CELEX: 62006TJ0060(01)
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

Background to the dispute
The exemption at issue
Alumina (or aluminium oxide) is a white powder principally used in smelters to produce aluminium. It is extracted from bauxite by a refining process, the last stage of which is calcination. More than 90% of the calcinated alumina is used in the smelting of aluminium metal. The remainder is further processed and used in chemical applications. There are two separate product markets: smelter-grade alumina and chemical-grade alumina. Mineral oils may be used as fuel for alumina production.
There is only one producer of alumina in each of Ireland, Italy and France. In Italy, it is Eurallumina SpA, established in Sardinia. Alumina producers are also present in Germany, Spain, Greece, Hungary and the United Kingdom.
Since 1993, the Italian Republic has exempted from excise duty mineral oils used as fuel for the production of alumina in Sardinia (‘the exemption at issue’). The exemption at issue was introduced into Italian law by decreto legislativo 26 ottobre 1995, No 504, Testo unico delle disposizioni legislative concernenti le imposte sulla produzione e sui consumi e relative sanzioni penali e amministrative (Legislative Decree No 504 of 26 October 1995, Consolidated Text of Legislative Provisions relating to duties on production and consumption and related criminal and administrative penalties; Ordinary Supplement to GURI No 279 of 29 November 1995) (‘the 1995 legislative decree’).
The application of the exemption at issue to Sardinia was authorised until 31 December 1994 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/EEC (
OJ 1993 L 321, p. 29
). That authorisation was subsequently extended by the Council of the European Union until 31 December 1996 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
). It was further extended by the Council until 31 December 1998 by Decision 97/425/EC of 30 June 1997 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 1997 L 182, p. 22
). The authorisation was extended again by the Council, until 31 December 1999, by Decision 1999/255/EC of 30 March 1999 authorising, in accordance with Directive 92/81, certain Member States to apply and 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
). It was subsequently extended by the Council until 31 December 2000 by Decision 1999/880/EC of 17 December 1999 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 1999 L 331, p. 73
).
Council 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
), which was the last decision concerning the exemption at issue, extends that exemption until 31 December 2006. According to recital 5 thereof, 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]’ and ‘does not override the requirement for Member States to notify instances of potential State aid to the Commission under Article 88 [EC]’.
Administrative procedure
By letter of 29 May 1998, the Commission of the European Communities requested information from the Italian authorities in order to verify whether the exemption at issue fell within the scope of Articles 87 EC and 88 EC. Following a reminder from the Commission on 16 June 1998, the Italian Republic replied on 20 July 1998.
By letter of 17 July 2000, the Commission requested the Italian Republic to notify it of the exemption at issue. The Commission reiterated its request to the Italian Republic, inviting it to provide additional information by letter of 27 September 2000. Following a reminder from the Commission of 20 November 2000, the Italian Republic replied on 7 December 2000.
By Decision C(2001) 3300 of 30 October 2001, the Commission opened the procedure laid down in Article 88(2) EC with regard to the exemption at issue (‘the formal investigation procedure’). That decision was notified to the Italian Republic, by letter of 5 November 2001, and was published, on 2 February 2002, in the
Official Journal of the European Communities
(
OJ 2002 C 30, p. 17
).
By letters of 26 and 28 February and 1 March 2002, the Commission received the respective comments of Aughinish Alumina Ltd, Eurallumina, Alcan Inc. and the European Aluminium Association. Those were communicated to the Italian Republic on 26 March 2002.
The Italian Republic submitted its comments by letter of 6 February 2002.
Alumina Decision I
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
) (‘Alumina Decision I’).
Alumina Decision I relates to the period before 1 January 2004, the date on which 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
), repealing 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
) and Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils (
OJ 1992 L 316, p. 19
) with effect from 31 December 2003 (recital 57) became applicable. Nevertheless, it extends the formal investigation procedure to the period after 31 December 2003 (recital 92).
The operative part of Alumina Decision I states, inter alia:
‘Article 1
The exemptions from excise duty granted by France, Ireland and Italy in respect of heavy fuel oils used in the production of alumina 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] in so far as the beneficiaries pay at least a rate of EUR 13.01 per 1000 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] in so far as the beneficiaries did not pay 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 and forms of order sought by the parties
By applications lodged with the Registry of the General Court on 16 and 23 February 2006, respectively, the Italian Republic and Eurallumina brought the present actions, which were registered under reference numbers T‑60/06 and T‑62/06, respectively.
Pursuant to Article 14 of the Rules of Procedure of the General Court of 2 May 1991 and acting on a proposal from the Second Chamber, the Court decided, after hearing the parties in accordance with Article 51 of those rules, to refer the present cases to a Chamber sitting in extended composition.
By order of 24 May 2007, the President of the Second Chamber (Extended Composition) of the Court, after hearing the parties, joined Cases T‑60/06 and T‑62/06 and Cases T‑50/06, T‑56/06 and T‑69/06 (‘the Alumina I cases’) for the purposes of the oral procedure, in accordance with Article 50 of the Rules of Procedure of 2 May 1991.
By judgment of 12 December 2007 in Ireland and Others v Commission (
T‑50/06, T‑56/06, T‑60/06, T‑62/06 and T‑69/06
,
EU:T:2007:383
), the Court joined the Alumina I cases for the purposes of the judgment, annulled Alumina Decision I and, in Case T‑62/06, dismissed the remainder of the action.
By application filed on 26 February 2008, the Commission lodged an appeal against the judgment of the Court.
By judgment of 2 December 2009 in Commission v Ireland and Others (
C‑89/08 P
, ECR,
EU:C:2009:742
), the Court of Justice set aside the judgment in Ireland and Others v Commission, cited in paragraph
above (
EU:T:2007:383
), in so far as the General Court had annulled Alumina Decision I, referred the Alumina I cases back to the General Court and reserved the costs.
Following the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2009:742
), and pursuant to Article 118(1) of the Rules of Procedure of 2 May 1991, the Alumina I cases were assigned to the Second Chamber (Extended Composition) by decision of the President of the General Court of 18 December 2009.
By order of the President of the Second Chamber (Extended Composition) of 1 March 2010, the Alumina I cases were joined for the purposes of the written procedure, the oral procedure and the judgment.
By decision of the President of the General Court of 20 September 2010, the Alumina I cases were reassigned to the Fourth Chamber (Extended Composition).
By judgment of RENV, ECR, 21 March 2012 in Ireland v Commission (
T‑50/06 RENV, T‑56/06 RENV, T‑60/06 RENV, T‑62/06 RENV and T‑69/06
EU:T:2012:134
), the Court annulled Alumina Decision I, in so far as it found, or was based on the finding, that the exemptions from excise duties on mineral oils used as fuel for the production of alumina granted by the French Republic, Ireland and the Italian Republic until 31 December 2003 (‘the exemptions from excise duty’) constituted State aid within the meaning of Article 87(1) EC and in so far as it ordered the French Republic, Ireland and the Italian Republic to take all measures necessary to recover those exemptions from their recipients to the extent that the latter did not pay excise duty at the rate of at least EUR 13.01 per 1000 kg of heavy fuel oils.
By application filed on 1 June 2012, the Commission lodged an appeal against the judgment of the Court.
By judgment of 10 December 2013 in Commission v Ireland and Others (
C‑272/12 P
, ECR,
EU:C:2013:812
), the Court of Justice set aside the judgment in Ireland v Commission (cited in paragraph
above,
EU:T:2012:134
), referred the Alumina I cases back to the General Court and reserved the costs.
Further to the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), the Alumina I cases were assigned to the First Chamber by decisions of the President of the General Court of 21 January and 10 March 2014.
In accordance with Article 119(1) of the Rules of Procedure of 2 May 1991, Eurallumina and the Commission lodged their written observations on 28 January and 17 March 2014, respectively. In its written observations, Eurallumina stated that it did not wish to draw conclusions from the judgment in Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), and requested the Court to rule on all the pleas relied on in support of the action in Case T‑62/06 RENV II. The Commission took note of that in its written observations. The Italian Republic did not lodge written observations.
By decision of the President of the Court of 30 September 2014, the Alumina I cases were reassigned to the First Chamber (Extended Composition), in accordance with Article 118(1) of the Rules of Procedure of 2 May 1991.
Acting upon a report of the Judge-Rapporteur, the Court decided to open the oral procedure and, by way of a measure of organisation of procedure adopted pursuant to Article 64(3)(b) of the Rules of Procedure of 2 May 1991, requested the parties, in Case T‑60/06 RENV II, to make submissions on an aspect of the proceedings. The parties complied with that request within the prescribed period.
By order of the President of the First Chamber (Extended Composition) of 26 January 2015, the present cases were joined for the purposes of the oral procedure and the judgment.
Eurallumina and the Commission presented oral argument and replied to oral questions put by the Court at the hearing on 6 March 2015. However, the Italian Republic was not represented during that hearing.
The Italian Republic claims, in essence, that the Court should:
—
annul Alumina Decision I in so far as that decision finds the existence of State aid it allegedly granted, between 3 February 2002 and 31 December 2003, on the basis of the exemption at issue (‘the aid at issue’), and orders it to recover the aid at issue;
—
order the Commission to pay the costs.
Eurallumina claims, in essence, that the Court should:
—
annul or alter Alumina Decision I in so far as it determines the existence of the aid at issue and orders the Italian Republic to recover it;
—
order the Commission not to order the recovery of the aid granted by the Italian Republic until 31 December 2006 or, at least, until 31 December 2003, on the basis of the exemption at issue;
—
order the Commission to pay the costs.
The Commission contends that the Court should:
—
dismiss the present actions;
—
order the Italian Republic and Eurallumina to pay the costs.
Law
As a preliminary point, it should be borne in mind that the present actions both seek the annulment of Alumina Decision I in so far as it determines the existence of the aid at issue and orders the Italian Republic to recover it (‘the contested decision’). In that respect, the actions have the same subject matter.
Admissibility
In Case T‑60/06 RENV II, the Commission raises pleas of inadmissibility against (i) the first plea, in so far as it alleges infringement of the conditions set out in Article 87(1) EC for the classification of State aid relating, first, to the advantage conferred on the recipient and, second, to the distortion of competition and the effect on trade between Member States, and (ii) the sixth plea, in so far as it alleges infringement of the principle of legal certainty arising from the excessive duration of the formal investigation procedure not having been taken into account in the contested decision. Those specific complaints were articulated for the first time in the reply and thus constitute new pleas in law, within the meaning of Article 48(2) of the Rules of Procedure of 2 May 1991, which should be rejected as inadmissible.
The Italian Republic does not respond to those pleas of inadmissibility.
In Case T‑62/06 RENV II, the Commission argues that the action is inadmissible, in that it seeks to obtain more than the annulment of the contested decision. It is of the view, moreover, that the plea by which Eurallumina disputes that the exemption at issue constitutes State aid, within the meaning of 87(1) EC, was articulated for the first time in the reply and thus constitutes a new plea, within the meaning of Article 48(2) of the Rules of Procedure of 2 May 1991, which must be rejected as inadmissible.
Eurallumina maintains that the plea of inadmissibility directed against the action in Case T‑62/06 RENV II must be rejected as unfounded. However, it does not respond to the plea of admissibility directed against a new plea alleging, in essence, infringement of Article 87(1) EC.
As regards, first of all, the plea of inadmissibility directed against the action in Case T‑62/06 RENV II in that it seeks to obtain more than the annulment of the contested decision, it must be stated that, other than the annulment of the contested decision, that action seeks to have the Court order the Commission not to order the recovery of the aid granted by the Italian Republic until 31 December 2006 or, at least, until 31 December 2003, on the ground that that aid was lawful.
However, that request seeks only to establish the existence of unlawfulness impairing the contested decision and capable of justifying the upholding of the pleas and complaints relied on in support of the request for annulment of the contested decision and, therefore, the upholding of the latter request itself. That request is therefore devoid of any independent scope compared with the application for annulment of the contested decision.
Even supposing, as the Commission suggests, that that request pursues ends other than the mere annulment of the contested decision, such as the making of an order or the adoption of an operative part prohibiting the Commission from determining the existence of the aid at issue or ordering its recovery, it should be rejected as inadmissible, the Court lacking jurisdiction to accede to it.
According to established case-law, it is not for the Court to issue directions to the institutions or to substitute itself for them (see judgment of 24 January 1995 in Ladbroke Racing v Commission,
T‑74/92
, ECR,
EU:T:1995:10
, paragraph
and the case-law cited). That was particularly so in connection with a review of the legality of an act under Article 230 EC, in so far as the first subparagraph of Article 233 EC expressly stipulated that it was for the institution whose act had been declared void to take the necessary measures to comply with the judgment (see, to that effect, judgments of 24 June 1986 in AKZO Chemie and AKZO Chemie UK v Commission,
53/85
, ECR,
EU:C:1986:256
, paragraph
, and Ladbroke Racing v Commission,
EU:T:1995:10
, paragraph
).
As regards, next, the plea of inadmissibility directed, in Case T‑62/06 RENV II, against a plea by which Eurallumina disputes that the exemption at issue constitutes aid, within the meaning of Article 87(1) EC, it has no basis in fact and must, therefore, be rejected, in so far as it is not apparent from the reply that Eurallumina raised such a plea.
In relation, last, to the pleas of inadmissibility directed, in Case T‑60/06 RENV II, against the complaints alleging (i) infringement of the conditions set out in Article 87(1) EC for the classification of State aid relating, first, to the advantage conferred on the recipient and, second, to the distortion of competition and the effect on trade between Member States, and (ii) infringement of the principle of legal certainty arising from the excessive duration of the formal investigation procedure not having been taken into account in the contested decision, it is appropriate to note that, pursuant to Article 44(1)(c) of the Rules of Procedure of 2 May 1991 read in conjunction with Article 48(2) thereof, no new plea in law could be introduced after the application had been lodged unless it was based on matters of law or of fact which came to light in the course of the procedure. However, a plea which constituted an amplification of a plea previously made, either expressly or by implication, in the original application and was closely linked to it had to be declared admissible (see judgment of 15 October 2008 in Mote v Parliament,
T‑345/05
, ECR,
EU:T:2008:440
, paragraph
and the case-law cited). A similar solution applied to a complaint articulated in support of a plea in law.
In order to be regarded as an amplification of a plea or complaint previously set out, a new argument had to present a sufficiently close connection with the pleas or complaints put forward initially in the originating application to be considered as forming part of the normal evolution of debate in proceedings before the Court (see, to that effect, judgment of 26 November 2013 in Groupe Gascogne v Commission,
C‑58/12 P
, ECR,
EU:C:2013:770
, paragraph
).
In the present case, as the Commission correctly observes, the complaints mentioned in paragraph 45 above do not feature in the application in Case T‑60/06 RENV II and therefore constitute new complaints.
In addition, those new complaints were not based on any matter of fact or law which was revealed during the proceedings before the Court.
Last, those new complaints do not constitute the amplification of any of the pleas articulated in the application in Case T‑60/06 RENV II, which relate to different questions of law. In particular, they do not present a close connection with the first plea, alleging infringement of the condition of selectivity laid down in Article 87(1) EC, or with the sixth plea, based on the legal argument according to which the principles of protection of legitimate expectations, legal certainty and presumption of legality preclude State aid from being recovered where it has previously been authorised by the Council on the basis of tax harmonisation rules.
In view of the considerations set out in paragraphs 45 to 49 above, it is necessary to uphold the pleas of inadmissibility raised by the Commission in Case T‑60/06 RENV II and, consequently, to reject, as inadmissible, the complaints alleging (i) infringement of the conditions set out in Article 87(1) EC for the classification of State aid relating, first, to the advantage conferred on the recipient and, second, to the distortion of competition and the effect on trade between Member States, and (ii) infringement of the principle of legal certainty arising from the excessive duration of the formal investigation procedure not having been taken into account in the contested decision.
Substance
In support of the action in Case T‑60/06 RENV II, the Italian Republic relies on six pleas in law. The first plea alleges infringement of Article 87(1) EC and contradictory reasoning. The second plea alleges infringement of Article 1(b)(ii) and Article 4 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
), and of Decisions 93/697, 96/273, 97/425, 1999/255, 1999/880 and 2001/224 (‘the Council’s authorisation decisions’). The third plea alleges infringement of the rules governing aid for environmental protection and, in particular, the second subparagraph of point 82(a) of the Community Guidelines on State aid for environmental protection (
OJ 2001 C 37, p. 3
; ‘the 2001 Guidelines’). The fourth plea alleges infringement of Article 87(3) EC and the Guidelines on national regional aid (
OJ 1998 C 74, p. 9
; ‘the Guidelines on regional aid’). The fifth plea alleges infringement of Article 18 of Directive 2003/96, read in combination with Annex II thereto, and of Decision 2001/224. The sixth plea alleges infringement of the principles of protection of legitimate expectations, legal certainty and of presumption of legality.
In support of the action in Case T‑62/06 RENV II, Eurallumina relies on four pleas in law. The first plea alleges infringement of the principle of protection of legitimate expectations. The second plea alleges infringement of the principles of legal certainty, presumption of validity, the
effet utile
of acts of the institutions and of the principle
lex specialis derogat legi generali
. The third plea in law alleges infringement of the principle of sound administration. The fourth plea alleges, in essence, infringement of the obligation to state reasons laid down in Article 253 and of the principle of protection of legitimate expectations.
