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Cite as: [2007] EUECJ C-390/06_O, [2007] EUECJ C-390/6_O

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OPINION OF ADVOCATE GENERAL

Mazák

delivered on 27 November 2007 (1)

Case C-390/06

Nuova Agricast Srl

Ministero delle Attività Produttive

(Reference for a preliminary ruling from the Tribunale ordinario di Roma (Italy))

(Validity of a Commission decision declaring compatible with the Treaty an aid scheme provided for under Italian legislation in the form of aid for investment in the less-favoured regions of Italy)

The present request for a preliminary ruling concerns the validity of Commission Decision SG(2000)D/105754 of 12 July 2000 declaring compatible with the Treaty an aid scheme for investment in the less-favoured regions of Italy (2) ('the contested decision').

The reference was made in the course of an action for damages brought by the Italian company Nuova Agricast against the Italian State. In essence, Nuova Agricast claims it has suffered damage by reason of the fact that it cannot be a beneficiary of a State aid scheme authorised by the Commission in the contested decision and seeks to establish the extent to which the Italian authorities may be held liable for this.

I Relevant national legislation

A Old aid scheme

In Law No 488 of 19 December 1992 (3) ('Law No 488/92'), the Italian legislature put in place financial measures intended to encourage companies to develop certain productive activities in less-favoured regions of the country.

By Decision of 21 May 1997 (4) ('the 1997 decision'), the Commission decided, with effect until 31 December 1999, not to raise any objections to the State aid scheme (5) based on Law No 488/92 and various provisions implementing that Law.

The aid scheme authorised by the 1997 decision ('the old aid scheme') consisted of the following main features:

(a) The financial resources of each year were divided in two equal parts and allocated through two invitations to apply. On the basis of the funds available in the year to which the resources related, the rules for the distribution of funds could be modified by Ministerial decree, in particular by allowing the funds in question to be allocated through a single invitation to apply.

(b) The applications submitted under an invitation to apply were examined by competent credit institutions, which attributed marks based on regulatory criteria (in Italian 'indicatori', hereinafter 'indicators').

(c) Thereafter, the competent Ministry established regional rankings of the applications on the basis of marks obtained pursuant to this examination and adopted a decree on the allocation of the aid to the applicants in descending order, starting with the first, until the funds available for each list were exhausted.

(d) The eligible expenditure was expenditure incurred from the day following the closing date of the invitation preceding the invitation to which the application refers. (6)

(e) Undertakings whose applications were placed on a regional list but which could not benefit from the support measures because the available funds fell short of the amount required to cover all the measures requested could either resubmit the same project, once only, in the first appropriate invitation thereafter, without amending the relevant assessment indicators (known as 'automatic inclusion'), or waive 'automatic inclusion' and resubmit the same project but with amendments to some of the assessment indicators, in order to make the application more competitive, joining the list of the next 'appropriate invitation' (7) (known as 'revision' of the application). In both cases, the conditions laid down for the original applications were maintained as valid for the purposes of the eligibility of the expenditure, which meant that the support measures were also to be allocated in respect of expenditure incurred as from the date of the first application.

B New aid scheme

On 18 November 1999, the Italian authorities notified to the Commission (8) a State aid scheme adopted by the Italian authorities pursuant to Law No 488/92. The scheme was in fact a modified extension of the old aid scheme from 1 January 2000.

Following alterations to the scheme by the Italian authorities, on 12 July 2000 the Commission issued the contested decision, in which it stated that it did not intend to raise any objections to the notified scheme with effect until 31 December 2006.

The contested decision contains a transitional provision which states:

'Only on the occasion of the first implementation of the scheme in question, that is to say on the occasion of the first invitation to apply for support measures to be organised on the basis of the scheme in question, it being understood that applications for aid must in any case be introduced before work is started on the investment project, applications introduced on the occasion of the last invitation organised on the basis of the preceding scheme and approved by the Commission up to 31 December 1999, which were considered eligible for aid but were not cleared because insufficient financial resources were allocated to that invitation, will exceptionally be eligible.'

In Italy, the contested decision was followed by the adoption of the Decree of 14 July 2000 (9) by the Ministero dell'Industria, Commercio e d'Artigianato (the Ministry of Industry, Commerce and Crafts) ('the MICA') and of Circular No 900315 of 14 July 2000, (10) which laid down the modalities of implementation of the aid scheme authorised by the contested decision ('the new aid scheme').

These national rules provide that support measures could be granted on the basis 'of the expenditure held to be eligible in the context of programmes relating to the last appropriate invitation to apply for support measures, which had been examined and approved but had not been supported because the necessary financial resources were not available'.

