JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
16 October 2014 (*)
(State aid — Electricity — Preferential tariff — Decision declaring the aid incompatible with the internal market — Concept of State aid — New aid — Equal treatment — Reasonable period)
In Case T‑291/11,
Portovesme Srl, established in Rome (Italy), represented by F. Ciulli, G. Dore, M. Liberati and A. Vinci, avvocati,
applicant,
v
European Commission, represented by V. Di Bucci and É. Gippini Fournier, acting as Agents,
defendant,
APPLICATION for the annulment, in its entirety or in part, ‘in so far as is reasonable’, of Commission Decision 2011/746/EU of 23 February 2011 on State aid granted by Italy to Portovesme Srl, ILA SpA, Eurallumina SpA and Syndial SpA (State aid measures C 38/B/04 (ex NN 58/04) and C 13/06 (ex N 587/05) (OJ 2011 L 309, p. 1) and, in the alternative, an application for the annulment of that decision in so far as it orders the recovery of the aid in question,
THE GENERAL COURT (Eighth Chamber),
composed of D. Gratsias, President, M. Kancheva and C. Wetter (Rapporteur), Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 13 December 2013,
gives the following
Judgment (1)
Background to the dispute
1 The applicant, Portovesme Srl, is a producer of non-ferrous metals including, in so far as its plants are Portoscuso (Italy) and San Gavino (Italy) are concerned, zinc, silver and lead.
2 By Article 1 of the Prime Ministerial Decree of 6 February 2004 (GURI No 93 of 21 April 2004, p. 5), (‘the 2004 Decree’), ‘the [tariff] treatment laid down in paragraph 2 of the Decree of the Ministry for Industry, Trade and Crafts of 19 December 1995 [was extended] to energy supplies for the production and processing of aluminium, lead, silver and zinc, but only in respect of plants already in existence at the date of entry into force of the [2004] Decree and located on islands with insufficient or no interconnection to the national electricity and gas grids’.
3 The 2004 Decree thus enabled new beneficiaries, including the applicant, to benefit from the preferential tariff already granted, until 31 December 2005, to Alcoa Trasformazioni Srl, a producer of aluminium established in Sardinia (Italy) by the Ministerial Decree of 19 December 1995 (GURI No 39 of 16 February 1996, p. 6), (‘the 1995 Decree’). That extension of the tariff treatment was to be temporary and to come to an end when the abovementioned interconnections were completed or upgraded, and in any event by 30 June 2007.
4 It is important to point out that the 1995 Decree was adopted in the context of the privatisation of Alumix SpA. That privatisation gave rise to the Commission’s notice pursuant to Article [88(2) EC] to other Member States and interested parties concerning Italian State aid to Alumix, notified to the Italian Republic and published on 1 October 1996 (OJ 1996 C 288, p. 4), (‘the Alumix Decision’).
5 The 2004 Decree provides, in Article 1(1) thereof, for the Autorità per l’energia elettrica e il gas (the Italian electricity and gas authority, ‘the AEEG’) to ‘extend the [tariff] treatment laid down in paragraph 2’ of the 1995 Decree. That decree contains five paragraphs, of which the first two are relevant to the present dispute. Paragraph 1 of the 1995 Decree provides that ‘the tariff for the supply of electricity for the production of primary aluminium set out in Table A-9 annexed to IPC Decision No 15 of 14 December 1993 shall be abolished as from 1 January 1996’ and that ‘[i]n its place, the variable-rate tariffs set out in Table A-6 of that decision shall apply’. Paragraph 2 of the 1995 Decree states that ‘the surcharge scheme laid down by IPC Decision No 13 of 24 July 1992, as amended, applicable to all supplies for the production of primary aluminium in plants already in existence at the date of entry into force of the present decree shall be abolished as from 31 December 2005’.
