OPINION OF ADVOCATE GENERAL
RUIZ-JARABO COLOMER
delivered on 28 April 2005 (1)
Joined Cases C-346/03 and C-529/03
Francesco Atzori, Giuseppe Atzeni and Giuseppe Ignazio Boi
and
Marco Scalas and Renato Lilliu
v
Regione Autonoma della Sardegna
(References for a preliminary ruling from the Tribunale di Cagliari (Italy))
(State aid – Decision declaring that aid granted by the Region of Sardinia to agricultural undertakings is unlawful and incompatible – Admissibility of the questions referred – Application of the rules on competition to agriculture – Principle of the protection of legitimate expectations – Procedural defects – Statement of reasons – Compatibility of the aid)
Table of contents
I – Introduction
II – Community legal framework
A – General rules governing State aid
B – State aid in agriculture
III – Facts of the main proceedings
A – The granting of aid by the Regional Executive of Sardinia
1. Regional Law No 44/1988
2. Application of Regional Law No 44/1988
a) Decision of 30 December 1988
b) Decision of 27 June 1990
c) Decision of 20 November 1990
d) Decision of 26 June 1992
3. Regional Law No 17/1992
B – Procedure followed by the Commission
C – Decision 97/612
1. Statement of reasons
2. Operative part
D – Recovery of the aid
E – Proceedings before the Tribunale di Cagliari
IV – The actions for annulment
V – The questions referred and the procedure before the Court of Justice
VI – Admissibility of the questions referred
A – Situation
B – General considerations
C – Actions for annulment and references for a preliminary ruling on validity
1. Actions for annulment
a) Ordinary form
b) Locus standi of individuals
i) Measures which may be challenged
ii) Direct and individual concern
2. References for a preliminary ruling on validity
3. Relationship between actions for annulment and references for a preliminary ruling on validity
a) Complementarity
b) Coexistence
D – Content of the Decision and the possibilities for challenging it
1. Content
2. Actionability
VII – Consideration of the validity of the Decision
A – Legal basis
1. The relationship between agricultural policy and competition policy
a) Introduction
b) Application of the rules on State aid to agriculture
c) Secondary legislation
2. Legal basis of the Decision
a) The system of aid provided for by Regional Law No 44/1988
b) The aid granted by the decisions of the ‘Giunta Regionale’
i) Glasshouse crops
ii) Forestry holdings
iii) Rabbit farmers
iv) Indebted agricultural holdings
c) Conclusion
B – Breach of the principle of the protection of legitimate expectations
1. Substance of the principle
2. Legitimate expectations in the field of State aid
3. Application to the situation at issue
a) Unlawfulness
b) Incompatibility
i) Preliminary investigations
ii) Formal procedure
c) Overall assessment
C – Other defects
1. Procedural irregularities
2. Statement of reasons
3. Compatibility of the aid
a) Article 87(2)(b) EC
b) Article 87(3)(a) and (c) EC
VIII – Consequences of validity
IX – Conclusion
I – Introduction
1. Two investigating judges in the civil division of the Tribunale di Cagliari (Cagliari District Court) (Italy) have referred to the Court of Justice questions on the validity of Decision 97/612/EC of 16 April 1997 (‘the Decision’), (2) by which the Commission declares the aid granted by the Executive of Sardinia in the agricultural sector under Regional Law No 44/1988 to be unlawful and incompatible with the common market pursuant to Article 87(1) EC.
2. Without prejudice to the various grounds put forward in connection with the unlawfulness of the Decision, the Court of Justice must give a ruling on three fundamental issues: the admissibility of the questions referred, the application to the agricultural sector of the general rules on competition set out in the Treaty and the principle of the protection of legitimate expectations as a ground for annulment.
3. First, there is the question of the special nature of the relationship between actions for annulment and references for a preliminary ruling, which relates in part to the debate concerning access for individuals to the Community courts, since the measure the validity of which the Italian judges are now questioning was contested before the Court of First Instance.
4. Secondly, reference is made to the legal basis of the decision adopted, the crux of the uncertainty of the national court, which takes the view that the competition rules on which the Decision is based are not applicable.
5. Then, it is necessary to consider the effect of the principle of the protection of legitimate expectations in relation to public incentives, not so much as a precondition for the financial liability of a State which fails to fulfil its obligations towards the Community, but as a reason for annulling measures adopted by a Community institution.
6. Finally, it is necessary to consider the other grounds for annulment relied on, which relate to the procedure for adopting the provision, the reasons on which it is based and the compatibility of the aid.
II – Community legal framework
A – General rules governing State aid
7. According to Milton and Rose Friedman, the effect of intervention by a government in favour of its domestic undertakings is that the undertakings of other countries seek assistance from their own governments to counter the measures taken (3) by the first. Leaving aside the controversy concerning the survival of subsidies (a feature of the wider debate regarding government intervention in national economies), such action by States justifies the Community’s concern in relation to these matters, given the effect that public aid has on achieving the internal market, the introduction of which entails increasingly fierce competition between economic operators, and with it the risk that such aid may not remain neutral. (4)
8. The EC Treaty devotes three articles to this subject, forming part of the rules on competition, which have proved to possess extraordinary legal vitality: (5)
1) Article 87 EC:
– Paragraph 1 declares any aid affecting trade between Member States which distorts competition or threatens to do so by favouring certain undertakings or the production of certain goods incompatible with the common market.
There are two derogations from that general rule, which are set out in the following paragraphs.
– Paragraph 2 recognises certain aid having a social character, aid arising as a result of extraordinary occurrences and aid intended to benefit certain German areas as being compatible in any event (‘shall’).
– Under Paragraph 3, aid granted to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment, and in the other circumstances expressly provided for, is permitted (‘may’) to be considered compatible.
2) Article 88 EC: (6)
– Paragraph 1 requires the Commission to review the systems of aid of the Member States.
– According to paragraph 2, where the Commission finds that any such aid is not compatible with the common market, it must request that the State abolish or alter such aid (and may refer the matter to the Court of Justice direct); in exceptional circumstances, the Council may decide otherwise.
– Paragraph 3 compels States to inform the Commission of plans to grant or alter aid, so that, if such aid distorts the common market, the Commission may initiate the procedure provided for in paragraph 2.
3) Article 89 EC:
– This allows the Council to adopt any appropriate regulations for the application of Articles 87 and 88 and in particular to determine the conditions in which Article 88(3) is to apply and the categories of aid exempted.
9. A reading of those articles shows that State aid is reviewed in three stages: during the first stage, States must notify any proposals to grant aid; during the second stage, the Commission reviews the plans and keeps existing ones under constant review; during the final stage, any advantages obtained unlawfully or which are incompatible with the common market are recovered. In any event, the effectiveness of the system depends on cooperation between the Member States and the Commission, which has been given an exclusive role in ensuring a system of undistorted competition.
B – State aid in agriculture
10. The above rules affect any public benefit granted to specific undertakings or for the production of specific goods, irrespective of the economic activity pursued. Nevertheless, those provisions are subject to certain derogations in the transport sector (Articles 73 EC, 76 EC and 78 EC) and in matters of national security (Article 296(1)(b) EC).
11. In the agricultural sector, there is also a special rule in Article 36 EC, which states that:
‘[t]he provisions of the chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the Council within the framework of Article 37(2) and (3) and in accordance with the procedure laid down therein, account being taken of the objectives set out in Article 33.
The Council may, in particular, authorise the granting of aid:
a) for the protection of enterprises handicapped by structural or natural conditions;
b) within the framework of economic development programmes.’
12. Thus, the Commission’s power to control and supervise subsidies in the agricultural sector, unlike other sectors, does not derive directly from the Treaty, but from provisions adopted by the Council, subject to any restrictions which the latter may have laid down. (7)
13. However, all the regulations establishing the common organisations of the market provide for the use in the relevant field of the rules on competition. Only goods which are not yet covered by such general rules, such as potatoes other than starch potatoes, horsemeat, honey, coffee, alcohol of agricultural origin and vinegars derived from alcohol, and cork, are subject to Article 4 of Council Regulation No 26 of 4 April 1962 applying certain rules of competition to production of and trade in agricultural products, (8) which states that:
‘[t]he provisions of Article [88](1) and of the first sentence of Article [88](3) of the Treaty shall apply to aids granted for production of or trade in the products listed in [Annex I] to the Treaty.’
III – Facts of the main proceedings
A – The granting of aid by the Regional Executive of Sardinia
1. Regional Law No 44/1988
14. On 13 December 1988, the Autonomous Region of Sardinia approved Law No 44/1988 (9) establishing an agricultural guarantee fund.
15. Article 5 grants aid to farms whose financial situation is affected by adverse circumstances. In order to contribute to the liquidity of the holdings, it allows loans to be granted for a maximum term of fifteen years (including a three-year grace period) and at reduced rates of interest, to consolidate short-term financial liabilities.
16. Those loans, according to paragraph 4 of that Law, are governed not only by the legislation providing for them but also by Law No 1760 of 5 July 1928 (Measures on Agricultural Loans). (10)
2. Application of Regional Law No 44/1988
17. It is for the ‘Giunta Regionale’ (Regional Executive) to determine, by means of an ad hoc decision in each case, the terms of the loan and in particular the circumstances which justify intervention, the sector or sectors concerned, the amount of the loan in relation to the degree of indebtedness, and the period of assistance. It has done so on four occasions.
a) Decision of 30 December 1988 (11)
18. The adverse circumstance which caused the crisis was the fall in the prices of glasshouse products, which meant that costs were not covered.
19. For a loan to be granted, the recipient farm’s short-term indebtedness had to be equal to or greater than 75% of the value of its gross output in the year under consideration. The funding period was set at the maximum permitted by the basic law (fifteen years).
b) Decision of 27 June 1990 (12)
20. In view of the situation of forestry holdings, it was decided that the benefits provided for in Article 5 of Law No 44/1988 should be made available to owners of plantations which were not yet ready for commercial felling, for the purposes of paying off or consolidating debts contracted in order to make investments and manage plantations which fell due before 30 June 1990, and with a view to covering the overdrafts outstanding on that date and the current liabilities to employees (in respect of wages), to landowners (in respect of rent) and to suppliers (in respect of goods).
21. As in the previous case, the only requirement was that the total amount of the short-term debts should be equal to or greater than 75% of gross output, although the term of the loans was set at 13 years (with a three-year pre-redemption period).
c) Decision of 20 November 1990 (13)
22. As a result of a disease which seriously affected the area in the spring of 1990, there was a decline in the output of rabbit farmers’ holdings.
23. Those who lost at least 20% of their animals benefited in two ways: (a) from loans at reduced interest rates over a term of fifteen years (including a three-year pre-redemption period) which covered up to two annual (or four half-yearly) repayments on existing long-term loans; and (b) from an amount equal to the holding’s financial requirements for one year.
d) Decision of 26 June 1992 (14)
24. In this case, the aid was granted to all farmers because of the gradual deterioration in market conditions and the worsening weather.
25. It was conditional upon the short-term indebtedness of the business amounting to at least 51% of gross production in 1991. The funding, granted for fifteen years (including a three-year pre-redemption period), could be used to cover operating loans at reduced interest rates, debts on medium-term loans (except those granted for the purchase of agricultural machinery) and outstanding repayments on multiannual loans granted in relation to losses suffered in natural disasters.
3. Regional Law No 17/1992
26. Regional Law No 17/1992 of 27 August 1992 (15) contains the technical provisions for implementing the financial operations carried out under Article 5 of Regional Law No 44/1988.
B – Procedure followed by the Commission
27. On 1 September 1992 Italy notified the Commission of Regional Law No 17/1992, a formality it had failed to complete in relation to Regional Law No 44/1988 and the other provisions adopted under it.
28. That communication was given the number N 557/93 and elicited two letters from the Commission, one of 29 October 1992 and the other of 27 May 1993, requesting from the national authorities additional information which was provided on 24 March 1993, 2 April 1993 and 3 December 1993. On 28 February 1994, further information was sought, and this was provided on 25 April 1994.