II Factual background

Under the old aid scheme, Nuova Agricast submitted an application for State aid in response to the third appropriate invitation, which concerned the first semester of 1998. Its application was included in the regional list for the region of Apulia, approved by decree of the MICA on 14 August 1998.

Given its ranking in the regional list and the insufficiency of available funds, it did not receive the funds it had applied for.

A fourth invitation, concerning the second semester of 1998, was published. Nuova Agricast decided not to use its right to automatic inclusion of its application for that invitation but to wait for the next appropriate invitation in order to submit its application in a revised form.

No such invitation was published before 31 December 1999, the date on which the Commission's approval of the old aid scheme expired. The next appropriate invitation, in response to which Nuova Agricast could finally submit its revised application, was published only on 14 July 2000, when the new aid scheme had already entered into force.

The new aid scheme, authorised by the contested decision, did not maintain as valid, for the purposes of determining the expenditure that was eligible, the conditions which were applicable to Nuova Agricast's initial application. Its revised application was rejected and thus not listed in the relevant regional list.

III Proceedings before the national court and the question referred

Nuova Agricast brought an action before the Tribunale ordinario (District Court) di Roma (Italy) against the competent Italian Ministry (the Ministero delle Attività Produttive, which has taken over the powers of the MICA) for damages allegedly suffered by it as a consequence of the non-payment of the State aid that it had applied for.

In this respect, Nuova Agricast takes the view that, in adopting the new aid scheme, the Italian authorities failed to protect properly the interests of companies, such as Nuova Agricast, who had waived their right to automatic inclusion in the fourth invitation in order to resubmit substantially the same project, with some amendments to the 'assessment indicators', under the next appropriate invitation, but who could not do so as the fourth invitation was the last appropriate invitation for the economic sector concerned under the old aid scheme.

According to the order for reference, there were three categories of companies after the authorisation for the old aid scheme had expired: (i) companies, such as Nuova Agricast, whose application had been entered on one of the regional lists under the third invitation and which had waived their right to automatic resubmission of their application under the fourth invitation in order to submit a reformulated application under the next appropriate invitation ('companies of the first category'); (ii) companies whose first application had been submitted under the fourth invitation and whose applications had been included on the regional lists relating to that invitation but which had not received the aid requested because of insufficiency of funds; these companies are covered by the transitional provision set out in the contested decision ('companies of the second category'); and (iii) companies which had not yet submitted an application, although the implementation of their investment project had already started ('companies of the third category').

According to the national court, it would appear that the Italian State failed to draw the Commission's attention to the fact that companies of the first category had acquired rights under the old aid scheme. Under the new aid scheme only expenses incurred after the application for aid could be covered by the new aid scheme. A temporary and extraordinary exception applied only to those requests which had been submitted under the fourth and last invitation under the old aid scheme. The referring court states that by adopting such a restrictive scope for this exception the contested decision infringed the legitimate expectations of the companies of the first category.

The referring court considers that in order to assess the liability of the Italian authorities it must establish whether there is a causal link between the alleged misconduct of the Italian State and the damage allegedly suffered by Nuova Agricast.

According to the referring court, the contested decision affects this causal link because it is interposed between the conduct for which Nuova Agricast blames the Italian authorities and the damage suffered by Nuova Agricast. The referring court thus considers that it must determine the impact which the conduct of the Italian authorities had on the Commission's decision. For that purpose the referring court deems it necessary to determine whether the transitional provision contained in the contested decision may be invalid, because it infringes the rules and principles of the Community legal order.

Given that the companies of the first and the second categories are in similar legal situations but are treated differently with regard to their possible eligibility for in the new aid scheme by reason of the transitional provision, the referring court asks first of all whether the transitional provision breaches the principle of equal treatment.

Second, the referring court also expresses doubts as to the validity of the transitional provision in so far as it fails to comply with the obligation to state adequate reasons in relation to the exclusion of the companies of the first category.

Thus, on 14 June 2006, the Tribunale ordinario di Roma decided to stay the proceedings and to make a reference to the Court of Justice of the European Communities for a preliminary ruling on the following question:

'Is the Commission's decision of 12 July 2000, notified to the Italian Government by letter referenced SG(2000)D/105754 of 2 August 2000, valid as regards only the transitional provision which provides for exceptional derogation from the principle of 'necessary aid' on the occasion of the first implementation of the scheme in question solely for applications 'made on the occasion of the last invitation to apply for support measures, organised on the basis of the preceding scheme and approved by the Commission until 31 December 1999, which were considered eligible for aid but were not cleared because insufficient financial resources were allocated to that invitation', with the consequent unjustified passing-over in breach of the principle of equal treatment and of the obligation to state the reasons on which the decision was based pursuant to Article 253 EC of applications made in connection with earlier invitations, which had not been supported because of a lack of funds and which were waiting to be included automatically in the next invitation or to be revised and resubmitted in the first 'appropriate' invitation established under the new scheme?'

