JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)
12 December 2007 (*)
(State aid – Directive 92/81/EEC – Excise duty on mineral oils – Mineral oils used as fuel for the production of alumina – Exemption granted by the French, Irish and Italian authorities – New aid – Existing aid – Obligation to state reasons – Finding of the Court of its own motion)
In Joined Cases T‑50/06, T‑56/06, T‑60/06, T‑62/06 and T‑69/06,
Ireland, represented by D. O’Hagan, acting as Agent, assisted by P. McGarry, Barrister,
applicant in Case T‑50/06,
French Republic, represented by G. de Bergues and S. Ramet, acting as Agents,
applicant in Case T‑56/06,
Italian Republic, represented by G. Aiello, avvocato dello Stato,
applicant in Case T‑60/06,
Eurallumina SpA, established in Portoscuso (Italy), represented by L. Martin Alegi, R. Denton and M. Garcia, Solicitors,
applicant in Case T-62/06,
Aughinish Alumina Ltd, established in Askeaton (Ireland), represented by J. Handoll and C. Waterson, Solicitors,
applicant in Case T‑69/06,
v
Commission of the European Communities, represented by V. Di Bucci, N. Khan, P. Stancanelli and K. Walkerová, acting as Agents,
defendant,
ACTIONS for annulment of 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 (OJ 2006 L 119, p. 12),
THE COURT OF FIRST INSTANCEOF THE EUROPEAN COMMUNITIES (Second Chamber, Extended Composition),
composed of A.W.H. Meij, acting as President, N.J. Forwood and S. Papasavvas, Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 13 June 2007,
gives the following
Judgment
Legal and factual background
Community provisions relating to State aid
1 Under Article 87(1) EC, ‘[s]ave as otherwise provided in this 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’.
2 The rules of procedure established by the Treaty with regard to State aid vary according to whether the aid is existing or new. Whilst the former is subject to Article 88(1) and (2) EC, the latter is governed, chronologically, by Article 88(3) and (2).
3 With regard to existing aid, Article 88(1) EC gives power to the Commission to keep it under constant review with the Member States. In the context of that review, the Commission is to propose to the Member States any appropriate measures required by the progressive development or by the functioning of the common market. Article 88(2) EC then provides that if, after giving notice to the parties concerned to submit their comments, the Commission finds that aid is not compatible with the common market having regard to Article 87 EC, or that such aid is being misused, it is to decide that the State concerned must abolish or alter such aid within a period of time to be determined by the Commission.
4 Article 1 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1) includes, inter alia, the following definitions:
‘(a) “aid” shall mean any measure fulfilling all the criteria laid down in Article [87](1) [EC];
(b) “existing aid” shall mean:
(i) … all aid which existed prior to the entry into force of the Treaty in the respective Member States …;
(ii) authorised aid, that is to say, aid schemes and individual aid which have been authorised by the Commission or by the Council;
(iii) aid which is deemed to have been authorised pursuant to Article 4(6) of this Regulation or prior to this Regulation but in accordance with this procedure;
(iv) aid which is deemed to be existing aid pursuant to Article 15;
(v) aid which is deemed to be an existing aid because it can be established that at the time it was put into effect it did not constitute an aid, and subsequently became an aid due to the evolution of the common market and without having been altered by the Member State. Where certain measures become aid following the liberalisation of an activity by Community law, such measures shall not be considered as existing aid after the date fixed for liberalisation;
…’
Alumina
5 Alumina (or aluminium oxide) is a white powder mainly used in foundries to produce aluminium. It is extracted from bauxite by a refining procedure the final stage of which is calcination. More than 90% of the calcined alumina is used for the fusion of aluminium. The remainder undergoes further transformation and is used in chemical applications. There are two distinct product markets, that is to say metallurgical alumina and chemical alumina. Mineral oils (including heavy fuel oil) may be used as fuel for the production of alumina.
6 There is only one producer of alumina in Ireland, in Italy and in France. These are, respectively, Aughinish Alumina Ltd, established in the Shannon region, Eurallumina SpA, established in Sardinia, and Alcan Inc., established in Gardanne. There are also alumina producers in Germany, Spain, Greece, Hungary and the United Kingdom.