29. On 1 August 1994, the Commission adopted a decision initiating against Italy the procedure set out in Article 93(2) of the EC Treaty (now Article 88 EC) in connection, on the one hand, with the aid provided for under Article 5 of Regional Law No 44/1988, which, on account of ‘... the excessively general terms in which it is formulated, is not likely to ensure compliance with Community criteria on aid to agricultural enterprises in difficulty’, and, on the other hand, with the decisions of the Regional Executive of Sardinia, since, on the basis of the information available to the Commission, those decisions appear to be incompatible with the aforementioned Community criteria.
30. By means of a communication published in the Official Journal of the European Communities (16) which reproduced the letter it had sent, the Commission invited Italy, the other Member States and interested third parties to submit comments.
31. The Italian Government made its submissions in letters of 30 January, 25 August and 1 December 1995.
32. In the course of other proceedings, however, the Commission became aware of Regional Law No 33 of 5 December 1995, (17) Article 36(4) of which provided that the aid under Article 5 of Regional Law No 44/1988 had to be given to agricultural holdings in difficulties in accordance with ‘the relevant criteria adopted by the Community’. This prompted a request for further clarification on 21 December 1995, which was received on 22 February 1996.
33. The explanations provided did not convince the Commission, which, in the Decision of 25 July 1996, stated that the amendment made in 1995 would be examined in conjunction with the entire scheme. Nevertheless, on the ground that no details had been provided as to how that reform was applied, the Commission notified Italy that the information available to it was not sufficient to allow it to reach any decision on the new legislation.
C – Decision 97/612
34. Decision 97/612 of 16 April 1997 brought to an end the procedure initiated on 1 August 1994. It forms the subject-matter of the questions referred for a preliminary ruling, and it is therefore appropriate briefly to explain its content, which falls into two distinct parts: the first sets out the reasons for the operative provisions contained in the second.
1. Statement of reasons
35. The recitals in the preamble set out the details of Regional Law No 44/1988 and the decisions of the Executive of Sardinia granting the benefits, the doubts expressed as to compatibility with the common market, the comments submitted by Italy, and the finding that the measures are unlawful and incompatible with free competition.
36. It is argued that the fact that the legislation introduced was not notified beforehand and was implemented without the Commission’s having had the opportunity to express its views ‘gives rise to a particularly serious situation’, given that Italy neither refuted the applicability of the rules on aid to farms in difficulty nor requested that the criteria contained in the guidelines on State aid for rescuing and restructuring firms in difficulty (18) should be applied. In relation to those guidelines, it is submitted that, although they had entered into force after the procedure was initiated, the subsidies granted cannot be regarded as rescue aid, given the type of loan taken out, or restructuring aid, since there was no plan to restore the economic viability of the undertakings without adversely affecting competition, the function of which is not replaced by the analysis carried out by the banks concerning the financial solvency of the borrowers.
37. The Commission also explains why it does not concur with the Italian Government’s line of argument as to the causes of the excessive indebtedness of the beneficiary farms: climatic factors (drought) are normal risks in farming, market crises are borne by all operators, the lack of marketing organisation is not external to the business and high interest rates would justify only subsidies confined to what is strictly necessary to make up the difference between the rate agreed and the current rate.
38. More specifically, with respect to forestry undertakings, it resolves the discrepancy as to the meaning of investment expenditure, since the incentives were intended to cover debts deriving from the normal operation of the business and to meet the costs of social charges, wages or supplies. Moreover, as regards rabbit farmers, there is no guarantee either that an eradication programme will be approved or that the loan will be reduced by an amount less than that lost. In any event, it has not been shown that the criteria governing aid were satisfied on either occasion.
39. The Commission then notes that the scheme under consideration has a direct effect on costs, and that the beneficiaries therefore have an advantage over other producers which distorts the parameters of intra-Community trade. It infers from this that the scheme is incompatible with the common market pursuant to Article 87(1) and does not fall within any of the exceptions provided for in Article 87(2) or (3).
40. The exceptions recognised in Article 87(2)(a) and (c) are manifestly inapplicable, and no information has been provided to support the applicability of that set out in Article 87(2)(b).
41. The exemptions in Article 87(3) show that the aid for which it provides must be required in order to achieve one of the objectives set out in that paragraph, a question which cannot be answered in this case, since ‘Italy has not provided, nor has the Commission found’ any arguments in this regard. In particular, as regards the specific circumstances referred to in Article 87(a) and (c), the Commission ‘considers, in the light of the foregoing and the applicable Community rules, that, because they take the form of operating aid, the measures in question are not likely to bring about a lasting improvement in conditions in the sector and region involved’.
42. In the final comments in the recitals in the preamble, the Commission argues that the financial advantages unduly received, which consist in the difference between the market cost of bank loans to consolidate liabilities and the cost borne by the beneficiaries, should be recovered.
2. Operative part
43. The Decision accordingly provides as follows:
– The aid granted by the Region of Sardinia under Article 5 of Regional Law No 44/1988 and in the decisions of the Giunta Regionale of 30 December 1988, 27 June and 20 November 1990 and 26 June 1992 is declared illegal and incompatible with the common market (Article 1).
– Italy is required, within two months from the date of notification of the Decision, to abolish the aid and, within six months, to adopt the measures necessary to recover it, by means of reimbursement (Article 2).
– Italy must inform the Commission of the measures adopted to comply with the Decision and ensure that this can be verified (Article 3).
– The Decision is addressed to the ‘Italian Republic’ (Article 4).
D – Recovery of the aid
44. The Autonomous Region of Sardinia implemented the Decision by means of the following provisions:
– it suspended transfers to the banks of its share of the interest with effect from the first half of 1997;
– it repealed Article 5 of Regional Law No 44/1988;
– it abolished the aid granted under the Decrees of the ‘Assessorato all’Agricultura’ of 18 December 1997.
45. According to the first of the orders for reference, these measures were notified to the parties concerned on 16 November 2001.
E – Proceedings before the Tribunale di Cagliari
46. Guiseppe Atzeni and 51 other persons brought before the Tribunale di Cagliari a civil action against the Autonomous Region of Sardinia which was registered under number 3/2003. Marco Antonio Scalas, Renato Lilliu and 389 other persons did likewise, their application having been registered at the Tribunale di Cagliari under number 5777/2003.
47. In the first case, the claimants seek an order disapplying the regional provisions abolishing the subsidies and requiring the defendant to pay the amounts owed by them. In the alternative, they seek a declaration that the Community rules have been infringed and an award of compensation for the damage caused.
48. In the second case, the claimants seek an order exempting them from the duty to reimburse and requiring the region to transfer to the credit institutions its contribution to the interest. They also ask, in the event that the contested measure is valid, that the administration be held liable and that compensation be awarded for the damage suffered.
49. In both cases, the national court is asked to make a reference to the Court of Justice for a preliminary ruling on the validity of the Commission Decision.
IV – The actions for annulment
50. In addition to seeking relief from the national courts, Mr Atzeni and other farmers brought before the Court of First Instance an action for the annulment of the Commission Decision (19) (it was stated at the hearing that Mr Scalas and Mr Lilliu did not).
51. In the course of those proceedings, the Commission raised objections of inadmissibility against the action on two grounds: the proceedings had been brought out of time and the claimants were not individually concerned by the contested measure.
52. By order of 29 May 2002, (20) the Court of First Instance allowed the objection with respect to the first ground and did not consider the other. It held that, since the contested Decision had been published in the Official Journal of 11 September 1997 and proceedings had not been brought before it until 25 January 2002, the action was out of time and therefore inadmissible.
53. Other similar actions were dealt with in the same way. (21)
V – The questions referred and the procedure before the Court of Justice
54. The investigating judges in the civil division of the Tribunale di Cagliari stayed proceedings in both cases and made references to the Court of Justice for preliminary rulings on the validity of the Decision.
55. In the order of 29 April 2003, which gave rise to Case C-346/03, the following defects are set out:
‘a) lack of competence of the Commission to adopt the contested decision inasmuch as it infringes Article 32 of the Treaty on European Union in conjunction with Articles 33, 34, 35, 36, 37 and 38 thereof;
b) infringement of the rules which govern the procedure provided for in Article 88(1) of the Treaty on European Union;
c) infringement of the rules which govern the procedure provided for in Article 88(2) and (3) of the Treaty on European Union;
d) failure to provide a statement of reasons as required by Article 253 of the Treaty on European Union in conjunction with Articles 88(3) and 87(1) thereof;
e) infringement and misapplication of Council Regulation No 797/85 on improving the efficiency of agricultural structures;
f) infringement of and failure to observe “practice for aid to farms in difficulty” and the “Community guidelines on State aid for rescuing and restructuring firms in difficulty”.’
56. The order of 20 October 2003, which gave rise to Case C-529/03, in addition to reproducing the points made in the previous court order, sets out other grounds of invalidity. In that regard, it refers to the principle of the protection of legitimate expectations, in view of the time which elapsed between the publication of Regional Law No 44/1988, the initiation of the infringement proceedings, the adoption of the Decision and the request for reimbursement from each farmer. It also points up the failure of the Community measure to state the reasons on which it is based, an issue which it clarifies by reference to other factors.
57. Written observations were submitted to the Court within the period prescribed by Article 20 of the Statute of the Court of Justice by Mr Scalas and Mr Lilliu, claimants in the main proceedings giving rise to Case C-529/03, and the Commission.
58. By order of 6 May 2004, the two cases were joined for the purposes of the oral procedure, the Opinion and the judgment.
59. At the hearing, held on 16 February 2005, the representatives of Mr Atzeni and others, of Mr Scalas and Mr Lilliu, and the Commission’s representative appeared to present oral argument.
60. It should also be pointed out that the Tribunale di Cagliari made a third reference for a preliminary ruling. It gave rise to Case C-285/04 Medda, the proceedings in which have been halted pending the answer to be given in the two cases under consideration here.
VI – Admissibility of the questions referred
A – Situation
61. In its observations, the Commission raises the interesting issue of the procedural consequences arising where the same decision is contested directly and indirectly. This is no trivial matter since it may lead to the inadmissibility of the questions referred by the Italian court, a question which the Court must consider of its own motion as a requirement essential to the proper conduct of the proceedings.
62. At first sight, the situation seems straightforward: a decision declaring certain State aid to be unlawful and incompatible with the common market, which is addressed to a Member State, is contested by individuals who, on the one hand, bring an action for annulment before the Court of First Instance of the European Communities and, on the other hand, challenge the measures adopted by their country to comply with the Community measure, the validity of which they dispute in proceedings brought before the national courts.
63. However, the matter is more complex, since there are other factors to be taken into account: the Court of First Instance did not rule on the locus standi of the applicants; the Decision is not confined to an analysis of the aid granted, but also considers the legislation governing that aid; and, fundamentally, the rules in the EC Treaty governing the remedies available to individuals seem unsatisfactory.
B – General considerations
64. Any legal order combines various kinds of legislative instrument structured according to the principle of hierarchy. At the top is the Constitution, followed, at lower levels, by laws and by regulations. Leaving aside the first, in which the sovereign people are the architects of the system, these instruments are general provisions enacted by the established authorities, be they the representatives of the people or the administration.
65. Alongside them, there are other instruments of varying importance, normally adopted by the administration, which cannot easily be distinguished from laws and regulations, although a helpful method for doing so is to ascertain whether they cease to have effect once they have served their purpose or whether they create law, rather than whether they are addressed to one or more than one individual.
66. Against that background, two important points must be made. First, it is appropriate to restrict the locus standi of individuals to contest directly general provisions of the highest rank, that is to say laws, since they are adopted by the representatives of the people and are held up to criticism during elections; however, while it is true that incompatibility with the Constitution is challenged by other means, the above justification does not hold good where the measures are not adopted by legislative bodies. Secondly, citizens must challenge the measures within the periods expressly prescribed, a requirement which safeguards the principle of legal certainty, although, on occasion, the requirements of the principle of legality make it appropriate to allow such measures to be contested indirectly, through the provisions implementing them.