IV Related procedures before the Community Courts

In addition to the action in the main proceedings before the Tribunale ordinario di Roma, Nuova Agricast has brought two actions before the Court of First Instance of the European Communities.

An action for annulment was brought on 15 March 2004 by Nuova Agricast Srl and Others before the Court of First Instance. By order of 15 June 2005, not published in the ECR, the Court of First Instance (Fifth Chamber) dismissed the action as inadmissible on the basis that it was brought out of time. (11)

In addition Nuova Agricast has lodged an action for damages before the Court of First Instance. (12) It seeks compensation for the damage allegedly suffered as a result of the adoption of the contested decision. The action, which is still pending, concerns, to a degree, the same damage which is the subject of the main proceedings before the referring court.

V Procedure before the Court

The Court has received observations from Nuova Agricast, the Commission, and the Italian Government. A hearing was held on 11 September 2007.

VI Arguments of the parties

A Nuova Agricast

Nuova Agricast points out that the questions of the referring court on the validity of the contested decision with regard to the principle of equality are based on the premiss that the companies of the first category had legitimate expectations that their reformulated application would be entered in the list concerning the next appropriate invitation, which was the first invitation under the new aid scheme.

It therefore considers it necessary, in order to establish the validity of this premiss, that the Court determine, as a preliminary matter, whether the old aid scheme, approved by the 1997 decision, created in favour of the companies of the first category a right, protected by the Community legal order, to receive aid even after the expiry of the period during which the old aid scheme was approved. In this respect, Nuova Agricast considers that, by approving the old aid scheme, the Commission recognised that companies of the first category had a legally protected right to reformulate their application for the next appropriate invitation, while retaining, for expenditure that had already been incurred, the requirements of eligibility applicable to the invitation under which they had submitted their initial application. This right did not simply disappear when the authorisation of the old aid scheme expired.

As regards a possible breach of the principle of equality of treatment, Nuova Agricast is of the view that the companies of the first and the second categories were in a similar situation because they had all acquired the right to participate in the first appropriate invitation under the new aid scheme. Therefore, they should have been included on an equal basis as beneficiaries of the transitional provision contained in the contested decision.

With regard to the Commission's obligation to state reasons in accordance with Article 253 EC, Nuova Agricast submits that the contested decision fails to indicate why the legal protection acquired by the companies of the first category under the old aid scheme was removed. A provision which causes such a degree of damage to a significant number of companies requires a specific statement of reasons.

B The Italian Government

First, the Italian Government takes the view that the contested decision does not infringe the principle of equality of treatment, because the companies of the first and the second categories are not in the same situation. The Italian administrative courts have confirmed that the companies of the first category could not rely on legitimate expectations with regard to the possibility of applying for aid under the new aid scheme under the conditions applicable to invitations to apply, published under the old aid scheme.

Second, the contested decision is adequately reasoned, having regard to the exchange of letters between Italy and the Commission in the course of the preliminary phase of the examination of the notified aid scheme, which specify the reasons for the transitional provision. Moreover, according to the case-law of the Court, for a measure of general application which applies to a large number of situations, the reasoning can be limited to laying out the general situation which has led to its adoption and the general objectives which it seeks to achieve.

C The Commission

The Commission first of all questions the admissibility of the question referred. It considers that the reference on the validity of the contested decision manifestly has no link with an action for liability against the Italian State and is certainly not necessary to resolve the dispute before the referring court.

With respect to the substance, the Commission submits, first of all, that a decision by which it approves an aid scheme for a given period of time cannot give rise to any expectation or to any legally protected right as regards the possibility of granting and receiving aid after the authorisation of the scheme expires. Therefore, when the Commission examines a notified aid scheme which is in fact the extension of a previously authorised aid scheme, the Commission is not obliged to provide, in its authorisation of the new scheme, for a transitional regime in order for certain companies which allegedly acquired rights under the previous scheme to be able to continue to receive aid on the basis of the old scheme following the entry into force of the new scheme.