Directives concerning excise duties on mineral oils
7 Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12) lays down the rules relating to excise duties on mineral oils.
8 Under Article 1(1) and (2) of Directive 92/81, the Member States are to impose a harmonised excise duty on mineral oils in accordance with that directive and fix their rates in accordance with Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duty on mineral oils (OJ 1992 L 316, p. 19).
9 Article 8(4) of Directive 92/81 allows the Council to authorise a Member State to introduce exemptions or reductions of the rates of excise duty other than those expressly laid down in that directive. It provides:
‘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.’
10 Under Article 8(5) of Directive 92/81, ‘[i]f 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.’
11 Article 6 of Directive 92/82 fixed the minimum rate of excise duty on heavy fuel oil which the States were to impose from 1 January 1993 at ECU 13 per tonne.
12 Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51) repealed Directives 92/81 and 92/82 with effect from 31 December 2003.
13 In accordance with the second indent of Article 2(4)(b) thereof, Directive 2003/96 does not apply to the use of energy products having a dual use. Under the same provision, an energy product has a dual use when it is used both as heating fuel and for purposes other than as motor fuel and heating fuel. The use of energy products for chemical reduction and in electrolytic and metallurgical processes is to be regarded as dual use. Therefore, since 1 January 2004, there is no longer any minimum rate of excise duty on heavy fuel oil used for the production of alumina.
14 Moreover, Article 18(1) of Directive 2003/96 provides that, subject to a prior review by the Council, on the basis of a proposal from the Commission, the Member States are authorised to continue to apply the reductions in the levels of taxation or exemptions set out in Annex II until 31 December 2006. Points 6, 7 and 8 of Annex II relate, inter alia, to exemption from excise duties for heavy fuel oil used as fuel in the production of alumina in the regions of Gardanne and Shannon and in Sardinia respectively.
Council Decisions adopted on the basis of Article 8(4) of Directive 92/81
15 Since 1983, Ireland has exempted from excise duty mineral oils used for the production of alumina in the Shannon region. That exemption (‘the Irish exemption’) was authorised by Council Decision 92/510/EEC of 19 October 1992 authorising Member States to continue to apply to certain mineral oils when used for specific purposes, existing reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure provided for in Article 8(4) of Directive 92/81 (OJ 1992 L 316, p. 16). Subsequently, the authorisation was extended by the Council by Decision 97/425/EC of 30 June 1997 authorising Member States to apply and to continue to apply to certain mineral oils, when used for specific purposes, existing reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure provided for in Directive 92/81 (OJ 1997 L 182, p. 22), by Decision 1999/880/EC of 17 December 1999 authorising Member States to apply [or] to continue to apply to certain mineral oils, when used for specific purposes, existing reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure provided for in Directive 92/81 (OJ 1999 L 331, p. 73) and, finally, by Decision 2001/224/EC of 12 March 2001 concerning reduced rates of excise duty and exemptions from such duty on certain mineral oils when used for specific purposes (OJ 2001 L 84, p. 23).
16 Since 1993, the Italian Republic has exempted from excise duty mineral oils used as fuel for the production of alumina in Sardinia. That exemption (‘the Italian exemption’) was authorised by Council Decision 93/697/EC of 13 December 1993 authorising certain Member States to apply or to continue to apply to certain mineral oils, when used for specific purposes, reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure provided for in Article 8(4) of Directive 92/81 (OJ 1993 L 321, p. 29). The authorisation was then extended by the Council by Decision 96/273/EC of 22 April 1996 authorising certain Member States to apply or to continue to apply to certain mineral oils, when used for specific purposes, reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure provided for in Article 8(4) of Directive 92/81 (OJ 1996 L 102, p. 40), then by Decision 97/425, by Decision 1999/255/EC of 30 March 1999 authorising, in accordance with Directive 92/81, certain Member States to apply [or] to continue to apply to certain mineral oils, reduced rates of excise duty or exemptions from excise duty, and amending Decision 97/425 (OJ 1999 L 99, p. 26) and, finally, by Decisions 1999/880 and 2001/224.