It is appropriate to examine, first of all, the plea by which Eurallumina disputes, in essence, the applicability to the exemption at issue of the State aid rules, namely the second plea raised in support of the action in Case T‑62/06 RENV II, alleging infringement of the principles of legal certainty, presumption of validity, the
effet utile
of acts of the institutions and of the principle
lex specialis derogat legi generali
.
Next, it is necessary to examine the plea by which the Italian Republic objects, essentially, to the classification of the exemption at issue as State aid, within the meaning of Article 87(1) EC, for the period up until 31 December 2003, namely the first plea raised in support of the action in Case T‑60/06 RENV II, alleging infringement of Article 87(1) EC and contradictory reasoning.
It is appropriate to continue by examining the pleas by which the Italian Republic criticises, essentially, the classification of the exemption at issue as new aid and not as existing aid, within the meaning of Article 88 EC, namely the second plea, alleging infringement of Article 1(b)(ii) and Article 4 of Regulation No 659/1999 and of the Council’s authorisation decisions, and the fifth plea, alleging infringement of Article 18 of Directive 2003/96, read in combination with Annex II thereto, and of Decision 2001/224, raised in support of the action in Case T‑60/06 RENV II.
Next, it is appropriate to examine the pleas by which the Italian Republic criticises, essentially, the Commission for having declared incompatible with the common market, within the meaning of Article 87(3) EC, the aid granted until 31 December 2003 on the basis of the exemption at issue, namely the third plea, alleging infringement of the rules governing aid for environmental protection and, in particular, the second subparagraph of point 82(a) of the 2001 Guidelines, and the fourth plea, alleging infringement of Article 87(3) EC and the Guidelines on regional aid, raised in support of the action in Case T‑60/06 RENV II.
Last, the Court will conclude by examining the pleas by which the applicants dispute, essentially, the recovery of the aid at issue, namely (i) the sixth plea, alleging infringement of the principles of protection of legitimate expectations, legal certainty and of presumption of legality, raised in support of the action in Case T‑60/06 RENV II, and (ii) the first plea, alleging infringement of the principle of protection of legitimate expectations, and the third plea, alleging infringement of the principle of sound administration, and the fourth plea, alleging breach of the obligation to state reasons laid down in Article 253 EC and infringement of the principle of protection of legitimate expectations, raised in support of the action in Case T‑62/06 RENV II.
The second plea, alleging infringement of the principles of legal certainty, presumption of validity, the
effet utile
of acts of the institutions and of the principle
lex specialis derogat legi generali
, raised in support of the action in Case T‑62/06 RENV II
Eurallumina claims that the Commission infringed the principles of legal certainty,
lex specialis derogat legi generali
, presumption of validity and of the
effet utile
of acts of the institutions, in the contested decision, in finding that the exemption at issue constituted unlawful and recoverable State aid, for the period from 3 February 2002 to 31 December 2003. It argues, in essence, that the abovementioned principles precluded the application of the State aid rules to the exemption at issue.
– Infringement of the principles of legal certainty, presumption of legality and of the
effet utile
of acts of the institutions
Eurallumina claims that the Commission infringed, in the contested decision, the principles of legal certainty, presumption of legality and of the
effet utile
of acts of the institutions, as interpreted by the case-law, in that it classified the exemption at issue as State aid, whose recovery it could order, for the period from 3 February 2002 to 31 December 2003. In that regard, first, Eurallumina bases its argument on the indirect challenge, by the contested decision, to the legality of Article 18 of Directive 2003/96, which replaced and repealed Directives 92/81 and 92/82, and Decision 2001/224, nevertheless presumed legal, as well as their implementing measures, adopted by the Italian Republic. Second, it relies on the contested decision’s undermining of the
effet utile
of Article 18 of Directive 2003/96 and of Decision 2001/224, in that it prevented them from producing their full effect until 31 December 2006. Third, it cites the lack of appropriate proposals from the Commission, under Article 8(5) of Directive 92/81 or Article 18 of Directive 2003/96, in order for the Council to conduct an early review of the authorisation to apply the exemption at issue until 31 December 2006. Fourth, it refers to the Commission’s failure to bring an action for annulment, pursuant to Article 230 EC, against the Council’s authorisation decisions. Fifth, Eurallumina relies on the proposals for Council authorisation decisions, in which the Commission consistently proposed to the Council to authorise the Italian Republic to apply or to continue applying the exemption at issue, most recently until 31 December 2002. Sixth, it invokes the impossibility, for it, to anticipate the Commission’s change of attitude regarding the legality of the Council’s authorisation decisions and the lawfulness of the exemption at issue. Seventh, it pleads a contradictory conduct of the Commission, which, in initiating the formal investigation procedure from 30 October 2001 and ordering the recovery of the aid at issue, acted in a manner contrary to the wording and spirit of its proposal for a Council authorisation decision of 15 November 2000, pursuant to which the Italian Republic should be authorised to continue applying the exemption at issue until 31 December 2002. Eighth, it refers to the content of the proposals for Council authorisation decisions, which fuelled the legitimate expectation it had that the exemption at issue was lawful until 31 December 2006.
The Commission contends that the present complaint should be rejected as unfounded.
The present complaint raises, in essence, the question whether the contested decision produces legal effects contrary to those produced by Decision 2001/224 and by Article 18 of Directive 2003/96, which, allegedly, expressly authorised the Italian Republic to continue applying the exemption at issue until 31 December 2006.
In that respect, it should be noted that measures of the institutions are in principle presumed to be lawful and accordingly produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality (see, to that effect, judgments of 15 June 1994 in Commission v BASF and Others,
C‑137/92 P
, ECR,
EU:C:1994:247
, paragraph
; 8 July 1999Chemie Linz v Commission,
C‑245/92 P
, ECR,
EU:C:1999:363
, paragraph
; and 5 October 2004Commission v Greece,
C‑475/01
, ECR,
EU:C:2004:585
, paragraph
).
It is apparent from settled case-law, moreover, that the principle of legal certainty aims to ensure that situations and legal relationships governed by EU law remain foreseeable (judgments of 10 April 2003 in Schulin,
C‑305/00
, ECR,
EU:C:2003:218
, paragraph
, and 15 September 2005Ireland v Commission,
C‑199/03
, ECR,
EU:C:2005:548
, paragraph
). 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 (see judgment of 21 October 1997 in Deutsche Bahn v Commission,
T‑229/94
, ECR,
EU:T:1997:155
, paragraph
and the case-law cited). 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. This is all the more necessary when those provisions pursue the same objective, such as undistorted competition in the common market (see, to that effect and by analogy, judgments of 15 June 1993 in Matra v Commission,
C‑225/91
, ECR,
EU:C:1993:239
, paragraphs
and
, and 31 January 2001RJB Mining v Commission,
T‑156/98
, ECR,
EU:T:2001:29
, paragraph
and the case-law cited).
In the present case, as the Commission correctly notes, the line of argument behind the present complaint is directly refuted by the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
).
In paragraphs 45 to 48 of that judgment, the Court of Justice drew a clear distinction between the respective powers of the Council and the Commission in the field of harmonisation of legislation relating to excise duties, on the one hand, and in the area of State aid, on the other. It also held that the purpose and scope of the procedure laid down in Article 8(4) of Directive 92/81 differed from those of the rules established in Article 88 EC.
In paragraph 49 of the same judgment, it thus concluded that a Council decision authorising a Member State, in accordance with Article 8(4) of Directive 92/81, to introduce an exemption from excise duties could not have the effect of preventing the Commission from exercising the powers conferred on it by the EC Treaty and, consequently, setting in motion the procedure laid down in Article 88 EC in order to review whether that exemption constituted State aid and on the conclusion of that procedure, if appropriate, to adopt a decision such as Alumina Decision I.
The Court of Justice further explained, in paragraph 50 of the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), that the fact that the Council’s authorisation decisions granted full exemptions from excise duties while setting detailed conditions of a geographical and temporal nature and that those conditions had been strictly respected by the Member States had no effect on the division of powers between the Council and the Commission and therefore could not deprive the Commission of the right to exercise its powers.
In paragraph 51 of the same judgment, it noted moreover that respect for that division of powers prompted recital 5 of Decision 2001/224, which was in force in the period for which the contested decision ordered the recovery of the aid at issue, to state that Decision 2001/224 was to be without prejudice to the outcome of any procedures that might be initiated under Articles 87 EC and 88 EC and that it did not override ‘the requirement for Member States to notify instances of potential State aid to the Commission’.
Last, in paragraphs 52 and 53 of the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), the Court of Justice again indicated that the fact that the Council’s authorisation decisions had been adopted on a proposal from the Commission and that the Commission had never used the powers available to it, under Article 8(5) of Directive 92/81 or Articles 230 EC and 241 EC, in order to secure the abolition or alteration of those decisions could not preclude the exemptions from excise duty from being classified as State aid, within the meaning of Article 87(1) EC, if the conditions governing the existence of State aid were met.
Pursuant to the second paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where a case is referred back to the General Court, that Court is to be bound by the decision of the Court of Justice on points of law. In view of paragraph 54 of the grounds of the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), it must be stated that the grounds referred to in paragraphs 65 to 69 above constitute the necessary support for the operative part of that judgment, by which the Court of Justice set aside the judgment in Ireland v Commission, cited in paragraph
above (
EU:T:2012:134
), and referred the Alumina I cases back to the General Court.
However, it is apparent from those grounds that, in setting in motion the procedure laid down in Article 88 EC in order to determine whether the exemption at issue constituted State aid and in adopting, on the conclusion of that procedure, Alumina Decision I, the Commission was merely exercising powers conferred on it by the EC Treaty in the area of State aid and that, in so doing, it could not have encroached upon the competences vested in the Council by the EC Treaty in the area of the harmonisation of legislation relating to excise duties or the acts adopted by the Council in the exercise of those powers.
It follows that, in implementing the procedure laid down in Article 88 EC in order to examine whether the exemption at issue constituted State aid and in adopting, on the conclusion of that procedure, Alumina Decision I, the Commission could not infringe the acts adopted by the Council and which, like Article 18 of Directive 2003/96, read in combination with the provisions of Annex II thereto, or Article 1(2) of Decision 2001/224, expressly authorised the Italian Republic to continue applying the exemption at issue until 31 December 2006. Those latter decisions could produce effects only within the area covered by the rules in the field of harmonisation of legislation relating to excise duties and did not predetermine the effects of any decision, such as Alumina Decision I, which could be adopted by the Commission in the exercise of its powers in the area of State aid.
In addition, it follows from paragraphs 52 and 53 of the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), in which the Court of Justice notes that the concept of State aid corresponds to an objective situation and cannot depend on the conduct or statements of the institutions, that the fact that the Commission had taken the view, at the time when the Council adopted the authorisation decisions, that the exemptions from excise duty did not give rise to a distortion of competition and did not impede the proper functioning of the common market could 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 were met.
It follows,
a fortiori
, from the approach adopted by the Court of Justice that the Commission was 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.
Eurallumina therefore has no basis to argue, in the present case, that the contested decision produces legal effects contrary to those produced by Decision 2001/224 and Article 18 of Directive 2003/96.
As regards the legal argument, relied on in support of the present complaint, based on the legitimate expectation Eurallumina could have that the exemption at issue was lawful, it is in fact linked to the first and fourth pleas raised in support of the action in Case T‑62/06 RENV II, in that they allege infringement of the principle of protection of legitimate expectations, and will therefore have to be examined in the context of those pleas.
Accordingly, subject to the examination of that argument, the complaint alleging infringement of the principles of legal certainty, presumption of legality and of the
effet utile
of acts of the institutions must be rejected as unfounded.
– Infringement of the principle
lex specialis derogat legi generali
By the present complaint, Eurallumina claims that the Commission infringed the principle
lex specialis derogat legi generali
, in the contested decision, in that it did not give precedence to Article 93 EC and its implementation measures, including Article 8(4) and (5) of Directive 92/81 and Article 18(1) of Directive 2003/96, over Articles 87 EC and 88 EC. In that respect, first, Eurallumina bases its argument on the wording of Article 87 EC, which provides that it applies ’save as provided in this [EC] Treaty’, with the result that it cannot in particular be applied where there are specific tax harmonisation measures, adopted on the basis of Article 93 EC. Second, it refers to Directive 92/81 and Directive 2003/96, based on Article 93 EC, which provide a specific framework under which the Council and the Commission act together to authorise and monitor derogations from the harmonisation of the structures of excise duties on mineral oils. Third, it cites the proposal from the Commission to the Council to extend the exemption at issue, which is based on the assessment that it was compatible with the EC Treaty, in particular with the provisions guaranteeing fair competition and the absence of distortion in the functioning of the common market. Fourth, it relies on recital 5 of Decision 2001/224, which did not authorise the Commission to drain that decision of its effects and which cannot prevail over the provisions of the EC Treaty or of Directive 92/81.
The Commission contends that the present complaint should be rejected as unfounded.
The present complaint thus raises the question whether, as Eurallumina claims, Article 93 EC and its implementation measures, including Article 8(4) and (5) of Directive 92/81 and Article 18(1) of Directive 2003/96, may be classified as
lex specialis
in relation to Articles 87 EC and 88 EC and whether, therefore, they override those latter articles.
In that regard, it is important to recall that, in accordance with the principle
lex specialis derogat legi generali
, special provisions prevail over general rules in situations which they specifically seek to regulate (see, to that effect, judgments of 30 April 2014 in Barclays Bank,
C‑280/13
, ECR,
EU:C:2014:279
, paragraph
, and 5 November 2014Mayaleh v Council,
T‑307/12 and T‑408/13
, ECR,
EU:T:2014:926
, paragraph
and the case-law cited).
In the present case, as the Commission correctly notes, the line of argument for the present complaint is directly refuted by the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
).
As pointed out in paragraph 65 above, the Court of Justice drew, in paragraphs 45 to 48 of the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), a clear distinction between the respective powers of the Council and the Commission in the field of harmonisation of legislation relating to excise duties, on the one hand, and in the area of State aid, on the other. It also held that the purpose and scope of the procedure laid down in Article 8(4) of Directive 92/81 differed from those of the rules established in Article 88 EC.
It follows that the rules in the field of harmonisation of tax legislation, Article 93 EC and its implementing measures in particular, and the State aid rules, including Articles 87 EC and 88 EC, are two autonomous bodies of rules and that the first cannot be regarded as
lex specialis
in relation to the second.
Accordingly, the present complaint, alleging infringement of the principle
lex specialis derogat legi generali
, must be rejected as unfounded.
Subject to paragraphs 76 and 77 above, the second plea raised in support of the action in Case T‑62/06 RENV II is thus rejected in its entirety.
The first plea, alleging infringement of Article 87(1) EC and contradictory reasoning, raised in support of the action in Case T‑60/06 RENV II
The Italian Republic argues that, in the contested decision, the Commission infringed one of the conditions set out in Article 87(1) EC for the classification of State aid, in that it found, erroneously, that the exemption at issue was selective. In that regard, first, it relies on point 14 of Table A annexed to the 1995 legislative decree, which indicates that the exemption at issue benefited, in a general manner, each economic operator that used mineral oils as fuel to produce alumina, irrespective of where those oils were consumed. Second, it claims that, even though, in Italy, it was only Eurallumina’s Sardinian plant that benefited from the exemption at issue, that circumstance is of a purely factual nature linked to the specificity of alumina production. Furthermore, the Italian Republic argues that, in the contested decision, the selectivity of the exemption at issue was reasoned in a contradictory manner.
The Commission contends that the first plea should be rejected as unfounded.
As regards the plea alleging contradictory reasoning in the contested decision in relation to the condition of selectivity laid down in Article 87(1) EC, it is worth noting that, according to Article 44(1) of the Rules of Procedure of 2 May 1991, the application initiating proceedings had to contain a summary of the pleas in law on which it was based. That summary had to be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. Accordingly, the application had to specify the nature of the grounds on which the action was based, so that a mere abstract statement of the grounds did not satisfy the requirements of the Rules of Procedure of 2 May 1991 (see, to that effect, judgment of 27 September 2012 in Nynäs Petroleum and Nynas Belgium v Commission,
T‑347/06
, ECR,
EU:T:2012:480
, paragraph
). A similar solution applied to a complaint relied on in support of a plea in law.
In the present case, as the Commission correctly argues, the complaint alleging contradictory reasoning, in relation to the condition of selectivity laid down in Article 87(1) EC, is devoid of all substance. In the application in Case T‑60/06 RENV II, the line of argument developed by the Italian Republic in support of the first plea concerns only whether, in the contested decision, the Commission infringes the condition of selectivity laid down in Article 87(1) EC. However, it does not indicate the reasons why the grounds of the contested decision regarding that condition are contradictory.
Therefore, in view of the present complaint, alleging contradictory reasoning in the contested decision, the application in Case T‑60/06 RENV II does not meet the requirements of precision prescribed by Article 44(1)(c) of the Rules of Procedure of 2 May 1991. That complaint must therefore be rejected as inadmissible.
