Language of document : ECLI:EU:T:2016:233

Provisional text

Joined Cases T‑60/06 RENV II and T‑62/06 RENV II

Italian Republic and Eurallumina SpA

v

European Commission

(State aid — Directive 92/81/EEC — Excise duties on mineral oils — Mineral oils used as fuel for alumina production — Exemption from excise — Selective nature of the measure — Aid which may be considered compatible with the common market — Community guidelines on State aid for environmental protection — Guidelines on national regional aid 1998 — Legitimate expectations — Legal certainty — Principle lex specialis derogat legi generali — Principles of presumption of legality and of the effet utile of acts of the institutions — Principle of sound administration — Obligation to state reasons)

Summary — Judgment of the General Court (First Chamber, Extended Composition), 22 April 2016

1.      Actions for annulment — Jurisdiction of the EU judicature — Claim seeking that directions be issued to an institution — Inadmissibility

(Arts 230 EC and 233, first para., EC)

2.      Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Lawfulness

(Rules of Procedure of the General Court (1991), Arts 44(1)(c), and 48(2))

3.      EU law — Principles — Legal certainty — Scope — Institutions unable to alter measures which they have adopted — Compliance with rules on competence and procedure —Obligation to avoid inconsistencies which might arise in the implementation of the various provisions of EU law — Scope and consequences in State aid matters

(Art. 88 EC)

4.      State aid — Concept — Assessment having regard to the objective situation, independently of the conduct of the institutions — Council decision authorising a Member State, in accordance with Directive 92/81, to introduce an exemption from excise duty — Assessment of the Commission concerning the absence, in that context, of distortion of competition and hindrance to the proper functioning of the internal market — Not relevant to the Commission’s power of assessment in State aid matters — Not relevant to the allocation of those powers by the treaty — No excess of powers or infringement of Article 18 of Directive 2003/96

(Arts 87 EC, 88 EC and 93 EC; Council Directives 92/81, Art. 8(4) and (5), and 2003/96, Art. 18; Council Decision 2001/224)

5.      State aid — Concept — Assessment having regard to the objective situation, independently of the conduct of the institutions — Council decision authorising a Member State, in accordance with Directive 92/81, to introduce an exemption from excise duty — Assessment of the Commission concerning the absence, in that context, of distortion of competition and hindrance to the proper functioning of the internal market — Not relevant to the Commission’s power of assessment in State aid matters — No infringement of the principles of legal certainty and effectiveness or of Article 8(5) of Directive 92/81

(Arts 87 EC, 88 EC and 93 EC; Council Directives 92/81, Art. 8(4) and (5), and 2003/96, Art. 18; Council Decision 2001/224)

6.      Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Similar requirements for submissions made in support of a plea — Imprecise formulation of a claim — Inadmissibility

(Art. 225 EC; Rules of Procedure of the General Court (1991), Art. 44(1))

7.      State aid — Concept — Selective nature of the measure — Derogation from the general tax system — Reference framework for determining the existence of an economic advantage

(Art. 87(1) EC)

8.      State aid — Existing aid and new aid — Procedure for reviewing aid — Distinct procedures — Effects of a decision of incompatibility

(Art. 88 EC)

9.      State aid — Existing aid and new aid — Classification as existing aid — Council decision authorising a Member State, in accordance with Directives 92/81 and 2003/96, to introduce an exemption from excise duty — Decision not capable of classification as a decision authorising an aid scheme — Exemption not capable of classification as an existing aid

(Arts 87 EC, 88 EC and 93 EC; Council Regulation No 659/1999, Art. 1(b); Council Directives 92/81, Art. 8(4) and 2003/96, Art. 18 and Annex II; Council Decision 2001/224, Art. 1(2))

10.    State aid — Prohibition — Exceptions — Discretion of the Commission — Criteria for assessment — Effect of the guidelines adopted by the Commission

(Art. 87(3) EC; Commission Notices 2001/C 37/03 and 98/C 74/06)

11.    State aid — Commission decision — Judicial review — Limits — Assessment of legality by reference to information available at the time the decision adopted

(Arts 88(3) EC and 230 EC)

12.    State aid — Prohibition — Exceptions — Aid capable of being regarded as compatible with the internal market — Aid for regional development — Criteria — Existence of a particular regional handicap — Obligation to establish the need for regional development aid

(Art. 87(3)(a) EC; Commission Notice 98/C 74/06, points 4.15 to 4.17)

13.    State aid — Recovery of unlawful aid — Aid granted in breach of the procedural rules under Article 88 EC — Legitimate expectations entertained by the recipients — Conditions and limits — Inaction by the Commission — No legitimate expectations — No exceptional circumstances

(Arts 87 EC and 88 EC; Council Regulation No 659/1999, Art. 14(1); Council Directives 92/81 and 2003/96)