17 Since 1997, the French Republic has exempted from excise duty mineral oil used as fuel for the production of alumina in the region of Gardanne. That exemption (‘the French exemption’) was authorised by Decision 97/425 and, subsequently, was extended by Decisions 1999/255, 1999/880 and 2001/224.
18 Decision 2001/224, the last concerning the Irish, Italian and French exemptions (‘the contested exemptions’), extends them until 31 December 2006. Pursuant to recital 5 in the preamble thereto, that 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 [EC] and 88 [EC]. It does not override the requirement for Member States to notify instances of potential State aid to the Commission under Article 88 [EC]’.
Administrative procedure
19 By letter of 28 January 1983, the Irish authorities informed the Commission that they were preparing to implement an undertaking which they had given to Aughinish Alumina, in April 1970, relating to an exemption of excise duty on heavy fuel oil used for the production of alumina. By letter of 22 March 1983, the Commission stated that that exemption constituted State aid which had to be notified. It also stated that if the aid were to be implemented only at that time, the Commission could regard the letter of 28 January 1983 as notification for the purposes of Article 88(3) EC. By letter of 6 May 1983, Ireland asked the Commission to regard the letter as such notification. The Commission did not adopt any decision following that correspondence.
20 By letters of 29 May and 2 June 1998, the Commission asked the Italian and French authorities for information in order to ascertain whether the Italian and French exemptions fell within the scope of application of Articles 87 EC and 88 EC. Following a reminder from the Commission of 16 June 1998, the Italian Republic responded on 20 July 1998. After having requested an extension of time in which to reply on 10 July 1998, which was granted on 24 July 1998, the French Republic replied by letter of 7 August 1998.
21 By letters of 17 July 2000, the Commission requested the French Republic, Ireland and the Italian Republic to notify it of the contested exemptions. The French authorities replied by letter of 4 September 2000. The Commission reminded Ireland and the Italian Republic of its request and requested them, as well as the French Republic, to provide it with additional information by letters of 27 September 2000. The Irish authorities replied by letter of 18 October 2000. Following a reminder by the Commission of 20 November 2000, the Italian and French authorities replied on 7 and 8 December 2000 respectively.
22 By Decisions C(2001) 3296, C(2001) 3300 and C(2001) 3295 of 30 October 2001, the Commission opened the procedure laid down in Article 88(2) EC with regard to the Irish, Italian and French exemptions respectively (‘the inquiry procedure’). Those decisions were notified to Ireland, the Italian Republic and the French Republic by letters of 5 November 2001, and were published, on 2 February 2002, in the Official Journal of the European Communities (OJ 2002 C 30, pp. 17, 21 and 25).
23 The Commission received comments from Aughinish Alumina, Eurallumina, Alcan and the European Aluminium Association. These were sent to Ireland, the Italian Republic and the French Republic on 26 March 2002.
24 After having requested an extension of the time-limit by fax of 1 December 2001, granted on 7 December 2001, Ireland submitted its comments by letter of 8 January 2002. By letter of 18 February 2002, the Commission asked Ireland to provide it with proof that a binding undertaking had been entered into in respect of Aughinish Alumina before Ireland’s accession to the Community. Ireland replied to that request by letter of 26 April 2002. The Italian Republic submitted its comments by letter of 6 February 2002. After having requested an extension of the time-limit for reply by letter of 21 November 2001, which was granted on 29 November 2001, the French Republic submitted its comments by letter of 12 February 2002.
The contested decision
25 On 7 December 2005, the Commission adopted Decision 2006/323/EC 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 (OJ 2006 L 119, p. 12) (‘the contested decision’).
26 The contested decision relates to the period prior to 1 January 2004, on which date Directive 2003/96 became applicable (recital 57). Nevertheless, it extends the inquiry procedure with regard to the contested exemptions to the period after 1 January 2004 (recital 92).
27 The operative part of the contested decision states, inter alia:
‘Article 1
The [contested] exemptions … granted … until 31 December 2003 constitute State aid within the meaning of Article 87(1) [EC].
Article 2
Aid granted between 17 July 1990 and 2 February 2002, to the extent that it is incompatible with the common market, shall not be recovered as this would be contrary to the general principles of Community law.
