OPINION OF ADVOCATE GENERAL
BOT
delivered on 18 July 2013 (1)
Case C‑272/12 P
European Commission
v
Ireland,
French Republic,
Italian Republic,
Eurallumina SpA,
Aughinish Alumina Ltd
(Appeal – State aid – Imputability of the contested measure – Exemption from excise duty – Mineral oils – Relationship between tax harmonisation and the monitoring of State aid – Principle of legal certainty – Presumption of legality)
1. This case should enable the Court to assess whether the General Court of the European Union raised a plea of its own motion which was not permissible.
2. The Court is hearing and determining this case for a second time. The European Commission has again brought an appeal, on this occasion against the judgment of the General Court delivered on 21 March 2012 in Ireland and Others v Commission, (2) by which that Court annulled, for a second time, Commission Decision 2006/323/EC of 7 December 2005. (3)
3. By that decision the Commission classified exemptions from excise duties on mineral oils implemented by the French Republic, Ireland and the Italian Republic as State aid that is incompatible with the common market. Those exemptions had been authorised, several years previously, by the Council of the European Union on a proposal from the Commission, in accordance with the relevant directives on excise duties.
4. The Commission also ordered that the aid concerned be recovered as from the date of publication in the Official Journal of the European Communities of the initiation of the formal investigation procedure, taking the view that, prior to that date, such aid had created legitimate expectations on the part of its beneficiaries.
5. In the judgment under appeal, the General Court ruled that the contested decision was to be annulled, finding that the Council’s decisions of authorisation, most recently Decision 2001/224/EC, (4) precluded the Commission, in principle, from attributing the exemptions at issue to the Member States concerned and, therefore, from classifying them as State aid and ordering their partial recovery. It found that, in the particular circumstances of the present case, the contested decision infringed the principle of legal certainty and the principle of the presumption of legality attaching to EU measures, in so far as it called directly into question the validity of the exemptions at issue granted by the Member States concerned until 31 December 2003, and also called into question, indirectly but necessarily, the validity of the Council’s decisions of authorisation, most recently Decision 2001/224, and the effects arising from that decision.
6. In support of its claim that the judgment under appeal should be set aside, the Commission submits, inter alia, that the General Court annulled the contested decision on the basis of a plea that it had raised of its own motion – namely that the exemptions at issue are not imputable to the Member States – which, in the Commission’s view, was not permissible and constituted the real ground on which that annulment was based.
7. In this Opinion, I shall support the argument put forward by the Commission in proposing that the Court rule that the General Court did indeed raise a plea of its own motion which was not permissible, and I will show that this finding by itself justifies the setting-aside of the judgment under appeal.
I – Relevant legislation
A – The rules governing State aid
8. Article 87(1) EC states:
‘Save as otherwise provided in [the EC] Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market.’
9. Article 88 EC provides:
‘1. The Commission shall, in cooperation with Member States, keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measures required by the progressive development or by the functioning of the common market.
2. If, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State or through State resources is not compatible with the common market having regard to Article 87, or that such aid is being misused, it shall decide that the State concerned shall abolish or alter such aid within a period of time to be determined by the Commission.
...
3. The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. If it considers that any such plan is not compatible with the common market having regard to Article 87, it shall without delay initiate the procedure provided for in paragraph 2. The Member State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision.’
B – Legislation on fiscal harmonisation
1. The directives relating to excise duties on mineral oils
10. Excise duties on mineral oils have been the subject of several directives, namely Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils, (5) Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils, (6) and Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, (7) which repealed Directives 92/81 and 92/82 with effect from 31 December 2003.
11. As regards Directive 92/81, Article 8(4) thereof was worded in the following terms:
‘The Council, acting unanimously on a proposal from the Commission, may authorise any Member State to introduce further exemptions or reductions for specific policy considerations.
A Member State wishing to introduce such a measure shall accordingly inform the Commission and shall also provide the Commission with all relevant or necessary information. The Commission shall inform the other Member States of the proposed measure within one month.
The Council shall be deemed to have authorised the exemption or reduction proposed if, within two months of the other Member States’ being informed as laid down in the second subparagraph, neither the Commission nor any Member State has requested that the matter be considered by the Council.’