6 It is important to bear in mind in this connection that, in Italy, it falls to the Comitato interministeriale dei prezzi (Joint Ministerial Committee for Prices, ‘the IPC’) to determine price levels and the conditions applicable to supplies of electricity. Electricity tariffs include a fixed rate, ‘which corresponds to the energy promised or delivered’, and a variable rate, ‘corresponding to the energy used’ (point 2.5.1 of the Alumix Decision). The variable rate consists of two parts, the ‘energy price’ and the ‘thermal surcharge’. Like the fixed rate, the ‘energy price’ serves to ‘cover the financial and administrative costs of generating electricity’ (same point of the Alumix Decision), whereas the ‘thermal surcharge’ ‘is related to the cost of the fuel used in electricity generation and to the cost of acquiring domestic and foreign electricity’ (same point of the Alumix Decision).
7 At the time when the Alumix Decision was adopted, the fixed rate and the ‘energy price’ were determined by IPC Decision No 45/1990 and the ‘thermal surcharge’ by IPC Decision No 26/1989. IPC Decision No 13/1992 reduced the ‘thermal surcharge’ for primary aluminium production at the smelter located in the territory of the Commune of Portovesme, Sardinia, by two thirds, reducing it from LIT 26.6 per kilowatt-hour to LIT 8.8. That tariff (‘the pre-Alumix tariff’) pre-dates the decisions taken by the Italian authorities, in the context of Alumix’s privatisation, concerning the electricity tariffs applicable to aluminium smelters established in the territory of the communes of Portovesme and Fusina, in the Veneto (Italy).
8 The Commission of the European Communities stated in this connection that ‘[a]s to the old electricity tariff for the aluminium smelter at Portovesme under IPC Decision No 13/[1992], which lowered the thermal surcharge, it [had] to be concluded that this constituted State aid’, inasmuch as that decision, ‘taken unilaterally by the Italian State ... decreased the cost this smelter had to bear and was not available to other industries in the rest of Italy (point 4.2 of the Alumix Decision).
9 The pre-Alumix tariff was then examined ‘in the context of pursuing the objective of long-term regional development within the meaning of point (a) of Article 92(3) [EC]’ (point 4.2 of the Alumix Decision) and in light of the fact that the preferential tariffs were abolished as of 1 January 1996. The Commission concluded that the ‘capital injections and the payment of the frozen debts as well as [the pre-Alumix tariff] therefore [fell] within the derogation set out in points (a) and (c) of Article 92(3) [EC]’ (point 5 of the Alumix Decision).
10 The privatisation of Alumix (which resulted in the transfer of the majority of the shares in the Alumix group to Alcoa Italia SpA, which, on completion of that process, became Alcoa Trasformazioni) led the Italian legislature to adopt a series of measures some of which concerned the reduction of the electricity tariffs applicable to that company. In this context, three different tariffs were adopted, one applicable to the plant at Portovesme and the two others applicable to the plant at Fusina. The tariffs for both plants included the marginal cost of electricity production in the relevant region, that is, LIT 36 per kilowatt-hour for the plant at Portovesme and LIT 39 per kilowatt-hour for the plant at Fusina, plus a contribution to fixed costs.
11 The table set out beneath the fourth paragraph of point 2.5.2 of the Alumix Decision sets out the tariff applicable to the Portovesme smelter for the years 1996 to 2005. The Fusina smelter was supplied under two different contracts. One of those contracts was concluded between Ente nazionale per l’energia elettrica (ENEL) and SAVA, an undertaking subsequently acquired by Alumix. The other set a tariff based on the average marginal cost for producing the electricity, that is, LIT 39 per kilowatt-hour. It is the first and third tariffs that, at the time when the Alumix Decision was adopted, constituted the latest preferential electricity tariffs (‘the Alumix tariff’).
12 In the first case, concerning the plant at Portovesme, the Commission found as follows:
‘under such circumstances, ENEL is behaving as a normal commercial operator and ... the tariff does not constitute State aid within the meaning of Article 92(1) [EC]’ (point 4.2 of the Alumix Decision).
