62016TO0170
ORDER OF THE GENERAL COURT (First Chamber)
11 October 2017 (
*1
)
(Actions for annulment — State aid — Tax advantages granted by a territorial entity within a Member State — Aid scheme declared to be incompatible with the internal market — Implementation of the decision — Obligation to examine the individual situation of the recipients — Commission’s failure to adopt a position — Act not open to challenge — Inadmissibility)
In Case T‑170/16,
Guardian Glass España, Central Vidriera, SLU, established in Llodio (Spain), represented by M. Araujo Boyd, D. Armesto Macías and A. Lamadrid de Pablo, lawyers,
applicant,
v
European Commission, represented by L. Flynn, B. Stromsky and P. Němečková, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU and seeking the annulment of the decision of the Commission contained in a document of 15 July 2015 entitled ‘Tax matters in the Basque Country (Álava) — Informal communication regarding additional submissions in connection to compatibility with the 1998 guidelines on national regional aid’,
THE GENERAL COURT (First Chamber),
composed of I. Pelikánová, President, P. Nihoul (Rapporteur) and J. Svenningsen, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
The tax credit adopted by the Province of Álava
1
Between 1994 and 1997 the Provinces of Álava, Vizcaya and Guipúzcoa in the Autonomous Community of the Basque Country (Spain) adopted six tax schemes of two kinds: a tax credit for businesses amounting to 45% of investments, and a degressive four-year reduction of the tax base for new businesses.
2
The present case arises from one of the six tax schemes mentioned in paragraph 1 above, specifically the scheme adopted by the Province of Álava which allows the grant to undertakings in that province of a tax credit amounting to 45% of investments, subject to certain conditions.
3
The tax schemes at issue remained in force until 1999 as regards the tax credit for businesses amounting to 45% of investments, adopted by the Province of Álava, and until 2000 with regard to the other tax schemes.
4
None of the tax schemes was notified to the Commission of the European Communities.
The examination of the tax scheme at issue by the Commission
5
Following complaints, the Commission learned of the existence of the tax schemes at issue.
6
By letters of 17 August and 29 September 1999, the Commission informed the Spanish authorities of its decision to open the formal investigation procedure laid down in Article 108(2) TFEU with respect to the six tax schemes, that is the tax credit for businesses amounting to 45% of investments adopted by the Provinces of Vizcaya and Guipúzcoa (OJ 1999 C 351, p. 29), the degressive four-year reduction of the tax base for new businesses adopted by the Provinces of Álava, Vizcaya and Guipúzcoa (OJ 2000 C 55, p. 2 ) and the tax credit for businesses amounting to 45% of investments, adopted by the Province of Álava (OJ 2000 C 71, p. 8).
7
On 3 November and 6 December 1999, actions for annulment were brought against the decision to open the formal investigation procedure.
8
Those actions for annulment were dismissed by the General Court in its judgments of 23 October 2002, Diputación Foral de Guipúzcoa and Others v Commission (T‑269/99, T‑271/99 and T‑272/99, EU:T:2002:258), and of 23 October 2002, Diputación Foral de Álava and Others v Commission (T‑346/99 to T‑348/99, EU:T:2002:259).
9
On 11 July 2001, the Commission closed the formal phase of the investigation by six decisions, in which it found, first, that the tax schemes at issue constituted unlawful State aid because they had been implemented in breach of the obligation of prior notification to the Commission laid down in Article 108(3) TFEU and, second, that they were incompatible with the internal market.
10
As regards the tax credit for businesses amounting to 45% of investments adopted by the Province of Álava, the Commission found that tax regime to be incompatible with the internal market in Article 1 of Decision 2002/820/EC of 11 July 2001 on the State aid scheme implemented by Spain for firms in Álava in the form of a tax credit amounting to 45% of investments (OJ 2002 L 296, p. 1, ‘the 2001 decision’).
11
In Article 2 of the 2001 decision, the Commission requested the Kingdom of Spain to abolish the tax credit amounting to 45% of investments adopted by the Province of Álava, since it is continuing to produce effects.
12
In Article 3(1), second subparagraph, of the 2001 decision, the Commission ordered the Kingdom of Spain to cancel all payments of outstanding aid.