Article 3
The aid referred to in Article 1 granted between 3 February 2002 and 31 December 2003 is compatible with the common market within the meaning of Article 87(3) [EC] insofar as the beneficiaries pay at least a rate of EUR 13.01 per 1 000 kg of heavy fuel oils.
Article 4
The aid … granted between 3 February 2002 and 31 December 2003 is incompatible with the common market within the meaning of Article 87(3) [EC] insofar as the beneficiaries did not pay [at least] a rate of EUR 13.01 per 1000 kg of heavy fuel oils.
Article 5
1. France, Ireland and Italy shall take all necessary measures to recover from the beneficiaries the incompatible aid referred to in Article 4.
…
5. France, Ireland and Italy shall order, within two months of the date of notification of this Decision, the beneficiaries of the incompatible aid referred to in Article 4 to repay the aid unlawfully granted plus interest.’
Procedure
28 By applications lodged at the Registry of the Court on 16 February 2006 (Case T-60/06), 17 February 2006 (Cases T-50/06 and T-56/06) and 23 February 2006 (Cases T-62/06 and T-69/06), the applicants brought the present actions with a view to obtaining the total or partial annulment of the contested decision.
29 By separate document, received at the Court Registry on 22 March 2006, Aughinish Alumina lodged an application for interim measures under Article 242 EC, seeking suspension of the operation of the contested decision insofar as it concerned that undertaking. By order of 2 August 2006, the President of the Court dismissed that application and reserved the costs.
30 Pursuant to Article 14 of the Rules of Procedure of the Court of First Instance and on a proposal from the Second Chamber, the Court decided, having heard the parties in accordance with Article 51 of the Rules, to refer the present cases to a Chamber sitting in extended composition.
31 By order of 24 May 2007, the President of the Second Chamber (Extended Composition) of the Court of First Instance, after hearing the parties, joined Cases T‑50/06, T‑56/06, T‑60/06, T‑62/06 and T‑69/06 for the purposes of the oral procedure, in accordance with Article 50 of the Rules of Procedure.
32 Acting on a report from the Judge-Rapporteur, the Court (Second Chamber, Extended Composition) decided to open the oral procedure.
33 The parties presented oral argument and their replies to the Court’s questions at the hearing on 13 June 2007 before the Second Chamber, Extended Composition, composed of J. Pirrung, President, A.W.H. Meij, N.J. Forwood, I. Pelikánová and S. Papasavvas, Judges.
34 The oral procedure was closed following the hearing of 13 June 2007. In accordance with Article 32 of the Rules of Procedure, since a member of the Chamber was prevented from attending the deliberations after the expiry of his term of office on 17 September 2007 and the most junior Judge within the meaning of Article 6 of the Rules of Procedure is the Judge-Rapporteur, the Judge immediately senior to him consequently abstained from taking part in the deliberations and the deliberations of the Court were continued by the three judges whose signatures this judgment bears.
35 Having heard the parties on this point at the hearing, the Court considers that the present cases should be joined for the purposes of the judgment in accordance with Article 50 of the Rules of Procedure.
Forms of order sought
36 In Case T‑50/06, Ireland claims that the Court should:
– annul the contested decision in part, insofar as it concerns the Irish exemption;
– order the Commission to pay the costs.
37 In Case T‑56/06, the French Republic claims that the Court should:
– principally, annul the contested decision in its entirety;
– in the alternative, annul Article 5 of the contested decision;
– order the Commission to pay the costs.
38 In Case T‑60/06, the Italian Republic claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
39 In Case T‑62/06, Eurallumina claims that the Court should:
– either:
– annul the entirety of the contested decision; or
– declare that the exemption authorised by Decision 2001/224 is lawful until 31 December 2006 and that any sums foregone or to be foregone by the Italian Republic should not be considered as unlawful State aid, or at least not be recovered; or
– annul the entirety of the contested decision and order that the exemption authorised by Decision 2001/224 is lawful until 31 December 2006 and that any sums foregone or to be foregone by the Italian Republic should not be considered as unlawful State aid, or at least not be recovered;
– either:
– annul Articles 1, 4, 5 and 6 of the contested decision insofar as they pertain to Eurallumina; or
– declare that the exemption authorised by Decision 2001/224 is lawful until 31 December 2006 and that any sums foregone or to be foregone by the Italian Republic should not be considered as unlawful State aid, or at least not be recovered; or
– annul Articles 1, 4, 5 and 6 of the contested decision insofar as they pertain to Eurallumina and order that the exemption authorised by Decision 2001/224 is lawful until 31 December 2006 and that any sums foregone or to be foregone by the Italian Republic should not be considered as unlawful State aid, or at least not be recovered;
– in the alternative, modify Articles 5 and 6 of the contested decision insofar as they pertain to Eurallumina to the effect that pursuant to the exemption authorised by Decision 2001/224 until 31 December 2006, or at least until 31 December 2003, any sums foregone or to be foregone by the Italian Republic should not be recovered;
– order the Commission to pay the costs.