14.    State aid — Recovery of unlawful aid — Aid granted in breach of the procedural rules under Article 88 EC — Legitimate expectations entertained by the recipients — Conditions and limits — End of the legitimate expectation as from publication of the decision to open the formal investigation procedure even in exceptional circumstances

(Arts 87 EC and 88 EC; Council Regulation No 659/1999, Art. 14(1); Council Directives 92/81 and 2003/96)

15.    State aid — Commission decision to open a formal investigation procedure into a State measure — Obligation to give a decision within a reasonable time — Not relevant in case of aid not properly notified to the Commission — Infringement — No obstacle to recovery of the aid — Limits — Infringement of the rights of the defence

(Art. 88 EC; Council Regulation No 659/1999, Arts 7(6), and 13(2))

16.    Actions for annulment — Grounds — Lack of or inadequate statement of reasons — Separate ground from the one concerning substantive legality

(Arts 230 EC and 253 EC)

17.    Judicial proceedings — Costs — Successful party ordered to bear part of its own costs

(Art. 225 EC; Rules of Procedure of the General Court (1991), Art. 135)

1.      See the text of the decision.

(see para. 43)

2.      See the text of the decision.

(see paras 45, 46)

3.      The principle of legal certainty constitutes a general principle of EU law, which aims to ensure that situations and legal relationships governed by EU law remain foreseeable. To that end, it is essential that the institutions observe the principle that they may not alter measures which they have adopted and which affect the legal and factual situation of persons, meaning that they may amend such acts only in accordance with the rules on competence and procedure.

Observance of the principle of legal certainty also requires that the institutions avoid, as a matter of principle, inconsistencies that might arise in the implementation of the various provisions of EU law, particularly where those provisions pursue the same objective, such as undistorted competition in the common market. In that regard, in State aid matters, the principle of legal certainty requires that, where the Commission has created, in disregard of its duty of care, an equivocal situation, owing to the introduction of elements of uncertainty and a lack of clarity in the applicable legislation, combined with a prolonged lack of response on its part despite its awareness of the aid concerned, the Commission is under a duty to clarify such a situation before it can take any action to order the recovery of the aid already paid.

(see paras 63, 183)

4.      The procedure provided for in Article 8(4) of Directive 92/81 on the harmonisation of the structures of excise duties on mineral oils, which granted to the Council, acting unanimously on a proposal from the Commission, the power to authorise any Member State to introduce exemptions or reductions in respect of excise duties other than those laid down by that directive for specific policy considerations, has a purpose and scope which differ from those of the rules established in Article 88 EC.

Consequently, a Council decision authorising a Member State, in accordance with Article 8(4) of Directive 92/81, to introduce an excise duties exemption cannot have the effect of preventing the Commission from exercising the powers conferred on it by the Treaty and, consequently, setting in motion the procedure laid down in Article 88 EC in order to review whether that exemption constitutes State aid and on the conclusion of that procedure, if appropriate, to adopt a decision finding the existence of such aid.

Moreover, the fact that Council authorisation decisions grant full exemptions from excise duties while setting detailed conditions of a geographical and temporal nature and that those conditions are strictly respected by the Member States has no effect on the division of powers between the Council and the Commission and therefore cannot deprive the Commission of the right to exercise its powers.

It follows that by implementing, without first engaging the procedure laid down in Article 8(5) of Directive 92/81, the procedure laid down in Article 88 EC in order to examine whether an exemption from excise duties constitutes State aid and by adopting, on the conclusion of that procedure, a decision finding the existence of such aid even though Article 1(2) of Decision 2001/224 concerning reduced rates of excise duty and exemptions from such duty on certain mineral oils when used for specific purposes expressly authorised the Member State concerned to continue applying that exemption, the Commission does not infringe the principles of legal certainty and effectiveness of the acts of the institutions, or even Article 8(5) of Directive 92/81. Authorising decisions of the Council, adopted on the proposal of the Commission, can produce effects only within the area covered by the rules on harmonisation of legislation relating to excise duties and do not predetermine the effects of any decision which could be adopted by the Commission in the exercise of its powers in the area of State aid.

(see paras 65-67, 69, 72)

5.      The concept of State aid corresponds to an objective situation and cannot depend on the conduct or statements of the institutions. Accordingly, that the fact that the Commission took the view, at the time when the Council adopted decisions under Article 8(4) of Directive 92/81 on the approximation of the rates of excise duties on mineral oils, that exemptions from excise duty on mineral oils used as fuel for the alumina production did not give rise to a distortion of competition and did not impede the proper functioning of the common market cannot not preclude those exemptions from being classified as State aid, within the meaning of Article 87(1) EC, if the conditions governing the existence of State aid are met. It follows, a fortiori, that the Commission is not bound, for the purpose of the classification of the exemptions from excise duty as State aid, by the Council’s assessments, in its decisions in the field of harmonisation of legislation relating to excise duties, according to which those exemptions did not give rise to a distortion of competition and did not impede the proper functioning of the common market.

