Report 2011 - EFTA Court

diligent economic operator should
normally be able to determine
whether that procedure has been
followed. in particular, where aid
is implemented without prior
notification to ESA, so that it is
unlawful under Article 1(3) of Part
i of Protocol 3, the recipient of
the aid cannot as a rule have a
legitimate expectation that its grant
is lawful.
13. Legal certainty is a fundamental
principle of EEA law, which may
be invoked not only by individuals
and economic operators, but also
by EEA States. in particular, this
principle requires rules involving
negative consequences for
individuals to be clear and precise
and their application predictable
for those subject to them. With
respect to the argument that ESA
infringed the principle of legal
certainty by adopting the date of
publication of a Commission’s
decision as the date from which
the aid was recoverable, the same
considerations must apply to
the position of the an applicant
in this regard as concerning
the existence of legitimate
expectations. Accordingly, neither
the EEA State in question nor the
recipients involved can plead the
principle of legal certainty in these
circumstances in order to prevent
recovery of the aid, since the risk
of recovery was foreseeable.
14. As to the principle of equal
treatment, compliance to it requires
that comparable situations must
not be treated differently and that
different situations must not be
treated in the same way unless
such treatment is objectively
justified.
15. in relation to whether ESA
failed to comply with its obligation
under Article 16 of the SCA, the
statement of reasons required by
the Article must be appropriate
to the measure at issue. it must
disclose in a clear and unequivocal
fashion the reasoning followed by
ESA, in such a way as to enable the
persons concerned to ascertain the
reasons for the measure and thus
enable them to defend their rights
and enable the Court to exercise its
power of review.
The requirements to be satisfied by
the statement of reasons depend
on the circumstances of each case.
in particular, what matters is the
content of the measure in question,
the nature of the reasons given and
the interest which the addressees
of the measure, or other parties to
whom it is of direct and individual
concern, may have in obtaining
explanations. it is not necessary
Joined Cases E-4/10, E-6/10 and E-7/10 Principality of Liechtenstein, Reassur Aktiengesellschaft,
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Swisscom RE Aktiengesellschaft v EFTA Surveillance Authority