40 In Case T‑69/06, Aughinish Alumina claims that the Court should:
– annul the contested decision, insofar as it relates to Aughinish Alumina;
– order the Commission to pay the costs.
41 In Cases T‑50/06, T‑56/06, T‑60/06, T‑62/06 and T‑69/06, the Commission contends that the Court should:
– dismiss the actions;
– order the applicants to pay the costs.
Law
Admissibility of certain heads of claim in Case T‑62/06
42 In Case T‑62/06, the Commission disputes the admissibility of the heads of claim put forward by Eurallumina seeking something other than the total or partial annulment of the contested decision.
43 In that regard, it should be recalled at the outset that it is settled case-law that, when exercising judicial review of legality under Article 230 EC, the Community judicature has no jurisdiction to issue directions to Community institutions (see Case C‑5/93 P DSM v Commission [1999] ECR I‑4695, paragraph 36, and case-law cited). Moreover, nor is the Community judicature entitled to assume the role assigned to those institutions; rather, it is for the institution concerned, under Article 233 EC, to adopt the necessary measures to comply with a judgment given in proceedings for annulment (Case T‑67/94 Ladbroke Racing v Commission [1998] ECR II‑1, paragraph 200, and Case T‑110/95 IECC v Commission [1998] ECR II‑3605, paragraph 33).
44 Consequently, despite the explanation provided by Eurallumina in its reply that those heads of claim were intended to invite/provide a clear ruling on the Commission’s power to recover the monies at issue, the Court finds that, in Case T‑62/06, the heads of claim set out in paragraph 39 above which do not seek the total or partial annulment of the contested decision, that is to say those by which Eurallumina requests the Court either to declare that the exemption authorised by Decision 2001/224 is lawful up to 31 December 2006 and that any sums paid or to be paid by the Italian Republic should not be regarded as unlawful State aid or, at least, should not be recovered, or to modify Articles 5 and 6 of the contested decision, are inadmissible.
Substance
45 For the purposes of the annulment, whether total or partial, of the contested decision, the applicants raise essentially a total of 23 pleas. These allege, inter alia, the wrongful classification of the contested exemptions as new aid when it is existing aid, breach of the principles of the protection of legitimate expectations, legal certainty, observance of a reasonable time-limit, presumption of validity, lex specialis derogat legi generali, effectiveness and sound administration. The applicants also plead breaches of Article 87 EC and of the duty to give reasons with regard to the application of that article.
46 Notwithstanding the fact that these pleas have been raised by the applicants, the Court considers it appropriate, in the present case, to raise of its own motion a plea relating to the defective statement of the reasons on which the contested decision is based, with regard to the non-application of Article 1(b)(v) of Regulation No 659/1999.
47 In that regard, it should first be noted that a lack or an insufficiency of reasoning constitutes an infringement of an essential procedural requirement within the meaning of Article 230 EC and is a matter of public policy which the Community judicature must raise of its own motion (see Case T‑166/01 Lucchini v Commission [2006] ECR II‑2875, paragraph 144, and the case-law cited).
48 Next, it must be noted that, according to settled case-law, the scope of the duty to state reasons depends on the nature of the measure in question and on the context in which it was adopted. The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, so as to enable the persons concerned to ascertain the reasons for it so that they can defend their rights and ascertain whether or not the measure is well founded and to enable the Community judicature to exercise its power of review (see Case T‑349/03 Corsica Ferries France v Commission [2005] ECR II‑2197, paragraph 62, and the case-law cited).
