Opinion of the Advocate General — ECLI:EU:C:2011:554
Date: 2011-09-08
Language of the case: French
Subject matter: State aids;Competition
Procedure: Action for annulment;Appeal - unfounded
Origin: France

Summary of the Judgment 1. State aid – Concept – Special tax regime conferring an advantage on an undertaking (Art. 87(1) EC) 2. State aid – Concept – Undertaking’s special tax regime – Favourable tax differential covering a certain period offset by surplus tax paid in respect of another period on account of a fixed levy (Art. 87(1) EC) 3. State aid – Recovery of unlawful aid – Aid granted in breach of the rules of procedure laid down in Article 88 EC – Possible legitimate expectation on the part of the beneficiaries – Protection – Conditions and limits (Art. 88(3) EC) 4. State aid – Recovery of unlawful aid – Ten‑year limitation period laid down in Article 15 of Regulation No 659/1999 – The point from which the limitation period starts to run – Date on which the aid was granted to the beneficiary (Art. 88(2) EC; Council Regulation No 659/1999, Art. 15) 5. State aid – Commission decision finding aid incompatible with the common market and ordering its recovery – Whether it is possible for the Commission to entrust the national authorities with the task of calculating the exact amount of aid to be recovered – Infringement of the principle of legal certainty – None 1. A special tax regime may confer an advantage on an undertaking for the purposes of Article 87(1) EC, even though the exact amount of aid granted under that regime has to be determined by reference to certain factors unrelated to the regime. Where the finding of the existence of aid depends on a number of circumstances unrelated to the special tax regime, such as the fact that the business tax is charged annually and the level of the tax rates voted each year by the local authorities, such circumstances do not in any way preclude the possibility that, even at the time of its adoption, the special tax regime could have been classified as State aid for the purposes of Article 87(1) EC. Indeed, it is necessary to make a distinction between, on the one hand, the adoption of the aid scheme, and, on the other, the grant of annual aid to the undertaking on the basis of that regime, the precise total amount of which depended on certain external factors. In such a case, the existence of an advantage may be attributable, first, to a fixed element forming part of the special tax regime applied to the undertaking, as opposed to the general law regime, and, second, to a variable element, which depends on factual circumstances, namely the location of premises or land in the various local authorities and the tax rate applicable in those authorities. (see paras 21-23, 27) 2. With regard to the concept of aid for the purpose of Article 87(1) EC, a measure cannot be saved from categorisation as aid where the aid beneficiary is subject to a specific charge which is different from and unconnected with the aid in question. Any determination as to whether the over-taxation of an undertaking at a certain period, attributable to a fixed levy to which it was subject, offsets the tax differential from which that undertaking benefited during another period depends on the analysis of the objective characteristics of the fixed levy applicable and on whether it may be regarded as a charge which is connected with the advantage enjoyed by the undertaking as a result of its being taxed under the special regime. The mere fact that the fixed levy and the special tax regime were both introduced by the same law does not prove that the undertaking’s liability to pay the fixed levy was connected with the creation of the special tax regime. (see paras 43-44, 48) 3. In view of the mandatory nature of the review of State aid by the Commission, undertakings to which aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in Article 88 EC and a diligent business operator should normally be able to determine whether that procedure has been followed. In particular, where aid is implemented without prior notification to the Commission, with the result 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. Moreover, where aid has not been notified to the Commission, any apparent failure to act on its part in relation to the measure is irrelevant. (see paras 59-60) 4. Article 15(1) of Regulation No 659/1999 on the application of Article 88 EC provides that the powers of the Commission to recover aid are subject to a limitation period of 10 years. It is apparent from Article 15(2) of the regulation that the limitation period does not begin to run until on the day on which the unlawful aid is awarded to the beneficiary. Consequently, the decisive factor in determining the starting point of the limitation period referred to in Article 15 is when the aid was in fact granted. It is apparent from Article 15(2) of Regulation No 659/1999 that, for the purpose of determining the date on which the limitation period starts to run, that provision refers to the grant of aid to a beneficiary, not the date on which an aid scheme was adopted. The determination of the date on which aid was granted may vary depending on the nature of the aid in question. In the case of a multi-annual scheme, entailing payments or advantages granted on a periodic basis, the date on which an act forming the legal basis of the aid is adopted and the date on which the undertakings concerned will actually be granted the aid may be a considerable period of time apart. In such a case, for the purpose of calculating the limitation period, the aid must be regarded as not having been awarded to the beneficiary until the date on which it was in fact received by the beneficiary. (see paras 80-82) 5. The principle of legal certainty – which is one of the general principles of European Union law – requires that rules of law be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by European Union law. In the field of State aid, no provision of European Union law requires the Commission, when ordering the recovery of aid declared incompatible with the common market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission’s decision to include information enabling the recipient to calculate the amount itself, without overmuch difficulty. (see paras 100, 102)