13 In the second case, concerning the plant at Fusina, the Commission followed similar reasoning in relation to the third tariff based on the average marginal cost for producing the electricity.
14 Lastly, and again concerning the plant at Fusina, but in connection with the contract concluded between ENEL and SAVA (the second tariff), the Commission stated that this had been an ordinary commercial transaction and that, rather than in a single payment, payment of the price for the five hydro-electricity power stations and the related distribution network had been spread over time and had taken the form of the supply of electricity.
15 The Commission therefore concluded that the three tariffs — including the Alumix tariff — did not entail any ‘State aid within the meaning of Article 92(1) [EC]’ (last paragraph of point 4.2 of the Alumix Decision).
16 In order for the preferential tariff resulting from the 2004 Decree, described in paragraphs 2 et seq. above, to be implemented it was necessary for the AEEG to adopt a decision to that effect.
17 The AEEG adopted decision No 110/04 of 5 July 2004, stipulating that the preferential tariff would be granted only if the notification procedure in accordance with the State aid rules had a positive outcome.
18 However, it transpired that the Italian authorities had not made the notification and that it was after the Commission had been sent certain press articles that the Commission had requested the Italian Republic, by letters dated 22 January 2004 and 19 March 2004, to provide further information about the measures at issue. By letters dated 9 February 2004, 9 June 2004 and 20 September 2004 that Member State provided the Commission with further clarification, in particular with regard to the 2004 Decree, informed the AEEG of the context in which it had provided that information and instructed the AEEG to implement the decree, which it did by adopting decision No 148/04 of 9 August 2004.
19 By decision notified to the Italian Republic by letter of 16 November 2004, the Commission initiated the procedure laid down in Article 88(2) EC with regard to State aid C 38/2004 (ex NN 58/04) — Aid for Portovesme Srl (summarised in OJ 2005 C 30, p. 7).
20 On 17 December 2004, the AEEG informed the Italian Ministry for Production Activities that, in view of the Commission’s decision, it would be prematurely discontinuing the implementation of the scheme resulting from the 2004 Decree.
21 It is apparent from information provided by the Italian Republic in the course of the administrative procedure that, under that scheme, in respect of electricity consumed between April and October 2004, the applicant had received from the public body Cassa Conguaglio per il settore elettrico (the Equalisation Fund for the Electricity Sector) payments totalling EUR 12 845 892.82 to compensate the difference between the price paid to the company supplying electricity to the applicant and the preferential tariff set by the State, multiplied by the electricity consumption of the applicant’s plant.
22 However, on 14 March 2005 the Italian authorities adopted Decree-Law No 35 (GURI No 111 of 14 May 2005, p. 4), converted into law, after amendment, by Law No 80 of 14 May 2005 (ordinary supplement to GURI No 91 of 14 May 2005), (‘the 2005 Decree-Law’).
23 Pursuant to Article 11(12) of the 2005 Decree-Law, the preferential tariff for the applicant was extended until 31 December 2010. However, although the 2004 Decree had not been notified to the Commission, and neither had Article 11(11) of the 2005 Decree-Law, which concerned the preferential tariff for Alcoa Trasformazioni, Article 11(12) of the 2005 Decree-Law was notified to the Commission in accordance with Article 88(3) EC on 23 November 2005 and in a supplemental letter dated 28 November 2005.
24 On 22 December 2005 the Commission requested further information from the Italian Republic, which it provided in a letter of 3 March 2006.
25 By decision notified to the Italian Republic by letter of 26 April 2006, the Commission initiated the procedure laid down in Article 88(2) EC concerning State aid C 13/06 (ex N 587/05) — Preferential Electricity Tariff to Energy Intensive Industries in Sardinia (summarised in OJ 1996 C 145, p. 8).
26 On 22 August 2006, the Commission asked for further information, which the Italian Republic provided by letter of 28 September 2006.