67. Transferring the abovementioned ideas to the Community sphere poses serious difficulties resulting from the special characteristics of the legal framework in force – it has been called regulatory chaos (22) – and the restrictions imposed on natural and legal persons when it comes to contesting decisions adopted by the institutions, although the Treaty establishing a Constitution for Europe (23) simplifies matters by drawing a clear distinction in Article I-33 et seq. between legislative acts (laws and framework laws) and non-legislative acts (regulations and decisions), (24) and by defining the circumstances in which individuals may bring proceedings before the Court of Justice. (25)
C – Actions for annulment and references for a preliminary ruling on validity
1. Actions for annulment (26)
a) Ordinary form
68. Actions for annulment were created with a dual aim: to monitor compliance with Community law by the institutions and to safeguard the rights of the applicants (natural and legal persons, Member States and institutions). (27)
69. Their subject-matter is restricted to acts adopted jointly by the European Parliament and the Council, acts of the Council, acts of the Commission and acts of the European Central Bank other than recommendations and opinions, as well as acts of the European Parliament ‘intended to produce legal effects vis-à-vis third parties’ (first paragraph of Article 230 EC). It is also possible to bring actions for annulment against measures adopted by the Board of Governors and by the Board of Directors of the European Investment Bank (Article 237(b) and (c) EC). (28)
70. The grounds on which such an action may be based are limited to lack of competence, infringement of an essential procedural requirement, infringement of the Treaty or of any rule of law relating to its application, and misuse of powers (second paragraph of Article 230 EC). The first two grounds relate to external legality, and may be raised by the Court of its own motion, (29) whereas the last two are concerned with internal legality and must be raised by the parties concerned.
71. The restriction on locus standi to bring such an action is one of its principal features. Unlike the privileged applicants (the Member States, the European Parliament, the Commission and the Council), the Court of Auditors and the European Central Bank may use this procedure only to protect their prerogatives, and natural or legal persons are permitted only to dispute decisions addressed to them or those which, although in the form of a regulation or a decision addressed to another person, are of direct and individual concern to them (third and fourth paragraphs of Article 230 EC). (30)
b) Locus standi of individuals
72. It follows from the above that the right of access of individuals to the Court of Justice is restricted in two ways: through the limit on the measures against which an action may be brought and through the requirement of certain personal attributes for that purpose.
i) Measures which may be challenged
73. The first limitation is that general provisions cannot be directly challenged, this being permitted only in relation to decisions. Regulations therefore cannot be challenged in this way, unless they conceal what is really a decision, since, in that event, the Court has held that the choice of form of a measure does not alter its nature. (31)
74. Nonetheless, defining when an act is and is not open to challenge is a difficult exercise. It is worth pointing out that, according to the judgment in Confédération nationale des producteurs de fruits et légumes and Others v Council, (32) the basic distinguishing criterion lies in the scope of the act, since a decision is addressed to a limited number of persons, whereas a regulation is addressed to categories of persons viewed in a general and abstract manner. However, the general application, and thus the legislative nature, of a measure is not called in question by the fact that it is possible to determine more or less precisely the number or even the identity of the persons to whom it applies at any given time, as long as it is established that it corresponds to an objective legal or factual situation defined by the measure in question in relation to its purpose. (33)
75. On the other hand, it cannot be ignored that decisions addressed to the Member States are, in fact, usually of a legislative nature, since they are framed in a general and abstract manner for situations defined by reference to neutral parameters.
ii) Direct and individual concern
76. The fact that a provision is actionable is not sufficient to confer on a person the right to bring an action for its annulment under Community law, since, as I pointed out in my Opinion in Comité d’entreprise de la Société française de production and Others v Commission, (34) ‘[o]nly the cumulative conditions that a person to whom the decision is not addressed should be directly and individually concerned confers on that person the right to bring proceedings’ (point 15).
77. Direct concern exists, in principle, where a causal link is established between a decision and a change in the subjective legal position of the person concerned, although the decision may sometimes require the adoption of implementing measures by the national authorities. (35)
78. With regard to the other condition, (36) the predominant rule is that first formulated in the judgment in Plaumann v Commission, (37) and consistently endorsed, (38) to the effect that persons other than those to whom a Community measure is addressed are not individually concerned unless that measure ‘affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the person addressed’.
79. Accordingly, in Van der Kooy and Others v Commission, (39) the Court held that an undertaking cannot, in principle, contest a Commission decision prohibiting incentives for a particular sector if the undertaking receives them only because it forms part of the sector concerned and because of its objective capacity as a potential beneficiary of that scheme, since they are measures of general application, prescribed for situations determined objectively, which entail legal effects for categories of persons viewed in a general and abstract manner (paragraph 15). On the contrary, as the Court held in the judgment in Italy and Sardegna Lines v Commission, referred to above, a person who is a beneficiary of the aid must also be individually concerned (paragraphs 34 to 36). (40)
2. References for a preliminary ruling on validity
80. The Treaty established a complete system of legal remedies designed to permit the Court of Justice to review the legality of measures adopted by the institutions. (41) It follows that the limitations inherent in actions for annulment are overcome by other mechanisms, foremost among which is the reference for a preliminary ruling on validity, (42) which fulfils the same purpose.
81. In such cases, the party concerned brings an action before the national court challenging a measure adopted by the national authorities on the ground that the Community provision on which the measure is based is unlawful.
82. Without prejudice to the requirements laid down in the procedural laws of each Member State, this form of review offsets the disadvantages resulting from the time-limit for bringing proceedings and the limited locus standi in relation to actions before the Community courts.
3. Relationship between actions for annulment and references for a preliminary ruling on validity
83. The preceding paragraphs show that the two procedures complement each other and can coexist.
a) Complementarity
84. Unlike an action for annulment, a reference for a preliminary ruling on validity may have as its subject-matter, in addition to decisions and other measures of a similar nature, any general provision. As the Court held in the judgment in Les Verts v European Parliament, cited above, natural and legal persons are thereby protected against general measures which they cannot contest directly. Where the Community institutions are responsible for the administrative implementation of such measures, natural and legal persons may bring a direct action before the Court against implementing provisions which are addressed to them or which are of direct and individual concern to them and, in support of such an action, may plead the illegality of the general measure on which those provisions are based. Where implementation is a matter for the national authorities, natural and legal persons may plead the invalidity of general measures before the national courts and cause the latter to request the Court of Justice for a preliminary ruling (paragraph 23).
85. Consequently, this type of preliminary ruling procedure is appropriate only where it is not possible to bring an action for annulment (43) and a national implementing measure has been adopted. Moreover, if there is no such State measure, it is clearly not possible to make a reference for a preliminary ruling. However, if in the latter case it is not possible to bring a direct action either, the comprehensive nature of the system of remedies is called into question. (44)
b) Coexistence
86. The Court emphasised this feature of the system in Rau and Others, (45) where it held that the possibility of directly challenging the decision adopted by a Community institution ‘does not preclude the possibility of bringing an action in a national court against a measure adopted by a national authority for the implementation of that decision on the ground that the latter decision is unlawful’ (paragraph 12).
87. However, the effect of an absolute entitlement to make a reference for a preliminary ruling in relation to a decision which was not challenged in good time, even though it could have been, would be to circumvent the preclusive effect of the time-limits and the other consequences resulting from them. (46) That is why, in Deggendorf, (47) the Court of Justice applied to individuals the rule it had developed in relation to the Member States, by holding that the requirements of legal certainty prevent a recipient of aid, forming the subject-matter of a Commission decision, who could have challenged that decision but had allowed the mandatory time-limit laid down by the Treaty to expire, from challenging the lawfulness of that measure before the national courts in an action brought against the national implementing provision (paragraph 17) even, it may be inferred from the judgments in Accrington Beef(48) and Wiljo, (49) where the measure is addressed to a State, provided that the authorities of that State have notified the party concerned of the measure in good time for it to be contested. (50)
88. The rule in Deggendorf is highly questionable (51) and at some point the Court of Justice must resolve to formulate it more precisely or overrule it, since it is open to significant objections:
a) It is based on legal certainty, but that principle does not rank the two remedies hierarchically and it does not always take precedence over the principle of legality; it should be pointed out that there are some circumstances falling within the ambit of the law of the Union in which that priority does not apply, since the plea of illegality provided for in Article 241 EC allows a regulation to be challenged even if the period for challenging it directly has expired. In the interests of legal certainty, it is possible to place temporal limits upon the effects of a judgment, but not to restrict the judicial review of Community acts.
b) It makes no distinction between general provisions and implementing measures but always advocates the same solution. It obliges individuals to bring an action for annulment, even as an interim measure, but does not provide them with an absolute guarantee as to the admissibility of the action on account of the restrictions imposed on locus standi by case-law.
c) It contradicts the judgments in Foto-Frost, Binder and Behn Verpackungsbedarf, (52) in which the references for a preliminary ruling were admitted without debate, despite the fact that the claimants in the main proceedings could have brought actions before the Community court against the Commission decisions the validity of which had been challenged before the national courts. Moreover, in its judgment in Universität Hamburg, (53) the Court recognised that the rejection of an application by an authority of the Member State is the only measure addressed to the individual ‘of which [he] has necessarily been informed in good time and which [he] may challenge in the courts without encountering any difficulty in demonstrating [his] interest in bringing proceedings’. Consequently, ‘in proceedings brought under national law ... the applicant must be able to plead the illegality of the Commission’s decision on which the national decision adopted in his regard is based’ (paragraph 10).
d) It requires the national court to analyse the locus standi of the individual concerned to bring an action for annulment before the Court of Justice and ascertain whether he has done so; however, in the judgment in Rau and Others, cited above, the Court refused to ascertain ‘whether or not the plaintiff in the main proceedings has the possibility of challenging the decision directly before the Court’ (paragraph 11). Moreover, if it had any doubts in that regard, the national court would have to refer a question on interpretation, the outcome of which would determine whether or not a reference for a preliminary ruling on validity could be made. This results in an excessively complicated and artificial system which creates more disadvantages than advantages.
e) Finally, it disregards the basis and nature of the procedure provided for in Article 234 EC as an instrument of judicial cooperation, since, where the person concerned is unable to find a ground for bringing an action for annulment, the national court cannot engage in a dialogue with the Court of Justice, even if it takes the view that the basic Community measure is unlawful or that, in its implementation, defects have arisen which initially went undetected. That is to say, if a reference for a preliminary ruling depended on the conduct of the parties, the judicial cooperation introduced by the Treaty (54) would be undermined since, by the same token, a reference for a preliminary ruling which challenged the validity of a measure on grounds other than those raised in the action for annulment could be declared inadmissible.
89. It is appropriate to point out, finally, that, where a national court has doubts as to the validity of a measure when an action for annulment is pending before the European Court of Justice, the Court, in the judgment in Masterfoods v HB, (55) gives the national court the option of staying proceedings until a definitive decision has been given by the Community court under Article 230 EC or making a reference for a preliminary ruling.
D – Content of the Decision and the possibilities for challenging it
1. Content
90. Article 1 of the Decision states that the aid granted by the Region of Sardinia under Article 5 of Regional Law No 44/1988 and the four decisions of the ‘Giunta Regionale’, referred to above, are illegal and incompatible with the common market. The Decision therefore concerns two areas: the system of aid per se and the specific measures adopted under it.
91. The first finding is general and abstract in character, since it relates to situations which are objectively defined but imprecise; it also requires the abolition of national legislation; finally, it is addressed to an unspecified number of persons. Consequently, individuals are not directly and individually concerned by the measure, and they lack locus standi to challenge it directly.
92. Nevertheless, the Commission’s Decision also concerns the decisions which granted aid to persons identifiable as individuals, who are expressly affected by it in that it requires them to repay that aid. Those persons must therefore be recognised as having the capacity to seek the annulment of the provisions relating to those measures.
2. Actionability
93. This dual focus on the part of the Decision affects the possibilities for challenging it.
94. If the Court of Justice takes the view that the persons concerned could legitimately have contested the Decision directly, the questions referred for a preliminary ruling must be declared inadmissible. If the Court takes the opposing view, no such objection can be upheld.