13
Finally, in Article 3(1), first subparagraph, and paragraph 2 of the 2001 decision, the Commission ordered the Kingdom of Spain to recover from the recipients the individual aid granted under that scheme at issue in the following terms:
‘1.   Spain shall take all necessary measures to recover from the recipients the aid referred to in Article 1 which has been unlawfully made available to them.
…
2.   Recovery shall be effected without delay and in accordance with the procedures of national law provided that they allow the immediate and effective execution of this Decision. …’
14
Ordering the recovery of the aid granted under the scheme declared incompatible, the Commission explained, in recital 98 of the 2001 decision:
‘This decision relates to the scheme and should be implemented immediately, including the recovery of any individual aid granted under that scheme. The Commission would also point out that, as usual, this Decision is without prejudice to whether individual aid may be regarded, in full or in part, as compatible with the common market on its own merits, either in a subsequent Commission decision or under exempting regulations.’
The actions for annulment brought against the 2001 decision
15
On 25 September, 22 October and 21 December 2001, actions for annulment were brought against the six decisions adopted by the Commission on 11 July 2001.
16
On 9 September 2009, the General Court confirmed the lawfulness of the six decisions of the Commission of 11 July 2001 in its judgments Diputación Foral de Álava and Others v Commission (T‑227/01 to T‑229/01, T‑265/01, T‑266/01 and T‑270/01, EU:T:2009:315) and Diputación Foral de Álava and Others v Commission (T‑230/01 to T‑232/01 and T‑267/01 to T‑269/01, not published, EU:T:2009:316).
17
The first judgment cited in paragraph 16 above concerns the Commission’s three decisions of 11 July 2001, and declares that the tax credit for businesses amounting to 45% of investments adopted by the Provinces of Álava, Vizcaya and Guipúzcoa is incompatible.
18
The second judgment cited in paragraph 16 above concerns the Commission’s three decisions of 11 July 2001 relating to the degressive four-year reduction of the tax base for new businesses adopted by the Provinces of Álava, Vizcaya and Guipúzcoa.
19
On 26 November 2009, appeals were brought against the two judgments cited in paragraph 16 above.
20
On 28 July 2011, the Court dismissed the appeals which had been brought against those two judgments in its judgments of Diputación Foral de Vizcaya and Others v Commission (C‑471/09 P to C‑473/09 P, not published, EU:C:2011:521) and Diputación Foral de Vizcaya and Others v Commission (C‑474/09 P to C‑476/09 P, not published, EU:C:2011:522).
Review of the implementation of the 2001 decision
21
On 12 October 2001, the Commission sought information from the Kingdom of Spain about the measures taken by the latter in order to comply with its decisions of 11 July 2001.
22
Not satisfied by the answers provided, on 19 November 2003 the Commission brought an action for failure to fulfil obligations under Article 108(2) TFEU.
23
On 14 December 2006, the Court held that the Kingdom of Spain had failed to fulfil its obligations by failing to adopt the measures necessary to comply with the Commission’s decisions of 11 July 2001 within the period prescribed (judgment of 14 December 2006, Commission v Spain, C‑485/03 to C‑490/03, EU:C:2006:777).
24
Following the judgment cited in paragraph 23 above, the Spanish authorities recovered part of the aid from the recipients. They took the view that the other part did not have to be recovered on the ground that it was compatible with the internal market, the application of the rules relating to de minimis aid and taking account of retroactive tax deductions.
25
Taking the view that, by acting in that manner, the Kingdom of Spain had failed to fully implement its decisions of 11 July 2001, on 18 April 2011 the Commission brought a second action for failure to fulfil obligations before the Court under Article 260(2) TFEU.
26
On 30 October 2013, during the infringement proceedings, the Commission informed the Court that it considered that the aid had been recovered in full on 15 October 2013. Therefore, it was unnecessary to order the Kingdom of Spain to make a penalty payment, but only to require it to pay a lump sum (judgment of 13 May 2014, Commission v Spain, C‑184/11, EU:C:2014:316, paragraphs 16 and 17).
27
In its judgment of 13 May 2014, Commission v Spain (C‑184/11, EU:C:2014:316), the Court held that the Kingdom of Spain had failed to fulfil its obligations under Article 260(1) TFEU. It ordered the Kingdom of Spain to pay a lump sum of EUR 30 million as a penalty for the period of non-implementation.
The applicant’s situation
28
The applicant, Guardian Glass España, Central Vidriera, SLU, is an undertaking established in Llodio (Spain) in the Province of Álava.