The Commission points out that it is the Member State which notifies an aid scheme and that the Commission cannot change the scheme. After the initiation of the formal investigation procedure, the Commission can impose conditions but, even then, the Member State has the right to decide not to implement these conditions, by abandoning the aid scheme. If the Commission comes to the conclusion that the criteria for attribution of the aid infringe other provisions of the Treaty, which would make the aid scheme incompatible with the common market, the Commission can merely declare the aid to be incompatible but it cannot cure such incompatibility by, for instance, modifying the group of beneficiaries under the scheme.

Concerning the alleged breach of the principle of equal treatment, the Commission submits, first, that the Italian authorities freely chose to adopt the transitional provision at issue. Therefore, the contested decision does not breach the principle of equal treatment with regard to different categories of companies, because the Commission limited itself to acknowledging the choice of the Italian State and to approving the notified scheme as a whole.

Second, the Commission recalls that, according to established case-law, the legality of a decision in the area of State aid must be evaluated on the basis of the information which was available to the Commission when it adopted it. In the present case, the Italian authorities did not mention the specific case of the companies of the first category, and therefore the fact that the transitional provision does not provide specifically for the inclusion of these companies cannot lead to invalidity of the contested decision.

Third, the Commission takes the view that, in any event, there is no breach of the principle of equal treatment because the companies of the first and the second categories are not in the same situation.

As to the alleged breach of the obligation to state adequate reasons in accordance with Article 253 EC, the Commission submits that no such statement was required with regard to the situation of the companies of the first category because that situation had not been raised before it by the national authorities. Moreover, the transitional provision is the result of the free choice of the Italian State, which is the addressee of the contested decision.

VII Appraisal

A Admissibility

It is settled case-law that, in the context of the cooperation between the Court of Justice and the national courts established by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling. (13)

However, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (14)

In the main proceedings, the referring court seeks to determine whether there is a causal link between potentially wrongful conduct on the part of the Italian authorities in the course of the preliminary examination of the new aid scheme by the Commission and the damage, namely the non-payment of aid, allegedly suffered by Nuova Agricast as a consequence of the scope of the transitional provision of the contested decision.

By its reference, the referring court seems to query, in essence, whether the contested decision, by failing to take into account the situation of companies of the first category, even if such a failure was due to a lack of accurate information from the Italian authorities, could be so tainted as to render the decision invalid. A finding on that question would, it would appear, contribute to the demarcation of the responsibility of the Italian authorities as regards the adoption of the contested decision.

Therefore the question of the national court concerning the validity of the contested Commission decision is not manifestly unrelated to the purpose of the dispute before the referring court, and the plea of inadmissibility must be rejected in this regard.

A second issue of admissibility arises in relation to the fact that Nuova Agricast has already brought an action for annulment of the contested decision before the Court of First Instance of the European Communities. As mentioned earlier, the Court of First Instance (Fifth Chamber) dismissed the action for annulment in Nuova Agricast and Others as inadmissible because it had been brought out of time. (15) In the light of the Court's case-law in TWD Textilwerke Deggendorf, (16) it must be determined whether Nuova Agricast's action for annulment was declared inadmissible only because it was brought after the prescribed time-limits, in which case the present request for a preliminary ruling on the validity of the contested Commission decision would be inadmissible before this Court.

In the circumstances giving rise to the judgment in TWD Textilwerke Deggendorf, it was quite obvious that an action for annulment brought against the contested decision within the period laid down under Article 230 EC would have been admissible. (17) In the present case, by contrast, the contested decision, addressed to the Italian Republic, concerns an aid scheme intended for categories of persons defined in a general manner and not for explicitly identified recipients. Moreover, the Court of First Instance has held that applicants which were merely third parties during the preliminary investigation could not be individually concerned by a decision authorising an aid scheme. (18) Therefore, it seems doubtful that Nuova Agricast would have had standing to bring an action under Article 230 EC against the contested decision.

Thus, unlike the circumstances giving rise to the judgment in TWD Textilwerke Deggendorf, it was not clear that Nuova Agricast's action for annulment would have been admissible if it had been lodged within the period laid down under Article 230 EC.

Accordingly, I consider that the reference for a preliminary ruling is admissible.

B Substance

In the light of the information provided by the referring court, the referring court appears to ask, in essence, whether the Commission's decision, by failing to take into account the situation of companies of the first category, may be invalid because it infringes the principle of equal treatment and the Commission's obligation to state adequate reasons in accordance with Article 253 EC.

For the purpose of determining this question, it is important to consider briefly the type of aid and decision at issue in the present case and the scope of the judicial review which the Court may exercise in that context.

1. Determination of the type of aid and decision at issue

According to Article 87(1) EC, State aid is, as a general rule, prohibited in the Community. Exceptions to this principle are provided for under Article 87(2) EC, according to which certain kinds of aid are deemed compatible with the common market, and under Article 87(3) EC, according to which another limited number of categories of aid is permitted to be compatible.

