Language of document : ECLI:EU:T:2018:786

Case T‑207/10

Deutsche Telekom AG

v

European Commission

(State aid — Tax scheme allowing undertakings which are tax resident in Spain to amortise the goodwill resulting from the acquisition of shareholdings in undertakings which are tax resident abroad — Decision declaring the aid to be incompatible with the internal market and ordering its partial recovery — Provision enabling the scheme to continue to apply in part — Application for a declaration that there is no need to adjudicate — Continuing interest in bringing proceedings — Legitimate expectations — Precise assurances given by the Commission — Legitimacy of the expectation — Temporal scope of the legitimate expectation)

Summary — Judgment of the General Court (Ninth Chamber), 15 November 2018

1.      Action for annulment — Interest in bringing proceedings — Need for an actual and current interest — Decision declaring the aid incompatible with the internal market, ordering its partial recovery and enabling the tax scheme at issue to continue to apply in part — Continuing interest in bringing proceedings of an applicant challenging a provision authorising the continued application of the aid scheme at issue, despite the fact, which arose after proceedings were brought, that the competitor did not make use of that authorisation

(Art. 263 TFEU; Council Regulation No 659/1999, Art. 1(h))

2.      State aid — Recovery of unlawful aid — Aid granted in infringement of the rules of procedure in Article 108 TFEU — Legitimate expectations entertained by the recipients — None save in exceptional circumstances — Legitimate expectation stemming from specific, unconditional and concordant assurances given by the Commission — Publication of the decision to open the formal investigation procedure putting an end to that expectation

(Arts 107(1) and 108(3) TFEU)

3.      State aid — Recovery of unlawful aid — Aid granted in infringement of the rules of procedure in Article 108 TFEU — Legitimate expectations entertained by the recipients — None save in exceptional circumstances — Legitimate expectation stemming from specific, unconditional and concordant assurances given by the Commission — Temporal scope of the recognised legitimate expectation — Transactions predating the act giving rise to that expectation — Included

(Arts 107(1) and 108(3) TFEU)

1.      The continuation of an applicant’s interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained.

Such an interest arises, first of all, from the applicant’s status as complainant and from the rejection in part and in substance of its complaint by the contested provision.

The applicant is an ‘interested party’ within the meaning of Article 1(h) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p. 1), as amended, ‘whose interests might be affected by the granting of aid’, who thus by definition has an ‘interest’ in the formal investigation procedure leading to the adoption of a decision by the Commission and, accordingly, in view of the rejection of its complaint by that decision, has an interest in bringing an action against that decision adversely affecting it. The applicant is also the interested party which submitted the complaint leading to the opening of the formal investigation procedure and which, in the context of that complaint, explained the reasons for its submission.

Even though the contested decision, and thus the contested provision, did not constitute an explicit response to the applicants’ complaint, the fact remains that, in contrast to the applicant’s claims in its complaint, the Commission found in its decision that the scheme at issue could continue to apply in certain situations described therein. Such a rejection is sufficient to distinguish the applicant’s interest in bringing proceedings in the present case in that the annulment of that rejection on the basis of the applicant’s single plea is likely to procure an advantage for it, consisting in the scheme at issue being declared unlawful and prohibited, including in the situations envisaged by the contested provision.

It follows that the circumstance claimed by the Commission and which allegedly arose after the present action was brought, to the effect that the competitor was not able to benefit from the scheme at issue, declared unlawful by the contested decision, is not capable of calling into question the applicant’s interest in bringing proceedings against the contested provision. If it were otherwise, and particularly if the interested parties, especially those who spearheaded the opening of the formal investigation procedure, were required also to prove that they were competitors of an actual beneficiary of the scheme at issue examined in the contested decision, the lines would be blurred between the essential and fundamental condition of admissibility for all actions, being the interest in bringing proceedings, which must continue until the case has been closed, and the requirement of locus standi, which are nonetheless distinct conditions which must be satisfied by a natural or legal person cumulatively.

Next, it must be found that the applicant also retains an interest in seeking the annulment of the contested decision in order to prevent its alleged unlawfulness recurring in the future. It should be pointed out in that regard that the alleged unlawfulness is liable to recur in the future notwithstanding the circumstances which gave rise to the present action since it undermines, irrespective of those circumstances, the interpretation of the general conditions for applying the principle of the protection of legitimate expectations and the temporal scope of the protection which may be granted under that principle

(see paras 22-32)

2.      See the text of the decision.

(see paras 33-46, 108, 110)

3.      As regards the temporal scope of the legitimate expectation recognised in favour of the beneficiaries of aid granted in infringement of the rules of procedure in Article 108 TFEU, stemming from specific, unconditional and concordant assurances given by the Commission, the date of acquisition of the legitimate expectation, being the date on which cognizance was taken of precise assurances, and the subject matter to which the acquired legitimate expectation relates, which may cover transactions completed before that date, in accordance with the wording of the precise assurances provided.

However, more often than not, and in particular in this case, the legitimate expectation relates to the continuity of an existing situation, which by definition arose before the act giving rise to the expectation of its continuity. In those circumstances, the act giving rise to a legitimate expectation does not have retroactive effect, in the sense that it creates a legitimate expectation as from the earlier events at issue, but simply covers, from the date of its occurrence, events prior to that date and their future effects.

Were it otherwise, the principle of the protection of legitimate expectations could not be validly relied on to challenge the recovery of unlawful aid which, by its very nature, is granted before the Commission, which is in the best position to provide precise, unconditional, consistent and reliable assurances, has been able to take any sort of decision on its classification as State aid and its compatibility with the internal market. Article 14 of Regulation No 659/1999 would thus be deprived of practical effect.

That assessment is not called into question by the fact that the scheme at issue was not notified to the Commission and that the beneficiaries of the scheme may have a legitimate expectation that its grant was lawful only in exceptional circumstances. While the beneficiary of non-notified aid may not entertain a legitimate expectation that such aid is lawful and will continue if there are no exceptional circumstances, the existence of such circumstances means that, once precise assurances have been given such as to cause the beneficiary of the aid to entertain an expectation based on the lawfulness of the aid — assurances which characterise those exceptional circumstances — and provided that the assurances given do not stipulate a time limit, that beneficiary may no longer be regarded as having legitimately been aware during a certain period of time of the unlawfulness of the aid in question. Any other approach would amount to disregarding the precision and reliability of the assurances given, particularly as regards their temporal scope, and thus eliminating one of the conditions for recognition of legitimate expectations, which nonetheless contributes, in the case of non-notified aid, to legitimate expectations in the lawfulness of such aid being recognised only in exceptional circumstances. If legitimate expectations were to cover only transactions subsequent to the act giving rise to an expectation, even though the act made clear that it covered previous transactions, the result would be to limit the scope of such assurances in breach of the principle of the protection of legitimate expectations.

(see paras 97-106)