29
The applicant was authorised to apply the tax credit for businesses amounting to 45% of investments during the financial years 1994 to 1996, as part of a project worth EUR 45 664 899.69 for the construction of a kiln for float glass and the related facilities.
30
On 22 October 2007, the Dirección General de Hacienda de la Diputación Foral de Álava (Directorate-General for Taxation of the Provincial Authority of Álava, Spain) informed the applicant of its Resolución 1943/2007 de 19 octubre, sobre ejecución de la Decisión de la Comisión C(2001) 1759 final, de 11 de julio de 2001, relativa al régimen de ayudas estatales ejecutado por España a favor de las empresas de Álava en forma de crédito fiscal del 45% de la inversiones, en relación con la entidad Guardian Llodio, SLU, como continundora de Guardian Llodio, SA, con NIF: B-01.000.702 (Decision 1943/2007, relating to the implementation of the 2001 decision with respect to the applicant, ‘decision 1943/2007’). In that decision, it ordered the applicant to repay part of the tax credits granted, stating that the other part was to be regarded as investment aid compatible with the internal market, in accordance with the Guidelines on national regional aid (OJ 1998 C 74, p. 9, ‘the 1998 Guidelines’).
31
On 21 November 2007, the applicant brought an administrative action against Decision 1943/2007 before the Organismo Jurídico-Administrativo de Álava (Álava tax authority), then a legal action before the Tribunal Superior de Justicia del País Vasco (High Court of Justice, Basque Country) and, finally, an appeal before the Tribunal Supremo (Supreme Court, Spain).
32
On 7 February 2012, the Directorate-General for Taxation of the Provincial Authority of Álava notified the applicant of a second decision, namely Resolución 324/2012, de 2 de febrero, sobre ejecución complmentaria de la Decisión de la Comisión C(2001) 1759 final, de 11 de julio de 2001, relative al régimen de ayudas estatales ejecutado por España a favor de las empresas de Álava en forma de crédito fiscal del 45% de las inversiones, en relación con la entidad Guardian Llodio, SLU, como continuadora de Guardian Llodio, SA, con NIF: B-01.000.702 (Decision 324/2012 on the additional measures to comply with the 2001 decision with regard to the applicant, ‘Decision 324/2012’). By that decision it requested the applicant to repay the part of the tax credit which had been held to be compatible with the internal market in Decision 1943/2007 and, therefore, the repayment in full of the aid received.
33
The applicant also brought an action against Decision 324/2012 before the Spanish courts which upheld it in part.
34
On 25 May 2012, the Spanish authorities provided the Commission with bank references certifying the repayment of the aid received by the applicant.
35
On 14 July 2014, the Diputación Foral de Álava (the Provincial Authority of Álava, Spain) filed a defence before the Spanish courts in the action brought against Decision 324/2012. It stated therein that the definitive investigation of the applicant’s situation was still ongoing, ‘therefore the Commission, which is responsible for ruling on the compatibility of an aid, [had] not yet determined whether the investment made [could] be regarded as fulfilling the criterion of an incentive effect required by the [1998] Guidelines so that the investments made benefit from the deduction by way of regional aid’.
36
On 16 January 2015, the applicant contacted the Commission requesting to be kept informed of any contact between the latter and the Spanish authorities concerning the aid it had received. In that letter, it stated that it considered it had the right to access the file, the right to be heard and the right to present its defence.
37
By letter of 9 February 2015, the Commission Directorate-General for Competition (‘DG Competition’) replied to the applicant, setting out the bilateral nature of the procedure for the recovery of State aid between the Commission and the Spanish authorities, which thus prevents aid recipients directly contacting the Commission staff.
38
By letter of 16 March 2015, the applicant expressed its disagreement with the Commission.
39
As a result of an action brought against Decision 324/2012, the Tribunal Superior de Justicia del País Vasco (High Court of Justice of the Basque Country) held that the applicant’s right of defence had been infringed, because it had not been heard before the adoption of that decision. Therefore, the applicant was invited to appear before the Provincial Authority of Álava.
40
On 19 February 2016, at the second hearing, the administration gave the applicant a document dated 15 July 2015 entitled ‘Tax disputes in the Basque Country (Álava) — Informal communication regarding additional submissions in connection to compatibility with the [1998 Guidelines]’.