With regard to the complaint alleging infringement, in the contested decision, of the condition of selectivity laid down in Article 87(1) EC, in the first place, it is appropriate to examine the argument of the Italian Republic according to which point 14 of Table A annexed to the 1995 legislative decree indicates that the exemption at issue benefited, in a general manner, each economic operator that used mineral oils as fuel to produce alumina, irrespective of where those oils were consumed. That argument essentially raises the question whether the Commission erred, in the contested decision, in assessing the condition of selectivity in relation to the exemption from excise duty, as authorised by the Council on the basis of Article 8(4) of Directive 92/81, and not in relation to the exemption from excise duty, as provided for in point 14 of Table A annexed to the 1995 legislative decree.
The selective nature of the exemption at issue, on the regional level, means that it applies only in Sardinia. However, as correctly observed by the Italian Republic and acknowledged by the Commission, in recitals 17 and 63 of Alumina Decision I, and by the Court of Justice, in paragraph 50 of the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), it is the Council’s authorisation decisions, adopted on the basis of Article 8(4) of Directive 92/81, which set detailed conditions of a geographical nature and accorded the exemption at issue a selective character on the regional level, in that they authorised the Italian Republic to apply or to continue to apply the exemption only in Sardinia.
The fact remains that the relevant measure for the purposes of the examination in the light of the State aid rules is, in this case, the exemption at issue, as authorised by the Council on the basis of Article 8(4) of Directive 92/81, since the Italian Republic applied the exemption provided for in point 14 of Table A annexed to the 1995 legislative decree while observing the detailed geographic and temporal conditions to which the Council had made its authorisation subject.
The Commission was therefore correct, in the contested decision, to assess the condition of selectivity in relation to the exemption at issue, as actually applied by the Italian Republic. Accordingly, the present argument of the Italian Republic, alleging erroneous assessment of the condition of selectivity in relation to the exemption from excise duty, as provided for in point 14 of Table A annexed to the 1995 legislative decree, must be rejected as unfounded.
In the second place, it is appropriate to examine the argument of the Italian Republic alleging, in essence, that the Commission committed an error, in recital 63 of the contested decision, in finding that the exemptions from excise duty were selective to the extent that they ‘only appl[ied] to companies that produce[d] alumina’, that, ‘in practice, in each Member State there [wa]s only one company benefiting from the exemption at stake’ and that it was ‘Eurallumina in Sardinia’, even though the fact that only Eurallumina’s Sardinian plant had benefited from the exemption at issue was a circumstance of a purely factual nature linked to the specificity of alumina production in Italy.
In that regard, it should be borne in mind that Article 87(1) EC prohibits State aid ‘favouring certain undertakings or the production of certain goods’, that is to say selective aid (judgment of 15 December 2005 in Italy v Commission,
C‑66/02
, ECR,
EU:C:2005:768
, paragraph
).
Regarding appraisal of the condition of selectivity, it is clear from settled case-law that Article 87(1) EC requires assessment of whether, under a particular legal regime, a national measure is such as to favour ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation (see judgment of 15 November 2011 in Commission and Spain v Government of Gibraltar and United Kingdom,
C‑106/09 P and C‑107/09 P
, ECR,
EU:C:2011:732
, paragraph
and the case-law cited).
The determination of the reference framework has a particular importance in the case of tax measures, since the very existence of an advantage may be established only when compared with ‘normal’ taxation. The ‘normal’ tax rate is the rate in force in the geographical area constituting the reference framework (judgment of 6 September 2006 in Portugal v Commission,
C‑88/03
, ECR,
EU:C:2006:511
, paragraph
).
In the present case, recitals 63 and 64 of Alumina Decision I state the following:
‘(63)
In the case at hand ... the exemptions only apply to companies that produce alumina and in practice, in each Member State there is only one company benefiting from the exemption at stake: ... Eurallumina in Sardinia ... As long as the Council Decisions were binding, the exemptions were regionally selective, because these Decisions only authorised exemptions in certain regions and potential investors interested to make investments in alumina production in other regions could not be sure to receive similar treatment. The selection of the regions has no relationship whatsoever with the internal logic of the national tax systems at stake.
(64)
Before Directive 2003/96 ... became applicable, Community law required Member States, in principle, to impose excise duties on mineral oils, so that specific exemptions, limited to a given production and to given regions, could not be considered as being justified by the nature and general scheme of the system. The arguments by which ... Italy defend[s] the exemption only for the production of alumina derive from the circumstances in the markets and from the circumstances of alumina production in the specific regions concerned. These arguments do not derive from the nature and logic of the respective domestic tax systems, given that the latter were to comply with the requirements laid down by Community law. Consequently, the measures granted before Directive 2003/96 ... became applicable, cannot be found justified by the nature and general scheme of the system and constitute State aid within the meaning of Article 87(1) [EC].’
Contrary to what the Italian Republic claims, it follows from recitals 63 and 64 of Alumina Decision I that, in that decision, the Commission did not rely, in its analysis of the selectivity of the exemption at issue, on the fact that that exemption had, in practice, benefited only a single alumina producer situated in Sardinia, namely Eurallumina, but on the dual fact that, in the reference framework corresponding to the Italian tax system, the exemption at issue appeared to be a selective measure on the regional level, in so far as it favoured every alumina producer situated in Sardinia over potential investors wishing to make investments in alumina production in other Italian regions, and selective from a substantive perspective, in that it favoured companies producing alumina and alumina production over companies producing other goods or services and other production.
It follows that the present argument of the Italian Republic, which is based on an incorrect reading of Alumina Decision I, has no factual basis and must, therefore, be rejected.
It is therefore necessary to reject the first plea raised in support of the action in Case T‑60/06 RENV II in its entirety.
The second plea, alleging infringement of Article 1(b)(ii), Article 4 of Regulation No 659/1999 and of the Council’s authorisation decisions, raised in support of the action in Case T‑60/06 RENV II
The Italian Republic claims, in essence, that the Commission infringed Article 1(b)(ii), Article 4 of Regulation No 659/1999 and the Council’s authorisation decisions, in that it found, in recital 67 of the contested decision, that the aid at issue constituted new aid, which had become unlawful, within the meaning of Article 1(f) of Regulation No 659/1999, since it had not been notified to it before being put into effect. In its view, the aid at issue should have been classified as existing aid, within the meaning of Article 1(b)(ii) of Regulation No 659/1999. In that regard, first, the Italian Republic relies on the Council’s authorisation decisions, most recently Decision 2001/224, which authorised it to continue applying the exemption at issue. Second, it invokes the
lex specialis
nature of Article 93 EC, which establishes the Council’s competence in matters of tax harmonisation and forms the legal basis of Directive 92/81 and the Council’s authorisation decisions, in relation to the
lex generalis
of Articles 87 EC and 88 EC, which establish the Commission’s competence in State aid matters. Third, it refers to the Council’s obligation, under Article 8(4) of Directive 92/81, to ensure that the exemption at issue was justified by specific policy considerations, that it did not give rise to a distortion of competition and that it did not impede the proper functioning of the common market.
The Commission contends that the second plea should be rejected as unfounded.
The present plea raises, in essence, the question whether the Commission committed an error, in the contested decision, in assessing the lawfulness of the exemption at issue in the light of the rules applicable to new aid, even though it was existing aid, within the meaning of Article 1(b)(ii) of Regulation No 659/1999, since it had been authorised by the Council’s authorisation decisions, most recently by Decision 2001/224.
In that regard, it is important to point out that, according to Article 1(b)(ii) of Regulation No 659/1999, ‘existing aid’ can mean ‘authorised aid, that is to say, aid schemes and individual aid which have been authorised by the Commission or by the Council’.
The EC Treaty establishes different procedures according to whether the aid is existing or new. Whereas new aid must, under Article 88(3) EC, be notified in advance to the Commission and cannot be implemented before the procedure has culminated in a final decision, existing aid may, under Article 88(1) EC, be duly implemented as long as the Commission has not found it to be incompatible (see judgment of 24 March 2011 in Freistaat Sachsen and Others v Commission,
T‑443/08 and T‑455/08
, ECR,
EU:T:2011:117
, paragraph
and the case-law cited). Existing aid may therefore only be the subject, should the situation arise, of a decision of incompatibility producing effects for the future (see judgment in Freistaat Sachsen and Others v Commission,
EU:T:2011:117
, paragraph
and the case-law cited).
In the present case, as the Commission correctly notes, the line of argument behind the present plea is directly refuted by the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
).
In paragraph 49 of that judgment, the Court of Justice concluded that a Council decision authorising a Member State, in accordance with Article 8(4) of Directive 92/81, to introduce an exemption from excise duties could not 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 constituted State aid and on the conclusion of that procedure, if appropriate, to adopt a decision such as the contested decision. In paragraph 47 of the same judgment, the Court had previously held that the purpose and scope of the procedure laid down in Article 8(4) of Directive 92/81 differed from the rules established in Article 88 EC for governing new and existing State aid. It follows from those reasons that the Council’s authorisation decisions, adopted on the basis of Article 8(4) of Directive 92/81, may in no way be analysed as authorisation decisions for an aid scheme or for individual aid, within the meaning of Article 1(b)(ii) of Regulation No 659/1999.
It follows that the authorisation decisions of the Council adopted on the basis of Article 8(4) of Directive 92/81 do not permit, in the present case, the exemption at issue to be classified as ‘existing aid’ within the meaning of Article 1(b)(ii) of Regulation No 659/1999.
The second plea raised in support of the action in Case T‑60/06 RENV II must therefore be rejected as unfounded.
The fifth plea, alleging infringement of Article 18 of Directive 2003/96, read in combination with Annex II thereto, and of Decision 2001/224, raised in support of the action in Case T‑60/06 RENV II
The Italian Republic essentially claims that, in the contested decision, the Commission infringed Article 18 of Directive 2003/96, read in combination with the provisions of Annex II thereto, and Article 1(2) of Decision 2001/224, which expressly authorised it to continue applying the exemption at issue until 31 December 2006. The entry into force of Directive 2003/96, on 1 January 2004, ended its obligation of notifying the aid at issue to the Commission and the Commission had no competence to adopt the contested decision.
The Commission contends that the fifth plea should be rejected as unfounded.
In the present case, as the Commission correctly notes, the line of argument behind the present plea is directly refuted by the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
).
It is apparent from the grounds of the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), mentioned in paragraphs 65 to 69 above that, in setting in motion the procedure laid down in Article 88 EC in order to determine whether the exemption at issue constituted State aid and in adopting, on the conclusion of that procedure, the contested decision, the Commission was merely exercising the powers conferred on it by the EC Treaty in the area of State aid and that, in so doing, it could not have encroached upon the competences vested in the Council by the Treaty in the area of the harmonisation of legislation relating to excise duties or the acts adopted by the Council in the exercise of those powers.
It follows that, in implementing the procedure laid down in Article 88 EC in order to examine whether the exemption at issue constituted State aid and in adopting, on the conclusion of that procedure, Alumina Decision I, the Commission could not infringe the acts adopted by the Council and which, like Article 18 of Directive 2003/96, read in combination with the provisions of Annex II thereto, or Article 1(2) of Decision 2001/224, expressly authorised the Italian Republic to continue applying the exemption at issue until 31 December 2006. Those latter decisions could produce effects only within the area covered by the rules in the field of harmonisation of excise duty legislation and did not predetermine the effects of any decision, such as the contested decision, that could be adopted by the Commission in the exercise of its powers in the area of State aid.
Therefore, the Italian Republic is not justified in arguing that the contested decision infringes Article 18 of Directive 2003/96, read in combination with the provisions of Annex II thereto, and Article 1(2) of Decision 2001/224.
Accordingly, the fifth plea raised in support of the action in Case T‑60/06 RENV II must be rejected as unfounded.
The third plea, alleging infringement of the rules governing aid for environmental protection and, in particular, the second subparagraph of point 82(a) of the 2001 Guidelines, raised in support of the action in Case T‑60/06 RENV II
The Italian Republic considers, in essence, that the Commission infringed, in Alumina Decision I, the rules governing aid for environmental protection and, in particular, the second subparagraph of point 82(a) of the 2001 Guidelines, in so far as it declined to find that the aid at issue presented a close connection with the achievement by Eurallumina of environmental protection objectives. In that regard, first, the Italian Republic bases its argument on the significant impact of alumina production on the environment, associated with the necessity of safely disposing of the waste resulting from the industrial cycle, which explains why the area in which Eurallumina was established had been declared a zone with high risk of environmental emergency by decision of the Italian Council of Ministers of 30 November 1990. Second, it relies on the environmental commitments, to be performed at its own expense, undertaken by Eurallumina, in the context of implementing an environmental rehabilitation and remediation plan, approved by decree of the President of the Italian Council of Ministers of 23 April 1993, and in particular the remediation programme enacted by the Italian Ministry of the Environment on 15 June 1995 and the programme contract concluded with the Italian authorities on 12 April 1999. Third, it relies on the obligation to reduce sulphur oxide and dust emissions, imposed by the Italian Ministry of the Environment on Eurallumina, by a decree in 1998. Fourth, it cites the commitment made by Eurallumina, by an agreement, of 27 April 1999, concluded with the Sardinia region, to construct a special facility for the desulphurisation of fumes emitted by calcining kilns and boilers and, in that context, it refers to Eurallumina’s significant investments in its Sardinian plant, which continued until 2005 and after which it obtained ISO 14001 certification. Fifth, it relies on the letter, of 6 February 2002, which it sent to the Commission during the formal investigation procedure, outlining the main costs imposed on Eurallumina by Italian tax and environmental legislation and the environmental commitments undertaken by Eurallumina.
The Commission contends that the third plea should be rejected as, in part, inadmissible or, in any event, unfounded and, for the remainder, unfounded.
The present plea essentially asks whether, in recital 75 of Alumina Decision I, the Commission erred in declining to find that the aid at issue had been granted in consideration of the achievement, by Eurallumina, of environmental protection objectives and that, to that extent, it was compatible with the common market, in view of points 47 to 52 of the 2001 Guidelines.
In that respect, it is necessary to note that point 82 of the 2001 Guidelines, published in the Official Journal on 3 February 2001, provides inter alia the following:
‘...
In the case of non-notified aid, the Commission will apply:
(a)
these guidelines if the aid was granted after their publication in the
Official Journal of the European Communities
;
...’
In addition, points 47 to 51 of the 2001 Guidelines state the following:
‘47.
When adopting taxes that are to be levied on certain activities for reasons of environmental protection, Member States may deem it necessary to make provision for temporary exemptions for certain firms notably because of the absence of harmonisation at European level or because of the temporary risks of a loss of international competitiveness. In general, such exemptions constitute operating aid caught by Article 87 of the EC Treaty. In analysing these measures, it has to be ascertained among other things whether the tax is to be levied as the result of a Community decision or an autonomous decision on the part of a Member State.
...
49.
If the tax is to be levied as the result of a Community directive, there are two possible scenarios:
...
(b)
a Member State applies tax to certain products at the minimum rate laid down in the Community directive and grants an exemption to certain firms, which are thus subject to taxation at a rate below the minimum rate. If such an exemption is not authorised by the directive in question, it will constitute aid which is incompatible with Article 87 [EC]. If it is authorised by the directive, the Commission may take the view that it is compatible with Article 87 [EC] in so far as it is necessary and is not disproportionate in the light of the Community objectives pursued. The Commission will be specially concerned to ensure that any such exemption is strictly limited in time.
50.
In general, the tax measures in question should make a significant contribution to protecting the environment. Care should be taken to ensure that the exemptions do not, by their very nature, undermine the general objectives pursued.
51.
These exemptions can constitute operating aid which may be authorised on the following conditions:
1.
When, for environmental reasons, a Member State introduces a new tax in a sector of activity or on products in respect of which no Community tax harmonisation has been carried out or when the tax envisaged by the Member State exceeds that laid down by Community legislation, the Commission takes the view that exemption decisions covering a 10-year period with no degressivity may be justified in two cases:
(a)
these exemptions are conditional on the conclusion of agreements between the Member State concerned and the recipient firms whereby the firms or associations of firms undertake to achieve environmental protection objectives during the period for which the exemptions apply or when firms conclude voluntary agreements which have the same effect. Such agreements or undertakings may relate, among other things, to a reduction in energy consumption, a reduction in emissions or any other environmental measure. The substance of the agreements must be negotiated by each Member State and will be assessed by the Commission when the aid projects are notified to it. Member States must ensure strict monitoring of the commitments entered into by the firms or associations of firms. The agreements concluded between a Member State and the firms concerned must stipulate the penalty arrangements applicable if the commitments are not met.
These provisions also apply where a Member State makes a tax reduction subject to conditions that have the same effect as the agreements or commitments referred to above;
(b)