95. In these cases, although, procedurally, it seems more appropriate to consider first of all whether the claimants have locus standi to bring an action, and then, depending on the outcome, to ascertain whether they have acted within the prescribed period, the Court of First Instance restricted itself to finding that the action for annulment had been brought out of time, in which regard it took into consideration only the date the Decision was published in the Official Journal and the date the application was lodged.
96. On that view, the claimants bear all the adverse affects arising from their delay in bringing the matter before the Court of First Instance.
97. However, that is not necessarily the answer in this instance, taking into account the circumstances of the case and the considerations I have set out above.
98. The Decision was addressed not to those who received the aid, but to the Italian State. Despite the fact that those who received the aid were directly and individually concerned by one aspect of the Decision, neither Italy nor the Commission informed them of it. Personal notification is not the only means of informing those concerned, but it must at least be attempted first, and there is nobody better placed to do so than the person in possession of the relevant records of aid granted. (56) In order to avoid these problems, it would seem appropriate to provide for an effective system for giving notice of both the commencement and termination of procedures to review the lawfulness or compatibility with the common market of State aid; or, at least, to calculate the time-limit for bringing an action for annulment in accordance with the theory of actio nata, in other words, from the accrual of the right of action. Any other solution is a fallacy and an infringement of the right of natural and legal persons to a fair hearing. (57)
99. Furthermore, since the content of the Decision is twofold, it is reasonable to take the view that those individuals have in part been denied direct access to the Community courts and that they are entitled to challenge its legality only indirectly.
100. For all those reasons, the Court should, if it has any doubts in this regard, declare the questions referred to be admissible.
VII – Consideration of the validity of the Decision
101. The national courts take the view that the Decision commits various infringements, which can be grouped into three categories: lack of legal basis, breach of the principle of legitimate expectations, and other defects (both formal – procedural irregularities and failure to provide a statement of reasons – and substantive – incompatibility of the aid with the common market).
A – Legal basis
102. The first ground of invalidity relied upon concerns compliance in the agricultural sector with the rules on subsidies contained in the Treaty. It is argued that, pursuant to Article 36 EC, Article 87 EC, the article on which the Decision is based, is not applicable in that sector since the Council did not include it in Regulation No 26.
103. In order to be able to consider those submissions, it is necessary to examine the relationship between agriculture and the free market and its implications for this case.
1. The relationship between agricultural policy and competition policy
a) Introduction
104. The common agricultural policy is one of the means of securing integration in order to achieve the Community’s economic objectives. This explains why the first of the provisions concerning ‘agriculture’, Article 32 EC, states that ‘[t]he common market shall extend to agriculture and trade in agricultural products’, in which sectors it includes products of the soil, of stockfarming and of fisheries.
105. The importance which the common agricultural policy acquired from the outset does not hide the fact that, as in other fields, consolidation is also achieved in a negative way, through the replacement of State aid with the exercise of economic freedoms in the common market. (58)
106. As Article 2 EC shows and other provisions of the Treaty confirm, that option does not involve an absolute prohibition of all State intervention. A number of exceptions are permitted, albeit subject to the overriding Community interest.
107. In this respect, the objectives set out in Article 33 EC are economic in nature, although one exhibits the social dimension characteristic of certain parts of the EC Treaty. Consequently, Article 34 EC provides for the establishment of ‘a common organisation of agricultural markets’ the provisions of which, depending on the product concerned, range from measures to regulate prices, aids for production and marketing, storage and carryover arrangements and common machinery for stabilising imports or exports, to the basic application of the common rules on competition. (59)
108. The advantages accorded by Member States to agriculture are markedly sectoral; they are measures of economic intervention which are subject to the criteria of the general rules applicable but which exhibit specific characteristics by virtue of the circumstances of the sector in which they are used or of the environmental, public-health or social contexts by which they are often affected.
109. It is therefore wrong to oppose any measure of national aid automatically, since such interference often serves to stimulate competition by restoring to traders the position of equality which had been distorted. There are times when, if it is sufficiently justified and complies with the fundamental principles of State aid, it contributes towards free competition.
b) Application of the rules on State aid to agriculture
110. Despite the fact that many years have now passed since the Treaty entered into force, the relationship between the common agricultural policy and competition policy is not clearly defined, (60) its regulation having been entrusted to secondary legislation. There can be no doubt that, in the past, the situation of European agriculture made it impossible simply to apply to it the rules guaranteeing free competition. Today, however, the obstacles have disappeared, although some refinement is still required. (61) Another option – which is not inconceivable since it could also be accommodated within the Treaty – would be to draft dedicated legislation in this regard.
111. Article 32(2) EC argues in favour of the first option. It provides that, ‘[s]ave as otherwise provided in Articles 33 to 38, the rules laid down for the establishment of the common market shall apply to agricultural products’, thus making the sector subject to the general rules of the common market while protecting its particular requirements.
112. For its part, Article 36 EC makes the use of the rules on competition subject to determination by the Council, ‘account being taken of the objectives set out in Article 33’. (62) While it can be inferred from this that there is a hierarchy in which agricultural policy occupies a privileged position, as the Court held in the judgment in McCarren (63) and, more categorically, in the judgment in Maizena v Council, (64) this arrangement requires the retention of a substratum of free competition failure to comply with which would be incompatible with the common market. (65)
113. The provisions of the Treaty relating to agriculture do not form a closed and independent framework within which there is no scope for the provisions governing competition. The latter, however, form part of a whole, (66) which must not be left out of account. (67)
114. Regulation No 26, cited above, falls within this context. This regulation actually makes it possible to draw up a competition policy specific to the agricultural sector, although no attempt has yet been made to do so. (68) Rather, as I pointed out above, the institutions have sought to ensure, through secondary legislation, that Articles 87 EC to 89 EC are applied to all areas of that sector.
c) Secondary legislation
115. The reference in Article 36 EC to the discretion of the Council received a prompt response in the form of Regulation No 26, applicable to trade in and acquisition of the products listed in Annex I to the Treaty, with the exception of ancillary substances used in production – such as rennet, (69) fertilisers and plant protection products. (70)
116. This horizontal legislation provided that Articles 87 EC, 88(2) EC and 89 EC were not to apply to the abovementioned sphere. However, the initial justification for those exemptions – the fact that the common agricultural policy was in its infancy – was lost when the organisations of the market were introduced. Consequently, even at the time when proposals were made to abolish the restrictions, (71) provision for including the abovementioned articles within agricultural policy had to be made in each partial regulation, as has been the case generally, by means of the corresponding declarations of compliance with the Treaty in relation to State aid, unless those regulations explicitly provide for derogations.
117. The same is not true of goods not subject to a common organisation of the market, which, in the absence of specific rules and under the abovementioned regulation, would be subject only to the provisions of Article 88(1) EC and the first sentence of Article 88(3) EC, the power of the Commission in this regard being confined to making recommendations on State aid, as the Court held in the judgments in St. Nikolaus Brennerei (72) and Société d’iniciatives et de coopération agricoles v Commission. (73)
118. The view may also be taken that the restrictions laid down in Regulation No 26 were provisional, so that, in keeping with the system of the Treaty, at the end of the transitional period, Articles 87 EC and 88 EC would apply in their entirety to agriculture. (74)
119. It follows that, in order to examine the legal basis of a measure adopted by the Commission in this field, it is necessary to ascertain, first, whether it is covered by a regulation which expressly confers the relevant power on the Commission. Then, if appropriate, and if there is no common organisation of the market, it must be determined whether it falls within the scope of Regulation No 26. Finally, if that is not the case, it must be established whether the rules on competition are directly applicable as suggested above, subject to the specific measures authorised.
2. Legal basis of the Decision
120. The Decision is based on Article 88(2) EC (although it also refers to Article 88(3) EC) and Article 87(3) EC. However, the national courts are uncertain whether the Commission has the power to rely on those provisions under Regulation No 26, since that regulation permits the use only of the rules on State aid to which it refers, which do not include the above provisions.
121. Priority must therefore be given to the specific legislation at issue, which must be considered at two levels – the general provisions, laid down in Regional Law No 44/1988, and the specific provisions, determined by the decisions issued under it – in order to arrive at a general conclusion.
a) The system of aid provided for by Regional Law No 44/1988
122. This piece of legislation creates a guarantee fund for agriculture. In particular, Article 5 provides for a system of aid for farms which have been financially affected by adverse circumstances.
123. In such a situation, the Treaty rules on State aid are given effect by Council Regulation (EEC) No 797/85 of 12 March 1985 on improving the efficiency of agricultural structures, (75) amended on numerous occasions, codified and repealed by Council Regulation (EEC) No 2328/91 of 15 July 1991, which has the same title. (76)
124. Article 1 of Regulation No 797/85 introduces a common measure to improve the efficiency of holdings and to contribute towards their development. For its part, Article 1 of Regulation No 2328/91 sets out the objectives of that measure, which include helping improve the efficiency of farms by developing and reorganising their structures and by promoting supplementary activities [Article 1(1)(ii)] and maintaining a viable agricultural community and thus help develop the social fabric of rural areas by ensuring a fair standard of living for farmers and by offsetting the effects of natural handicaps in mountain areas and less-favoured areas [Article 1(1)(iii)].
125. In the light of its purpose, therefore, Regional Law No 44/1988 falls within the scope of those regulations. (77)
126. Consequently, as Regulation No 797/85 requires a measure to comply with Articles 87 EC and 89 EC (Article 31) – as does Regulation No 2328/91 (Articles 12(1) and 35) – the national measures are subject to the Community rules on State aid, and Regulation No 26 is not relevant.
127. In any event, any doubt in this regard would be dispelled by the argument set out above in connection with the direct application to agriculture of the Treaty rules on competition.
b) The aid granted by the decisions of the ‘Giunta Regionale’
128. If the basic framework governing the granting of aid which is set out in the Italian legislation is subject to the rules on State aid, it seems logical that the specific measures adopted under it will be too. However, this does not preclude an analysis of the basis in Community law of the Commission’s Decision concerning the aid granted by the Autonomous Region of Sardinia, it being understood that it is not for the Court of Justice to rule on the Regional Law. (78)
i) Glasshouse crops
129. The Decision of 30 December 1988 provided loans as a result of the fall in the price of glasshouse crops. (79)
130. In accordance with the reasoning set out above, this measure falls within the scope of Regulation No 797/85, which authorises the Commission to apply all the Treaty provisions on State aid.
ii) Forestry holdings
131. The Decision of 27 June 1990 assisted forestry holdings with plantations which were not yet ready for commercial felling.
132. However, although the term ‘agriculture’ as used by the Treaty has a very broad meaning, since it also includes livestock farming and fisheries, it does not include forestry holdings; nor are forestry products considered to be ‘agricultural’ for the purpose of Annex I. The connection between those fields is none the less not ignored. (80)
133. The Commission’s reference to the judgment in Joined Cases C-164/97 and C-165/97 (81) is relevant in this regard. There the Court held that ‘Annex [I] cannot be regarded as covering trees and forestry products even though some, taken in isolation, may fall within the scope of Articles [32 to 38 EC]’.
134. Consequently, if the specific circumstances provided for in Article 36 EC do not obtain, the national measures in question are automatically governed by the general Community rules.
iii) Rabbit farmers
135. Rabbits suffered from a disease which seriously affected the region in the spring of 1990. Rabbit farmers benefited from the aid granted by the Decision of 20 November 1990.
136. Unlike forestry, this sector is treated in the same way as agriculture and is therefore subject to Regulation No 797/85. However, it benefits from a specific regulation: Regulation (EEC) No 827/68 of the Council of 28 June 1968 on the common organisation of the market in certain products listed in Annex [I] to the Treaty. (82)
137. Pursuant to Article 5 of that regulation, Articles 87 EC to 89 EC ‘shall apply to the production of and trade in the products listed in the Annex’, including ‘other live animals’ (point 01.06).
iv) Indebted agricultural holdings
138. As a result of market conditions and deteriorating weather, the Decision of 26 June 1992 provided aid for economic operators meeting certain requirements.