The contested measure
41
The contested measure is not signed, does not mention its authors and does not contain the Commission letter head. It is accompanied by an email indicating that it was sent to the Permanent Representation of the Kingdom of Spain to the European Union by an official of Commission DG Competition.
42
The contested measure contains two sections: a general section, and a section setting out the individual situation of each undertaking concerned.
43
The first section of the contested measure states as follows:
–
the Basque authorities have provided Commission staff with additional information concerning the allegations made by the recipients of the aid regarding the compatibility of the tax credit scheme of 45% with the 1998 Guidelines;
–
although the recovery was completed in October 2013, DG Competition re-examined the files at the request of the authorities of Álava province;
–
Commission staff exceptionally allowed the Spanish authorities to establish the compatibility of the amount to be deducted from the sums to be recovered under the incompatible scheme not only with regard to schemes already authorised according to the usual practice, but also with regard to the 1998 Guidelines;
–
there was no sufficient evidence for any of the files examined to establish that there was an incentive effect on investment or, in other words, to establish that the aid was requested before beginning the actual implementation of the projects, as required by paragraph 4.2 of the 1998 Guidelines.
44
The second section of the contested measure contains an assessment of the applicant’s claims based on the information provided, the examination of the claims of other recipients having been blanked out.
45
According to the contested act, it cannot be established that the applicant’s investments were made after it filed its aid application.
46
The author of the contested act states that, on the basis of the information available to it, the applicant submitted its aid application on 17 February 1995 and that, in that application, it indicated the estimated cost of its investment project for the period from 1994 to 1996. It states that, by decision of 8 April 1995, the authorities of the Province of Álava granted aid not only for the planned investments for the period from 1995 to 1996, but also for the costs incurred by the undertaking before its aid application was lodged (between 1994 and 1995).
47
The contested act indicated that those costs include the cost of ‘preparatory or feasibility studies’ and the cost of the purchase of computer equipment and other goods prior to the aid application. The author of that measure states that the applicant offered to exclude the costs relating to the second category on the ground that they were not related to the investment project and therefore did not bring into question the incentive effect.
48
The author of the contested measure also made reference to the Guidelines on national regional aid for 2007-2013 (OJ 2006 C 54, p. 13, ‘the 2006 Guidelines’). It states that evidence had been requested in order to determine whether the applicant was a small or medium sized enterprise (SME) as, in a previous recovery case involving another recipient of the same scheme, claims of compatibility relating to the cost of feasibility studies were accepted as the conditions laid down by paragraph 51 of those guidelines had been met.
49
In the contested measure it is stated that paragraph 51 of the 2006 Guidelines allow the cost of preparatory studies to be met where the recipient is an SME. The contested measure stated that the applicant could not be regarded as an SME from 1994 to 1996. The author of the contested measure concludes that ‘the investments were made before the date on which the aid was requested’ and that ‘those investments were not only intended for preparatory studies’.
Procedure and forms of order sought
50
By application lodged at the Court Registry on 19 April 2016, the applicant brought the present action.
51
On 20 July 2016, the Kingdom of Spain lodged an application for leave to intervene in support of the form of order sought by the Commission.
52
By separate document lodged at the Court Registry on 22 July 2016, the Commission raised an objection of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.
53
The applicant submitted observations on the plea of admissibility that it lodged at the Registry of the General Court on 6 September 2016.
54
By a first measure of organisation of procedure, based on Article 89(3) of the Rules of Procedure, by letter of 24 November 2016, the General Court requested the Commission to produce a full copy of the contested measure in its original version and the correspondence exchanged with the Spanish authorities concerning the aid granted to the applicant. The Commission complied with that request within the period prescribed.
55
By a second measure of organisation of procedure, by letter of 8 March 2017, the General Court requested the Commission to answer written questions. The Commission complied with that request within the period prescribed. Following the receipt of the Commission’s answers, the applicant was invited to submit written observations. It complied to that request within the period prescribed.
56
In its application, the applicant claims that the Court should:
–
uphold the pleas for annulment and, therefore, annul the contested measure;
–
on that ground, order the opening of the formal investigation procedure under Article 108(2) TFEU;
–
order the Commission to pay the costs.
57
In its objection of inadmissibility, the Commission contends that the Court should:
–
declare the action inadmissible;
–
order the applicant to pay the costs.