these exemptions need not be conditional on the conclusion of agreements between the Member State concerned and the recipient firms if the following alternative conditions are satisfied:
—
where the reduction concerns a Community tax, the amount effectively paid by the firms after the reduction must remain higher than the Community minimum in order to provide the firms with an incentive to improve environmental protection,
...
2.
The provisions in point 51.1 may be applied to existing taxes if the following two conditions are satisfied at the same time:
(a)
the tax in question must have an appreciable positive impact in terms of environmental protection;
(b)
the derogations for the firms concerned must have been decided on when the tax was adopted ...’
In recitals 71 and 73 of Alumina Decision I, the Commission stated that ‘the aid granted after 3 February 2001 [had to] be assessed under the 2001 Guidelines ... in accordance with [the second subparagraph of] point 82(a) of those guidelines’ and, more specifically, under points 47 to 52 thereof, which lay down rules applicable to all operating aid in the form of tax reductions or exemptions.
In recitals 73 to 76 of the same decision, it also stated the following:
‘(73)
... Originally, excise duties on mineral oils were not designed as an instrument of environmental policy. However, one likely feature for a levy to be considered as environmental would be that the taxable base of the levy has a clear negative effect on the environment. As the use of mineral oils has a clear negative effect on the environment, excise duties on mineral oils can be considered as environmental taxes.
(74)
In all three Member States to which this Decision is addressed, the excise duties on mineral oils existed before the introduction of the exemptions in question, and they must therefore be considered as existing taxes within the meaning of point 51.2 of the 2001 [Guidelines]. The excise duties, however, have an appreciable positive impact in terms of environmental protection within the meaning of point 51.2(a), as they constitute a significant incentive for producers to reduce their consumption of mineral oils. The excise taxes concerned may not have had an explicit environmental purpose from the outset and the exemptions were decided on many years ago, in particular in the case of Ireland and Italy, and in any event in all three Member States well before the 2001 [Guidelines] became applicable. Therefore, their situation may be considered as if they had been decided at the time the excise tax was adopted. Consequently, in accordance with point 51.2 of the guidelines, the provisions in point 51.1 may be applied to the exemptions to be assessed in this decision.
(75)
In their comments, the beneficiaries submitted that they had undertaken significant environmental investments in return for the exemptions. However, there is no evidence that the beneficiaries concluded any agreements with the Member States concerned whereby they committed to achieve environmental protection objectives during the period for which the exemptions applied. Nor were the tax exemptions subject to conditions that would ensure the same effect as such agreements and commitments. Furthermore it appears that the environmental investments did not go beyond what was necessary to comply with relevant legislation or beyond what was feasible and economical from a commercial point of view. As a consequence, the conditions for applying point 51.1(a) of the 2001 Guidelines ... are not fulfilled and only the provisions of point 51.1(b) are applicable in this case.
(76)
In respect of the period until 31 December 2003, the exemptions concern a Community tax, namely a tax that has been harmonised on the basis of Directive 92/82 ... Therefore, point 51.1(b), first indent, of the 2001 Guidelines ... is applicable. According to that provision, a reduction can be approved if the amount effectively paid by the beneficiaries after the reduction remains higher than the Community minimum. However, all three exemptions were full exemptions. Taking into account the positive environmental impact of the tax referred to in recital (73) of this Decision, the measures in question can only be declared compatible with the common market to the extent that beneficiaries are required to pay a rate higher than the Community minimum rate set by Directive 92/82 ..., which for that period amounted to EUR 13 per 1000 kg. Therefore, only the exemption from the tax beyond a rate of EUR 13.01 can be considered compatible, while the exemption up to the level of EUR 13.01 constitutes incompatible aid.’
As a preliminary point, it is appropriate to note that, according to settled case-law, in the specific area of State aid, the Commission is bound by the guidelines and notices that it issues, to the extent that they do not depart from the rules in the EC Treaty (see judgment of 2 December 2010 in Holland Malt v Commission,
C‑464/09 P
, ECR,
EU:C:2010:733
, paragraph
and the case-law cited).
In the present case, the Italian Republic does not challenge recital 67 of Alumina Decision I, in which it is indicated that the aid at issue was never notified to the Commission. Since the aid was granted after 3 February 2001, the 2001 Guidelines are applicable to it, in accordance with point 82 thereof (see paragraph 123 above).
In order to establish that the aid at issue is compatible with the common market under the 2001 Guidelines, the Italian Republic produced, in annex to the application, a series of acts and agreements which, in its view, show that Eurallumina was required to achieve numerous environmental protection objectives or voluntarily committed itself to achieving such objectives during the period in which the aid at issue had been granted.
The Commission nevertheless considers that that line of argument should be rejected as inadmissible, since the Italian Republic did not produce those acts and agreements during the formal investigation procedure.
In that regard, it must be pointed out that, in so far as the Italian Republic relies, in support of the action in Case T‑60/06 RENV II, on items of information which it claims were not available when the contested decision was adopted, or which were not brought to the attention of the Commission during the formal investigation procedure, that information cannot be taken into account by the Court for the purposes of assessing the legality of that decision.
In an action for annulment, the legality of the measure concerned must be assessed in the light of the matters of fact and of law existing at the time when that measure was adopted (judgment of 14 January 2004 in Fleuren Compost v Commission,
T‑109/01
, ECR,
EU:T:2004:4
, paragraph
). Thus, according to the case-law, the legality of a decision concerning aid must be assessed in the light of the information available to the Commission when the decision was adopted (see judgment in Fleuren Compost v Commission,
EU:T:2004:4
, paragraph
and the case-law cited). A Member State therefore cannot rely before the EU judicature on matters of fact which were not put forward in the course of the pre-litigation procedure laid down in Article 88 EC (see judgment in Fleuren Compost v Commission,
EU:T:2004:4
, paragraph
and the case-law cited).
In the present case, it is apparent from the file that, in the written comments it sent by letter of 6 February 2002, during the formal investigation procedure, the Italian Republic argued, generally, that the aid at issue partially compensated the operational costs imposed on Eurallumina by Italian tax and environmental legislation. More specifically, it stated that a part of the aid at issue was intended to compensate the additional costs associated with environmental protection and that it therefore fell within the scope of the 2001 Guidelines. In that regard, the Italian Republic explained that, as from 1974, the regional authorities had prohibited the disposal of residue in the Mediterranean Sea, a practice that was still allowed in France and Greece. That prohibition had resulted in high costs for Eurallumina amounting to 6000 million Italian lira (ITL) (EUR 3 million). Due to the strict emission limits (25% below the national limit for sulphur oxides (SO
x
)), the company had had to invest in new de-sulphuring technology at a cost of ITL 44000 million (EUR 22 million) which entailed an additional operating cost of ITL 6000 million (EUR 3 million) annually, including amortisation. Despite those investments, the company still had to pay ITL 1100 million (EUR 0.55 million) annually for emission taxes.
In recital 56 of Alumina Decision I, the Commission took into account the information thus communicated by the Italian Republic, but considered, in recital 75 of the same decision, that it did not support the conclusion that, during the period covered by the contested decision, the exemption at issue had been intended as the consideration for agreements concluded between the Italian authorities and Eurallumina by which Eurallumina committed itself to achieving environmental protection objectives or equivalent objectives arising, for Eurallumina, from Italian legislation. In addition, the Commission maintained that no evidence had been provided to it showing that the environmental investments made by Eurallumina went beyond what was necessary to comply with Italian legislation or what was commercially feasible and economical. The Commission therefore concluded that the conditions for applying point 51(1)(a) of the 2001 Guidelines were not fulfilled in the present case.
Concerning the documents produced by the Italian Republic in annex to the application, it is not apparent from the file that they were communicated to the Commission during the formal investigation procedure. Furthermore, the Italian Republic does not claim in its written pleadings, in response to the Commission’s arguments, that such communication took place. Last, at the hearing, the Commission confirmed, in response to an oral question from the Court, that the documents in question had not been produced during the formal investigation procedure. In such circumstances, it must be considered that the documents produced in annex to the application had not been produced previously. Thus, it follows from the case-law cited in paragraph 132 above that the information contained in those documents cannot be taken into account for the purposes of assessing the legality the contested decision, unless they merely reiterate information which had already been communicated to the Commission in the formal investigation procedure, inter alia by the abovementioned letter of 6 February 2002.
As regards the only information which had been communicated to the Commission by the letter of 6 February 2002, the Commission was right to consider, in the contested decision, that it did not permit it to conclude that the benefit of the exemption at issue would have been subject to the Eurallumina’s compliance with obligations to achieve certain environmental protection objectives. Additionally, that information did not permit the Commission to conclude that the exemption at issue had been intended as the consideration for commitments made by Eurallumina to achieve environmental protection objectives going beyond those already arising from Italian tax or environmental legislation, particularly national rules which imposed emissions reductions for meeting air quality standards or the payment of taxes on emissions, or the conclusion of voluntary agreements with the same effect, within the meaning of point 51(1)(a) of the 2001 Guidelines. In the letter of 6 February 2002, the Italian Republic moreover acknowledged that ‘the aid granted to Eurallumina, defined by the Commission as operating aid ..., partially compensate[d] the operational costs of the undertaking imposed by Italian tax and environmental legislation’. Moreover, it is apparent from recital 45 of Alumina Decision I that, during the formal investigation procedure, Eurallumina itself had indicated that the ’significant investments’ made in its Sardinian plant had been done so ‘to ensure compliance with the most restrictive norms and regional environmental standards’. In any event, the only information that was communicated to the Commission by the letter of 6 February 2002 did not permit it to verify that, as the Italian Republic claims in the present action, the exemption at issue was actually intended, in the contracts or agreements concluded with the Italian authorities, as consideration for investments made by Eurallumina to meet commitments to achieve environmental protection objectives going beyond those already arising from the legislation that was applicable to it.
Even supposing that account were to be taken of the acts and conventions produced by the Italian Republic in annex to the application, they would not support, in the present case, the finding that Eurallumina committed itself, in return for the benefit it would derive from the exemption at issue, to achieving environmental protection objectives going beyond those already arising from Italian legislation or to concluding voluntary agreements with the same effect. It does indeed follow in particular from Article 3 of the programme contract concluded on 12 April 1999 between the Italian authorities and Eurallumina as well as from Articles 2 to 4 of the convention of 27 April 1999 concluded between the Sardinia region and Eurallumina that Eurallumina committed itself to making certain investments aimed at achieving environmental objectives under a plan for the environmental remediation of its plant in Portoscuso (Sardinia). However, contrary to what the Italian Republic claims, those investments aimed at achieving environmental objectives did not have to be made solely at Eurallumina’s expense, since it was expressly provided, in Article 4 of the programme contract of 12 April 1999 and in Articles 4 to 6 of the convention of 27 April 1999, that, for the purposes of putting Eurallumina’s commitments into effect, the Sardinia region committed itself to contributing financially to the completion of the plan for the environmental remediation of the plant in Portoscuso at a maximum of 30% of the expenditure deemed eligible and, in any event, for a maximum amount of ITL 17500 million. On the other hand, it is not apparent from those agreements that the exemption at issue was also intended as a financial contribution to the environmental investments made by Eurallumina. As for the rest, the documents produced by the Italian Republic in annex to the application show only operational costs imposed on Eurallumina by Italian tax and environmental legislation, such as those corresponding to emissions reductions for meeting air quality standards or the actual payment of taxes on emissions.
Therefore, the Commission was right to conclude, in recital 75 of Alumina Decision I, that the conditions for applying point 51(1)(a) of the 2001 Guidelines were not fulfilled in the present case.
Accordingly, the third plea raised in support of the action in Case T‑60/06 RENV II must be rejected as unfounded.
The fourth plea, alleging infringement of Article 87(3) EC and the Guidelines on regional aid, raised in support of the action in Case T‑60/06 RENV II
The Italian Republic claims that the Commission infringed Article 87(3) EC and the Guidelines on regional aid, in recitals 78 to 80 of Alumina Decision I, in so far as it took the view that the aid at issue could not be regarded as compatible with the common market, within the meaning of those provisions, on the ground that it facilitated the economic development of Sardinia. In that regard, first, it points to the economic backwardness of Sardinia, which is one of the disadvantaged regions coming under Objective 1 of the Structural Funds, is in last place among Italian regions for wealth and individual income and moreover is below the national average in terms of employed persons and industrial firms relative to the resident population. Second, it refers to the economic backwardness of the territory of Sulcis-Iglesiente in which Eurallumina’s plant in Sardinia was established, which has an unemployment rate of around 21% of the workforce, with youth unemployment at around 50%. Third, it cites the guarantee of approximately 1800 salaried jobs provided by Eurallumina, directly in its Sardinian plant and indirectly in the Sardinian plants of Alcoa Italia SpA, of which it was the sole supplier of alumina. Fourth, it bases an argument on the documentation provided to the Commission concerning the disadvantageous living conditions in Sardinia, both in terms of population density and quality of life and the high unemployment rate. Fifth, it relies on recital 79 of Alumina Decision I, in which the Commission acknowledges that Sardinia is eligible under the derogation in Article 87(3)(a) EC. Sixth, it invokes the applicability, in the present case, of point 4.15 of the Guidelines on regional aid, which provides that regional operating aid may be granted in regions eligible under the derogation in Article 87(3)(a) EC. Seventh, it alleges the inapplicability, in the present case, of point 4.17 of the Guidelines on regional aid, which provides that operating aid must be both limited in time and progressively reduced, since Sardinia is a region of low population density which benefits from the derogation in Article 87(3)(a) EC.
The Commission contends that the fourth plea should be rejected as unfounded.
The present plea essentially asks whether, in recital 80 of Alumina Decision I, the Commission erred in finding that the aid at issue could not be regarded as compatible with the common market, within the meaning of Article 87(3)(a) EC and points 4.11 to 4.17 of the Guidelines on regional aid, on the ground that it facilitated the economic development of Sardinia.
In that respect, it should be borne in mind that, according to Article 87(3)(a) EC, aid aimed at promoting the economic development of areas where the standard of living is abnormally low or where there is serious underemployment may also be considered to be compatible with the common market. According to the case-law, the use of the words ‘abnormally’ and ‘serious’ in the derogation contained in Article 87(3)(a) EC shows that it concerns only areas where the economic situation is extremely unfavourable in relation to the Community as a whole (judgment of 14 October 1987 in Germany v Commission,
248/84
, ECR,
EU:C:1987:437
, paragraph
).
The Guidelines on regional aid set out the criteria followed by the Commission in examining the compatibility of regional State aid with the common market, under Article 87(3)(a) EC in particular.
The points of the Guidelines on regional aid concerning all regional aid that correspond to ‘operating aid’ are worded as follows:
‘4.15.
Regional aid aimed at reducing a firm’s current expenses (operating aid) is normally prohibited. Exceptionally, however, such aid may be granted in regions eligible under the derogation in [Article 87(3)(a) EC] provided that (i) it is justified in terms of its contribution to regional development and its nature and (ii) its level is proportional to the handicaps it seeks to alleviate ... It is for the Member State to demonstrate the existence of any handicaps and gauge their importance.
4.16.
In the outermost regions qualifying for exemption under [Article 87(3)(a) and (c) EC], and in the regions of low population density qualifying either for exemption under [Article 87(3)(a) EC] or under [Article 87(3)(c) EC] on the basis of the population density test referred to at point 3.10.4, aid intended partly to offset additional transport costs ... may be authorised under special conditions ... It is the task of the Member State to prove that such additional costs exist and to determine their amount.
4.17.
With the exception of the cases mentioned in point 4.16, operating aid must be both limited in time and progressively reduced. ...’
In recitals 78 to 81 of Alumina Decision I, the Commission examined the compatibility with the common market of new aid on the basis of Article 87(3)(a) EC and the Guidelines on regional aid. Recitals 78 to 80 of Alumina Decision I state the following:
‘(78)
As regards the exemption in Article 87(3)(a) [EC], which refers to promotion of the economic development of areas where the standard of living is abnormally low or where there is serious underemployment, the Commission notes that for the latter part of the period for which the exemptions were granted, the 1998 Community guidelines on national regional aid are applicable. Point 4.15 of those guidelines specifies that operating aid may exceptionally be granted in regions eligible under the derogation in Article 87(3)(a) [EC], provided that it is justified in terms of its contribution to regional development and its nature and its level is proportional to the handicaps it seeks to alleviate. It is for the Member State to demonstrate the existence of any handicaps and gauge their importance. In accordance with point 4.17 of the [Guidelines on regional aid], operating aid must be both limited in time and progressively reduced. Those conditions have not been fulfilled in this case.
(79)
... Sardinia is a region eligible under the derogation in Article 87(3)(a) [EC]. ...
(80)