It follows that, by implementing the procedure under Article 88 EC, for the purposes of examining whether the exemption in question constitutes State aid, and by taking, at the conclusion of that procedure, a decision finding aid incompatible with the common market and ordering its recovery, the Commission does no more than exercise the powers conferred on it by the EC treaty in State aid matters and that, in doing so, it does not infringe the principle of legal certainty, the principle lex specialis derogat legi generali, or the presumptions of legality and effectiveness of the acts of the institutions.

(see paras 72-74, 77, 81-84)

6.      See the text of the decision.

(see paras 89-91)

7.      See the text of the decision.

(see paras 97-99, 101)

8.      See the text of the decision.

(see para. 108)

9.      See the text of the decision.

(see paras 110, 111)

10.    See the text of the decision.

(see paras 127, 128, 147)

11.    See the text of the decision.

(see para. 132)

12.    See the text of the decision.

(see paras 143, 152, 157)

13.    See the text of the decision.

(see paras 174-176, 187,188, 192)

14.    A Member State whose authorities have granted aid contrary to the procedural rules laid down in Article 88 EC may rely on the legitimate expectations of the recipient undertaking to challenge before the EU judicature the validity of a Commission decision instructing it to recover the aid, but not to justify a failure to comply with the obligation to take the steps necessary to implement it. However, in view of the fundamental role played by the notification obligation to render effective the review of State aid by the Commission, which is mandatory, the recipients of aid may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure provided for in Article 88 EC and a diligent business operator must normally be in a position to confirm that that procedure has been followed.

In those circumstances, a delay by the Commission in deciding that aid is unlawful and that it must be abolished and recovered by a Member State may, in certain circumstances, establish a legitimate expectation on the recipients’ part so as to prevent the Commission from requiring that Member State to order the refund of that aid. However, in view of the requirements resulting from the principles of protection of legitimate expectations and of legal certainty, such an equivocal situation created by the wording of Council decisions, adopted on a proposal from the Commission, to authorise a Member State to introduce exemptions from or reductions in excise duty pursuant to Directive 92/81 on the harmonisation of the structures of excise duties on mineral oils, precludes recovery of the aid granted on the basis of the exemption at issue only until the date of publication in the Official Journal of the European Union of the decision to initiate the formal investigation procedure. By contrast, as of that publication, the aid beneficiary must know that, if the latter constitutes State aid, it has to be authorised by the Commission, in accordance with Article 88 EC. It follows that the publication of the decision to initiate the formal investigation procedure puts an end to the legitimate expectations that the aid beneficiary might previously have that such an exemption was lawful. That publication eliminates any uncertainty, linked to the wording of the Council’s authorisation decisions, as to the fact that the measures in question, if they constitute State aid, have to be approved by the Commission in accordance with Article 88 EC.

Concerning, finally, exceptional circumstances on the basis of which the recipient of unlawful aid could legitimately assume such aid to be lawful, any apparent failure to act on the part of the Commission is irrelevant when an aid scheme had not been notified to it. Such a solution also applies where an aid scheme has been implemented without the prior notice of implementation required by the judgment in Case 120/73 Lorenz being given and thus without the procedure laid down by Article 88 EC being followed in full.

(see paras 179-181, 188-190, 217)

15.    The mere fact that Regulation No 659/1999 laying down detailed rules for the application of Article 88 EC, apart from a limitation period of ten years (from the grant of the aid) at the end of which recovery of the aid may no longer be ordered, does not prescribe any time-limit, even indicative, for the examination by the Commission of unlawful aid, Article 13(2) of that regulation providing that the Commission is not to be bound by the time-limit set out in Article 7(6) of the same regulation, does not prevent the EU judicature from verifying whether that institution failed to take a reasonable amount of time or acted too slowly.

Pursuant to Article 7(6) of Regulation No 659/1999, the reference period for completing a formal investigation procedure in the context of notified State aid is 18 months. That period, even though not applicable to unlawful aid, in accordance with Article 13(2) of Regulation No 659/1999, provides a useful point of reference for assessing the reasonableness of the duration of a formal investigation period relating to a measure that has been unlawfully implemented.

In that regard, a period of just over 49 months between the adoption of the decision to initiate the formal investigation procedure and the adoption of a decision finding State aid and ordering its recovery, which is slightly more than double that provided for in Article 7(6) of Regulation No 659/1999 for completing a formal investigation procedure in the context of notified State aid, appears unreasonable. Such a delay is particularly unjustified in the case of files presenting no obvious difficulty and on which the Commission could have formed an opinion well before the opening of the formal investigation procedure.

However, failure to act within a reasonable time justifies annulment of the decision adopted at the end of that period only in so far as it also constitutes an infringement of the defence rights of the undertakings concerned.

(see paras 182, 196, 199-201, 210)

16.    See the text of the decision.

(see para. 234)

17.    See the text of the decision.

(see paras 245, 247)