27 Since the application of the scheme resulting from Article 11(12) of the 2005 Decree-Law was, following the notification of that provision, subject to the Commission’s authorisation, the scheme was never implemented.
28 On 29 October 2008, the Commission decided to examine the preferential tariff resulting from the 2004 Decree in two separate parts according to whether it applied to Alcoa Trasformazioni or to the new beneficiaries of the tariff, including the applicant.
29 After various exchanges between the Commission and the Italian Republic, it became apparent that the preferential tariff from which Alcoa Trasformazioni benefitted had not in fact been extended by the 2004 Decree and continued to be governed by the 1995 Decree until the entry into force of Article 11(11) of the 2005 Decree-Law.
30 By Decision 2011/746/EU of 23 February 2011 on State aid granted by Italy to Portovesme Srl, ILA SpA, Eurallumina SpA and Syndial SpA (State aid measures C 38/B/04 (ex NN 58/04) and C 13/06 (ex N 587/05) (OJ 2011 L 309, p. 1) (‘the contested decision’), the Commission first of all held, in connection with the aid which it regarded as resulting from Article 11(12) of the 2005 Decree-Law, that that aid was incompatible with the internal market and prohibited the Italian Republic from granting it and, secondly, in connection with the aid which it regarded as resulting from the 2004 Decree, held that that aid was also incompatible with the internal market and, consequently, ordered the Italian Republic to recover the aid from its beneficiaries.
31 The applicant was notified of that decision on 31 March 2011.
Procedure and forms of order sought
(omissis)
39 The applicant claims that the Court should:
– annul, in its entirety or in part, ‘in so far as is reasonable’, the contested decision;
– in the alternative, annul that decision in so far as it orders the recovery of the aid in question;
– order the Commission to pay the costs.
40 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
Admissibility
41 By its principal head of claim, the applicant requests the Court, first of all, to annul the contested decision in its entirety and, failing that, to annul the decision in part, ‘in so far as is reasonable’. By its alternative head of claim, the applicant requests the Court to annul the contested decision ‘in so far as it orders the recovery of the aid in question’.
42 However, on being invited by the Court at the hearing to clarify the scope of its heads of claim, the applicant stated that they were to be understood as seeking the annulment of the contested decision only in so far as that decision related to it, and formal note of this was taken in the minutes of the hearing.
43 That clarification enables the Court to find the action admissible, inasmuch as the applicant seeks the annulment of the contested decision in so far as the decision concerns it and, in the alternative, the annulment of the decision in so far as it imposes an obligation on it to repay the aid which it has been granted.
44 Nevertheless, as regards the application for the partial annulment of the contested decision, ‘in so far as is reasonable’, it must be recalled that, where an action for the annulment of a measure under Article 263 TFEU is brought before the Courts of the European Union, their jurisdiction is limited to reviewing the legality of the contested measure (Case C‑5/93 P DSM v Commission [1999] ECR I‑4695, paragraph 36, and Case T‑152/06 NDSHT v Commission [2009] ECR II‑1517, paragraph 73).
45 The consequence of a finding of illegality on one of the grounds stated in the second paragraph of Article 263 TFEU is that the Court must annul the measure in question, in its entirety or in part, depending on the case and, in particular, the nature and extent of the illegality. The Court has no discretion as regards such annulment and no power to alter the scope of the annulment by reference to considerations of fairness or appropriateness (see, to that effect and by analogy, Case T‑50/04 Micha v Commission [2005] ECR Staff Cases I‑A‑339 and II‑1499, paragraph 46), which appear to be the considerations to which the applicant refers by its use of the phrase ‘in so far as is reasonable’.
46 The action is therefore admissible, with the exception of the second part of the applicant’s principal head of claim by which it seeks the partial annulment of the contested decision ‘in so far as is reasonable’.