12. Article 8(5) of that directive provided:
‘If the Commission considers that the exemptions or reductions provided for in paragraph 4 are no longer sustainable, particularly in terms of fair competition or distortion of the operation of the internal market, or Community policy in the area of protection of the environment, it shall submit appropriate proposals to the Council. The Council shall take a unanimous decision on these proposals.’
13. As regards Directive 92/82, Article 6 thereof fixed the minimum rate of excise duty on heavy fuel oil which the Member States were to apply, as from 1 January 1993, at EUR 13 per 1 000 kg.
14. As regards Directive 2003/96, Article 2(4)(b), second indent, thereof provided that the directive was not to apply to dual use of energy products, that is to say, where products are used both as heating fuel and for purposes other than as motor fuel and heating fuel. Accordingly, as from 31 December 2003, the date on which that directive became applicable, there has no longer been any minimum rate of excise duty for heavy fuel used in alumina production. Moreover, under Article 18(1) of Directive 2003/96, the Member States were authorised, subject to a prior review by the Council, to continue to apply until 31 December 2006 the reduced rates or exemptions set out in Annex II thereto, which refers to the exemptions from excise duties for heavy fuel oil used as fuel for alumina production in the region of Gardanne, in the Shannon region and in Sardinia.
2. Decision 2001/224
15. Article 1(1) of Decision 2001/224 provides that Member States are authorised to continue to apply the reductions in rates of excise duties or exemptions from such duties set out in Annex I to that decision.
16. Recital 5 in the preamble to that decision states:
‘This Decision shall be without prejudice to the outcome of any procedures relating to distortions of the operation of the single market that may be undertaken, in particular under Articles 87 and 88 of the Treaty. It does not override the requirement for Member States to notify instances of potential State aid to the Commission under Article 88 of the Treaty.’
II – Background to the dispute
17. Ireland, since 1983, the Italian Republic, since 1993, and the French Republic, since 1997, have exempted from excise duty mineral oils used for the production of alumina in the Shannon region, Sardinia and the Gardanne region respectively.
18. Those exemptions were authorised by the Council by way of Decision 92/510/EEC, (8) Decision 93/697/EC (9) and Decision 97/425/EC (10) respectively. Those authorisations have been extended by the Council on several occasions and, most recently, by Decision 2001/224, until 31 December 2006.
19. By three decisions of 30 October 2001, published in the Official Journal of the European Communities on 2 February 2002, (11) the Commission initiated the formal investigation procedure provided for in Article 88(2) EC in respect of each of the exemptions at issue. On completion of that procedure, the Commission adopted the contested decision.
20. In the enacting terms of the contested decision, it is stated, inter alia, that the exemptions at issue which had been granted until 31 December 2003 constituted State aid within the meaning of Article 87(1) EC, that the aid granted between 3 February 2002 and 31 December 2003 was incompatible with the common market in so far as the beneficiaries thereof did not pay a rate of at least EUR 13.01 per 1 000 kg of heavy fuel oil and that such aid had, therefore, to be recovered by the three Member States concerned.
III – Proceedings prior to the judgment under appeal
21. As to the initial consideration of the cases by the General Court and Court of Justice respectively, reference is made to paragraphs 25 to 43 of the judgment under appeal.
IV – The judgment under appeal
22. By the judgment under appeal the General Court annulled the contested decision in so far as it finds, or is based on the finding, that the exemptions from excise duty on mineral oils used as fuel for alumina production granted by the French Republic, Ireland and the Italian Republic up to 31 December 2003 constitute State aid within the meaning of Article 87(1) EC and in so far as it orders those Member States to take all measures necessary to recover those exemptions from the beneficiaries to the extent to which the latter did not pay excise duty at the rate of at least EUR 13.01 per 1 000 kg of heavy fuel oil.
23. As set out in paragraph 58 of the judgment under appeal, the General Court stated that it considered it appropriate, in accordance with the principle of procedural economy, to examine, first, the pleas and grounds of complaint alleging infringement of the principle of legal certainty and/or of the principle of the presumption of lawfulness attaching to EU measures. By those pleas and grounds, the applicants essentially complained that the Commission had partially nullified the legal effects produced by the Council’s decisions of authorisation, most recently Decision 2001/224, which authorised the Member States concerned to apply those exemptions until 31 December 2006.