According to the settled case-law of the Court, assessment of the compatibility of aid measures or of an aid scheme with the common market falls within the exclusive competence of the Commission, subject to review by the Court. (19)

For the purpose of the control of the compatibility of State aid with the common market, the Commission must receive, in accordance with the first sentence of Article 88(3) EC, notification of 'new aid' prior to such plans being put into effect. 'New aid' is any measure to grant or alter aid, where the alterations may relate to existing aid or to initial plans notified to the Commission. (20) The present case concerns new aid, since the aid constitutes an alteration to a previous scheme, the authorisation for which expired on 31 December 1999.

It must also be pointed out that the measure at issue in the contested decision is an aid scheme, as opposed to individual aid. The use of aid schemes allows Member States to obtain a single authorisation from the Commission, on the basis of the general features of the scheme. (21)

The contested decision is a 'decision not to raise objections', (22) which was thus taken by the Commission without initiating the formal investigation procedure. (23)

2. The judicial review of State aid decisions by the Court

According to the Court's case-law, as regards the application of Article 88(3) EC, the Commission enjoys a wide discretion, the exercise of which involves assessments of an economic and social nature which must be made within a Community context. (24)

Therefore, in its review of the legality of a Commission decision on State aid, the Court must restrict itself to determining whether the Commission has exceeded the scope of its discretion by a distortion or manifest error of assessment of the facts or by misuse of powers or abuse of process. (25) This also means that the Court cannot substitute its evaluation of the compatibility of aid for that of the Commission. (26)

3. The alleged infringement of the principle of equality of treatment

The first alleged ground of invalidity essentially raises the question whether the Commission's decision may be invalid because it infringes the principle of equal treatment as between the companies of the first and the second categories with regard to the scope of its transitional provision.

The Commission's competence with regard to State aid is limited to the examination of whether State aid is compatible with the common market. As to the scope of this examination, the Court has consistently held that Article 87 EC may not be used to frustrate other Treaty rules. (27) The Commission is therefore entitled to take account of possible infringements of other Treaty rules and fundamental principles when considering the compatibility of a State aid scheme with the common market. (28) Such principles include the principle of equal treatment. (29)

While it is empowered to verify the compatibility of State aid with the common market, the Commission does not conceive or design aid schemes or attribute the aid. Moreover the Commission cannot force a Member State to pay State aid. It is empowered only to order a Member State not to pay an aid it considers incompatible with the common market. It is the Member State which provides the funds for the aid, designs the scheme and notifies it to the Commission. The Member State retains the right to withdraw the notification of the aid scheme and not to implement the aid scheme.

It follows that a possible transitional provision in a notified State aid scheme is proposed by the Member State as part of the aid scheme it notifies to the Commission for authorisation. It will therefore be assessed by the Commission as part of the aid scheme with a view to evaluating the compatibility of the scheme as a whole with the common market.

It follows from the findings of the Court of First Instance (Fifth Chamber), in a case related to the present one, that the wording of the transitional provision in the contested decision is the result of a free choice made by the Italian authorities. (30) Until the formal investigation procedure has been initiated, the Commission does not have the power to oblige a Member State to modify an aid scheme. In the course of the informal procedure the Commission can only either adopt a decision not to raise any objections or decide to initiate the formal investigation procedure. (31)

It falls therefore to be determined whether, in the present case, the Commission exceeded its discretion because it considered the new aid scheme as compatible with the common market after the preliminary investigation despite the exclusion of the companies of the first category from the scope of the transitional provision of the contested decision and, as a result, did not initiate the formal investigation procedure.

First, there is in my view a formal reason which appears to indicate that this was not the case. There is in fact no evidence that the Commission was aware in any way of the existence or, at least, of the specific situation of the companies of the first category, to which Nuova Agricast belongs.

According to established case-law, the validity of a State aid decision by the Commission must, however, be evaluated on the basis of the information that was available to the Commission when it adopted the decision. (32) For the present case, this would mean that the Commission could not have been required to take into account the situation of Nuova Agricast and other companies belonging to the first category.

Before drawing this conclusion, it must however be pointed out that this case-law has been developed and applied in cases where the challenged decision had been adopted by the Commission after a formal investigation procedure. For such decisions, this approach seems justified because the 'interested parties' within the meaning of Article 88(2) EC have the opportunity to provide all relevant information to the Commission, even if some have not made use of that opportunity. (33) Such parties are therefore to a large extent responsible for the information that was available to the Commission when it reached its decision. If such 'interested parties' claim at a later stage that the Commission decision is invalid, it is logical that they can then question the validity of the Commission decision only on the basis of the information which was available to the Commission for the adoption of its decision.