Substance
47 The applicant puts forward eleven pleas in law in support of its action.
48 The first plea in law alleges breach of the principle of legal certainty and the principle of the protection of legitimate expectations and infringement of Articles 4, 7, 10 and 14 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), the second plea alleges an incorrect and incomplete account of the legal framework applicable to the present case and a consequent breach of the Commission’s duty of due diligence and impartiality, the third plea concerns breach of the principle of equal treatment, as between Alcoa Trasformazioni and the applicant, the fourth plea alleges an absence of State aid within the meaning of Article 107(1) TFEU, the fifth plea alleges that the Commission based the contested decision on incorrect assumptions, the sixth plea alleges that the aid in question is existing aid, the seventh plea is based on the compatibility of the aid ‘with the common market’, the eighth plea is based on infringement of Articles 2 EC, 3 EC, 5 EC and 12 EC and breach of the principles of equal treatment and proportionality, the ninth plea concerns infringement of Article 174 TFEU and Declaration No 30 on island regions, annexed to the Final Act of the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts (OJ 1997 C 340, p. 1) (‘the Declaration on island regions’), the tenth plea concerns infringement of Article 107(3)(a) to (c) TFEU and of the Guidelines on national regional aid (OJ 1998 C 74, p. 9) and failure to have regard to the Guidelines on national regional aid for 2007-2013 (OJ 2006 C 54, p. 13) and the eleventh plea, like the first, alleges breach of the principle of the protection of legitimate expectations.
(omissis)
The eighth plea in law, alleging infringement of Articles 2 EC, 3 EC, 5 EC and 12 EC and breach of the principles of equal treatment and proportionality
(omissis)
The second complaint in the second part of the fourth plea, alleging breach of the duty to state reasons in connection with the selective nature of the measure at issue
(omissis)
The first plea, alleging breach of the principle of legal certainty and the principle of the protection of legitimate expectations and infringement of Articles 4, 7, 10 and 14 of Regulation No 659/1999, and the eleventh plea, alleging breach of the principle of the protection of legitimate expectations
(omissis)
The second plea, alleging an incorrect and incomplete account of the legal framework applicable to the present case and a consequent breach of the Commission’s duty of due diligence and impartiality
80 The applicant claims that the determination of the preferential tariff by the 2004 Decree and the decisions implementing that decree resulted in a tariff identical to the pre-Alumix tariff, which the Commission regarded in the Alumix Decision as compatible with the common market. It submits that it is entitled to rely on that precedent in order for the aid to be regarded as compatible with the internal market. If that is so, the applicant should not be required to repay the sums which it received under the said measure. However, that presupposes that the Alumix Decision was lawful and may be relied upon (inasmuch as, while the Commission is not bound by its practice in previous decisions, it is bound by the principle of equal treatment when the same aid is in issue).
81 The applicant basis its analysis on the following reasoning: Article 1(1) of the 2004 Decree refers to paragraph 2 of the 1995 Decree, which in turn refers to IPC Decision No 13/1992. That decision determined the ‘pre-Alumix tariff’, in particular, in so far as concerns the ‘thermal surcharge’. Thus, it was that tariff, recognised in 1996 as being compatible with the common market, that was applied to it in 2004, which naturally implies, in its submission, that the contested decision was unlawful in so far as this question is concerned.
82 The applicant’s second plea cannot be upheld.
83 First, it must be emphasised that, in the context of the privatisation of Alumix, the Italian Republic gave Alcoa Italia an undertaking to apply the Alumix tariff. (Indeed, Alcoa Italia was contractually entitled to suspend operations at the abovementioned smelters if ‘the electricity power rates [exceeded] those agreed by at least 5% for a period of at least three months in any six month period’ (point 2.7 of the Alumix Decision). Consequently, when the 1995 Decree was adopted, it reproduced the characteristics of the Alumix tariff, as was confirmed by the Commission at the hearing. The Alumix Decision, adopted in 1996, thus implicitly endorsed the tariff.