139. Having regard to the dates involved, account must be taken here of Regulation No 2328/91, the material scope of which would include the regional measure in question, with the result that all the Treaty rules on competition are applicable.
c) Conclusion
140. The points set out above justify the application of Articles 87 EC to 89 EC in connection with Regional Law No 44/1988 and the four specific measures adopted under it. There are rules of secondary legislation which make this possible, some of which are specific, such as those aimed at rabbit farmers. However, even if this were not the case, the Court of Justice has a good opportunity to find that the Decision has its basis in the Treaty, having regard to the letter and the spirit of its provisions.
B – Breach of the principle of the protection of legitimate expectations
141. In the orders for reference, much relevance is attached to the long period of time which elapsed between the publication of the regional law, the institution of infringement proceedings against Italy, the adoption of the Commission’s Decision and the claim for reimbursement of the amounts unduly received, these events being viewed in the context of the principle of legitimate expectations, which the claimants consider to have been breached by virtue of the failure to determine whether the aid was compatible with the common market.
1. Substance of the principle
142. The principle of the protection of legitimate expectations is closely connected to the principle of legal certainty, of which it is a specific manifestation, but it does not have the distinctly objective nature of the latter, since it concerns the protection of individual situations. As a result of its subjective nature, the protection it affords depends to a large extent on the circumstances of each case. (83)
143. Although established by the Court of Justice some time ago, (84) its recognition has been a long and gradual process bound up with the development of Community law, and this has made it difficult to arrive at a clear and consistent definition. (85)
144. Over the course of its case-law (86) the Court has established that, in order for the principle to be applicable, a number of conditions must be met. (87) First, there must be a measure adopted by a Community institution which justifies the legitimate expectations of those concerned, for, as the judgment in Kühn shows, (88) the principle may be relied on only if the Commission itself has previously created a situation which can give rise to a legitimate expectation. Secondly, there must be some likelihood that the position of the person concerned will remain unchanged, which likelihood must be capable of being recognised and regarded as such by an external observer, thus acquiring an objective basis and, as a result, constituting a ‘justified expectation’ not contrary to the legal order of the European Union. Thirdly, the interests of those concerned must prevail over the public interest.
145. The problem lies in identifying the ‘basis of the expectation’, for the individual’s situation will merit protection only when this is known. (89)
2. Legitimate expectations in the field of State aid
146. Benefits which are unlawful and incompatible are always recovered, unless this is contrary to a general principle of law. (90) Particularly important among such exceptions is the legitimate expectations of individuals, an issue frequently analysed in case-law the resolution of which varies depending on whether the principle is relied on to avoid an obligation arising from a Community measure or to challenge the validity of a measure before the Court. (91)
147. The Court of Justice has held that, in view of the mandatory nature of the review carried out by the Commission, persons to whom aid has been granted must not ‘entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure’; it went on to say that ‘a diligent businessman should normally be able to determine whether that procedure has been followed’. (92) More specifically, where aid is paid without prior notification, the person concerned cannot have at that time a legitimate expectation that its grant is lawful. (93) Moreover, until the grant is approved, indeed until the period for bringing an action against such a decision has expired, there can be no certainty as to the lawfulness of the aid. (94) Individuals cannot, therefore, rely on the principle without first satisfying themselves that the State granting the aid has given the required prior notification, (95) since it is difficult to excuse ignorance of the Community system for reviewing State aid.(96)
148. Also, the review carried out by the Commission takes time, as the Court pointed out in the judgment in Italy v Commission(97) in connection with a claim that the long period which had elapsed between the award of the subsidies and the adoption of the measure to recover the aid had given rise to the conviction that the aid was lawful. First, the Court held that any limitation period for the right to recover the amount paid must be fixed in advance, which, as in this case, had not happened at the time when the measure at issue in that case was adopted (paragraph 89). (98) However, by reference to other judgments, (99) the Court warned that legal certainty has the effect of preventing the Commission from indefinitely delaying the exercise of its powers (paragraph 90), although, when State aid has not been notified, a delay may be imputed to the Commission only from the time when it learned of the existence of that aid (paragraph 91).
149. The Commission’s delay in giving a decision was the very reason for the only case in which repayment has not been sought. This was the Court’s finding in the judgment in RSV v Commission, (100) in the light of the exceptional and individual circumstances of the case, (101) in which a decision had been challenged which, 26 months after notification, declared incompatible and ordered the cancellation of aid intended for a sector in receipt of other authorised advantages and intended to meet the additional costs of an operation previously the subject of an authorised aid.
3. Application to the situation at issue
150. An examination of the substance of the Decision reveals two findings: first of all, the aid was not notified, which makes it unlawful; and, secondly, the aid is inconsistent with free competition, which makes it incompatible with the common market. Those two findings call for a twofold observation.
a) Unlawfulness
151. The Commission’s Decision begins by declaring that the aid granted under Article 5 of Regional Law 44/1988 is unlawful, because the Commission was not informed of the law or the decisions issued under it.
152. Failure to notify is an easily-verifiable fact which, in principle, does not square with a delay such as that in this case.
153. First of all, the measures adopted must be classified for the purposes of determining whether Articles 87 EC to 89 EC are applicable. This task is not always straightforward.
154. Moreover, the infringements of the Community legal order found to have been committed not only concern matters of form but extend to the very substance of the aid in question. The rule in Boussac(102) is significant in this regard. It states that repayment of State aid cannot be sought merely because the aid has not been notified in accordance with Article 88(3) EC, in other words, because it is unlawful (formelle Gemeinschaftsrechtswidrigkeit); rather, the aid must be declared incompatible with the common market (materielle Gemeinschaftsrechtswidrigkeit).
155. These are not, therefore, isolated issues: they are clearly closely connected. The second element of the Decision must therefore be considered.
b) Incompatibility
156. In order to determine the amount of time which elapsed, account must be taken of the information contained in the statements of facts in the disputes in the main proceedings, as regards both the granting of aid by the Regional Government of Sardinia and the steps taken by the Commission.
157. A detailed analysis will provide a fuller understanding of the statement that, even though the Regional Law dates back to 1988, the procedure was initiated in 1994, the Decision was adopted in 1997 and reimbursement of the amounts unduly received was sought in 2001.
158. In an examination of the validity of a Community measure, it is necessary to assess the diligence exercised by the relevant institution. The conduct of the Member State has an impact on the domestic sphere of its relations with its citizens but it does not have the potential to bring about the annulment of the Decision. The period of time at issue therefore began when the Commission first had knowledge of evidence suggesting the existence of the aid: this occurred on 1 September 1992, when the Commission was informed of Regional Law 17/1992. It ended when the Commission’s Decision was notified.
159. Between those two points of time are two stages: the preliminary investigations and the formal procedure.
i) Preliminary investigations
160. Since Regional Law 44/1988 and the decisions of the ‘Giunta Regionale’ had not been notified, it was necessary for the Commission during this stage to obtain the relevant information, in particular the nature and scope of the aid and its effects on the common market. (103)
161. Between September 1992 and August 1994, the Commission made a number of requests for information to the Italian Government, dated 29 October 1992 and 27 May 1993, to which the latter replied on 24 March, 2 April and 3 December 1993. A final request of 28 February 1994 was replied to on 25 April 1994.
162. These exchanges show that there was no significant standstill such as to support the claim that the Decision should be annulled. While it is true that the substance of the matter in question was not made known during the pre-litigation procedure, the national authorities were conspicuously late in fulfilling one of the requests, that of 27 May 1993 not having been complied with until six months later.
ii) Formal procedure
163. This second period runs from the commencement of the formal procedure, in August 1994, to the adoption of the Decision, in April 1997.
164. Of particular significance is the publication in the Official Journal of the Communication, referred to above, addressed by the Commission to Member States and third parties, pursuant to Article 88(2) EC, asking them to ‘submit their comments’ on the measures in question within one month. In the judgment in Intermills v Commission, the Court held that that article ‘does not require individual notice to be given to particular persons’, since ‘its sole purpose is to oblige the Commission to take steps to ensure that all persons who may be concerned are notified and given an opportunity of putting forward their arguments’. It went on to say that ‘the publication of a notice in the Official Journal is an appropriate means of informing all the parties concerned that a procedure has been initiated’. (104)
165. A number of things happened during those thirty-two months: for example, Italy submitted its comments on 30 January, 25 August and 1 December 1995. Moreover, in the last three months of 1995, the national rules were amended, and further clarifications were requested in December 1995 which were provided on 22 February 1996. It is also significant that, in the light of the circumstances, the Commission decided to examine the amendments made in 1995 in conjunction with the entire system of aid, which fact was communicated to Italy by means of a Decision of 25 July 1996, although the examination could not be carried out because of a lack of information as to the effects of the reform.
166. Although there was some unaccountable delay, the Commission did not fail to carry out its duties.
c) Overall assessment
167. In the light of the foregoing, as well as the twofold content of the Decision and the steps preceding its adoption, it can be concluded that the legitimate expectations of the recipients of the aid have not been infringed. For, on the one hand, it has been shown that Regional Law 44/1988 and the decisions implementing it were not notified, and that a notice of the commencement of the procedure was published; on the other hand, the period of time which elapsed before the Community measure was adopted is not long enough.
C – Other defects
168. Before consideration is given to any other matters, it must be stressed that the Decision declares the aid to be illegal and incompatible with the common market. The first finding is based on the fact that the aid was granted without the Commission’s having been able to consider it at the planning stage. The second finding is made under Article 87(1) EC, the conditions governing qualification for the exceptions set out in Article 87(2) and (3) having not been met.
169. This duality of content satisfies the requirements imposed by the Court of Justice, which, since the judgments in Boussac and Tubemeuse, cited above, has distinguished between incompatibility in relation to the substance and unlawfulness in relation to the procedure, so that failure to give formal notification does not have any effect on free competition.
170. In this case, the dispute has to do not with the failure to give notification, which renders the aid unlawful, but with its compatibility with the common market and the procedure followed.
171. I shall now analyse the defective procedure, the failure to provide a statement of reasons and the compatibility of the aid.
1. Procedural irregularities
172. Until Regulation No 659/1999 was adopted, there were no rules laying down the procedure to be followed by the Commission in cases where State aid measures had already been adopted or put into effect. Before then, the Commission followed the rulings of the Court of Justice, which, in the judgment in Italy v Commission, (105) began to establish a special review procedure based on the rules applicable at the time when the aid would have been notified.
173. In the judgment in Boussac, cited above, the Court outlined the steps to be taken:
– Once the Commission has established that aid has been granted or altered without notification, the Member State concerned is required to submit its comments, after which the Commission may order it to suspend immediately the granting and, if applicable, the payment of the aid, and request all documentation, information and data necessary.
– Once such material has been provided, the Commission checks the compatibility of the measure with the common market. If the Member State concerned fails to provide an explanation, the Commission may terminate the procedure and adopt the relevant decision, which may call for the recovery of the aid.
– If the Member State fails to suspend payment of the aid, the Commission is entitled, while carrying out the substantive examination of the aid, to bring the matter directly before the Court by applying for a declaration that such payment amounts to an infringement of the Treaty.
174. In this case, when the Commission learned of the suspected aid, it began a preliminary investigation leading to the formal institution of the procedure laid down in Article 88(2) EC, during which Italy submitted comments at various times, and which ended with the adoption of the contested Decision.
175. There is no evidence in this account of events of any substantive breach which would render the final act invalid.
176. Moreover, the following considerations must be taken into account:
a) According to Article 5 of Regional Law 44/1988, the purpose of that law (supplemented by Regional Law 17/1992) was to grant low-interest loans governed, pursuant to Article 5(4), not only by the legislation providing for them but also by a law of 1928 concerning measures relating to agricultural credit which, therefore, does not regulate aid but only the means by which it is made available, and even then not exhaustively.
It is therefore inconsistent to take the view that the aid had been provided for prior to the EC Treaty – in which case Article 88(1) EC would have to be observed, which requires the Commission and Member States to keep under constant review all ‘existing’ aid –, since there is no doubt that this is new aid. (106)
b) Nor does it seem acceptable to argue that, once Regional Law 17/1992 had been notified, it was not checked for compatibility, since that notification resulted in the institution of preliminary investigations and the taking of a number of steps which have already been outlined.