This reasoning cannot be transposed to a decision not to raise any objections to an aid scheme and closing the preliminary phase of the examination of an aid, where no formal investigation procedure has ever been initiated. Such a decision is in principle (34) taken on the basis of the information provided by the notifying Member State. The procedure does not provide a formal opportunity for third parties to intervene and submit information to the Commission that it may consider in order to evaluate the compatibility of the notified aid with the common market. Companies such as potential beneficiaries of aid or their competitors are not even necessarily aware of the notification of an aid scheme which may be of interest to them, because the Commission is obliged to publish a notice on the notification of an aid only when the formal investigation procedure is initiated. (35) Thus, when the Commission adopts a decision not to raise objections, a notice on this decision will be the first act to be published in the Official Journal of the European Union.

Nevertheless, I believe that the Commission should be entitled to rely on the information available at the time of the adoption of the decision even when a party which was not involved in the preliminary investigation, such as Nuova Agricast in the present case, challenges a decision not to raise objections.

It follows clearly from the primary and secondary legislation, especially Regulation No 659/1999, that the preliminary investigation takes place primarily between the Commission and the Member State concerned. (36) As a result, the Commission is not granted fact-finding powers to search for information beyond that provided to it, mainly by the Member State concerned, during the preliminary investigation. Such limits on the powers of the Commission necessarily imply that the legality of its decisions cannot be challenged on the basis of information other than that available at the time of the adoption of the decision. Moreover, if third parties were to be able to challenge the validity of Commission decisions on the basis of information other than that available to it at the time of the adoption of the decision, the Commission would in all likelihood avoid such a risk by systematically initiating the formal investigation procedure, thereby allowing all 'interested parties' within the meaning of Article 88(2) EC to submit relevant information. Such an outcome is however difficult to reconcile with the current two-stage State aid control procedure as provided for under the EC Treaty and Regulation No 659/1999.

Therefore, the validity of a decision not to raise any objections adopted by the Commission should be assessed on the basis of the information available to the Commission when adopting such a decision.

Since there is no evidence in the present case that the Commission was informed of the specific situation of the companies of the first category, the contested decision cannot be considered as invalid on the ground that it would allegedly infringe the principle of equal treatment with regard to rights allegedly acquired by these companies.

In any event, it may be recalled that, according to settled case-law, when examining the compatibility of an aid scheme with the common market, the Commission may confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies. (37)

Moreover, it must be pointed out that the present case is not one of the exceptional cases where the Commission may be obliged to ensure that its decision concerning State aid contains a transitional provision and where it may be bound to ensure that such a provision complies with the principle of equal treatment. Such an obligation can only arise in very specific circumstances where, among other things, the past behaviour of the Community institution triggers legitimate expectations which must be protected. (38)

In the present case the Commission has, however, never conducted itself in such a way as to create a legitimate expectation that the old aid scheme, which expired on 31 December 1999, would continue to have effects beyond this date.

The authorisation of the old aid scheme, which was limited in time and expired on 31 December 1999, is, by its very nature, not an act which could trigger such legitimate expectations. The rule that exceptions to the general principle prohibiting State aid must be strictly interpreted precludes such an extension of the temporal scope of an approved aid scheme. (39) Moreover, if it were possible to invoke rights allegedly acquired under a previous aid scheme after the authorisation has expired, this would question the very purpose of the temporal limitations of such authorisations, which allow the evaluation of State aid to be adapted in the light of changing economic circumstances.

Legitimate expectations cannot be invoked against the Commission by reason of its application of the principle of 'necessity of aid', which implies inter alia that the application to receive aid must normally be made before the activity which is the subject of the aid is started. This principle has been used as a general rule in the assessment of the compatibility of aid by the Commission. (40) Contrary to what the referring court appears to suggest in its reference, this principle has not been applied only since its inclusion in the Commission's guidelines on regional aid in 1998. (41) This suffices to preclude any claim that an allegedly 'sudden' application of this principle may have breached legitimate expectations created by the Community with regard to the possibility of applying for aid under the new aid scheme under the conditions applicable to invitations to apply published under the old aid scheme.