In the decisions by which the Commission initiated the procedure laid down in Article 88(2) [EC], the Commission raised doubts as to whether the aids could be found compatible with the common market under Article 87(3)(a) [EC]. The Italian ... authorities did not bring forward any elements in order to alleviate those doubts. They did not demonstrate the existence of particular handicaps nor did they gauge their importance in order to justify the granting of operating aid. High energy prices and competition from third-country imports, in particular, do not have a regional character. Even if the non-availability of natural gas were to be a particular regional handicap of the regions concerned, which has not been proven, ... Italy [has] not gauged the importance of any such handicap to justify the level of aid. The Italian legislation, which according to Eurallumina results in additional costs, may partly have a regional character as Sardinia has been declared an area of high risk of environmental crisis but, in general, cannot be considered as a particular handicap for the region. In any event, it appears that the exemptions in question in this case are not limited in time nor progressively reduced as the guidelines require. Therefore the aid cannot be found to be compatible with the common market on the ground that it facilitates the development of certain regions.’
As a preliminary point, it should be noted that, although the Guidelines on regional aid, internal measures adopted by the administration, cannot be regarded as rules of law, they nevertheless form rules of conduct indicating the practice to be followed from which the administration may not depart, in an individual case, without giving reasons which are compatible with the principle of equal treatment (judgment of 9 June 2011 in Diputación Foral de Vizcaya and Others v Commission,
C‑465/09 P to C‑470/09 P
,
EU:C:2011:372
, paragraph
). Such rules may produce, under certain conditions and depending on their content, legal effects (judgment in Diputación Foral de Vizcaya and Others v Commission,
EU:C:2011:372
, paragraph
).
As regards the Commission’s application, in recital 80 of Alumina Decision I, of point 4.15 of the Guidelines on regional aid, it is important to note that the wording of the latter provision indicates that regional operating aid is normally prohibited and may, exceptionally, be granted in regions eligible under the derogation in Article 87(3)(a) EC only on condition that it is justified in terms of its contribution to regional development and its nature and its level is proportional to the handicaps it seeks to alleviate, which is for the Member State concerned to demonstrate.
That provision requires in particular that the Member State demonstrate that the operating aid seeks to alleviate a specific regional handicap which must be addressed by its recipient and that the level of that aid is proportional to what is necessary to alleviate that handicap.
However, the items of information communicated by the Italian Republic, during the formal investigation procedure, did not suffice to establish that the aid at issue sought to alleviate a particular regional handicap, suffered by Eurallumina, and that the level of the aid was proportional to that handicap.
In the decision to initiate the formal investigation procedure, published in the Official Journal on 2 February 2002, the Commission stated that the Italian authorities inter alia ‘underlined … the fact that Sardinia was a very disadvantaged region, that it did not have access to natural gas and that the eventual consequences of the closure of the alumina production in terms of employment for the region were very grave’.
In that regard, it is necessary to point out that, as is apparent from the case-law, the fact that the prevailing economic situation in a region is sufficiently unfavourable so as to make it eligible within the meaning of Article 87(3)(a) EC does not mean that any aid project which might be carried out in that region must automatically be considered necessary for its development (see, to that effect, judgment of 13 June 2013 in HGA and Others v Commission,
C‑630/11 P to C‑633/11 P
, ECR,
EU:C:2013:387
, paragraph
). Thus, the mere invocation of Sardinia’s unfavourable economic situation, particularly in terms of underemployment, was not sufficient, in the present case.
In that context, the only element that could actually constitute a particular regional handicap is the lack of access to natural gas in Sardinia cited by the Italian Republic. However, as the Commission rightly notes in recital 80 of Alumina Decision I, the Italian Republic did not determine or even attempt to gauge the importance of such a handicap for Eurallumina in its Sardinian plant. It also notes, rightly, in the same recital, that the Italian Republic did not, in any event, determine or simply even attempt to gauge the importance of such a handicap in order to prove that the aid at issue was proportional to it.
It is apparent, moreover, from the letter of 6 February 2002 that, during the formal investigation procedure, the Italian Republic again argued the following:
‘It is not to be forgotten that the undertaking concerned is situated in a region which is one of those that may be covered by the derogations set out in Article 87(3) [EC], to the extent that it is characterised by a high rate of unemployment. The Italian Republic decided at the time to support its creation and development specifically in order to support employment opportunities alternative to the ones which are no longer offered by mine extraction activities. From this perspective, Eurallumina presents an important opportunity for which a replacement can hardly be found. The undertaking currently employs 760 workers, including 350 highly specialised workers. Ceasing alumina production would create very serious and insoluble problems for their reintegration into the labour market.’
That being the case, the Italian Republic did not report any particular regional handicap endured by Eurallumina which the aid at issue would have sought to alleviate, as required in point 4.15 of the Guidelines on regional aid. As already noted in paragraph 152 above, the mere invocation of the situation of underemployment existing in Sardinia was not sufficient, in the present case.
Last, the Italian Republic produced, in annex to the application, documents seeking to demonstrate the disadvantageous living conditions in Sardinia, based on comparative data relating to levels of income and rates of underemployment. The Commission has not contended that the arguments based on the documents in question are inadmissible, on the ground that those documents were not communicated during the formal investigation procedure.
Even accepting that those documents could be taken into account, in the present case, for assessing the legality of the contested decision, they demonstrate only the existence of an unfavourable economic situation in Sardinia, in terms of levels of income and underemployment, which is moreover already acknowledged, in recitals 23 and 79 of Alumina Decision I, in which the Commission acknowledged that Sardinia was a region eligible under the derogation in Article 87(3)(a) EC. However, as already noted in paragraphs 152 and 155 above, the mere invocation of the unfavourable economic situation existing in Sardinia is not sufficient in the present case. However, the documents in question do not show, as is however required in point 4.15 of the Guidelines on regional aid, the existence of a particular regional handicap suffered by Eurallumina which the aid at issue sought to alleviate.
Therefore, the Commission was right to decide, in recital 80 of Alumina Decision I, that the Italian authorities had not brought forward any elements permitting it to consider that the aid at issue satisfied the conditions laid down in point 4.15 of the Guidelines on regional aid.
Taking into account the cumulative nature of the conditions laid down in points 4.15 and 4.17 of the Guidelines on regional aid, the failure to comply with some of them is sufficient for finding that the Commission was justified, in Alumina Decision I, in deciding that the aid at issue could not be authorised on the basis of Article 87(3)(a) EC, as implemented by the Guidelines on regional aid.
Accordingly, the fourth plea raised in support of the action in Case T‑60/06 RENV II must be rejected as unfounded.
The sixth plea, alleging infringement of the principles of protection of legitimate expectations, legal certainty and of presumption of legality, raised in support of the action in Case T‑60/06 RENV II, and the first plea, alleging infringement of the principle of protection of legitimate expectations, raised in support of the action in Case T‑62/06 RENV II
In the context of the sixth plea raised in support of the action in Case T‑60/06 RENV II, the Italian Republic claims that the Commission infringed the principles of protection of legitimate expectations, legal certainty and of presumption of legality, in that, in Article 5 of the contested decision, it ordered the recovery of the aid at issue. It argues that, in view of the Council’s authorisation decisions, Eurallumina and itself had a legitimate expectation that the exemption at issue was lawful, including under the State aid rules, and that they could also assume that the Council’s authorisation decisions were legal. In that regard, first, it argues that the Council’s authorisation decisions permitted it, as from 1993, to apply or to continue applying the exemption at issue. Second, it relies on the recitals of Decisions 93/697, 96/273 and 97/425, which stated that the exemption at issue did not give rise to a distortion of competition and did not impede the proper functioning of the common market. Third, it relies on Decisions 1999/255 and 1999/880, which made reference to regular review by the Commission to ensure the compatibility of the aid at issue with the operation of the common market and other objectives of the EC Treaty. Fourth, it refers to the lack of any reference, in the Council’s authorisation decisions prior to Decision 2001/224, of any procedures relating to distortions of the operation of the single market which may be undertaken, in particular under Articles 87 EC and 88 EC. Fifth, it relies on Article 1(2) of Decision 2001/224 and on Article 18 of Directive 2003/96, read in combination with the provisions of Annex II thereto, which had fuelled, in Eurallumina, a legitimate expectation that the exemption at issue was lawful, in consideration of which Eurallumina had made, between 2 February 2002 and the end of 2005, investments which had to be amortised at 31 December 2006. Sixth, it cites the unequivocal nature of the provisions in force, under which Eurallumina and itself could trust that the exemption at issue was lawful until 31 December 2006.
In the context of the first plea raised in support of the action in Case T‑62/06 RENV II, Eurallumina also argues that the Commission infringed the principle of protection of legitimate expectations, in the contested decision, in that it ordered the recovery of the aid at issue notwithstanding the legitimate expectation it had that the exemption at issue was lawful until 31 December 2006 or, at least, that there was no legal possibility of recovering the aid granted on the basis of the exemption until that date.
In that respect, in the first place, Eurallumina relies, first, on the presumption of legality attaching to Decision 2001/224, authorising the Italian Republic to apply the exemption at issue until 31 July 2006, and, second, the proposals for Council authorisation decisions, transmitted by the Commission, which provided only for the abolition or gradual future abolition of the exemption at issue.
In the second place, it relies on the content of the Council’s authorisation decisions and on the proposals or conduct of the Commission, which never specifically stated that the aid at issue might constitute State aid incompatible with the common market, within the meaning of Article 87(3) EC. In that regard, first, it cites the lack of precision in recital 5 of Decision 2001/224, which was limited to indicating that some of the many exemptions authorised by that decision might be incompatible with the common market, within the meaning of Article 87(3) EC. Second, it refers to the proposal for a Council decision of 15 November 2000 authorising the Italian Republic to continue applying the exemption at issue until 31 December 2002, which supplanted the Commission’s request to be notified of 17 July 2000. Third, it cites the absence of discussions about problems of State aid raised by the Commission in its proposals for Council authorisation decisions, such as the one of 29 November 1999, or of mentions of those problems in the Council’s authorisation decisions. Fourth, it relies on the content of the Council’s authorisation decisions, from which it is apparent that the Council never acknowledged that the aid granted on the basis of the exemption at issue constituted unlawful State aid, even though, pursuant to Directive 92/81, which pursued the same objective as the State aid rules, the Council was required to verify that the measures proposed by the Commission, under Article 8(4) of that directive, did not give rise to distortions of competition. Fifth, Eurallumina relies on Decision 2001/224, by which the Council authorised the Italian Republic to continue applying the exemption at issue until 31 December 2006, the content of which was confirmed by Article 18(1) of Directive 2003/96. Sixth, it cites the Commission press release (IP/03/1456) of 27 October 2003, by which the Commission welcomed the adoption of Directive 2003/96, indicating that it would reduce distortions of competition existing between Member States. Seventh, it invokes the Commission’s delay in adopting Alumina Decision I, which occurred only on 7 December 2005 even though, in February 2002, the decision to initiate the formal investigation procedure had been published and the last comments of the parties had been lodged, which fuelled the legitimate expectation it had that the exemption at issue was lawful.
In the third place, Eurallumina argues that account must be taken of the effects produced by Decision 2001/224, confirmed by Article 18(1) of Directive 2003/96, read in combination with Annex II thereto, authorising the Italian Republic to continue applying the exemption at issue until 31 December 2006. In its view, although the legality or duration of the authorisation could be called into question by the Commission, by using the procedure laid down in Article 8(5) of Directive 92/81 or by bringing an action under Article 230 EC, they could not be indirectly challenged by them in a procedure in accordance with Articles 87 EC and 88 EC. Furthermore, Eurallumina relies on recital 32 of Directive 2003/96, which mentions only that procedures ‘may’ be undertaken in accordance with Articles 87 EC and 88 EC, from which it can be inferred that the procedures relating to State aid undertaken before the adoption of that directive could not impact the exemptions it authorised.
In the fourth place, Eurallumina relies on the proposition that Article 18 of Directive 2003/96 demonstrates that, when that directive was proposed and adopted, the Commission and the Council did not consider that the exemption at issue was partially incompatible with the common market, within the meaning of Article 87(3) EC. That is confirmed by the press release of the Commission, according to which the adoption of that directive would allow the functioning of the common market to be improved, and the Council’s authorisation decisions which, until Decision 2001/224, expressly indicated that the exemption at issue was compatible with effective competition and would not interfere with the functioning of the common market.
In the fifth place, Eurallumina claims that the publication of the decision to initiate the formal investigation procedure was not such as to undermine its legitimate expectation that the exemption at issue was lawful. In that regard, first, it relies on the object of the publication of the decision to initiate the formal investigation procedure, which was a mere invitation to interested third parties to submit their comments, not a predetermination of the effect of any decision that might be taken. Second, it relies on the legitimate expectation it had that the formal investigation procedure would be purely prospective, namely that it would concern only the aid granted after the expiry of the authorisation on 31 December 2006. Third, it refers to the confirmation, after the publication of the decision to initiate the formal investigation procedure, of the authorisation issued by the Italian Republic to continue applying the exemption at issue until 31 December 2006, by Article 18(1) of Directive 2003/96, read in combination with Annex II thereto. Fourth, it relies on the indications of the Commission, according to which, if the exemption at issue gave rise to a distortion of competition, it would be ended gradually without the aid granted on the basis of it being recovered.
In the sixth place, Eurallumina argues that account must be taken of the long-term investments, in the amount of approximately EUR 81 million, that it made in good faith in its Sardinian plant, in view of the legitimate expectation it had that the exemption at issue was lawful until 31 December 2006 or, at least, that there was no legal possibility for the aid granted on the basis of that exemption until that date to be recovered. Even if the Court were to find that that legitimate expectation ended on 2 February 2002, Eurallumina claims to have authorised capital expenditure in the amount of approximately EUR 11.6 million during the period from 12 March 2001 until 2 February 2002.
The Commission contends that the sixth plea raised in the context of Case T‑60/06 RENV II should be rejected as, in part, inadmissible and, for the remainder, unfounded. It also contends that the first plea raised in the context of Case T‑62/06 RENV II should be rejected as unfounded.
The present pleas and complaints ask whether, in requiring, in the contested decision, the recovery of the aid at issue, the Commission acted contrary to certain general principles of EU law, such as the principle of protection of legitimate expectations, the principle of legal certainty and the principle of presumption of legality.
In that respect, it is important to note that, in accordance with Article 14(1) of Regulation No 659/1999, the Commission is obliged to order the recovery of unlawful aid, unless such recovery would be contrary to a general principle of EU law.
As regards, in the first place, the complaint alleging infringement of the principle of presumption of legality, relied on in the context of the sixth plea raised in support of the action in Case T‑60/06 RENV II, it is based, in essence, on the notion that the contested decision produced legal effects contrary to those produced by the Council’s authorisation decisions, which expressly authorised the Italian Republic to continue applying the exemption at issue until 31 December 2006.
According to the case-law already cited in paragraph 62 above, measures of the institutions are in principle presumed to be lawful and produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality.
In the present case, on the grounds set out in paragraphs 71 to 75 above, themselves based on the grounds of the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), cited in paragraphs 65 to 69 above, it must however be pointed out that the Commission could not, in adopting the contested decision, infringe the acts adopted by the Council, which expressly authorised the Italian Republic to continue applying the exemption at issue until 31 December 2006, since those authorisations could not produce effects outside the area covered by the rules in the field of harmonisation of excise duty legislation and did not predetermine the effects of any decision, such as Alumina Decision I, that could be adopted by the Commission in the exercise of its powers in the area of State aid.
Furthermore, as is already indicated in paragraphs 73 and 74 above, it follows from paragraphs 52 and 53 of the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), that, in the area of State aid, the Commission may always change its assessment on whether the conditions for the existence of aid are fulfilled, provided that it draws the appropriate conclusions therefrom concerning the obligation of recovering the incompatible aid, in view of the principles of protection of legitimate expectations and legal certainty; consequently, the Commission was not bound, in the contested decision, by the Council’s assessments, in its decisions in the field of harmonisation of legislation relating to excise duties, according to which the exemption at issue did not give rise to a distortion of competition and did not impede the proper functioning of the common market.
Accordingly, the complaint alleging infringement of the principle of presumption of legality, relied on in the context of the sixth plea raised in support of the action in Case T‑60/06 RENV II, must be rejected as unfounded.