24. After citing, at paragraphs 59 to 62 of the judgment under appeal, the case-law on the principles of legal certainty and of the presumption of legality attaching to EU measures, the General Court, at paragraphs 63 to 74 of that judgment, addressed the issue of the relationship between the rules on excise duties and those on State aid.
25. The General Court referred to the measures available to the European Community to eliminate various types of distortion that were detrimental to the proper functioning of the internal market in those two areas, proceeding on the premiss that the rules governing tax harmonisation, including the rules on excise duties, and the rules on State aid pursue the same objective, namely to promote the proper functioning of the internal market by combating, in particular, distortions of competition. The General Court held that, in the light of their common objective, and contrary to the view advocated by the Commission, in order for those different rules to be implemented consistently, the concept of distortion of competition must be regarded as having the same scope and the same meaning with regard to both the harmonisation of domestic fiscal legislation and State aid.
26. It pointed out that the rules governing the harmonisation of domestic fiscal legislation, including the rules on excise duties, laid down in Article 93 EC and in Directive 92/81, expressly confer on the EU institutions – that is to say, the Commission, which submits proposals, and the Council, which enacts measures – the responsibility for assessing whether competition may have been distorted, the purpose of which is to decide whether or not to authorise a Member State to apply, or to continue to apply, an exemption from the harmonised excise duty.
27. The General Court then went on to cite the case-law on Article 87(1) EC which refers to the decisions of Member States by which, in pursuit of their own economic and social objectives, they give, by unilateral and autonomous decisions, resources to undertakings or other persons or procure for them advantages intended to encourage the attainment of the economic or social objectives sought. It pointed out that, for advantages to be capable of being categorised as ‘aid’ within the meaning of that provision, they must, inter alia, be imputable to the State.
28. It was in the light of those principles and rules that the General Court, inter alia, rejected the Commission’s argument that Decision 2001/224, although an essential prerequisite for enabling the Member States concerned to grant the exemptions at issue, was not in itself sufficient to do so, having regard to recital 5 in the preamble to Decision 2001/224. It therefore concluded that recital 5 could not relate to a case such as that at issue here, in which Member States apply exemptions from excise duties simply by complying with an authorisation granted by an EU institution; if it did relate to such a case, that would be at odds with the overriding need, stemming from the principle of legal certainty, to ensure consistent implementation of the various provisions of EU law.
29. The General Court noted that the Commission had never used the powers available to it under Article 8(5) of Directive 92/81, Article 230 EC or Article 241 EC to seek amendment or abolition of the decisions of authorisation, annulment of those decisions or a declaration to the effect that Directive 92/81 is invalid.
30. Paragraphs 104 and 105 of the judgment under appeal read as follows:
‘104 It follows that, as the Council correctly submitted in its reply to the questions put by the [General] Court ..., when the Commission adopted the contested decision, Decision 2001/224 was in existence and remained valid. Decision 2001/224, the Council’s decisions of authorisation which preceded it and Directive 92/81, in particular Article 8(4) thereof, benefited from the presumption of legality attaching to any act of the European Union. They produced all their legal effects. Consequently, the Italian Republic, Ireland and the French Republic were entitled to rely on the Council’s decisions of authorisation, most recently Decision 2001/224, in order to continue to apply the exemptions at issue in Sardinia, the Shannon region and the Gardanne region respectively until 31 December 2003. Those decisions precluded the Commission, in principle, from being able, in the contested decision, to attribute the exemptions at issue referred to above to the Member States concerned and, therefore, from being able to categorise them as State aid for the purposes of Article 87(1) EC and ordering the partial recovery of the exemptions to the extent that it regarded them as incompatible with the internal market for the purpose of Article 87(3) EC.
105 In the particular circumstances of the present case, the [General] Court finds that, in so far as it calls directly into question the validity of the exemptions at issue granted by the Italian Republic, Ireland and the French Republic until 31 December 2003, the contested decision also calls into question, indirectly but necessarily, the validity of the Council’s decisions of authorisation, most recently Decision 2001/224, and the effects arising from those decisions. The contested decision thereby infringes the principle of legal certainty and also the principle of the presumption of legality attaching to EU measures.’
V – Forms of order sought before the Court of Justice
31. The Commission claims that the Court should:
– set aside the judgment under appeal;
– refer the case back to the General Court;
– reserve the costs.
