Judgment — ECLI:EU:T:2009:79
Date: 2009-03-25
Language of the case: English
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Statement of reasons;General;Legal certainty;Principle of the protection of legitimate expectations;Existing aid and new aid;Commission decision following a preliminary review or proceeding to the formal investigation procedure
Procedure: Action for annulment - unfounded
Origin: Italy

summary of the contested decision prepared by the Commission and published in the Official Journal of the European Union, that an aid scheme cannot be linked to only one undertaking. 125 The Commission contends, in essence, that the third plea ought to be rejected on the same grounds as the second plea. Findings of the Court 126 In the first place, it is appropriate to reject as unfounded the Commission’s arguments that the third plea should, on the one hand, be declared inadmissible, since it is merely a recasting of the second plea and, on the other hand, be set aside for abuse of process in so far as it is based, in essence, on a misinterpretation of the contested decision. 127 In this respect, it must be noted that, in contrast to the second plea alleging infringement of the principles of the protection of legitimate expectations and legal certainty, the applicant by its third plea criticises the fact that the Commission examined the measure at issue under the procedure applicable to new aid. Further, it must be held that a misinterpretation of the contested decision cannot, as such, be sufficient to constitute abuse of process. 128 In the second place, as regards the applicant’s argument that, in essence, the Commission should have examined the measure at issue under the procedure applicable to existing aid and not that applicable to new aid because it does not constitute a substantive alteration of the measure covered by the Alumix decision, it must be recalled that, according to the case-law, in the event of an alteration to existing aid, it is only where the alteration affects the actual substance of the original scheme that that scheme is transformed into a new aid scheme. There can be no question of such a substantive alteration where the new element is clearly severable from the initial scheme (Government of Gibraltar v Commission, paragraph 80 above, point 111). However, as regards the extension of aid already in the course of implementation, the case-law shows that, because of the amendment to the duration of the aid in question, it should also be regarded as new aid (see, to that effect, Diputación Foral de Álavaand Others v Commission, paragraph 114 above, paragraph 175). 129 It follows that, where a measure that the Commission considered not to constitute State aid is extended or altered with regard to its very substance, the Commission can examine it only under the procedural rules applicable to new aid. 130 In the present case, it is not disputed that, by opening the formal investigation procedure, the Commission applied the procedural rules on new aid to the measure at issue. It must be noted, as stated in paragraph 107 above, that the measure examined in the contested decision constitutes a measure that is distinct from that previously examined by the Commission in the context of the Alumix decision. 131 On the one hand, in the Alumix decision, the Commission concluded, in essence, that the tariff that ENEL was going to charge the plants from 1996 to 2005 pursuant to the 1995 Decree-Law was equivalent to a market tariff, so that they would not be granted any advantage through State resources. On the other hand, in the contested decision, the Commission takes the provisional view that part of the electricity tariff ENEL was going to charge the plants from 2005 to 2010 will be reimbursed to them by the Equalisation Fund, namely an amount equivalent to the difference between the tariff charged by ENEL and the tariff laid down in the 1995 Decree-Law, so that the plants will benefit, through State resources, from an advantage consisting in a reduction in the electricity tariff that they would otherwise have had to pay. 132 Therefore, it must be held that the measure at issue cannot be considered to be existing aid, not only because it covers a period that is different from that examined in the Alumix decision, but also because it consists no longer in ENEL applying the tariff laid down in the 1995 Decree-Law, which was equivalent to a market tariff, but in the grant of a reimbursement by the Equalisation Fund from public resources, in order to offset the difference between the tariff charged by ENEL and that laid down in the 1995 Decree-Law, as extended by the 2005 Decree-Law. 133 Consequently, it must be held that the Commission has not made a manifest error of assessment by examining the measure at issue under the procedure applicable to new aid and not that applicable to existing aid. 134 In this respect, it is appropriate, first, to dismiss as unfounded, for the reasons set out in paragraph 131 above, all the applicant’s arguments that extending the tariff put in place by the 1995 Decree-Law, making the Equalisation Fund responsible for administering that tariff or even limiting the increase in the tariff granted to the plants to no more than 4% per annum, constitute non-substantive alterations to the measure examined in the Alumix decision. 135 Further, it is appropriate to reject as unfounded the applicant’s argument that the Commission was under an obligation to examine the measure at issue under the procedure applicable to existing aid, in so far as the Commission allegedly found that the measure became State aid due to the evolution of the common market within the meaning of the first sentence of Article 1(b)(v) of Regulation No 659/1999. Even though the Commission essentially states in recital 41 of the contested decision that the electricity market was liberalised, that is only on the ground, set out in recital 47 of the contested decision, that ‘the Commission’s approval [in the Alumix decision] is of limited duration precisely because that approval is based on an economic assessment of the circumstances prevailing at a given time’ and, consequently, that ‘the Alumix decision cannot be relied on to cover an extension of the measure laid down in the [2005] Decree-Law’. 136 Finally, the applicant’s argument that, on the one hand, the Commission should have taken a position on whether the tariff granted to the plants constituted an aid scheme and, on the other hand, an aid scheme cannot be linked to only one undertaking, as the Commission allegedly wrongly stated in the summary of the decision published in the Official Journal of the European Union, must be rejected because, in any event, it has no effect on the Commission’s provisional finding that the measure at issue constituted aid that was incompatible with the common market. 137 In the light of all of the foregoing, the third plea must be rejected and the application dismissed in its entirety. Costs 138 Under Article 87(2) 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. As the applicant has been unsuccessful and the Commission has applied for costs, the applicant must be ordered to pay the costs. On those grounds, THE COURT OF FIRST INSTANCE (First Chamber) hereby: 1. Dismisses the action; 2. Orders Alcoa Trasformazioni Srl to bear its own costs and to pay those incurred by the Commission. Tiili Dehousse Wiszniewska-Białecka Delivered in open court in Luxembourg on 25 March 2009. Table of contents Legal context Background to the dispute Procedure and forms of order sought by the parties Admissibility Arguments of the parties Findings of the Court Substance The first plea, concerning the classification of the measure at issue as State aid The first and second complaints, that there was no advantage – Arguments of the parties – Findings of the Court The third complaint, alleging failure to state adequate reasons in the contested decision – Arguments of the parties – Findings of the Court The second plea, alleging infringement of the principles of the protection of legitimate expectations and legal certainty Arguments of the parties Findings of the Court The third plea, concerning examination of the measure at issue under the rules applicable to new aid Arguments of the parties Findings of the Court Costs * Language of the case: English.