«(Actions for annulment – State aid – Aid granted by the Kingdom of the Netherlands to manure-processing undertakings – Scheme approved by the Commission for a fixed period – Aid granted before or after the approved period)»

1.. State aid – Administrative procedure – Obligation on the Commission to give the interested parties an opportunity to submit their comments – Right of the aid recipient to a fair hearing – Limits (Art. 88(2) EC)

2.. State aid – Commission decision – Duty of care on the Member State granting the aid and the recipient of that aid as regards the communication of all relevant information (Art. 88(2) EC)

3.. State aid – Investigation by the Commission – No observations from interested parties – No effect on the validity of the Commission's decision – Obligation to consider of its own motion information which has not been expressly invoked – No such obligation (Art. 88(2) EC)

4.. State aid – Commission decision – Judicial review – Limits – Legality to be assessed in the light of the information available when the decision was adopted (Arts 88(3) EC and 230 EC)

5.. State aid – Prohibition – Derogations – Aid which can be regarded as compatible with the common market – Commission's discretion – Judicial review – Limits (Art. 87(3) EC)

6.. Acts of the institutions – Statement of reasons – Obligation – Scope – Commission decision defining an aid measure – Commission decision finding non-notified aid incompatible with the common market (Arts 87(1) EC, 88(3) EC and 253 EC)

7.. State aid – Recovery of illegally granted aid – Application of national law – Possible legitimate expectations on the part of the recipients – Protection – Conditions and limitations (Arts 87 EC and 88 EC)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition) 13 January 2004 (1)

((Actions for annulment – State aid – Aid granted by the Kingdom of the Netherlands to manure-processing undertakings – Scheme approved by the Commission for a fixed period – Aid granted before or after the approved period))

In Case T-109/01,

applicant,

v

defendant,

APPLICATION for the annulment of Commission Decision 2001/521/EC of 13 December 2000 on the aid scheme implemented by the Kingdom of the Netherlands for six manure-processing companies (OJ 2001 L 189, p. 13),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber, Extended Composition),

composed of: N.J. Forwood, President, J. Pirrung, P. Mengozzi, A.W.H. Meij and M. Vilaras, Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 14 January 2004,

gives the following

First plea in law: infringement of Article 87(1) EC and manifest error of assessment

Contested decision

Arguments of the parties

Findings of the Court

Second and third pleas in law: infringement of Article 88 EC and the principle of legal certainty and infringement of the extension decision

Contested decision

Arguments of the parties

Findings of the Court

First part: infringement of Article 87(3)(c) EC

– Arguments of the parties

– Findings of the Court

Second part: manifest error in assessing the compatibility of the aid at issue with the SME guidelines

– Contested decision

– Arguments of the parties

– Findings of the Court

«Only in the case of Fleuren Compost BV was the aid intensity below the ceiling laid down in the SME guidelines.

The Dutch authorities did not therefore provide evidence that the six companies complied with the SME criteria laid down in the guidelines or justify the aid on that basis ... The Commission therefore takes the view that the SME guidelines do not apply.»

Third part: manifest error in assessing the compatibility of the aid at issue with the SME guidelines

– Contested decision

– Arguments of the parties

– Findings of the Court

Arguments of the parties

Findings of the Court

Arguments of the parties

Findings of the Court

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition),

hereby:

Forwood

Pirrung

Mengozzi

Meij

Vilaras

Delivered in open court in Luxembourg on 13 January 2004.

H. Jung

N.J. Forwood

Registrar

President