84 As was pointed out in paragraphs 6 to 15 above, the preferential tariff which the Commission approved in the Alumix Decision was in reality a multi-faceted entity, that is to say, first, the original tariff which ENEL applied to Alumix, in particular, under IPC Decision No 13/1992 (the pre-Alumix tariff) and, subsequently, the tariffs granted to Alumix in the context of its privatisation and perpetuated by the 1995 Decree for the benefit of the principal purchaser of the Alumix group, Alcoa Italia, which subsequently became Alcoa Trasformazioni (the Alumix tariff).
85 Next, it is appropriate to observe that, whilst it is formally true that the 2004 Decree refers to paragraph 2 of the 1995 Decree, the fact remains that, as the Commission rightly points out, the latter provision cannot be read in isolation from paragraph 1. As was pointed out in paragraph 5 above, in accordance with paragraph 1 the specific price scheme for primary aluminium set out in Table A-9 annexed to IPC Decision No 15 of 14 December 1993 was abolished as from 1 January 1996 and replaced by a scheme comprising the variable-rate tariffs set out in Table A-6 annexed to that decision, without that entailing any alteration of the ‘thermal surcharge’ defined in accordance with IPC Decision No 13/1992.
86 Consequently, both the pre-Alumix tariff and the Alumix tariff included among their constituent components the reduced ‘thermal surcharge’, which was the only component determining the final electricity price to be defined by IPC Decision No 13/1992.
87 Therefore, it was neither the pre-Alumix tariff nor the Alumix tariff that was applied to the applicant, but rather the price scheme resulting from the 1995 Decree as it had evolved up to the beginning of 2004. Thus the extension in 2004 of that tariff to other beneficiaries by the 2004 Decree no longer related to the same subject-matter as existed in 1996, when the Alumix Decision was adopted.
88 That leads the Court to reject the second plea, including in so far as it relates to the requirement for impartiality on the Commission’s part, since that institution treated the applicant and Alcoa Trasformazioni in the same way as from the date of adoption of the new measures (that is to say, the 2004 Decree and the 2005 Decree-Law), as will be more fully explained by the Court in the context of its response to the third plea.
The third plea, concerning breach of the principle of equal treatment, as between Alcoa Trasformazioni and the applicant
89 In the context of its third plea, the applicant points out that, in Decision 2010/460, the Commission took the view that the preferential tariff granted to Alcoa Trasformazioni was unlawful only during the period after 31 December 2005, that date marking, according to the Commission, the end of the validity of the Alumix Decision. The applicant is, however, of the opinion that, since the tariff applied to Alcoa Trasformazioni and the tariff applied to itself as from the date of entry into force of AEEG decision No 148/04 are identical (pursuant to the 1995 Decree and, subsequently, the 2004 Decree in the case of Alcoa Trasformazioni and pursuant solely to the 2004 Decree in its own case), the difference in treatment does not appear to be justified either in so far as concerns the finding of unlawfulness or, consequently, the claim for repayment of the compensation which it received under the 2004 Decree.
90 It must be held that that plea cannot succeed. As is apparent from the case-law, compliance with the principle of equal treatment 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 (see Case C‑248/04 Koninklijke Coöperatie Cosun [2006] ECR I‑10211, paragraph 72 and the case-law cited).
91 In this case, Alcoa Trasformazioni and the applicant were not, originally, in a comparable legal situation: Alcoa Trasformazioni benefitted from a preferential tariff, endorsed by the Commission in the Alumix Decision, which was subsequently extended, whereas the applicant was a new beneficiary of that tariff, by virtue of the 2004 Decree, which, in practice, did not apply to Alcoa Trasformazioni. Moreover, the 2005 Decree-Law contains two different provisions: Article 11(11), which was not notified to the Commission and concerned Alcoa Trasformazioni, and Article 11(12), which concerned the new beneficiaries of the preferential tariff and was duly notified to the Commission. Those differences, moreover, justify the Commission’s decision to examine separately the respective situations of the initial beneficiary of the preferential tariff and of the new beneficiaries of that tariff.