32. Ireland, the French Republic, the Italian Republic and Aughinish Alumina Ltd (‘AAL’) contend that the Court should:
– dismiss the appeal;
– order the Commission to pay the costs.
33. Eurallumina SpA (‘Eurallumina’) contends that the Court should:
– dismiss the appeal;
– if the Court does not uphold any of the grounds invoked by the General Court in support of the judgment under appeal, refer the case back to the General Court for reconsideration;
– order the Commission to pay the costs.
VI – The appeal
34. In support of its claim that the judgment under appeal should be set aside and the case referred back to the General Court, the Commission puts forward five grounds of appeal.
35. The first two grounds are, in part, procedural, while the remaining three grounds relate to the substantive infringement of EU law.
36. By the first ground of appeal, the Commission seeks to demonstrate a lack of jurisdiction on the part of the General Court, procedural irregularities adversely affecting the Commission’s interests, infringement of the principle that the subject-matter of an action is defined by the parties (the ‘principe dispositif’), and breach of Article 21 of the Statute of the Court of Justice of the European Union and of Articles 44(1) and 48(2) of the Rules of Procedure of the General Court, and, in the alternative, a defective statement of reasons. The second ground of appeal alleges a lack of jurisdiction on the part of the General Court, infringement of Articles 87(1) EC and 88 EC and of Article 61, second paragraph, of the Statute of the Court of Justice, and procedural irregularities adversely affecting the Commission’s interests. By its third ground of appeal, the Commission seeks to demonstrate that Articles 87 EC and 88 EC and the principle of institutional balance have been infringed and the fact that the General Court committed errors in law in determining the respective areas of competence of the Council and the Commission as well as in determining the relationships between fiscal harmonisation and the monitoring of State aid. In the fourth ground of appeal, the Commission claims that the General Court interpreted Decision 2001/224 incorrectly and infringed the rules concerning the interpretation of the acts of the EU institutions. Lastly, the fifth ground of appeal relates, on the one hand, to the infringement of the principles of legal certainty, of the presumption of legality attaching to EU measures, and of sound administration, and, on the other hand, to a defective statement of reasons.
37. I shall begin my analysis of the appeal with an appraisal of the first ground of appeal.
A – Arguments of the parties
38. The first ground of appeal consists of two parts.
39. By the first part the Commission, in essence, complains that the General Court raised, of its own motion, a plea of infringement of Article 87(1) EC on the basis that the exemptions at issue are not imputable to the Member States, or that the General Court reclassified the actual subject-matter of the action.
40. It is evident, in the Commission’s view, that the General Court annulled the contested decision not on the basis of the infringement of the principles of legal certainty and of the presumption of legality attaching to EU measures, which were examined merely as general considerations, but solely on the basis that the exemptions at issue did not constitute State aid since they were imputable to the European Union. (12)
41. The Commission argues that it was the General Court itself, ruling after the cases had been referred back to it, which introduced the issue of imputability when, by letter of 20 July 2011 from the Registry, it put the following question to the parties:
‘In so far as they were previously authorised by Council decisions, adopted unanimously on the Commission’s proposal, pursuant to Article 8(4) of Directive 92/81, and most recently by Decision 2001/224, can the granting by the Italian Republic, Ireland and the French Republic of the contested exemptions until 31 December 2003 be objectively considered to meet the condition of “imputability to the State” provided for in Article 87(1) EC ...?’
42. In the Commission’s view, it was solely in response to that question that the respective applicants at the time claimed that the exemptions at issue did not constitute State aid because they were imputable to the European Union and not to the Member States.
43. The respondents do not accept that argument.
44. Ireland and the Italian Republic submit that the General Court was entitled to raise, of its own motion, a plea alleging infringement of an essential procedural requirement inasmuch as the Commission, in order to fulfil its obligation to state reasons, should have set out the reasons for its view that the exemptions at issue were imputable to the Member States concerned.
45. Furthermore, the French Republic, Eurallumina and AAL submit that the plea relating to imputability constitutes an amplification of the pleas that they put forward and that the General Court had, therefore, merely accepted and expanded on the pleas alleging infringement of the principles of legal certainty and of the presumption of legality attaching to EU measures.