As regards, in the second place, the complaints alleging infringement of the principles of protection of legitimate expectations and legal certainty, relied on in the context of the sixth plea raised in support of the action in Case T‑60/06 RENV II, and the first plea raised in support of the action in Case T‑62/06 RENV II, those are based, in essence, on the proposition that the Council’s authorisation decisions and Article 18 of Directive 2003/96, read in combination with the provisions of Annex II thereto, fuelled, in Eurallumina, a legitimate expectation that the exemption at issue was lawful or, in any event, created an equivocal situation which the Commission ought to have clarified before adopting the contested decision.
In that regard, it is appropriate, first of all, to bear in mind that the principle of protection of legitimate expectations, a fundamental principle of EU law (judgment of 14 October 1999 in Atlanta v European Community,
C‑104/97 P
, ECR,
EU:C:1999:498
, paragraph
), allows any trader in regard to whom an institution has given rise to justified expectations to rely on those expectations (judgments of 11 March 1987 in Van den Bergh en Jurgens and Van Dijk Food Products (Lopik) v EEC,
265/85
, ECR,
EU:C:1987:121
, paragraph
; 24 March 2011ISD Polska and Others v Commission,
C‑369/09 P
, ECR,
EU:C:2011:175
, paragraph
; and 27 September 2012Producteurs de légumes de France v Commission,
T‑328/09
,
EU:T:2012:498
, paragraph
). However, if a prudent and alert trader could have foreseen the adoption by the institutions of an act likely to affect his interests, he cannot plead that principle if the act is adopted (judgments of 1 February 1978 in Lührs,
78/77
, ECR,
EU:C:1978:20
, paragraph
, and 25 March 2009Alcoa Trasformazioni v Commission,
T‑332/06
,
EU:T:2009:79
, paragraph
). The right to rely on that principle assumes that three conditions are satisfied. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given by the authorities to the person concerned. Second, those assurances must be such as to give rise to an expectation that is legitimate on the part of the person to whom they are addressed. Third, the assurances given must be consistent with the applicable rules (see judgment in Producteurs de légumes de France v Commission,
EU:T:2012:498
, paragraph
and the case-law cited).
It is appropriate, next, as regards more specifically the applicability of the principle of protection of legitimate expectations in the area of State aid, to recall that 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 (see judgment of 14 January 1997 in Spain v Commission,
C‑169/95
, ECR,
EU:C:1997:10
, paragraphs
and
and the case-law cited). It is apparent, moreover, from the case-law that, 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 in nature, 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 particular, where aid is implemented without prior notification to the Commission, so that it is unlawful under Article 88(3) EC, the recipient of the aid cannot have at that time a legitimate expectation that its grant is lawful (see, to that effect, judgment in Producteurs de légumes de France v Commission, cited in paragraph
above,
EU:T:2012:498
, paragraphs
and
and the case-law cited), except where there are exceptional circumstances (judgment of 20 September 1990 in Commission v Germany,
C‑5/89
, ECR,
EU:C:1990:320
, paragraph
; see, also, judgments of 29 April 2004 in Italy v Commission,
C‑298/00 P
, ECR,
EU:C:2004:240
, paragraph
and the case-law cited, and 30 November 2009France v Commission,
T‑427/04 and T‑17/05
, ECR,
EU:T:2009:474
, paragraph
and the case-law cited).
It should also be borne in mind that it is a general principle of EU law that the conduct of an administrative procedure should be of reasonable duration (judgment of 27 November 2003 in Regione Siciliana v Commission,
T‑190/00
, ECR,
EU:T:2003:316
, paragraph
). Further, the fundamental requirement of legal certainty, which precludes the Commission from being able to postpone the exercise of its powers indefinitely, means that the Court has to assess whether the progress of the administrative procedure indicates excessively belated action on the part of that institution (judgments of 24 September 2002 in Falck and Acciaierie di Bolzano v Commission,
C‑74/00 P and C‑75/00 P
, ECR,
EU:C:2002:524
, paragraphs
and
, and Fleuren Compost v Commission, cited in paragraph
above,
EU:T:2004:4
, paragraphs
to
).
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 (judgment of 24 November 1987 in RSV v Commission,
223/85
, ECR,
EU:C:1987:502
, paragraph
). In the case of State aid that has not been notified, however, such a delay may be imputed to the Commission only from the time when it learned of the existence of the aid incompatible with the common market (judgment in Italy v Commission, cited in paragraph
above,
EU:C:2004:240
, paragraph
).
The sole fact that Regulation No 659/1999, apart from a limitation period of 10 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 (see, to that effect and by analogy, regarding indicative periods, judgments of 15 June 2005 in Regione autonoma della Sardegna v Commission,
T‑171/02
, ECR,
EU:T:2005:219
, paragraph
; and 9 September 2009Diputación Foral de Álava and Others,
T‑230/01 to T‑232/01 and T‑267/01 to T‑269/01
,
EU:T:2009:316
, paragraphs
and
; and Diputación Foral de Álava and Others v Commission,
T‑30/01 to T‑32/01 and T‑86/02 to T‑88/02
, ECR,
EU:T:2009:314
, paragraphs
and
).
Last, it should be recalled that, according to the case-law, 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, to that effect, judgment of 9 July 1970 in Commission v France,
26/69
, ECR,
EU:C:1970:67
, paragraphs
to
).
The applicants’ arguments alleging, in essence, that there were exceptional circumstances which gave Eurallumina legitimate grounds to assume that the exemption at issue — and thus the aid at issue — was lawful should be assessed in the light of the rules recalled in paragraphs 178 to 183 above.
In the present case, first of all, it is important to point out that neither the Italian Republic (see paragraph 128 above) nor Eurallumina dispute recital 67 of the contested decision, from which it is apparent that the aid at issue was never notified to the Commission. It is therefore necessary to consider that that aid was granted without having been previously notified to the Commission, in infringement of Article 88(3) EC.
Next, contrary to what the applicants argue, the publication in the Official Journal of the decision to initiate the formal investigation procedure was capable of putting an end to the legitimate expectation which Eurallumina could have had as to the lawfulness of the exemption at issue, taking into account the equivocal situation previously created by the wording of the Council’s authorisation decisions, adopted on a proposal from the Commission, including that of Decision 2001/224, which was in force during the period concerned by the contested decision.
In paragraphs 52 and 53 of the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), which is binding on the General Court pursuant to the second subparagraph of Article 61 of the Statute of the Court of Justice, the Court of Justice held that the fact that the Council’s authorisation decisions were adopted on a proposal from the Commission and the Commission never used the powers available to it, under Article 8(5) of Directive 92/81 or Articles 230 EC and 241 EC, in order to secure the abolition or alteration of those decisions had to be taken into consideration in relation to the obligation to recover the incompatible aid, in the light of the principles of protection of legitimate expectations and legal certainty, as the Commission had done, in Alumina Decision I, when it declined to order the recovery of aid granted until 2 February 2002, the date of publication in the Official Journal of the decisions to initiate the procedure provided for in Article 88(2) EC. That ground was decisive to the finding of the Court of Justice, in paragraph 54 of the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), that the grounds set out in paragraphs 39 to 44 of that same judgment could not provide a legal basis for the General Court’s conclusion that Alumina Decision I called into question the validity of the Council’s authorisation decisions and thereby was in infringement of the principles of legal certainty and the presumption of legality attaching to the measures of the institutions and the finding, which was based on the same grounds, that, in Case T‑62/06 RENV, the Commission had infringed the principle of sound administration.
In view of the requirements resulting from the principles of protection of legitimate expectations and of legal certainty, the equivocal situation created by the wording of the Council’s authorisation decisions, adopted on a proposal from the Commission, precluded only the recovery of the aid granted on the basis of the exemption at issue until the date of publication in the Official Journal of the decision to initiate the procedure provided for in Article 88(2) EC. However, as from that publication, Eurallumina must have known that, if the exemption at issue constituted State aid, it had 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 put an end to the legitimate expectation that Eurallumina might previously have that the exemption at issue was lawful, in view of the Council’s authorisation decisions, adopted earlier upon a proposal from the Commission.
The Commission therefore rightly, in recital 98 of Alumina Decision I, took account of the fact that the circumstances of this case were exceptional in so far as it had created and maintained some ambiguity by submitting proposals to the Council, and that, to the extent that it could not establish whether and, if so, when, the individual beneficiaries had actually been informed by the Member States of its decision to open the formal investigation procedure, it could not be ruled out that beneficiaries had been entitled to rely on legitimate expectations until 2 February 2002, when its decisions to initiate the procedure provided for in Article 88(2) EC with respect to the exemptions from excise duty had been published in the Official Journal, it being noted that, at the very latest, that publication had eliminated any uncertainty, linked to the wording of the Council’s authorisation decisions, as to the fact that the measures in question had to be approved by the Commission in accordance with Article 88 EC, if they constituted State aid.
The correctness of that conclusion is not called into question by the other arguments put forward by the applicants.
With regard to the arguments the applicants derive from Directive 2003/96, it must be held that the fact that Article 18(1) of that directive, read in combination with Article 28(2) thereof, authorised the Italian Republic to continue applying the exemption at issue from 1 January 2003 is irrelevant to whether Eurallumina could have had a legitimate expectation that the exemption at issue was lawful under the State aid rules. At the date on which Article 18(1) of Directive 2003/96 became applicable, namely on 1 January 2003, Eurallumina had to be informed of the existence of an ongoing formal investigation procedure concerning the exemption at issue, and of the fact that, if the exemption at issue constituted State aid, it had to be authorised by the Commission, in accordance with Article 88 EC. That situation could not be altered by the adoption and entry into force of Directive 2003/96, on 27 and 31 October 2003, respectively, recital 32 of which explicitly states that that directive ‘does not prejudice the outcome of any future State aid procedure that may be undertaken in accordance with Articles 87 [EC] and 88 [EC]’ (see, to that effect and by analogy, judgment in Commission v Ireland and Others, cited in paragraph
above,
EU:C:2013:812
, paragraph
). Therefore, Article 18(1) of Directive 2003/96 was not capable, after the publication of the decision to initiate the formal investigation procedure, of giving rise, on the part of Eurallumina, to a legitimate expectation that the exemption at issue was lawful under the State aid rules.
In terms of the argument put forward by Eurallumina based on the Commission’s delay in adopting Alumina Decision I, it must be stated that that is not an exceptional circumstance capable of having given rise, on the part of Eurallumina, to a legitimate expectation that the exemption at issue was lawful, for all the reasons set out in paragraphs 194 to 217 below.
In the first place, it is appropriate to examine whether the period for the formal investigation procedure exceeded, in the present case, reasonable limits.
In that regard, it must be noted that, in the judgment in RSV v Commission, cited in paragraph
above (
EU:C:1987:502
), relied on by Eurallumina, the Court of Justice found that the period of 26 months taken by the Commission to adopt its decision had exceeded reasonable limits.
Moreover, it should be recalled that, 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 (see paragraph 182 above), provides a useful point of reference for assessing the reasonableness of the duration of a formal investigation procedure relating, as in the present case, to a measure that has not been notified.
In the present case, it must be pointed out that, on 17 July 2000, the Commission requested the French Republic, Ireland and the Italian Republic to notify the exemptions from excise duty under the State aid provisions. It received the replies, which did not have the status of a notification, in September, October and December 2000. It then initiated the formal investigation procedure by decision of 30 October 2001, which it notified to the Member States concerned on 5 November 2001 and published in the Official Journal on 2 February 2002. It then received the comments of Aughinish Alumina (letters of 26 February and 1 March 2002), Eurallumina (letters of 28 February 2002), Alcan (letter of 1 March 2002) and the European Aluminium Association (letter of 26 February 2002). Those comments were communicated to Ireland, the Italian Republic and the French Republic on 26 March 2002. Ireland submitted its comments on the decision to initiate the formal investigation procedure on 8 January 2002. The Commission asked further information of Ireland on 18 February 2002, which replied on 26 April 2002, after having requested an extension of the time limit set for the reply. After having also requested an extension of the period of time for reply on 21 November 2001, the French Republic commented on the initiating decision on 12 February 2002. The Italian Republic submitted its comments on 6 February 2002.
Alumina Decision I was adopted on 7 December 2005.
Thus, just over 49 months elapsed between the adoption of the decision to initiate the formal investigation procedure and the adoption of Alumina Decision I.
On the face of it, such a period, which was almost double that at issue in the judgment in RSV v Commission, cited in paragraph
above (
EU:C:1987:502
), and 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. Nevertheless, in accordance with the case-law, it is appropriate to examine whether that period could not be justified in view of the circumstances of this case.
In that regard, the circumstances relied on by the Commission are not, however, capable of justifying an investigation period of 49 months.
Indeed, that period does take into account, on the one hand, the period provided to the Member States and the aid recipients for submitting their observations and, on the other, the fact that the French, Irish and Italian Governments requested deadline extensions for the submission of their observations and replies in the formal investigation procedure. Taking into account the direct links, in the present case, between the exemptions from excise duty, in terms of similar measures authorised, in accordance with procedures conducted in parallel, by the same Council decision, it is necessary to take into account all the procedural steps taken in the relevant files and, in particular, the fact that, on 26 April 2002, Ireland replied to the last request for additional information sent by the Commission.
However, after that latter date, slightly over 43 months had elapsed before the Commission adopted Alumina Decision I. Such a period for investigating the relevant files, in the light of all the observations provided by the Member States concerned and interested parties, is not justifiable in the circumstances of the present case.
First, regarding the alleged difficulty of the files, that allegation has not been proved and, even if that were the case, it cannot justify an investigation period as long as the one in the present case. The file contains no indication of legal problems of any particular significance which the Commission might have encountered, Alumina Decision I being, moreover, of a reasonable length (112 recitals) and apparently not presenting any obvious difficulty in its statements. Next, the Commission was aware of the exemptions from excise duty well before the initiation of the formal investigation procedure, given that the first requests for exemption dated back to 1992 in the case of Ireland, 1993 in the case of the Italian Republic, and 1997 in the case of the French Republic. It is moreover the Commission that sent the successive proposals for authorisation decisions on exemptions from excise duty to the Council, after having received requests to that effect from the French Republic, Ireland and the Italian Republic. Last, in the context of its reports concerning State aid, the Commission informed the World Trade Organisation (WTO) of the existence of the Irish exemption.
In addition, the Commission itself stated that, since 1999, it regarded the exemptions from excise duty as being contrary to State aid rules. It was therefore in a position, as of that date, to reflect further on the lawfulness of those exemptions under the rules governing that area.
Furthermore, the fact that the Commission no longer requested additional information from the French Republic, Ireland or the Italian Republic in the 43 months prior to the adoption of Alumina Decision I shows that it already had, at that stage, all the information necessary for making its decision concerning the exemptions from excise duty.
Last, the Commission is not justified in relying on the alleged difficulty arising from the evolution of the Community system of taxation on mineral oils, particularly from the adoption of Directive 2003/96. Alumina Decision I concerns a legal situation that was not governed by the new mineral oil taxation system under Directive 2003/96, which entered into force only from 1 January 2004, but by the one previously applicable. Accordingly, the evolution of the Community system, relied on by the Commission, was irrelevant in this case. That is borne out by the fact that, in Alumina Decision I, the Commission initiated a new formal investigation procedure concerning the exemptions from excise duty on mineral oils used as fuel for the production of alumina in the Gardanne region, in the Shannon region and in Sardinia for the period from 1 January 2004, the date marking the beginning of the application of the new mineral oil taxation system under Directive 2003/96. In any event, it should be pointed out that Alumina Decision I was adopted almost two years after the adoption of Directive 2003/96. However, the mere necessity, alleged by the Commission, of taking into account, in Alumina Decision I, the new mineral oil taxation system under Directive 2003/96 could not suffice to justify a period as long as the one in the present case.
Under such circumstances, the Commission had good knowledge of the legal and factual context of the exemptions from excise duty and encountered no obvious difficulty in relation to examining them under the State aid rules.
Second, as regards the practical and linguistic difficulties alleged by the Commission, even assuming they were proved, they cannot justify an investigation period as long as the one in this case. In any event, the Commission had services enabling it to address the linguistic difficulties it alleges and examine in parallel the exemptions from excise duty within significantly shorter deadlines than those in the present case, owing primarily to good coordination of its services.
Accordingly, the investigation period for the aid at issue is, in this case, unreasonable.
In the second place, it is necessary to examine whether the Commission’s delay in adopting the contested decision gave Eurallumina reasonable grounds to believe that the Commission’s doubts no longer existed and that the exemption at issue would encounter no objection, and whether that delay was such as to prevent the Commission from requesting the recovery of the aid granted between 3 February 2002 and 31 December 2003 on the basis of that exemption, as was found in the judgment in RSV v Commission, cited in paragraph
above (
EU:C:1987:502
, paragraph
).
In that judgment, the Court of Justice indeed held that the period of 26 months taken by the Commission to adopt its decision had been such as to cause the applicant, the recipient of the aid, to have a legitimate expectation which could prevent the Commission from instructing the national authorities to order repayment of that aid.