49 It is not necessary for the statement of reasons to go into all the relevant facts and points of law, since the question whether the statement of the reasons on which an act is based meets the requirements of Article 253 EC must be assessed in the light not only of its wording but also of its context and of all the legal rules governing the matter in question. In particular, the Commission is not obliged to adopt a position on all the arguments relied on before it by the parties concerned and it is sufficient if it sets out the facts and the legal considerations having decisive importance in the scheme of the decision (see Corsica Ferries France v Commission, paragraphs 63 and 64, and the case-law cited).
50 The fact remains that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure, 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 (see Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II‑0000, paragraph 141, and the case-law cited).
51 It is in the light of those considerations that the plea raised by the Court of its own motion relating to the statement of the reasons on which the contested decision is based with regard to the non-application of Article 1(b)(v) of Regulation No 659/1999 must be examined.
52 In the present case, the Commission examines, in point 6.2 of the contested decision, whether the contested exemptions constitute new aid or existing aid. To that end, it assesses, in recitals 65 to 69 in the preamble to the contested decision, whether the situations set out in Article 1(b) of Regulation No 659/1999 are applicable and concludes, in recital 70, as follows:
‘None of [those] situations … apply to the French and Italian exemptions and that aid must be regarded as new aid. The Irish exemption must be regarded as new aid only as from 17 July 1990. The Commission consequently has the obligation and competence to assess the compatibility of the new aid with the common market pursuant to Article 88 [EC]. Neither the Council Decisions …, nor Directives 92/81 … and 2003/96 …, which only concern tax harmonisation, detract from this obligation and competence. Those legal acts cannot prejudge the assessment of compatibility on the basis of the criteria set out in Articles 87(2) and (3) [EC].’
53 With regard more specifically to the application of Article 1(b)(v) of Regulation No 659/1999, the contested decision merely states, in recital 69 in the preamble thereto, that that provision ‘does not apply in this case’. It must be pointed out that the reasons justifying the non-applicability of that provision are not apparent from either the contested decision or the file.
54 It is true that it follows, inter alia, from the principles set out in paragraph 49 above that the Commission cannot be required, as a general rule, to assess, in each case, whether any of the situations referred to in Article 1(b) of Regulation No 659/1999 apply, making it possible to classify a measure as existing aid, and to give exhaustive reasons for its decisions in that regard, in particular where, during the administrative procedure, the parties have not pleaded the applicability of one or more of those specific situations.
55 However, it is necessary to ascertain whether, in the present case, there were particular circumstances regarding the contested exemptions such as to impose on the Commission the duty to give specific reasons for the non-application of Article 1(b)(v) of Regulation No 659/1999.
56 In that regard, firstly it must be recalled that the fourth recital in the preamble to Decision 92/510 states that ‘it is accepted by the Commission and by all Member States that all of these exemptions … do not give rise to distortions in competition or interfere with the working of the internal market’. That statement was repeated in the fourth recitals in the preambles to Decisions 93/697 and 96/273 in almost identical terms. Moreover, the fifth recital in the preamble to Decision 97/425 and the fourth recitals in the preambles to Decisions 1999/255 and 1999/880 state that ‘the … exemptions are regularly reviewed by the Commission to ensure that they are compatible with the operation of the internal market and other objectives of the Treaty’.
57 With regard to the fact that those statements appear in the preamble to Council decisions which, in addition, fall within the area of fiscal harmonisation and not State aid, the Court finds, firstly, that those statements, made affirmatively, expressly refer to the Commission’s position in respect of the contested exemptions and thus do not appear to be an assessment made by the Council but by the institution which proposed those decisions. Furthermore, with regard to the lack of distortion of competition referred to in Decisions 92/510, 93/697 and 96/273, there is nothing in the contested decision to indicate in what way that concept has a different scope in the area of fiscal harmonisation and the area of State aid.
58 Secondly, it is by taking as its basis the wording of the recitals in the preambles to the Council decisions referred to in paragraph 56 above that the Commission states, in recital 97 in the preamble to the contested decision, that ‘it appears that one of the elements of the definition of State aid in Article 87 [EC], namely the distortion of competition, is missing’. That passage from recital 97 might appear to be a factual statement by the Commission relating to the effects of the contested exemptions on competition. In particular, it could suggest that, when the decisions were adopted, the Commission took the view that the contested exemptions could not be classified as State aid for the purposes of Article 87(1) EC since the condition relating to the distortion of competition was not fulfilled.