Nor can possible legitimate expectations, which have been triggered by the national authorities as to the possibility of an extension of certain effects of an expired State aid scheme, constitute a basis for an obligation of the Commission to lay down a transitional provision. Articles 87 EC and 88 EC would lose much of their effectiveness if a party could rely on legitimate expectations created by Member States in order to claim the invalidity of a Community act. (42)

It follows that, in the circumstances of the present case, the Commission was under no obligation to ensure that the contested decision contained a transitional measure which would have included the companies of the first category. It has therefore not exceeded its discretion by not raising any objections to the notified measure because the scope of the transitional measure it contained allegedly infringed the principle of equal treatment. Thus, the contested decision cannot be regarded as invalid on that ground.

4. The alleged failure to state adequate reasons

The referring court also queries whether the Commission has provided sufficient reasons, in accordance with Article 253 EC, in the contested decision with regard to the exclusion of the companies of the first category from the scope of its transitional provision.

The Court has consistently held that the requirement to state reasons depends on the nature of the measure in question and, in the case of a measure intended to have general application, which is the case with an aid scheme, the preamble may be limited to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to achieve, on the other. (43) Therefore it would be unreasonable to require the Commission to state specific reasons for the precise scope of a transitional measure contained in a decision not to raise any objections to an aid scheme. This is especially so when, as in the present case, the Commission, by its decision, limits itself to acknowledging a decision made by the Italian authorities as to the appropriate scope of the transitional provision.

It follows that the Commission has in my view not infringed its obligation to state adequate reasons by not giving reasons for the exclusion of the companies of the first category from the scope of the transitional provision of the contested decision.

VIII Conclusion

In the light of the foregoing, I am of the view that the answer to the question referred should be that:

Examination of the question referred has disclosed nothing capable of affecting the validity of Commission Decision SG(2000)D/105754 of 12 July 2000 declaring compatible with the Treaty an aid scheme provided for under Italian legislation in the form of aid for investment in the less-favoured regions of Italy.

1 Original language: English.

2 OJ 2000 C 278, p. 26.

3 GURI No 299, 21 December 1992, p. 3.

4 OJ 1997 C 242, p. 4.

5 This means that after a preliminary examination of the scheme, the Commission considered that there was no reason to object to the aid scheme which was notified by the Member State.

6 Except for expenditure on engineering plans and studies and on the purchase and organisation of company land, which was eligible from 12 months preceding the date on which the application was submitted.

7 An 'appropriate' invitation is an invitation relating to support measures in the same economic sector.

8 The scheme was registered by the Commission under No N715/99.

9 GURI No 166, 18 July 2000.

10 GURI No 175, 28 July 2000.

11 Order of the Court of First Instance (Fifth Chamber) of 15 June 2005 in Case T-98/04 Nuova Agricast and Others, not published in the ECR; notice published in OJ 2005 C 229, p. 22.

12 Case T-362/05, pending before the Court of First Instance.

13 See, inter alia, Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59; Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38; and Case C-340/99 TNT Traco and Others [2001] ECR I-4109, paragraph 30.

14 See, inter alia, Bosman, cited in footnote 13, paragraph 61, and PreussenElektra, cited in footnote 13, paragraph 39.

15 Cited in footnote 11.

16 Case C-188/92 [1994] ECR I-833, paragraphs 17 and 18. It follows from that judgment that in the Community system of legal remedies the admissibility of an indirect challenge to an act of a Community institution made by a natural or legal person by means of a reference for a preliminary ruling turns on whether the possibility exists or would have existed to challenge that act directly on the basis of the fourth paragraph of Article 230 EC before the Court of First Instance.

17 The Commission's decision addressed to the Member State concerned made explicit reference to the recipient of the individual aid in question and that State had communicated the decision to the recipient, stating that it could bring an action for annulment against it.

18 See, to that effect, Case T-398/94 Kahn Scheppvaart [1996] ECR II-477, paragraph 39. In that case, which concerned a decision not to raise objections to an aid scheme consisting in sectoral fiscal measures, the Court of First Instance held that the contested decision appeared with regard to the potential beneficiaries of those measures to be a measure of general application covering situations which were determined objectively and entailed legal effects for a class of persons envisaged in a general and abstract manner. Such potential beneficiaries therefore lacked standing to bring an action under Article 230 EC. This case-law is to be distinguished from that concerning decisions not to raise objections to an individual aid adopted without the formal investigation procedure being initiated, for which the requirements for standing of third parties have been relaxed by the Court of Justice (see Case C-225/91 Matra v Commission [1993] ECR I-3203, and Case C-198/91 Cook v Commission [1993] ECR I-2487).

19 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 ('FNCE'), paragraph 14; Case C-39/94 SFEI and Others [1996] ECR I-3547, paragraph 42; and Case C-295/97 Piaggio [1999] ECR I-3735, paragraph 31.

20 See, for example, Piaggio, cited in footnote 19, paragraph 48. Article 1(c) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1) ('the Procedure Regulation') states that ''new aid' shall mean all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid'.