58
In their observations on the plea of inadmissibility, the applicant claims that the Court should dismiss it.
Law
59
Under Article 130(1) and (7) of the Rules of Procedure, the General Court may rule on inadmissibility or lack of competence, if the defendant so requests, without making a decision on the substance of the case.
60
In the present case, since the Commission has requested the Court to give a ruling on inadmissibility, the General Court considers it has sufficient information from the documents before it and decides to give a ruling without taking further steps in the proceedings.
The plea of inadmissibility
61
In support of the plea of inadmissibility, the Commission submits, first, that the contested measure is not open to challenge by an action for annulment. Second, it argues essentially that the applicant lacks the required legal standing and the requisite interest to bring an action for annulment.
62
As to whether the contested measure is open to challenge, the Commission submits principally, that the contested measure is not in the nature of a decision. In the alternative, it argues that if the General Court finds the contested measure to be a decision, that that decision merely confirms the 2001 decision, which has become definitive. Being simply confirmatory, the contested measure could not be open to challenge by an action for annulment.
63
In order to take a position on whether the contested measure is open to challenge, the arguments exchanged between the parties in that regard must be examined. Those arguments concern, respectively, the alleged binding legal effects of the contested measure, the form of the contested measure, the alleged notification to the Commission of the aid granted to the applicant and the legal effects attached to it by the Spanish authorities.
The legal effects produced by the contested measure
64
The Commission submits that the contested measure does not produce binding legal effects since it is part of an informal exchange between it and the Kingdom of Spain in order to resolve the difficulties posed by the implementation of the 2001 decision.
65
According to the Commission, the contested measure contains a position adopted by it in the context of the implementation of a negative decision on State aid. Such a position does not appear among the measures which may be adopted on the basis of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 TFEU (OJ 2015 L 248, p. 9) and is devoid of any binding effect in accordance with the case-law laid down in the judgment of 13 February 2014, Mediaset (C‑69/13, EU:C:2014:71).
66
The applicant observes that the content of the contested measure indicates, to the contrary, that, at the Kingdom of Spain’s request, the Commission sets out a definitive assessment of the compatibility of the aid. For that purpose, the Commission examined the information provided by the Spanish authorities which it did not have when it adopted the 2001 decision. Therefore, the contested measure cannot be regarded as a mere confirmation or automatic application of that decision.
67
In that connection, it must be recalled that only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position are acts or decisions which may be the subject of an action for annulment for the purposes of Article 263 TFEU (see, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 12 September 2006Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 54; and of 6 December 2007, Commission v Ferriere Nord, C‑516/06 P, EU:C:2007:763, paragraph 27).
68
In order to determine whether a measure produces such effect, the substance of that measure must be examined (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 22 June 2000, Netherlands v Commission, C‑147/96, EU:C:2000:335, paragraph 27; and of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 46).
69
In the present case, it must be observed that, in the 2001 decision, the Commission examined the general characteristics of the tax credit for undertakings amounting to 45% of investments, adopted by the Province of Álava, found it to be incompatible with that tax scheme and ordered the recovery of the credit granted on the basis of that tax scheme without examining the individual cases in which they had been granted.
70
That practice is derived from the case-law according to which, when the Commission is faced with an aid scheme it is not required to examine the aid granted in individual cases on the basis of that scheme (see, to that effect, judgment of 9 June 2011, Comitato Venezia vuole vivere and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 63 and the case-law cited). In the case of an aid scheme, the Commission may confine itself to examining the general characteristics of the scheme in question without being required to examine each particular case in which it applies.
71
Furthermore, where the Commission rules in a general and abstract way on a scheme of State aid, which it declares incompatible with the internal market, and orders recovery of the amounts received under that scheme, it is for the Member State to verify the individual situation of each undertaking concerned by a recovery operation (judgment of 9 June 2011, Comitato Venezia vuole vivere and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraph 64).
72
If a Member State encounters unforeseen or unforeseeable difficulties in executing the recovery decision it must notify the Commission (see, to that effect, judgment of 12 December 2013, Commission v Italy, C‑411/12, not published, EU:C:2013:832, paragraph 38).