46. However, the French Republic, the Italian Republic and Eurallumina maintain that the argument that the exemptions at issue are not imputable to the Member States is of limited interest in the grounds of the judgment under appeal and was therefore not the principal reason for which the contested decision was annulled.
B – My appraisal
47. The first part of the first ground of appeal put forward by the Commission is concerned with ascertaining whether the General Court raised, of its own motion, an impermissible plea alleging infringement of Article 87(1) EC on the basis that the exemptions at issue are not imputable to the Member States, and whether that plea constituted an actual ground for annulment of the contested decision that was capable of leading to the judgment under appeal being set aside.
48. First of all, I would point out that it is apparent from the rules governing procedure before the European Union Courts, inter alia Article 21 of the Statute of the Court of Justice and Article 44(1) of the Rules of Procedure of the General Court, that the dispute is to be determined and circumscribed by the parties. It follows that the European Union Courts may not grant relief beyond that sought by the parties. They must also, in principle, rule on the parties’ claims within the legal and factual framework set out by them.
49. None the less, the rules governing procedure before each Court of the European Union and the case-law have identified situations in which the European Union Courts, in order to fulfil their task as arbiters of legality, have the power to raise a point of law of their own motion, that is to say, a point of law on which the applicant has not relied in support of its claim. Whether or not the European Union Courts act of their own motion will be determined by the nature of the plea raised.
50. In the present case, I consider that the arguments put forward by Ireland and the Italian Republic, to the effect that the General Court was entitled to raise, of its own motion, a plea alleging infringement of an essential procedural requirement inasmuch as the Commission had failed to state the reasons for the contested decision with regard to imputability to the State, must be rejected from the outset.
51. Imputability to the State is a constitutive element of the concept of State aid.
52. It should be observed in this regard that Article 87(1) EC states that any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, in so far as it affects trade between Member States, incompatible with the common market.
53. That provision makes such incompatibility subject to the confirmation that four conditions have been met, including the condition that there must be an intervention by the State or through State resources. (13)
54. In order for advantages to be capable of being categorised as ‘aid’ within the meaning of Article 87(1) EC, the case-law has made it clear that those advantages must, first, be granted directly or indirectly through State resources and, secondly, be imputable to the State. (14)
55. According to settled case-law, the plea concerning imputability to the State, inasmuch as it goes to the substantive legality of a decision, involves determining whether a rule of law relating to the application of the Treaty has been infringed and can be examined by the European Union Courts only if it is raised by the applicant. (15)
56. It is therefore necessary, first, to examine whether Ireland, the French Republic, the Italian Republic, Eurallumina and AAL, upon the referral of their cases back to the General Court, put forward the plea alleging infringement of Article 87(1) EC on the basis that the exemptions at issue are not imputable to the Member States in order to ascertain whether or not the General Court raised that plea of its own motion.
57. Having regard to the documents in the case, there can scarcely be any doubt that the Member States concerned and the interested third parties did not, at any stage of their respective actions upon referral back to the General Court, claim that the exemptions at issue did not constitute State aid on the ground that they were not imputable to the Member States concerned.
58. However, the Commission raised the issue of imputability at the stage of its defence in Case T‑56/06 in response to the plea put forward by the French Republic claiming that the French exemption did not constitute aid on the ground that it did not distort or threaten to distort competition.
59. The Commission had at the time mentioned the case which gave rise to the judgment of the Court of First Instance of 5 April 2006 in Deutsche Bahn v Commission (16) to illustrate cases in which the Court of Justice and the Court of First Instance had had to assess national measures in the light of both the rules of EU law relating to State aid and other provisions of the Treaty. It demonstrated, by an a contrario line of reasoning, that the fact that an exemption is authorised by the Council under the rules relating to fiscal harmonisation does not mean that it cannot also constitute State aid for the purposes of Article 87(1) EC.
60. Following the judgment in Commission v Ireland and Others, referring Joined Cases T‑50/06, T‑56/06, T‑60/06, T‑62/06 and T‑69/06 back to the General Court, the latter Court clearly informed all the parties that the procedure would continue in accordance with Article 117 et seq. of its Rules of Procedure and that they would have the opportunity to submit written observations.
61. However, upon referral of their cases back to the General Court, the then applicants did not, at that stage of the proceedings, return their focus to the Commission’s interpretation in its reference to the Deutsche Bahn v Commission judgment.