92 On the other hand, in so far as concerns the preferential tariff as it subsequently evolved, the two companies were in the same situation and were treated in the same way by the Commission, which, in both cases, concluded that the tariff constituted incompatible State aid and, consequently, ordered the repayment of the aid.
93 Admittedly, inasmuch as the preferential tariff after 31 December 2005 was regarded in the contested decision as unlawful and yet was identical to the tariff immediately prior to that date, the applicant is justified in pointing out that there were grounds for the Commission to take action sooner, given the substantial change in the nature of the aid which it had initially endorsed. It may also be observed that the Commission acknowledges the fact that, as a result of the changes in the way the preferential tariff was calculated and paid to Alcoa Trasformazioni which were made at the end of the initial period (1995-2005), and more specifically in 2004 and 2005, that company was able to receive unlawful State aid (a state of affairs which is, moreover, entirely consistent with Decision 2010/460 and the finding that the temporal extension of the preferential tariff constituted State aid).
94 Nevertheless, according to settled case-law, the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (see, to that effect, Case 188/83 Witte v Parliament [1984] ECR 3465, paragraph 15, Case 134/84 Williams v Court of Auditors [1985] ECR 2225, paragraph 14, and Joined Cases C‑259/10 and C‑260/10 The Rank Group [2011] ECR I‑10947, paragraph 62).
95 The third plea must therefore be rejected.
The fourth plea, alleging an absence of State aid within the meaning of Article 107(1) TFEU
(omissis)
The fifth plea, alleging that the Commission based the contested decision on incorrect assumptions
(omissis)
The sixth plea, alleging that the aid in question is existing aid
112 It must be recalled that measures to grant or alter aid, where the alterations may relate to existing aid or initial plans notified to the Commission, must be regarded as new aid subject to the obligation of notification laid down by Article 108(3) TFEU (Joined Cases 91/83 and 127/83 Heineken Brouwerijen [1984] ECR 3435, paragraphs 17 and 18, and Case C‑44/93 Namur-Les assurances du crédit [1994] ECR I‑3829, paragraph 13).
113 It is clear that, in the present case, the aid was new aid.
114 First of all, the economic and legal changes that occurred after the adoption of the Alumix tariff illustrate the switch from a price charged by a supplier to a tariff subsidised by the Italian Republic. Whereas, in the case of the Alumix tariff, the price charged reflected the rebate granted by that supplier, despite its holding a monopoly position (ENEL), to one of its most important customers, the measures which are the subject of the contested decision entailed a price reduction fixed by the Italian authorities and financed by a parafiscal charge which made it possible to reimburse the applicant the difference between the tariff normally charged to undertakings and the preferential tariff which it was granted.
115 It must therefore be found that that the switch from the method of determining and paying the preferential tariff initially granted to Alcoa Trasformazioni under the 1995 Decree to the method under the 2004 Decree, and subsequently the 2005 Decree-Law, in and of itself supports the conclusion that this was new aid.
116 That conclusion is all the more compelling with regard to the extension of the aid thus altered to the new beneficiaries, which had fallen outside the scope of an aid scheme that was already authorised and were subsequently granted aid of which there had hitherto been only one beneficiary.
117 The sixth plea must therefore be dismissed.
The seventh plea, based on the compatibility of the aid ‘with the common market’
(omissis)
The ninth plea, concerning infringement of Article 174 TFEU and the Declaration on island regions
(omissis)
The tenth plea, concerning infringement of Article 107(3)(a) to (c) TFEU and of the Guidelines on national regional aid and failure to have regard to the Guidelines on national regional aid for 2007-2013
(omissis)
Costs
139 Since the Commission has applied for the applicant to be ordered to pay the costs and the applicant has been unsuccessful, it must be ordered to pay the costs, under Article 87(2) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders Portovesme Srl to pay the costs.
Delivered in open court in Luxembourg on 16 October 2014.
[Signatures]