73
Where they initiate such a discussion aiming to ensure the implementation of a Commission decision on State aid, the Commission and the Member State concerned must work together in good faith, in accordance with their duty of loyal cooperation, to overcome those difficulties in full compliance with the provisions of the FEU Treaty and, in particular, with those on State aid (judgment of 12 December 2013, Commission v Italy, C‑411/12, not published, EU:C:2013:832, paragraph 38).
74
Furthermore, according to settled case-law, the Commission’s letters to the national authorities in the context of the implementation of a Commission decision declaring an aid scheme unlawful and incompatible with the internal market and ordering the recovery of the aid concerned, but which does not identify the individual recipients of that aid and does not determine the specific amounts to be recovered, are devoid of any binding scope (see, to that effect, judgment of 13 February 2014, Mediaset, C‑69/13, EU:C:2014:71, paragraph 24).
75
In such a context, the Commission merely expresses its opinion as to whether that implementation is acceptable from the point of view of the European Union of the measure proposed by the Member State with regard to the difficulties faced by the latter (see, to that effect, judgment of 31 May 2006, Kuwait Petroleum (Nederland) v Commission, T‑354/99, EU:T:2006:137, paragraph 69).
76
Therefore, in the present case it must be determined whether the purpose of the exchanges between the Kingdom of Spain and the Commission, as appears in the contested measure, is, as the Commission submits, part of the implementation of the 2001 decision, to implement the elements contained in the latter.
77
In that connection, it must held that in the contested measure, the alleged incentive effect of the aid paid to the applicant is challenged.
78
In the contested measure, it is stated that, in order to be authorised, aid must have an incentive effect. According to the author of the contested measure, that condition requires that requests for aid submitted by the recipients must be made prior to the implementation of their project. As regards the aid paid to the applicant, it is noted that, according to the information available, it does not appear to have had an incentive effect because the applicant applied for it on 17 February 1995 to cover costs prior to that date. Those costs amounting to EUR 1161778 covered two categories of costs: costs related to preparatory or feasibility studies and costs related to the purchase of computer equipment and other goods.
79
In response to the information provided by the Spanish authorities, the contested measure also states that, pursuant to the 2006 Guidelines, the costs of preparatory studies may be subject to a grant where the recipient of the aid is an SME . It states that the applicant cannot benefit from that provision because at the material time it did not have the requisite number of persons on its staff to be regarded as an SME and because its annual turnover exceeded the ceiling fixed to be regarded as an SME.
80
It must be held that the various developments which have just been described are part of the exchanges between the Commission and the Spanish authorities in order to ensure the implementation of the 2001 decision. In that decision, the Commission considered that the scheme examined could be classified as investment aid in accordance with the definition given by Annex I of the 1998 Guidelines. Furthermore, it stated that, in accordance with those Guidelines, the amounts paid to the recipients had to have an incentive effect in order to be declared compatible with the internal market.
81
In accordance with the case-law set out in paragraph 71 above, in the circumstances of the present case, it was for the Kingdom of Spain to verify the extent to which the condition relating to the incentive effect of the aid has been fulfilled with regard to the specific undertakings having benefited from the tax credit for undertakings amounting to 45% of investments adopted by the Province of Álava. In that context, as stated in paragraph 72 above, that Member State should have asked the Commission in the case of unforeseen and unforeseeable difficulties concerning the manner of implementing the decision adopted by the latter in particular cases.
82
That is what happened in the present case. At the stage of recovery of the aid concerned, the Spanish authorities examined whether the conditions related to the incentive effect of that aid had been satisfied as far as concerns the aid paid to the applicant. In that context, they asked the Commission about the manner in which the condition set out in the 2001 decision was to be interpreted. It is to answer that question, by providing them with information about the interpretation to give to the requirement of incentive effect, that the author of the contested measure drafted that measure and sent it to the Spanish authorities.
83
Thus, as in the judgment of 13 February 2014, Mediaset (C‑69/13, EU:C:2014:71), and contrary to the arguments set out in the applicant’s submissions, the contested measure is a letter from the Commission sent to the national authorities in the course of exchanges made to ensure the immediate and effective implementation of a Commission decision on State aid and cannot, on that basis, be considered to produce binding legal effects of such a nature as to affect the applicant’s interests by bringing about a distinct change in his legal position.
The nature of the contested measure
84
The Commission submits that, in view of its form, the contested measure cannot be regarded as a measure in the nature of a decision. It is an informal response by certain Commission officials to a simple request for information made by the Spanish authorities.