Consequently, although the Decision examines whether the aid is compatible with the common market, the duration of the process has an impact not on the propriety of the procedure but in a different area – the principle of legitimate expectations, which has already been addressed.
2. Statement of reasons
177. In the Opinion delivered in Portugal v Commission, (107) I pointed out that the statement of reasons ‘is an essential part of a measure’ (108) and that the obligation to state reasons is not only for the protection of interested parties, but also has as objective to enable the Court to review the decisions fully from the legal point of view. (109) In its case-law the Court too has made clear that the Treaty requires a clear and unequivocal disclosure of the reasoning followed by the institution which adopted the contested decision so that the persons concerned are aware of the grounds for the measure adopted and the Court can perform its function. However, it has not required that an account be given of the relevant factual and legal background, since regard is to be had not only to the wording of the statement, but also to its context and to all the legal rules governing the matter in question. (110)
178. Because of the economic complexity of systems of aid, the reasons given for decisions takes on great importance in this sphere. In the judgment in Commission v Germany, (111) the Court pointed out the need for the decision to be sufficiently clear, and, because that was not the case, in the judgments in Intermills v Commission and Netherlands and Leeuwardeer Papierwarenfabriek v Commission, (112) annulled the contested measures. Nonetheless, in the judgment in Boussac, cited above, the Court held that, when a Member State grants aid without prior notification, the decision declaring such aid to be incompatible does not have to demonstrate the real effect on competition and on trade, since to do so would favour those Member States which breach the duty to notify, to the detriment of those which notify aid at the planning stage (paragraphs 32 and 33, in particular).
179. In this case, the recitals in the preamble to the Commission’s Decision give details of the procedure followed for its adoption and the relevant national provisions. They also set out the reasons why the failure to notify is particularly serious, the reasons for the failure to apply the Guidelines on State aid for rescuing and restructuring firms in difficulty, and the reasons why the Commission does not concur with the argument concerning the causes of excessive farm indebtedness. They then describe the effects of the aid and the inapplicability of the exceptions provided for in Article 87(2)(a) and (c). Finally, they put forward the Commission’s view that the amounts received should be recovered.
180. It follows that a sufficient statement of reasons is provided. The length or content of the explanations given is open to dispute, but the reasons for the decision are clear.
3. Compatibility of the aid
181. Like other restrictions on competition, State aid must be assessed by reference to the market economy and European integration, (113) since the granting of such aid artificially distorts operators’ equality of means and adversely affects the opportunities available to undertakings, although it may play a part, at least temporarily, in helping undertakings to adapt to new situations, in fighting unemployment or in harmonised regional development.
182. This conflict of interests can be seen in Article 87 EC, which prohibits State aid (paragraph 1), but sets out a list of situations in which aid is compatible with the common market and of others in which the Commission acts as arbiter of compatibility (paragraphs 2 and 3, respectively).
183. As the Court held at a very early stage, in its judgment in Commission v Luxembourg and Belgium, (114) the derogations from the general rules must be narrowly interpreted, and, in the judgment in Syndicat national du commerce extérieur des céréales and Others, (115) it clarified the limits of the derogations in the agricultural sector. As the Court recently held in the judgment in Spain v Commission, (116) ‘the effect on trade between Member States depends on whether there is effective competition between the undertakings established in those States in the field in question’ (paragraph 29). This idea must be viewed in conjunction with the finding in the judgment in Greece v Commission, (117) which cites abundant precedent, that ‘the relatively small amount of aid (118) or the relatively small size of the undertaking which receives it does not prima facie exclude the possibility that [...] trade may be affected or competition distorted’ (paragraph 69), since other factors play a decisive role in determining its effects, such as ‘whether the aid is cumulative and whether the undertakings that receive it are operating in a sector that is particularly exposed to competition’ (paragraph 70), as the agricultural sector is. (119)
184. In support of the argument that the aid is lawful, reliance has been placed on Article 87(2)(b) and (3)(a) and (c) EC.
a) Article 87(2)(b) EC
185. This article provides that ‘aid to make good the damage caused by natural disasters or exceptional occurrences’ is compatible with the common market.
186. In the judgment in Spain v Commission, cited just above, the Court held that in this regard there must be ‘a direct link between the damage caused by the exceptional occurrence and the State aid’ and ‘a precise evaluation of the damage suffered by the producers concerned’ (paragraph 37).
187. In this case no evidence has been adduced of any disaster or exceptional occurrence requiring special economic measures in order to redress the balance, since drought – however prolonged –, market crises, high interest rates and lack of organisation at the produce marketing stage do not qualify as such. Moreover, there is no estimate – of even an approximate nature – of the damage suffered by the recipients of the aid. Lastly, the reasons set out in the Decision in this regard have not been disproved.
b) Article 87(3)(a) and (c) EC
188. These rules authorise the Commission to consider compatible with the common market ‘aid to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment’ and aid aimed at facilitating ‘the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest’.
189. According to settled case-law, in the analysis of situations covered by Article 87(3) EC, ‘the Commission has a wide discretion the exercise of which involves economic and social assessments which must be made in a Community context’. For its part, the Court of Justice, when reviewing the lawfulness of the manner in which that discretion is exercised, cannot substitute its own assessment for that of the Commission but is confined to establishing whether that assessment is vitiated by a manifest error or a misuse of powers. (120)
190. Neither the documents before the Court in this case nor the wording of the explanations contained in the Decision indicate any error in the assessment carried out. Nor is there any evidence that the Commission has exercised its powers for purposes other than those laid down in the Treaty.
191. Furthermore, in its Decision, the Commission itself considers the Community Guidelines on State aid for rescuing and restructuring firms in difficulty, cited above, which Italy relied on in the administrative procedure. It takes the view that they are not applicable, since the procedure had already been initiated when they entered into force. However, even if the Guidelines are taken into account, the conditions laid down are not satisfied in any of the situations in question.
VIII – Consequences of validity
192. In accordance with the judgment in Tubemeuse, cited above, the fact that the Decision is lawful means, as a logical consequence of the non-conformity of the rules in question, that the amounts received must be repaid.
193. The Court of Justice has held that, in the absence of provisions of Community law which lay down a procedure for the recovery of aid (at least until Regulation No 659/1999, cited above, was adopted), national rules must be applied, (121) and that Member States have a duty to cooperate in good faith with a view to overcoming any difficulties which arise. (122) In this regard, in the judgment in Commission v Council, (123) the Court points out that the aim of obliging the Member States to abolish aid incompatible with the common market ‘is to restore the previous situation’, and that objective is attained once the aid in question, increased where appropriate by default interest, has been repaid, since, by repaying the aid, the recipient ‘forfeits the advantage which it had enjoyed over its competitors on the market’ (paragraph 42).
194. It has become clear throughout the foregoing submissions that Italy did not inform the Commission of the measures it had adopted, that it likewise did not notify the interested parties that the infringement procedure had been initiated, and that, when it notified them of the final Decision, nearly four years had passed since its adoption, notwithstanding the fact that they could have found out about it beforehand by other means.
195. These facts, on which the claimants base their claim for compensation for the damage caused, were established in the proceedings which gave rise to this reference for a preliminary ruling. Although the Court of Justice is not being asked to give a ruling on the substance of the case, there is nothing to prevent it from providing the national court with some guidance as to how to resolve this matter.
196. The dispute centres on whether Italy is liable for infringement of Community law, (124) in particular for infringing the obligation to give prior notification to the Commission, since the other issue raised must be assessed in accordance with national law, as must the question whether Italy has breached the legitimate expectations of the persons concerned.
197. If the recipients of the aid abolished on grounds of infringement of the rules of procedure bring actions for damages, (125) it becomes extremely important to determine whether the infringement is ‘sufficiently serious’ (126) to create an obligation to provide reparation, as defined by the Court in the judgment in Brasserie du pêcheur and Factortame. (127)
198. This is a matter for the national court, which, if it has any doubts, may make a further reference to the Court of Justice for a ruling on interpretation. In any event, it should be noted that, if an entitlement to compensation is recognised, the damage cannot be regarded as being equal to the sum of the amounts to be repaid, since this would constitute an indirect grant of the aid found to be illegal and incompatible with the common market.
IX – Conclusion
199. In the light of the foregoing considerations, I propose that the Court of Justice should reply to the Tribunale di Cagliari as follows:
An examination of the questions referred has revealed nothing which would be capable of adversely affecting the validity of Commission Decision 97/612/EC of 16 April 1997 on aid granted by the Region of Sardinia, Italy, in the agricultural sector.
1 – Original language: Spanish.
2 – OJ 1997 L 248, p. 27.
3 – From Calvo Caravaca, A.L., and Carrascosa González, J., Intervenciones del Estado y libre competencia en la Unión Europea, Colex, Madrid, 2001, p. 171.
4 – ‘...whilst that form of economic interventionism may encounter serious objections – at least theoretical – as regards the internal economic system of each State, where the purpose is to encourage a supranacional single market the interventionism of each State in the form of economic aid granted to its own undertakings, if it persists, may in the end constitute a practically insurmountable obstacle’, Fernández Farreres, G., ‘El control de las ayudas’, in García de Enterría, E., González Campos, J., and Muñoz Machado, S., (eds), Tratado de derecho comunitario europeo, vol. II, Civitas, Madrid, 1986, p. 620.
5 – Valle Gálvez, A., ‘Las ayudas de Estado en la Jurisprudencia del Tribunal de Justicia de las Comunidades Europeas’, in Rodríguez Iglesias, G.C., and Liñán Nogueras, D.J., (eds), El derecho comunitario europeo y su aplicación judicial, Civitas, Madrid, 1993, p. 885.
6 – For reasons of time, Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of this article (OJ 1999 L 83, p. 1) cannot be taken into account in these preliminary ruling proceedings other than purely as guidance.
7 – Communication from the Commission – Community Guidelines for State aid in the agriculture sector (OJ 2000 C 28, p. 2), paragraph 3.1.
8 – OJ, English Special Edition, 1959-1962, p. 129.
9 – Bollettino Ufficiale della Regione Sardegna, No 46, of 14 December 1988.
10 – Law submitted by the Commission as Annex 6 to its observations.
11 – This decision is contained in Annex 2 to the Commission’s observations.
12 – This decision is set out in Annex 3 to the Commission’s observations.
13 – This decision is to be found in Annex 4 to the Commission’s observations.
14 – This decision appears as Annex 5 to the Commission’s observations. It was adopted at the ‘Giunta Regionale’ held on 23 June 1992.
15 – Bollettino Ufficiale della Regione Sardegna, No 35, of 1 September 1992.
16 – Commission communication pursuant to Article 93(2) of the EC Treaty to other Member States and interested parties concerning aid which Italy (Region of Sardinia) has decided to grant to agricultural enterprises in difficulty (OJ 1994 C 271, p.14).
17 – Bollettino Ufficiale della Regione Sardegna, No 42, of 13 December 1995.
18 – OJ 1994 C 368, p. 12. The latest version was published in OJ 2004 C 244, p. 2.
19 – Case T-21/02.
20 – Order not reported in the ECR. The operative part was published in OJ 2002 C 202, p. 28.
21 – For example, the action brought in Case T-4/02 was also held to be out of time and was declared inadmissible by order of 29 May 2002.
22 – Martín y Pérez de Nanclares, J., ‘El proyecto de Constitución europea: reflexiones sobre los trabajos de la Convención’, Revista de Derecho Comunitario Europeo, Centro de Estudios Políticos y Constitucionales, No 15, May-August 2003, p. 564.
23 – OJ 2004 C 310, p. 1.
24 – The substantive classification of a European law is the same as that of a regulation at present, and that of a framework law the same as that of a directive. The basic function of a regulation is to implement legislative acts and certain provisions of the Constitution; a decision is binding in its entirety, although only on those to whom it is addressed, where they are specified.