62. In Case T‑56/06 RENV, the French Republic persisted in its view that the condition laid down in Article 87(1) EC relating to the distortion of competition was necessarily lacking. The Italian Republic, for its part, in Case T‑60/06 RENV, persisted in its complaint solely in respect of the selective nature of the exemption. Eurallumina and AAL, for their part, in Cases T‑62/06 RENV and T‑69/06 RENV, repeated the complaints which they had set out in the course of the proceedings before the case was referred back, none of which referred to the infringement of Article 87(1) EC as such. Then, in Case T‑50/06 RENV, Ireland even persisted in its view that the exemption granted to AAL constituted existing aid.
63. It is therefore entirely clear that it was the General Court, as pointed out by the Commission at paragraph 19 of its appeal, that actually introduced the imputability argument by the question which it addressed through the letter of 20 July 2011 from the Registry, giving those parties the opportunity to reply to it in writing and to discuss the point at the hearing which took place before that Court on 14 September 2011.
64. Next, it is appropriate to examine whether it is nevertheless possible to take the view that the plea alleging infringement of Article 87(1) EC on the basis that the exemptions at issue are not imputable to the Member States can be connected with the plea relating to infringement of the principles of legal certainty and of the presumption of legality attaching to EU measures, as maintained by some respondents.
65. To my mind, the imputability issue cannot constitute an additional or amplifying argument that the General Court was capable of accepting and expanding upon in connection with the plea alleging infringement of those principles.
66. By definition, pleas in law are grounds in law on which one party relies in support of the form of order which it seeks. An amplifying argument is one intended to reinforce the plea for the purpose of subsequently arriving at the same conclusion.
67. I would point out that, in this case, the General Court first examined, in accordance with the principle of procedural economy, the pleas and complaints alleging infringement of the principles of legal certainty and of the presumption of legality attaching to EU measures in order to arrive at annulment of the contested decision.
68. For a number of reasons I fail to see how the plea alleging infringement of Article 87(1) EC on the basis that the exemptions at issue are not imputable to the Member States could become attached to the plea concerning infringement of the principles of legal certainty and of the presumption of legality attaching to EU measures.
69. In my view, those two pleas are entirely separate and independent. First, the nature of the legal rule concerned differs, since the first plea alleges infringement of a legal rule relating to the application of the Treaty, whereas the second concerns infringement of general principles of EU law. Second, the consequences associated with the infringement of those two pleas also differ.
70. The purpose of the plea relating to infringement of the principles of legal certainty and of the presumption of legality attaching to EU measures is to call into question the result arrived at by the Commission, that is to say, the recovery of the aid.
71. As the General Court has pointed out, in Cases T‑56/06 RENV and T‑60/06 RENV, the French Republic and the Italian Republic respectively complained that the Commission had infringed the principle of legal certainty, in the former case, and the principle of the presumption of legality attaching to EU measures, in the latter case, in that it ordered the recovery of the aid purportedly granted between 3 February 2002 and 31 December 2003. (17)
72. With regard to Cases T‑62/06 RENV and T‑69/06 RENV, Eurallumina and AAL respectively complained that the Commission had infringed the principles of legal certainty and of the presumption of legality attaching to EU measures, in the former case, and the principle of legal certainty, in the latter case, in that it concluded that the Italian and Irish exemptions respectively were partially incompatible with the common market. (18)
73. So far as concerns the plea alleging infringement of Article 87(1) EC on the ground that the exemptions are not imputable to the Member States, this plea tends towards the finding, in view of the fact that imputability is a constituent of the concept of State aid, that this element was lacking.
74. I cannot therefore share the view held by Eurallumina which maintains that the notion of imputability is nothing more than the application of the principles of legal certainty and of the presumption of legality attaching to EU measures.
75. Furthermore, it has to be stressed that, up to the point in time at which the General Court put the question to the parties for a written reply, Ireland had not contended that the Irish exemption did not constitute aid. On the contrary, it argued that the Commission had erred in law in taking the view that this was new aid, not existing aid. This factor also corroborates the view running counter to the linking with the plea alleging infringement of the principles of legal certainty and of the presumption of the legality of acts of the European Union.
