Opinion of the Advocate General — ECLI:EU:C:2013:499
Date: 2013-07-18
Language of the case: English;French;Italian
Subject matter: State aids;Competition
Procedure: Action for annulment;Judgment delivered after back reference;Appeal - successful
Origin: France;Ireland;Italy

Summary — Judgment of the Court (Grand Chamber), 10 December 2013 1. Appeal — Grounds of appeal— Breach of the prohibition on ruling ultra petita — Action for annulment of a Commission decision on State aid — Consideration of its own motion by the General Court of a plea in law not relied on by the applicant concerning the substantive legality of the contested decision — Error of law Art. 87(1) EC; Art 263 TFEU; Statute of the Court of Justice, Art. 21; Rules of Procedure of the Court of First Instance, Art. 44(1)) 2. State aid — Respective powers of the Council and the Commission — Council Decision authorising a Member State, pursuant to Directive 92/81 on the harmonisation of the structures of excise duties on mineral oils, to introduce an exemption from excise duties — No effect on the distribution of those powers by the Treaty (Arts 87 EC and 88 EC; Council Directive 92/81, Art. 8(4)) 3. State aid — Concept — Assessment in the light of the objective situation, irrespective of the conduct of the institutions — Taking that conduct into consideration when assessing the obligation to recover incompatible aid — Protection of legitimate expectations — Legal certainty (Art. 87(1) EC) 1. It follows from the rules governing the procedure before the Courts of the European Union, in particular Article 21 of the Statute of the Court and Article 44(1) of the Rules of Procedure of the General Court, that the dispute is in principle determined and circumscribed by the parties and that the Courts of the European Union may not rule ultra petita. While certain pleas may, and indeed must, be raised by the courts of their own motion, such as the question whether a statement of reasons for the decision annulment of which is sought is lacking or is inadequate, which falls within the scope of essential procedural requirements, a plea going to the substantive legality of that decision, which falls within the scope of infringement of the Treaties or of any rule of law relating to their application, within the meaning of Article 263 TFEU, can, by contrast, be examined by the Courts of the European Union only if it is raised by the applicant. Consequently, a plea based on an infringement of Article 87(1) EC because of the non-attributability of the measure in question to the State cannot be raised by a court of its own motion. It follows that, by raising of its own motion the plea that the exemptions granted by Member States from excise duties on mineral oils used as fuel in the production of alumina were attributable not to those Member States but to the European Union, and, for that reason, did not constitute State aid within the meaning of Article 87(1) EC, the General Court caused its judgment to be vitiated by an error in law. (see paras 27-29, 36) 2. The procedure provided for in Article 8(4) of Directive 92/81 on the harmonisation of the structures of excise duties on mineral oils, which granted to the Council, acting unanimously on a proposal from the Commission, the power to authorise any Member State to introduce exemptions or reductions in respect of excise duties other than those laid down by that directive for specific policy considerations, has a purpose and scope which differ from those of the rules established in Article 88 EC. The intention of the Treaty, in providing through Article 88 EC for aid to be kept under constant review and supervised by the Commission, is that the finding that an aid may be incompatible with the common market is to be determined, subject to review by the General Court and the Court of Justice, by means of an appropriate procedure which it is the Commission’s responsibility to set in motion. Articles 87 EC and 88 EC thus reserve a central role for the Commission in determining whether aid is incompatible. The power conferred upon the Council in the area of State aid by the third subparagraph of Article 88(2) EC is exceptional in character, which means that it must necessarily be interpreted strictly. Consequently, a Council decision authorising a Member State, in accordance with Article 8(4) of Directive 92/81, to introduce an excise duties exemption cannot have the effect of preventing the Commission from exercising the powers conferred on it by the Treaty and, consequently, setting in motion the procedure laid down in Article 88 EC in order to review whether that exemption constitutes State aid and on the conclusion of that procedure, if appropriate, to adopt a decision ordering the recovery of that aid. (see paras 47-49) 3. The concept of State aid corresponds to an objective situation and cannot depend on the conduct or statements of the institutions. Consequently, the fact that the Council’s decisions authorising exemptions from excise duties on mineral oils used as fuel in the production of alumina were adopted on a proposal from the Commission cannot preclude those exemptions being classified as State aid, within the meaning of Article 87(1) EC, if the conditions governing the existence of State aid are met. That fact must however 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. (see para. 53)