intended to utilise that quota, Regulation No 1785/81 in no way precludes that possibility.

Thus, the texts governing the structural and regional policy measures of the Community make provision for the Community, or the Portuguese Republic, to grant financial support for investment projects. First of all, Article 16(5) of Regulation No 866/90, a regulation adopted on the basis of Article 42 of the Treaty (now Article 36 EC) and Article 43 of the Treaty (now, after amendment, Article 37 EC) and thus an integral part of the common agricultural policy, makes provision for Member States to grant, over and above the measures specifically provided for by that regulation, aid for the processing and marketing of agricultural products, under the conditions laid down by Articles 92 to 94 of the Treaty. Next, Decision 94/173 provides, in point 2.8 of its annex, that, as regards the investments liable to benefit from financial aid under the Guidance Section of the EAGGF, by way of exception to the rule which excludes investment in the sugar sector, investment for the purpose of the utilisation of the quota provided for in the Act of Accession of the Kingdom of Spain and the Portuguese Republic may be given Community financing.

( see paras 96-97, 100-102 )

7. Under Article 118 of the Rules of Procedure of the Court of Justice, Article 42(2) of those rules, which prohibits generally the introduction of new pleas in law in the course of the procedure, applies to the procedure before the Court of Justice on appeal from a decision of the Court of First Instance. In an appeal the Court's jurisdiction is thus confined to review of the findings on the pleas argued before the Court of First Instance.

( see para. 112 )

8. Regulation No 866/90 on improving the processing and marketing conditions for agricultural products sets out the conditions under which the Guidance Section of the EAGGF helps to further the objectives of regional cohesion of the common agricultural policy. It lays down as a ground rule, in Article 16(3) and (4), that Member States concerned by investment projects eligible for the Fund must, like the beneficiaries of the Fund, undertake to participate in financing the investments selected by the Commission for assistance from the EAGGF. Co-financing by the Member States is thus not only authorised but required by the regulation.

Article 16(5) of Regulation No 866/90, which provides that Member States may take aid measures which are subject to conditions or rules which differ from those provided for in that regulation, or, where the amounts of aid exceed the ceilings specified therein, on condition that such measures comply with Article 92 (now, after amendment, Article 87 EC), Articles 93 and 94 of the Treaty (now Articles 88 EC and 89 EC), thus does not concern the national financial contribution required by Article 16(3) and (4) of that regulation but the aid which the Member States wish to give, over and above their obligatory contribution, to the investment projects eligible for the Guidance Section of the EAGGF.

Accordingly, the Court of First Instance did not misapply Community law in holding that the co-financing provided by a Member State to an investment project eligible for the Guidance Section of the EAGGF, must be assessed in the context of the common action undertaken in accordance with Regulation No 866/90 and cannot be the subject of examination under Articles 92 and 93 of the Treaty.

( see paras 121-123 )