59 Whatever the case may be, in that sentence of recital 97, the Commission recognises that the earlier Council decisions, adopted following its own proposals, may have given the impression that the exemptions could not be classified as State aid for the purposes of Article 87(1) EC when they were put into effect, a matter which the Commission had, in any event, to take into account in the context of the statement of reasons with regard to Article 1(b)(v) of Regulation No 659/1999.
60 With regard to the fact, raised by the Commission in the context of its arguments relating to Case T‑56/06, that the statement in recital 97 appears in a section of the decision relating to the recovery of aid, which is a question separate from that of the existence of distortion of competition, it should be noted that since a decision constitutes a single whole, each of its parts must be read in the light of the others (see Case T‑150/89 Martinelli v Commission [1995] ECR II‑1165, paragraph 66; Case T‑49/95 Van Megen Sports v Commission [1996] ECR II‑1799, paragraph 51; and Case T‑111/96 ITT Promedia v Commission [1998] ECR II‑2937, paragraph 128). Support cannot therefore be found in the fact that recital 97 does not appear in point 6.1 of the contested decision relating to classification of the contested exemptions as State aid for the purposes of Article 87(1) EC, or in point 6.2 relating to their classification as new aid, in order to restrict its scope.
61 Thirdly, it must be added that the contested exemptions were authorised and extended, successively, by decisions adopted unanimously by the Council, on a proposal from the Commission, in accordance with Article 8(4) of Directive 92/81 (see paragraphs 15 to 17 above). With the exception of Decision 2001/224 and in particular of recital 5 in the preamble thereto (see paragraph 18 above), none of those decisions mentioned, as the Commission points out in recital 97 in the preamble to the contested decision, any possible contradiction with the State aid rules or any obligation to notify.
62 In that context, it must be noted that the Commission points out, in recital 96 in the preamble to the contested decision, firstly, that ‘one would generally not expect [it] to submit proposals to the Council authorising national measures that may be held incompatible with other provisions of the Treaty without hinting at such a possibility, in particular when … those provisions are intended to avoid distortions of competition within the Community’ and, secondly, that ‘one would certainly not expect [it] to propose that the Council authorise an extension of an existing exemption, if it were to consider that any aid in the existing exemption could be found incompatible with the common market’.
63 In the light of the circumstances set out in paragraphs 56 to 62 above, the Commission was required, in the present case, to ascertain whether the contested exemptions could be regarded as existing aid by reason of the fact that at the time they were put into effect they did not constitute aid but that subsequently they became aid due to the evolution of the common market and without having been altered by the Member States concerned, in accordance with Article 1(b)(v) of Regulation No 659/1999. It follows that the Commission was required to give adequate reasons for the contested decision with regard to the applicability in the present case of that article and therefore could not merely make the statement appearing in recital 69 in the preamble to that decision, according to which ‘[it] does not apply in this case’ (see, to that effect, Case C‑360/92 P Publishers Association v Commission [1995] ECR I‑23, paragraphs 39 to 44).
64 It follows from all the foregoing that the Commission has infringed the duty to give reasons imposed on it by Article 253 EC with regard to the non-application in the present case of Article 1(b)(v) of Regulation No 659/1999.
65 Consequently, the contested decision must be annulled, without its being necessary to consider the pleas raised by the parties.
Costs
66 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to bear its own costs and to pay those of the applicants. In Case T‑69/06, the Commission must also be ordered to pay the costs of the interim proceedings.
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)
hereby:
1. Joins Cases T‑50/06, T‑56/06, T‑60/06, T‑62/06 and T-69/06 for the purposes of the judgment;
2. Annuls 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;
3. Dismisses the remainder of the action in Case T‑62/06;
4. Orders the Commission to bear its own costs and to pay those of the applicants, including the costs of the interim proceedings in Case T‑69/06 R.
Delivered in open court in Luxembourg on 12 December 2007.
Registrar | | Acting President |