76. The General Court, to my mind, committed an error of assessment by connecting the plea relating to the infringement of Article 87(1) EC on the basis that the exemptions at issue are not imputable to the Member States with the plea relating to the infringement of those principles.
77. I shall consider, lastly, whether the ground of appeal alleging infringement of Article 87(1) EC on the basis that the exemptions at issue are not imputable to the Member States constituted the actual ground for annulment of the contested decision, or, alternatively, an important ground which would be capable of justifying the setting-aside of the judgment under appeal.
78. Admittedly, the judgment under appeal devotes only a few paragraphs to that plea. That notwithstanding, I take the view that that plea is not merely of limited interest in the grounds of that judgment, as the Italian Republic and Eurallumina claim.
79. That paradox between the brevity adopted by the General Court and the importance of that plea can be attributed, however, in my view, to the fact that the General Court connected the plea alleging that the exemptions at issue are not imputable to the Member States with the plea alleging infringement of the principles of legal certainty and of the presumption of legality attaching to EU measures.
80. Paragraph 104 of the judgment under appeal illustrates this connection particularly well since the General Court, after stating that the Council’s decisions of authorisation benefited from the presumption of legality attaching to any act of the European Union, held that those decisions precluded the Commission, in principle, from being able, in the contested decision, to attribute the exemptions at issue to the Member States concerned and, therefore, from being able to classify them as State aid within the meaning of Article 87(1) EC and ordering the partial recovery thereof to the extent that it regarded them as incompatible with the internal market for the purpose of Article 87(3) EC.
81. I would point out that the General Court annulled the contested decision on the ground that that decision ‘finds, or is based on the finding, that the exemptions [at issue] ... constitute State aid within the meaning of Article 87(1) EC’.
82. In my view, infringement of the principles of legal certainty and of the presumption of legality attaching to EU measures cannot, by itself, bring about the annulment of the contested decision on the basis of that reasoning.
83. The ground on the basis of which the General Court was able to annul the contested decision in so far as that decision finds, or is based on the finding, that the exemptions at issue constitute State aid within the terms of Article 87(1) EC is, in my view, clearly the ground that those exemptions are not imputable to the Member States.
84. It follows that the Commission’s argument that the real ground on which the annulment of the contested decision was based was that the exemptions at issue are not imputable to the Member States must be upheld.
85. Consequently, without there being any need to examine the other arguments and pleas put forward by the parties, the judgment under appeal must be set aside in so far as it annulled the contested decision on the ground that that decision finds, or is based on the finding, that the exemptions from excise duty on mineral oils used as fuel for alumina production granted by the French Republic, Ireland and the Italian Republic until 31 December 2003 constitute State aid within the meaning of Article 87(1) EC and in so far as it orders those Member States to take all measures necessary to recover those exemptions from the beneficiaries to the extent that the latter did not pay excise duty at the rate of at least EUR 13.01 per 1 000 kg of heavy fuel oil.
86. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice, the latter may, after quashing the decision of the General Court, give final judgment itself in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. The state of the proceedings in this case is not such that final judgment can be given in the matter.
87. Accordingly, the case must be referred back to the General Court and the costs reserved.
VII – Conclusion
88. In the light of the foregoing considerations, I propose that the Court should:
(1) set aside the judgment of the General Court of the European Union of 21 March 2012 in Joined Cases T‑50/06 RENV, T‑56/06 RENV, T‑60/06 RENV, T‑62/06 RENV and T‑69/06 RENV Ireland and Others v Commission in so far as that judgment:
– annulled Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy, on the ground that that decision finds, or is based on the finding, that the exemptions from excise duty on mineral oils used as fuel for alumina production granted by the French Republic, Ireland and the Italian Republic until 31 December 2003 constitute State aid within the meaning of Article 87(1) EC and on the ground that it orders those Member States to take all measures necessary to recover those exemptions from the beneficiaries to the extent that the latter did not pay excise duty at the rate of at least EUR 13.01 per 1 000 kg of heavy fuel oil; and
– ordered the European Commission to bear its own costs and to pay those incurred by the applicants, including the costs relating to the application for interim measures in Case T‑69/06 R;
(2) refer Joined Cases T‑50/06 RENV, T‑56/06 RENV, T‑60/06 RENV, T‑62/06 RENV and T‑69/06 RENV back to the General Court of the European Union;
(3) reserve the costs.