However, whilst it is important to ensure compliance with requirements of legal certainty which protect private interests, those requirements must be balanced against requirements which protect public interests, including, in the area of State aid, the interest in preventing the operation of the market from being distorted by State aid injurious to competition, a fact which, in accordance with settled case-law, requires unlawful aid to be repaid in order to reestablish the previously existing situation (see judgment of 5 August 2003 in P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission,
T‑116/01 and T‑118/01
, ECR,
EU:T:2003:217
, paragraphs
and
and the case-law cited).
The case-law has thus interpreted the judgment in RSV v Commission, cited in paragraph
above (
EU:C:1987:502
) as meaning that the specific circumstances that gave rise to it played a decisive role in the approach taken by the Court of Justice (see, to that effect, judgments in Italy v Commission, cited in paragraph
above,
EU:C:2004:240
, paragraph
; 29 April 2004Italy v Commission,
C‑372/97
, ECR,
EU:C:2004:234
, paragraph
; Diputación Foral de Álava and Others v Commission, cited in paragraph
above,
EU:T:2009:314
, paragraph
; and Diputación Foral de Álava and Others, cited in paragraph
above,
EU:T:2009:316
, paragraph
). In particular, account was taken of the fact that the aid at issue in the judgment in RSV v Commission, cited in paragraph
above (
EU:C:1987:502
) had been granted before the Commission opened the formal investigation procedure pertaining to that case. In addition, that aid had been formally notified to the Commission, admittedly after it had been paid. Moreover, it concerned supplementary costs of aid authorised by the Commission and a sector which had, since 1977, received aid authorised by the Commission. Last, examining the compatibility of the aid did not require an in-depth investigation.
All of the exceptional circumstances present in the case that gave rise to the judgment in RSV v Commission, cited in paragraph
above (
EU:C:1987:502
) are not to be found in the present case. Certainly, as in the case that gave rise to the judgment in RSV v Commission, cited in paragraph
above (
EU:C:1987:502
), at the time when the Commission apparently remained inactive, it already had good knowledge of the exemption at issue and thus had been in a position to form an opinion on the lawfulness of that aid under the State aid rules, with the result that it no longer had to carry out an in-depth investigation in that regard. However, other essential circumstances found in the judgment in RSV v Commission, cited in paragraph
above (
EU:C:1987:502
) are lacking in the present case. In particular, in the present case, the aid at issue was granted after the initiation, by the Commission, of the formal investigation procedure concerning the exemption at issue.
That fundamentally differentiates the specific circumstances of the case that gave rise to the judgment in RSV v Commission, cited in paragraph
above (
EU:C:1987:502
) from those found in the present case. Eurallumina cannot therefore validly rely, in the present case, on the judgment in RSV v Commission, cited in paragraph
above (
EU:C:1987:502
).
Moreover, account should be taken of the fact that, in paragraph 52 of the judgment of 11 November 2004 in Demesa and Territorio Histórico de Álava v Commission (
C‑183/02 P and C‑187/02 P
, ECR,
EU:C:2004:701
), the Court of Justice held, in relation to exceptional circumstances on the basis of which the recipient of unlawful aid could legitimately assume such aid to be lawful, that any apparent failure to act on the part of the Commission was irrelevant when an aid scheme had not been notified to it. Thus, in the present case, the Commission’s apparent inaction for 43 months after Ireland’s reply to the last request for additional information of the Commission (see paragraph 203 above) — as inconsistent with the principle that action must be taken within a reasonable time as it may be — is nevertheless not particularly significant from the perspective of applying the State aid rules to the aid at issue, which was not duly notified to it. Therefore, it is insufficient for finding the existence of exceptional circumstances capable of having given rise, on the part of Eurallumina, to a legitimate expectation that the aid at issue was lawful under the State aid rules. It follows that the mere infringement, in the present case, of the principle that action must be taken within a reasonable time in the adoption of Alumina Decision I did not prevent, in that decision, the Commission from ordering the recovery of the aid at issue.
Therefore, the argument of Eurallumina alleging failure to act within a reasonable time must be rejected.
The arguments of the applicants based on the investments made by Eurallumina in its Sardinian plant over a period during which it benefited from the aid at issue are irrelevant to the assessment of whether there was, on the part of Eurallumina, a legitimate expectation that that aid was lawful under the State aid rules, since, as is apparent from paragraphs 136 and 137 above, it has not been proved that Eurallumina had to make such investments in performance of commitments voluntarily undertaken with the Italian authorities or obligations imposed by those authorities in consideration of the benefit it would derive from the aid at issue.
In view of all the foregoing considerations, it must be stated that the applicants have not demonstrated, in the present case, the existence of exceptional circumstances such as to have given Eurallumina reasonable grounds to believe that the Commission’s doubts no longer existed and that the exemption at issue would encounter no objection, which might have prevented the Commission from ordering the recovery of the aid at issue in the contested decision.
Accordingly, the complaints alleging infringement of the principles of protection of legitimate expectations and legal certainty, relied on in the context of the sixth plea raised in support of the action in Case T‑60/06 RENV II, and the first plea raised in support of the action in Case T‑62/06 RENV II, must be rejected in their entirety as unfounded.
It follows that the sixth plea raised in support of the action in Case T‑60/06 RENV II and the first plea raised in support of the action in Case T‑62/06 RENV II must be rejected in their entirety as unfounded.
The third plea, alleging infringement of the principle of sound administration, raised in support of the action in Case T‑62/06 RENV II
Eurallumina claims that the Commission infringed the principle of sound administration in the contested decision in obliging the Italian Republic to recover the aid at issue. In that regard, first, it bases an argument on the principle of sound administration, by virtue of which it was entitled to expect the Commission not to propose to the Council to adopt decisions permitting the grant of unlawful State aid and the Council not to adopt such decisions. Second, it refers to the content of Decision 2001/224, which, supposing that the exemption at issue were classified as State aid, within the meaning of Article 87(1) EC, should be regarded as express authorisation for granting that aid or, at least, as an obstacle to the recovery of that aid until 31 December 2006. Third, it refers to the lack of direct challenge, by the Commission, to the lawfulness of the Council’s authorisation decisions in exercising its powers under Article 8(5) of Directive 92/81 or in bringing an action for annulment, under Article 230 EC.
The Commission contends that the third plea should be rejected as unfounded.
The present plea essentially raises the question whether, in the contested decision, the Commission examined carefully and impartially all the relevant aspects of the individual case and, in particular, whether it took into account contradictory legal effects which allegedly existed between the contested decision and the Council’s authorisation decisions, adopted upon a proposal from the Commission and never, subsequently, called into question by the Commission on the basis of the powers conferred on it by Article 8(5) of Directive 92/81 or Articles 230 EC and 241 EC.
In that regard, it should be noted that, where the institutions have a power of appraisal, respect for the rights guaranteed by the European Union legal order in administrative procedures is of even more fundamental importance (judgment of 21 November 1991 in Technische Universität München,
C‑269/90
, ECR,
EU:C:1991:438
, paragraph
). The principle of sound administration is included among those guarantees, that principle entailing the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgments of 29 March 2012 in Commission v Estonia,
C‑505/09 P
, ECR,
EU:C:2012:179
, paragraph
and the case-law cited, and 23 September 2009Estonia v Commission,
T‑263/07
, ECR,
EU:T:2009:351
, paragraph
and the case-law cited).
In the present case, it must be pointed out that, in support of the present plea, Eurallumina raises, in essence, arguments similar to those it relies on in the context of its second plea. However, on the same grounds as those set out in paragraphs 65 to 75 above, themselves based on paragraphs 45 to 48 of the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), Eurallumina has no basis to argue that the contested decision produces legal effects contrary to those produced by Decision 2001/224 and by Article 18 of Directive 2003/96.
As is apparent from paragraph 53 of the judgment in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2013:812
), the fact that the Council’s authorisation decisions had been adopted on a proposal from the Commission was indeed to be taken into consideration in relation to the obligation to recover the incompatible aid, in the light of the principles of protection of legitimate expectations and legal certainty. Nevertheless, as is noted in the same paragraph, that was done when the Commission, in the contested decision, declined to order the recovery of aid granted before the date of publication in the Official Journal of the decisions to initiate the procedure laid down in Article 88(2) EC.
It is therefore not established that, in the contested decision, the Commission failed to examine carefully and impartially all the relevant aspects of the present case.
For all the foregoing reasons, the third plea raised in the context of Case T‑62/06 RENV II must be rejected as unfounded.
The fourth plea, alleging breach of the obligation to state reasons laid down in Article 253 EC and infringement of the principle of protection of legitimate expectations, raised in support of the action in Case T‑62/06 RENV II
Eurallumina claims that the Commission breached the obligation to state reasons laid down in Article 253 EC and infringed the principle of protection of legitimate expectations, in the contested decision, in that, contrary to the requirements of the case-law, it did not take into account the level, timing and amortisation period of the investments made in its Sardinian plant in view of the legitimate expectation it had that the exemption at issue was lawful until 31 December 2006. In addition to the arguments already advanced in support of the first plea, alleging infringement of the principle of protection of legitimate expectations (see paragraphs 162 to 168 above), first, it relies on the irrelevance of the fact that the Commission sought to limit, from 1995, the level of the exemption at issue to the part of excise duty higher than the minimum rate set by Directive 92/82 with regard to the question of whether, at that date, the Commission was concerned about the grant of unlawful State aid on the basis of that exemption. Second, it invokes the acknowledgment, by the Commission, that it was concerned about State aid problems only from November 1999 and not from 1995. Third, it refers to the content, in the first place, of the request for notification of the exemption at issue of July 2000, in the second place, of the proposal for a decision of November 2000 and, in the third place, of recital 5 of Decision 2001/224, which did not automatically lead to the conclusion that the Commission was going to initiate a formal investigation procedure in respect of the exemption at issue or that that exemption was unlawful aid, which could be recovered, having regard in particular to the content of Decision 2001/224, which was subsequently confirmed by Article 18(1) of Directive 2003/96.
The Commission contends that the present plea should be rejected as unfounded.
The present plea essentially raises the question whether, in the contested decision, the Commission, on the one hand, breached its obligation to state reasons under Article 253, and, on the other, infringed the principle of protection of legitimate expectations, in ordering the recovery of the aid at issue without taking into account the period Eurallumina needed for making a return on the investments made in its Sardinian plant, in view of the legitimate expectation it claims to have had that the exemption at issue was lawful until 31 December 2006.
The breach and infringement alleged by Eurallumina, in the context of the present plea, are distinct complaints, each of which may be raised in proceedings under Article 230 EC (judgment of 2 April 1998 in Commission v Sytraval and Brink’s France,
C‑367/95 P
, ECR,
EU:C:1998:154
, paragraph
). The first, alleging absence of reasons or inadequacy of the reasons stated, goes to an issue of infringement of essential procedural requirements within the meaning of that article, whereas the second, which goes to the substantive legality of the contested decision, is concerned with infringement of a rule of law relating to the application of the Treaty within the meaning of the same Article 230 EC (judgment in Commission v Sytraval and Brink’s France,
EU:C:1998:154
, paragraph
).
As regard, in the first place, the complaint alleging breach of the obligation to state reasons, it is to be recalled that, according to Article 253 EC, decisions adopted by the Commission are to state the reasons on which they are based. Moreover, according to settled case-law, the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the EU judicature to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments in Commission v Sytraval and Brink’s France, cited in paragraph
above,
EU:C:1998:154
, paragraph
; 12 December 2002Belgium v Commission,
C‑5/01
, ECR,
EU:C:2002:754
, paragraph
; and 11 September 2003Belgium v Commission,
C‑197/99 P
, ECR,
EU:C:2003:444
, paragraph
).
In recital 75 of Alumina Decision I, the Commission inter alia declined to take account of Eurallumina’s comments, set out in recitals 37 and 45 of the same decision, according to which it had made significant environmental investments in its Sardinian plant in consideration of the exemption at issue, on the ground that there was no evidence that it had concluded any agreements with the Italian authorities whereby it committed to achieve environmental protection objectives during the period for which the exemption at issue applied and that neither was that exemption subject to conditions that would ensure the same effect as such agreements and commitments. That recital allows it to be understood that, although the Commission did not take into account, in the contested decision, the amortisation period of the investments made by Eurallumina in its Sardinian plant, that was inter alia because it considered it not to be established that the benefit derived by Eurallumina from the exemption at issue was consideration for the making of those investments. This explains why, in recital 98 of Alumina Decision I, the Commission did not take account of a legitimate expectation, alleged in this case by Eurallumina, that the investments made in its Sardinian plant could be amortised by, inter alia, the benefit it would derive from the exemption at issue until 31 December 2006.
Although concise, the reasons for Alumina Decision I are nevertheless sufficient, in the present case, for understanding the reasoning followed in that respect by the Commission and to enable the interested parties to know the justifications for the measure adopted and the EU judicature to exercise its power of review.
Consequently, the reasoning of the contested decision does not breach the obligation to state reasons laid down in Article 253 EC, as interpreted by the case-law cited in paragraph 235 above. Accordingly, the complaint alleging breach of the obligation to state reasons must be rejected as unfounded.
As regards, in the second place, the complaint alleging infringement of the principle of protection of legitimate expectations, it should be noted that, by that complaint, Eurallumina essentially criticises the Commission for not having taken into account, in the contested decision, a legitimate expectation it had that the investments made in its Sardinian plant could be amortised by, inter alia, the benefit it would derive from the exemption at issue until 31 December 2006.
As already noted in paragraphs 136, 137 and 219 above, the documents in the file do not lead, in the present case, to the conclusion that the investments made by Eurallumina in its Sardinian plant were made in consideration of the benefit it would derive from the exemption at issue. It is thus not established that those investments were made by Eurallumina in consideration of the legitimate expectation it allegedly had that those investments could be amortised by, inter alia, the benefit it would derive from the exemption at issue until 31 December 2006.
Accordingly, in the contested decision, the Commission was entitled not to take into account a legitimate expectation, alleged in this case by Eurallumina, that the investments made in its Sardinian plant could be amortised by, inter alia, the benefit it would derive from the exemption at issue until 31 December 2006. Therefore, the complaint alleging infringement of the principle of protection of legitimate expectations must be rejected as unfounded.
It follows that the fourth plea raised in support of the action in Case T‑62/06 RENV II must be rejected in its entirety.
Since all the pleas and complaints raised in support of the actions have been rejected as inadmissible or unfounded, those actions themselves must be rejected in their entirety.
Costs
Pursuant to Article 219 of the Rules of Procedure of the General Court, in decisions of the General Court given after its decision has been set aside and the case referred back to it, it is to decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the Court of Justice. Given that, in the judgments in Commission v Ireland and Others, cited in paragraph
above (
EU:C:2009:742
), and Commission v Ireland and Others, cited in paragraph 25 above (
EU:C:2013:812
), the Court of Justice reserved the costs, it is for the General Court also to decide, in the present case, on the costs relating to those appeal proceedings.
Under Article 134(1) 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. However, according to Article 135(1) of the Rules of Procedure, exceptionally, if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own. In addition, according to Article 135(2) of the same regulation, the General Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought. The General Court may inter alia order an institution whose decision has not been annulled to pay the costs on account of the inadequacy of that decision, which may have led an applicant to bring an action (see, by analogy, judgment of 9 September 2010 in Evropaïki Dynamiki v Commission,
T‑387/08
,
EU:T:2010:377
, paragraph
and the case-law cited).
In Case T‑60/06 RENV II, the Italian Republic has been unsuccessful. It is therefore necessary to order it to pay the costs in Cases T‑60/06, T‑60/06 RENV I and T‑60/06 RENV II and to bear its own costs and to pay one fifth of the costs incurred by the Commission in Cases C‑89/08 P and C‑272/12 P, in accordance with the form of order sought by the Commission.
In Case T‑62/06 RENV II, Eurallumina has been unsuccessful. However, in the examination of the action in that case, it was stated, in paragraph 210 above, that the Commission had infringed the principle that action must be taken within a reasonable time, when adopting the contested decision, which might have induced Eurallumina to bring the action, to have that infringement established. In those circumstances, the General Court considers it just and equitable, as regards Cases T‑62/06, T‑62/06 RENV I and T‑62/06 RENV II, to order Eurallumina to bear its own costs and to pay three quarters of the costs incurred by the Commission and to order that institution to bear one quarter of its own costs. With regard to Cases C‑89/08 P and C‑272/12 P, in so far as five parties were opposed to the Commission in each of those cases, it is appropriate, under the apportionment formula used in Cases T‑62/06, T‑62/06 RENV I and T‑62/06 RENV II, to order Eurallumina to bear its own costs and to pay three twentieths, namely one fifth of three quarters, of the costs incurred by the Commission and to order that institution to bear one fifth of its own costs.