25 – On the opening up of access to the Court of Justice, see Louis, J.-V., ‘La fonction juridictionnelle, de Nice à Rome … et au-delà’, in De Schutter, O., and Nihoul P., (Coordinators), Une Constitution pour l´Europe: Réflexions sur les transformations du droit de l´Union européenne, Larcier, Brussels, 2004, pp. 135 and 136.
26 – See Rodríguez Curiel, J. W., ‘Recursos contra la Comisión Europea en materia de ayudas de Estado interpuestos por personas físicas o jurídicas’, in Revista Española de Derecho Europeo, No 2, April-June 2002, p. 259 et seq.
27 – This was the definition I gave in my Opinion in Case C-315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281. See Waelbroeck, M., and Waelbroeck, D., ‘Article 173’, in Louis, J.-V., Vandersanden, G., Waelbroeck, D., and Waelbroeck, M., Commentaire Megret. Le droit de la CEE, vol. 10 (La Cour de Justice. Les actes des institutions), Éditions de l’Université de Bruxelles, Brussels, 1993, p. 98; and Vandersanden, G., and Barav, A., Contentieux communautaire, Bruylant, Brussels, 1977, p. 127.
28 – Castillejo Manzanares, R., ‘El recurso de anulación’, in Mariño, F., Moreno Catena, V. and Moreiro, C., (eds), Derecho procesal comunitario, Tirant lo Blanch, Valencia, 2001, p. 151.
29 – For example, in its judgment in Case 19/58 Germany v High Authority [1960] ECR 225, the Court pointed out, with regard to lack of competence, that, although it was true that that ground had not been formally set out in the application or in the reply, it was appropriate to examine it.
30 – See, generally, Moitinho de Almeida, J. C., ‘Evolución jurisprudencial en materia de acceso de los particulares a la jurisdicción comunitaria’, in Rodríguez Iglesias, G. C., and Liñán Nogueras, D. J., (eds), op. cit., p. 595 et seq. Moreover, as I pointed out in my Opinion in Case C-110/03 Belgium v Commission, judgment pending, the fact that individuals have locus standi to bring an action for annulment in these circumstances alone has given rise to a restrictive line of case-law from the Court of Justice, with which many commentators have taken issue, including Sarmiento, D., ‘La sentencia UPA (C‑50/2000), los particulares y el activismo inactivo del Tribunal de Justicia’, in Revista Española de Derecho Europeo, No 3, July – September 2002, pp. 531 to 577; and Ortega, M., El acceso de los particulares a la justicia comunitaria, Ariel Practicum, Barcelona, 1999, in particular Chapter 6 ‘Hacia una mejora del sistema de protección jurisdiccional de los particulares’. Advocate General Jacobs, in his Opinion in Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, proposed a broad interpretation to the effect that ‘ an applicant is individually concerned by a Community measure where the measure has, or is liable to have, a substantial adverse effect on his interests’ (point 102(4)); his guidance was initially followed by the Court of First Instance in Case T-177/01 Jégo-Quéré v Commission [2002] ECR II-2365, which was overturned by the Court of Justice in Case C-263/02 P [2004] ECR I-3425 This extensive approach is adopted by the Treaty establishing a Constitution for Europe, Article III-365(4) of which provides for two possibilities by allowing a natural or legal person to challenge ‘an act addressed to that person or which is of direct and individual concern to him or her’ and also ‘a regulatory act which is of direct concern to him or her and does not entail implementing measures’; this must be viewed in the context of the new legislative instruments provided for by that Treaty.
31 – Inter alia, Case 101/76 Koninklijke Scholten Honing v CouncilandCommission [1977] ECR 797, paragraphs 6 and 7; Joined Cases 789/79 and 790/79 Calpak v Commission [1980] ECR 1949, paragraph 7; Case 147/83 Binderer v Commission [1985] ECR 257, paragraph 14; and Case C‑322/88 Grimaldi [1989] ECR I-4407, paragraph 14.
32 – Joined Cases 16/62 and 17/62 [1962] ECR 471, paragraph 2; also Case 307/81 Alusuisse v Council and Commission [1982] ECR 3463, paragraph 8.
33 – Case C-298/89 Gibraltar v Council [1993] ECR I-3605, paragraph 17; and Case C‑309/89 Codorníu v Council [1994] ECR I-1853, paragraph 18.
34 – Case C-106/98 P [2000] ECR I-3659.
35 – To that effect, see Ortega, M., op. cit., pp. 54 to 64, and the case-law cited.
36 – Academic writers have regarded this requirement as a ‘barrera casi infranqueable’ [almost insurmountable barrier], and a ‘verdadera prueba de fuego’ [true acid test]. See Kovar, R., and Barav, A., ‘Variations nouvelles sur un thème ancien: les conditions du recours individuel en annulation dans la CEE. À propos du cas d'un acte pris sous l'apparence d'un règlement’, Cahiers de Droit Européen, 1976, No 1, p. 75; Cortés Martín, J. M., ‘Afectación individual (230.4 CE): ¿un obstáculo infranqueable para la admisibilidad del recurso de anulación por los particulares?’, Revista de Derecho Comunitario Europeo, No 16, September - December 2003, p. 1119 et seq.
37 – Case 25/62 [1963] ECR 95.
38 – Case 1/64 Glucoseries réunies v Commission [1964] ECR 413; Case 62/70 Bock v Commission [1971]ECR 897; Case 26/86Deutz und Geldermannv Council [1987] ECR 941; Case C‑321/95 P Greenpeace Council and Others v Commission; and Case C‑298/00 P Italy v Commission [2004] ECR I-4087; also the order of 21 June 1993 in Case C-257/93 Van Parijs and Others v Council and Commission [1993] ECR I-3335.
39 – Joined Cases 67/85, 68/85 and 70/85 [1988] ECR 219. To similar effect, see the Case C-6/92 Federmineraria v Commission [1993] ECR I-6357, paragraph 14; and Joined Cases C‑15/98 and C-105/99 Italy and Sardegna Lines v Commission [2000] ECR I-8855, paragraph 33.
40 – See also Italy v Commission, paragraph 39. In commentary, see Koenig, C., Pechstein, M., and Sander, C., EU-/EG-Prozessrecht, 2nd Edition., Tubinga, 2002, p. 203.
41 – Case 294/83 Les Verts v Parliament [1986] ECR 1339, paragraph 23.
42 – As well as by a plea of illegality and actions for non-contractual liability. With regard to the former, it must not be forgotten that, according to Joined Cases 31/62 and 33/62 Wöhrmann v Commission [1962] ECR 501, their sole object is to protect an interested party against the application of an illegal regulation without thereby in any way calling in issue the regulation itself. See Ortega, M., op. cit., pp. 139 to 158 and 159 to 188, respectively.
43 – Case C-92/78 Simmenthal v Commission [1979] ECR 777, paragraph 39; and Case C‑239/99 Nachi Europe [2001] ECR I-1197, paragraph 36.
44 – To that effect, Everling U., ‘L’avenir de l’organisation juridictionnel de l’Union européenne’, La reforme du système juridictionnel communautaire, Institut d’Etudes Européennes, Brussels, 1994, p. 22.
45 – Joined Cases 133/85 to 136/85 [1987] ECR 2289.
46 – See Gröpl, C., ‘Individualrechtsschutz gegen EG-Verordnungen. Rechtsschutzlücken im Konkurrenzverhältnis des Vorabentscheidungsverfahrens (Art. 177 Abs. 1 Buchst. b EGV) gegenüber der Nichtigkeitsklage (Art. 173 EGV)’, Europäische Grundrechts-Zeitschrift, 1995, p. 583 et seq.; Pache, E., ‘Keine Vorlage ohne Anfechtung? – Zum Verhältnis des Vorabentscheidungsverfahrens nach Art. 177 I lit. b EGV zur Nichtigkeitsklage nach Art. 173 IV EGV)’, Europäische Zeitschrift für Wirtschaftsrecht, 1994, p. 615 et seq.; and Tomuschat C., Die gerichtliche Vorabentscheidung nach den Verträgen über die Europäischen Gemeinschaften, Munich, 1964, p. 87 et seq.
47 – Case C-188/92 TWD Textilwerke Deggendorf [1994] ECR I-833, known as ‘Deggendorf’.
48 – Case C-241/95 [1996] ECR I-6699.
49 – Case C-178/95 [1997] ECR I-585.
50 – Some writers take the view that it is necessary to have full knowledge of the Community decision and of the possibility of contesting it by an action for annulment, and to be directly and individually concerned. See Turner, S., ‘Challenging EC law before national court: a further restriction of the rights of natural and legal persons?’, Irish Journal of European Law, 1/1995, p. 81.
51 – Commentators have advanced serious criticisms, which have been brought together and analysed authoritatively by Barav, A., ‘Déviation préjudicielle’, Les dynamiques du droit européen en début de siècle-Études en l’honneur de Jean-Claude Gautron, Éditions A. Pedone, París, 2004, p. 227 et seq.
52 – Case 314/85 [1987] ECR 4199; Case 161/88 [1989] ECR 2415; and Case C-80/89 [1990] ECR I-2659, respectively, in which the Court answered questions raised in references for preliminary rulings on the validity of decisions declaring the post-clearance recovery of import duties lawful.
53 – Case 216/82 [1983] ECR 2771.
54 – To that effect, see Ritleng, D., ‘Pour une systématique des contentieux au profit d’une protection juridictionnelle effective’, Mélanges en hommage à Guy Isaac – 50 ans du droit communautaire, vol. 2, Presses de l’Université des sciences sociales de Toulouse, 2004, p. 735 et seq., cited by Barav, A., op. cit., p. 244, footnote 100.
55 – Case C-344/98 [2000] ECR I-11369, paragraph 55.
56 – It seems excessive to require individuals to be constantly consulting the Official Journal of the European Union in order to be able to challenge any Community decision which infringes their rights. To that effect, see Hoskins, M., ‘Case C-188/92, TWD Textilwerke Deggendorf GmbH v Bundesrepublik Deutschland, Judgment of 9 March 1994, [1994] ECR I-833’, Common Market Law Review, 1994, p. 1402.
57 – Article II-107 of the Treaty establishing a Constitution for Europe lays down the right to an effective remedy before a tribunal for ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated’.
58 – Roberti, G.M., in ‘Le contrôle de la Commission des Communautés européennes sur les aides nationales’, Actualité Juridique Droit Administratif, No 6, 1993, p. 398, positions State aid at a crossover between positive and negative integration, given that the various forms it takes often become vital instruments for the implementation of Community policies.
59 – See Martínez López-Muñiz, J.L., in the prologue to the book by Prieto Álvarez, T., Ayudas agrícolas nacionales en el Derecho comunitario, Marcial Pons, Madrid, 2001, p. 11 et seq.
60 – See Blaise, J.B., ‘Liberté de concurrence en agriculture’, in Raux, J., (ed.), Politique Agricole Commune et construction communautaire, Paris, 1984, p. 21. See also Dehousse, F., ‘Les règles de concurrence sur les aides d’État dans le secteur de l’agriculture’, Studia diplomatica, No 1-2, 2000, pp. 41 to 58.
61 – The Economic and Social Committee expressed the same view in the ‘Opinion on the Twentieth Report on Competition Policy’ (XXIst Report on Competition Policy, 1991), arguing that ‘the general provisions of the Treaty relating to competition must also be applied to the agricultural sector. However, one can imagine that this can be done by balancing the aims of European competition policy against the specific nature of the Community’s agricultural policy’ (p. 236).
62 – Similarly, Article III-230(1) of the Treaty establishing a Constitution for Europe provides that ‘[t]he Section relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by European laws or framework laws in accordance with Article III-231(2), having regard to the objectives set out in Article III-227’.
63 – Case 177/78 [1979] ECR 2161, paragraph 11.
64 – Case 139/79 [1980] ECR 3393, paragraph 23. The Court held likewise in Case C-280/93 Germany v Council [1994] ECR I-4973, paragraphs 59 to 61.
65 – See Prieto Álvarez, T., op. cit., p. 234 et seq.