21 The individual grants of aid are merely measures implementing the general aid scheme. Since the factors to be taken into consideration by the Commission in assessing that aid are the same as those which it applied on examining the general scheme, it is unnecessary for the individual grants of aid to be subject to examination by the Commission.

22 See Article 4(3) of the Procedure Regulation.

23 The formal investigation procedure must be initiated when the Commission has doubts as to the compatibility of the notified aid with the common market (see Article 4(4) of the Procedure Regulation).

24 See, inter alia, Case C-303/88 Italy v Commission [1991] ECR I-1433, paragraph 34.

25 See Matra v Commission, cited in footnote 18, paragraph 25.

26 See, for example, Order of the Court (Fifth Chamber) in Case C-297/01 Sicilcassa [2003] ECR I-7849, paragraph 47.

27 See, to this effect, Case 73/79 Commission v Italy [1980] ECR 1533, paragraph 11; Matra v Commission, cited in footnote 18, paragraph 41; and Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 78.

28 See Opinion of Advocate General Fennelly in Joined Cases C-15/98 and C-105/99 Italyand Sardegna Lines v Commission [2000] ECR I-8855, point 78.

29 It may be recalled in this connection that the Court has, in the past, held a decision taken by the Commission under Article 88 EC to be invalid because its transitional provision infringed the principle of legitimate expectations and the principle of equal treatment (see Joined Cases C-182/03 and C-217/03 Belgium and Forum 187 v Commission [2006] ECR I-5479, paragraphs 168 to 174).

30 Order of the Court of First Instance (Fifth Chamber) in Case T-426/04 Tramarin [2005] ECR II-4765.

31 Besides, of course, having the possibility of deciding that the notified measure does not constitute aid.

32 Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano [2002] ECR I-7869, paragraphs 168 to 171; Case C-241/94 France v Commission [1996] ECR I-4551, paragraph 33; and Case 234/84 Belgium v Commission [1986] ECR 2263 ('Meura'), paragraph 16.

33 See, to that effect, for example, Falck and Acciaierie di Bolzano, cited in footnote 32, paragraph 169.

34 Nothing in fact prevents potentially affected parties from submitting information to the Commission during the preliminary investigation, in which case the Commission must take such elements into account (see, to this effect, Case C-204/97 Portugal v Commission [2001] ECR I-3175, paragraph 35).

35 See, to that effect, Case 84/82 Germany v Commission [1984] ECR 1451, paragraph 13, and Joined Cases 91/83 and 127/83 Heineken [1984] ECR 3435, paragraph 15.

36 See, to this effect, Case C-276/03 P Scott v Commission [2005] ECR I-8437, paragraph 33.

37 See, to that effect, Italy and Sardegna Lines v Commission, cited in footnote 28; Case 248/84 Germany v Commission [1987] ECR 4013, paragraph 18; and Case C-75/97 Belgium v Commission [1999] ECR I-3671, paragraph 48.

38 This was the case in Belgium and Forum 187 v Commission, cited in footnote 29, paragraphs 168 to 174. In that case the Commission took a negative decision concerning a scheme of existing aid concerning coordination centres created under Belgian legislation. For a more recent application of the same reasoning, see Case T-348/03 Koninklijke Friesland Foods v Commission [2007] ECR II-0000.

39 See, to this effect, Case T-109/01 Fleuren Compost v Commission [2004] ECR II-127, paragraph 75.

40 Indeed the Court has consistently held that, in order for aid to benefit from one of the derogations contained in Article 87(3) EC, it must not only comply with one of the objectives set out in Article 87(3)(a), (b), (c) or (d) EC, but must also be necessary for the attainment of those objectives (see Case 730/79 Philip Morris v Commission [1980] ECR 2671, paragraph 17).

41 OJ 1998 C 74, p. 9. The third subparagraph of paragraph 4.2 of the Guidelines states that 'aid schemes must lay down that an application for aid must be submitted before work is started on the projects'.

42 See, by analogy, the case-law according to which Articles 87 EC and 88 EC would lose much of their effectiveness if Member States could rely on their own wrongful conduct which may have created legitimate expectations on the part of potential beneficiaries of aid in order to deprive decisions taken by the Commission under provisions of the Treaty of their effectiveness (see, for example, Case C-5/89 Commission v Germany [1990] ECR I-3437, paragraph 17).

43 Since Case 5/67 Beus v Hauptzollamt München [1968] ECR 83, 95. See, for example, Case C-284/94 Spain v Commission [1998] ECR I-7309, paragraph 28.