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Scuola Elementare Maria Montessori Srl v. European Commission, European Commission v. Scuola Elementare Maria Montessori Srl and European Commission v. Pietro Ferracci, Case C-622/16 P a C-624/16 P, CJUE, 6 November 2018.

Type Judgment
Case number C-622/16 P, C-624/16 P


State aid scheme granted by the Italian authorities to non-economic entities.

Normative references

Artt. 107, 108, 256, 263 TFEU

Regulation (EC) n. 659/1999 of the Council of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty


1. An interpretation that an act could at the same time have general scope in the context of the fourth paragraph of Article 263 (second part of the sentence) TFEU and lack that scope in the context of the fourth paragraph of Article 263 (third part sentence) TFEU would run counter to the rationale for adding this last provision, which is to mitigate the admissibility requirements of annulment applications. Furthermore, the fact that part of the Commission decision individually concerns a small group of beneficiaries of the aid scheme does not preclude that part from being considered to be of general application, provided that it applies to objectively determined situations and produces legal effects in relation to categories of people considered in a general way. This occurs when, with the first part of the decision, the Commission considers that the recovery of the aid granted under the tax exemption should not be ordered, despite its illegality and incompatibility with the internal market, and that this decision causes the anti-competitive effects of the general and abstract measure constituted by this exemption vis-à-vis an indeterminate number of competitors of the beneficiaries of the aid granted.

2. For the beneficiaries of a State aid scheme, the national provisions establishing that scheme and the implementing acts, such as a notice of assessment, constitute implementing measures which a decision of the Commission declaring that scheme incompatible with the internal market entails. This is explained by the fact that the beneficiary of an aid scheme can, if he meets the conditions laid down by domestic law, ask the national authorities to grant him the aid as it would have been granted in the presence of an unconditional decision declaring that scheme compatible with the internal market, and challenge the act rejecting this request before the national courts claiming the invalidity of the Commission's decision. However, this does not apply to the situation of competitors of beneficiaries of a national measure which was deemed not to constitute State aid, pursuant to Article 107 of the TFEU. Indeed, the situation of such a competitor is different from that of the recipients of aid, since that competitor does not satisfy the conditions laid down by the national measure in question in order to benefit from it. In such circumstances, it would be artificial to oblige that competitor to ask the national authorities to grant him that benefit and to challenge the refusal of that request before a national court, in order to induce the latter to question the Court about the validity of the Commission decision on the above measure.

3. In accordance with art. 14 of regulation no. 659/1999, laying down the methods of application of art. 108 TFEU, the Commission does not require the recovery of the aid if this is contrary to a general principle of EU law. In this regard, the principle according to which "ad impossibilia nemo tenetur" is part of the general principles of Union law. Therefore, the Commission cannot adopt a recovery order whose execution would be impossible to carry out. Furthermore, according to Article 4 TEU, the principle of sincere cooperation finds its place during the entire procedure relating to the examination of a measure on the basis of the provisions of EU law on State aid, in the event that the Member State concerned alleges an absolute impossibility of recovery, this principle obliges that Member State to submit to the Commission the reasons underlying that allegation, and the Commission to examine those reasons. Therefore, this principle does not require the Commission to follow any decision declaring an aid illegal and incompatible with the internal market with a recovery order, but obliges it to take into consideration the arguments presented by the Member State concerned regarding the existence of an absolute impossibility of recovery.