66 – See, to this effect, Barthélémy, M., “La politique communautaire en matière d’aides d’Etat dans le secteur agricole”, in Blumann, C., and Lange, D. (eds.), ‘Les distorsions de concurrence en matière agricole dans la CEE’, Revue de Droit Rural, No 163, 1988, p. 80.
67 – As some legal commentators have argued, for example, Muffat-Jeandet, D., in the article ‘Aides’, Encyclopédie Juridique Dalloz. Répertoire de Droit communautaire, volume I, Paris, 1992.
68 – See, to this effect, Blaise, J.B., op. cit., p. 23.
69 – Case 61/80 Coöperatieve Stremsel- en Kleurselfabriek v Commission [1981] ECR 851, paragraph 21.
70 – Case C-250/92 DLG [1994] ECR I-5641, paragraph 23.
71 – In March 1966, the Commission sent the Council a communication on ‘criteria for the establishment of a common policy on agricultural aid’, which included a proposal to amend Regulation No 26 by making Article 87 et seq. applicable to all the products listed in Annex I of the Treaty [COM (66) final, of 23 March, submitted to the Council on 25 March 1966]. In this connection, see Ventura, S., Principes de Droit agraire communautaire, Bruylant, Brussels, 1967.
72 – Case 337/82 [1984] ECR 1051, paragraph 12.
73 – Case 114/83 [1984] ECR 2589, paragraph 27.
74 – This idea has already been expressed by Advocate General Capotorti in the Opinion in Hansen (Case 91/78 [1979] ECR 935). After presenting various lines of reasoning, he found that, ‘in the context of the system as it has been outlined in the light of the case-law of the Court of Justice, to continue to hold that the States have a free hand in the matter of aids in the agricultural sectors which are not yet (and perhaps never will be) governed by a common organisation would distort that system. In accordance with the system of the Treaty it seems to be an inescapable conclusion that following the end of the transitional period the provisions of Articles [87 EC and 88 EC] also apply to agriculture’. The Court of Justice did not consider this issue because it deemed it unnecessary to do so (paragraph 11 of the judgment).
75 – OJ 1985 L 93, p. 1.
76 – OJ 1991 L 218, p. 1. In accordance with Article 41, it entered into force on 9 August 1991.
77 – Although, for reasons of time, Regulation No 797/85 alone is applicable, the subsequent regulation is similar in content: in this respect, it should be noted that Annex II of Regulation No 2328/91 provides a table setting out the correlations between the two regulations – and with Council Regulation (EEC) No 1760/87 of 15 June 1987 amending Regulations (EEC) No 797/85, (EEC) No 270/79, (EEC) No 1360/78 and (EEC) No 355/77 as regards agricultural structures, the adjustment of agriculture to the new market situation and the preservation of the countryside (OJ 1987 L 167, p. 1).
78 – As is explained below, the Decision of 27 June 1990, which relates to forestry holdings, does not fall within the scope of ‘agriculture’, at least from the point of view of Community law.
79 – This and the other decisions are described in greater detail in previous points of this Opinion, in particular those under the heading ‘[t]he granting of aid by the Regional Executive of Sardinia’.
80 – Thus, for example, Regulation No 797/85 provides that the ‘Guidance’ Section of the European Agricultural Guidance and Guarantee Fund must make a contribution towards forestry measures on behalf of agricultural holdings, such as the afforestation of agricultural land, the provision of shelter belts and firebreaks, the routing of roads and woodland improvements [Article 1(2)(d) and Article 20].
81 – Parliament v Council [1999] ECR I-1139.
82 – OJ, English Special Edition 1968(I), p. 209.
83 – See Parejo Alfonso, L., de la Quadra-Salcedo Fernández del Castillo, T., Moreno Molina, A.M., and Estella de Noriega, A., (eds.), Manual de Derecho administrativo comunitario, Centro de Estudios Ramón Areces, Madrid, 2000, pp. 75 and 76, and the case-law cited there.
84 – Hubeau, F., ‘Le principe de la protection de la confiance légitime dans la jurisprudence de la Cour de justice des Communautés européennes’, Cahier de Droit Européen, No 2-3, 1983, p. 149, and García Macho, R., ‘Contenido y límites del principio de la confianza legítima: estudio sistemático en la jurisprudencia del Tribunal de Justicia’, Revista Española de Derecho Administrativo, No 56, 1987, p. 563, take the view that the term, which already existed in German law (Vertrauensschutz), was used for the first time in the judgment in Case 111/63 Lemmerz-Werke v High Authority [1965] ECR 677).
85 – Schwarze, J., ‘Tendencies towards a Common Administrative Law’, European Law Review, No 2, 1991, p. 870.
86 – A summary of the case-law may be found, inter alia, in Castillo Blanco, F.A., La protección de la confianza en el Derecho administrativo, Marcial Pons, Madrid, 1998, pp. 163 to 199.
87 – See, inter alia, Schwarze, J., op. cit., p. 949 et seq.; Parejo Alfonso, L., and others, op. cit., pp. 76 to 78; and Rodríguez Curiel, J.W., ‘Principios generales del derecho y recuperación de ayudas de Estado ilegales. En especial la confianza legítima’, Gaceta Jurídica, No 209, September/October 2000, pp. 33 to 36.
88 – Case C-177/90 [1992] ECR I-35, paragraph 14.
89 – Pescatore, P., ‘Les principes généraux du droit en tant que source du droit communautaire’, Rapport du 12e congrès de la Fédération internationale pour le droit européen, vol. I, Paris, 1986, p. 35.
90 – This principle, which has been upheld by the Court of Justice, is contained in Article 14(1) of Regulation No 659/1999, which entered into force after the Decision was published.
91 – In this respect, see Case C-169/95 Spain v Commission [1997] ECR I-135, paragraph 49.
92 – Joined Cases C-183/02 P and C-187/02 P Demesa and Territorio Histórico de Álava v Commission [2004] ECR I-10609, paragraph 44, which cites the judgments in Case C-5/89 Commission v Germany [1990] ECR I-3437, paragraph 14, Case C-169/95 Spain v Commission, paragraph 51, and Case C-24/95 Alcan Deutschland [1997] ECR I-1591, paragraph 25.
93 – Demesa and Territorio Histórico de Álava v Commission, paragraph 45, which, in turn, refers to the judgment in Alcan Deutschland, paragraphs 30 and 31.
94 – Case C-91/01 Italy v Commission [2004] ECR I-4355, paragraph 66, which refers to the judgment in Case C-169/95 Spain v Commission, paragraph 53, and the judgment of the Court of First Instance in Case T-126/99 Graphischer Maschinenbau v Commission [2002] ECR II-2427, paragraph 42.
95 – Fastenrath, U., ‘Verwaltungsrecht. Europarecht’, Juristenzeitung, 1992, p. 1081.
96 – Pernice, I., ‘Neues zum EG-Beihilfenverbot’, Europäische Zeitschrift für Wirtschaftsrecht, 1992, p. 66, urges recipients of subsidies to check whether they have been notified and whether procedures have been initiated in accordance with Article 88(3) EC; he also recommends that Member States check whether any aid remains unnotified. The Commission itself drew attention to the precarious situation of unnotified subsidies in a Communication published in OJ 1983 C 318, pp. 3 and 4.
97 – Case C-298/00 P [2004] ECR I-4087.
98 – Article 15 of Regulation No 659/1999 establishes a period of limitation within which the Commission may validly exercise its powers in relation to the recovery of aid.
99 – Case 52/69 Geigy v Commission [1972] ECR 787, paragraphs 20 and 21, and Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I-7869, paragraph 140.
100 – Case 223/85 [1987] ECR I-4617.
101 – The unusual nature of the situation was highlighted in Case C-334/99 Germany v Commission [2003] ECR I-1139, paragraph 44. As regards commentary on the matter, see Götz, V., ‘Handbuch des EU-Wirtschaftsrechts’, H. III, Subventionsrecht, marginal No 108, p. 34.
102 – Case C-301/87 France v Commission [1990] ECR I-307 (‘Boussac’), paragraph 19 et seq. This was followed by the judgments in Case C-142/87 Belgium v Commission [1990] ECR I-959 (‘Tubemeuse’), paragraphs 15 to 20, Case C-354/90 Fédération nationale du commerce extérieur des produits alimentaires and Syndicat national des négociants et transformateurs de saumon [1991] ECR I-5505, paragraph 13, and Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraph 43.
103 – Boussac gives the Commission time in which to consider the matter and to carry out investigations before initiating the formal procedure (paragraph 27).
104 – Case 323/82 [1984] ECR 3809, paragraph 17.
105 – Case 173/73 [1974] ECR 709.
106 – If this were not the case, following the example given by the Commission in its observations, reliance on the rules governing contracts in the 1942 Civil Code would mean that the measures were in force at that time.
107 – Case C-249/02 [2004] ECR I-10717.
108 – Case 131/86 United Kingdom v Council [1988] ECR 905, paragraph 37.
109 – Case 18/57 Nold KG v High Authority [1959] ECR 41, and subsequent judgments.
110 – Case C-350/88 Delacre and Others [1990] ECR I-395 and Case C-22/94 Irish Farmers Association and Others [1997] ECR I-1809.
111 – Case 70/72 [1973] ECR 813, paragraph 23.
112 – Joined Cases 296/82 and 318/82 [1985] ECR 809.
113 – Calvo Caravaca, A.L., and Carrascosa González, J., op. cit., p. 231.
114 – Joined Cases 2/62 and 3/62 [1962] ECR 425. In its interpretation of the list set out in Annex I to the Treaty, the Court of Justice held that ‘[i]t follows from Article [32](2) that the derogations allowed in the case of agriculture from the rules laid down for the establishment of the common market constitute measures which are exceptional in nature and must be narrowly interpreted’.
115 – Judgment in Case 34/70 [1970] ECR 1233.
116 – Case C-73/03, not published in the ECR.
117 – Case C-278/00 [2004] ECR I-3997.
118 – The representatives of the claimants in the main proceedings informed the hearing that the aid fluctuated on average between approximately EUR 5 000 and 10 000 per recipient.
119 – In this respect, Case C-73/03 Spain v Commission, the Court held that ‘there is no doubt that it is a very competitive sector in the European Union’ (paragraph 29).
120 – Of the most recent case-law, see Case C-351/98 Spain v Commission [2002] ECR I-8031, paragraph 74; Case C-409/00 Spain v Commission [2003] ECR I-1487, paragraph 93; and Greece v Commission, paragraph 97, which relies on the judgment in Case C-456/00 France v Commission [2002] ECR I-11949, paragraph 41.
121 – See, inter alia, Joined Cases 205/82 to 215/82 Deutsche Milchkontor v Germany [1983] ECR 2633, paragraph 19, and the judgments referred to therein.
122 – Case 52/84 Commission v Belgium [1986] ECR 89, paragraph 16.
123 – In Case C-110/02 [2004] ECR I-6333, which refers to the judgments in Case C-350/93 Commission v Italy [1995] ECR I-699, paragraphs 21 and 22, and Case C-310/99 Italy v Commission [2002] ECR I-2289, paragraphs 98 and 99.
124 – For a history of the case-law relating to this issue and an account of how it first arose, see Alonso García, R., La responsabilidad de los Estados miembros por infracción del Derecho comunitario, Civitas, Madrid, 1997. For a general, critical analysis, see García de Enterría, E., ‘El principio de protección de la confianza legítima como supuesto título justificativo de la responsabilidad patrimonial del Estado legislador’, Revista de Administración Pública, September–December 2002, pp. 173 to 206.
125 – In point 74 of the Opinion in Belgium v Commission (Case C-197/99 P [2003] ECR I-8461) Advocate General Léger pointed out that ‘nationally, several significant consequences may flow from a finding that State aid is illegal’, such as the fact that the beneficiary of the aid or his competitors may bring an action for damages against the State, as Advocate General Tesauro had already warned in the final paragraph of point 7 of the Opinion in Tubemeuse.
126 – See Keppenne, J.-P., Guide des aides d’État en droit communautaire, Bruylant, Brussels, 1999.
127 – Joined Cases C-46/93 and C-48/93 [1996] ECR I-1029, paragraph 51.