On those grounds,
THE GENERAL COURT (First Chamber, Extended Composition),
hereby:

1.
Dismisses the actions;

2.
Orders the Italian Republic to pay the costs in Cases T‑60/06, T‑60/06 RENV I and T‑60/06 RENV II and to bear its own costs and pay one fifth of the costs incurred by the Commission in Cases C‑89/08 P and C‑272/12 P;

3.
Orders Eurallumina SpA to bear its own costs and to pay three quarters of the costs incurred by the Commission in Cases T‑62/06, T‑62/06 RENV I and T‑62/06 RENV II and three twentieths of the costs incurred by the Commission in Cases C‑89/08 P and C‑272/12 P;

4.
Orders the Commission to bear one quarter of its own costs in Cases T‑62/06, T‑62/06 RENV I and T‑62/06 RENV II and one fifth of its own costs in Cases C‑89/08 P and C‑272/12 P.

Kanninen
Pelikánová
Buttigieg
Gervasoni
Madise
Delivered in open court in Luxembourg on 22 April 2016.
[Signatures]
Table of contents

Background to the dispute

The exemption at issue

Administrative procedure

Alumina Decision I

Procedure and forms of order sought by the parties

Law

Admissibility

Substance

The second plea, alleging infringement of the principles of legal certainty, presumption of validity, the effet utile of acts of the institutions and of the principle lex specialis derogat legi generali, raised in support of the action in Case T‑62/06 RENV II

– Infringement of the principles of legal certainty, presumption of legality and of the effet utile of acts of the institutions

– Infringement of the principle lex specialis derogat legi generali

The first plea, alleging infringement of Article 87(1) EC and contradictory reasoning, raised in support of the action in Case T‑60/06 RENV II

The second plea, alleging infringement of Article 1(b)(ii), Article 4 of Regulation No 659/1999 and of the Council’s authorisation decisions, raised in support of the action in Case T‑60/06 RENV II

The fifth plea, alleging infringement of Article 18 of Directive 2003/96, read in combination with Annex II thereto, and of Decision 2001/224, raised in support of the action in Case T‑60/06 RENV II

The third plea, alleging infringement of the rules governing aid for environmental protection and, in particular, the second subparagraph of point 82(a) of the 2001 Guidelines, raised in support of the action in Case T‑60/06 RENV II

The fourth plea, alleging infringement of Article 87(3) EC and the Guidelines on regional aid, raised in support of the action in Case T‑60/06 RENV II

The sixth plea, alleging infringement of the principles of protection of legitimate expectations, legal certainty and of presumption of legality, raised in support of the action in Case T‑60/06 RENV II, and the first plea, alleging infringement of the principle of protection of legitimate expectations, raised in support of the action in Case T‑62/06 RENV II

The third plea, alleging infringement of the principle of sound administration, raised in support of the action in Case T‑62/06 RENV II

The fourth plea, alleging breach of the obligation to state reasons laid down in Article 253 EC and infringement of the principle of protection of legitimate expectations, raised in support of the action in Case T‑62/06 RENV II

Costs
(
*1
)	Languages of the case: Italian and English.