85
In that connection, it must be observed that, according to settled case-law, the form in which an act or decision is adopted is in principle irrelevant to the right to challenge such acts or decisions by way of an action for annulment (judgment of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 47).
86
Thus, it prevents the form or designation given to an act by its author from resulting in its escaping assessment of its legality in an action for annulment, even though it in fact has legal effects (judgment of 4 March 2015, United Kingdom v ECB, T‑496/11, EU:T:2015:133, paragraph 30).
87
However, the form of an act may be taken into account where this may help to identify its nature (see, to that effect, judgment of 26 May 1982, Germany and Bundesnstalt für Arbeit v Commission, 44/81, EU:C:1982:197, paragraph 12, and order of 12 February 2010, Commission v CdT, T‑456/07, EU:T:2010:39, paragraph 58).
88
In that connection, it must be observed that, in the present case, the contested measure is in the form of an undated letter. Furthermore, that letter is not signed. It does not have the Commission’s header.
89
From those elements it is clear that the contested measure is an informal document which is not set out in the form generally used by an institution to adopt a measure producing or intended to produce legal effects.
90
The same observation may be made on the basis of the title given to the contested measure by its author, that is ‘Informal communication’.
91
The same observation can also be made on the basis of the various terms used in the contested act, in particular the expressions ‘it does not appear …’, ‘prima facie’, and ‘based on the information provided’. Such expressions show that, by that message, the official who drafted it did not wish to change the legal position of the undertaking concerned but, in response to a request from the authorities of the Province of Álava, sought to provide information on the application of the 2001 decision in case submitted to those authorities.
92
Therefore, the absence of binding legal effects produced by the contested measure, which derive from its substance, is confirmed by the form in which it was adopted.
The alleged notification of the aid by the Spanish authorities
93
The Commission submits that, in the absence of notification of aid by a Member State there can be no decision by it as to the compatibility of that aid with the internal market. It states that the Spanish authorities should have notified the aid granted to the applicant to it so that it could adopt a decision in that regard, but they failed to do so. They merely informed the Commission of the request made by the applicant seeking an informal ‘re-examination’ of its arguments on the compatibility of the tax credit received.
94
The applicant submits that the Spanish authorities believed they had received a formal decision from the Commission on the compatibility of the aid they paid to it. To that end, those authorities sent the Commission information that the latter regarded as sufficient, the evidence being that it replied to the request of the Spanish authorities. Therefore, the applicant claims that it is established that the aid was notified.
95
Under Article 2(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1), in force at the material time, any plans to grant new aid is to be notified to the Commission in sufficient time by the Member State concerned.
96
According to Article 2(2) of Regulation No 659/1999, the Member State concerned is to provide all necessary information in its notification in order to enable the Commission to take a decision.
97
The purpose of the obligation to notify is to provide the Commission with the opportunity to review, in sufficient time and in the general interest of the Union, any plans to grant or alter aid (order of 5 November 2003, Kronoply v Commission, T‑130/02, EU:T:2003:293, paragraph 49).
98
In order to determine whether the aid granted to the applicant was notified to the Commission, the content of the correspondence exchanged between the Spanish authorities and the Commission up until the moment the contested measure was adopted must be examined.
99
From the correspondence concerned, it appears that the Spanish authorities and the Commission continued their exchanges during the second set of infringement proceedings, referring to the situation of certain recipients, including that of the applicant.
100
In a letter of 23 May 2013, the Permanent Representation of the Kingdom of Spain to the European Union sent two documents dated 2011 to the Secretariat-General of the Commission drawn up by the applicant concerning the incentive effect of the aid received by the latter.
101
On 28 May 2013, in response to that letter, the author of the contested measure sent by email to the Permanent Representation of the Kingdom of Spain to the European Union a document entitled ‘Tax disputes in the Basque Country — Infringement proceedings 2007/2215 (Álava). Informal message in response to the email of 23 May concerning Guardian Llodio (Álava)’.
102
The first part of the document mentioned in paragraph 101 above is a preliminary version of the contested measure. The second part of that document contains questions seeking further information in order to evaluate the applicant’s claims about the incentive effect of the aid it received.
103
By letters dated 31 July and 24 October 2013, sent to the Secretariat-General of the Commission, the Permanent Representation of the Kingdom of Spain to the European Union provided further information.
104
In that that context, as stated in paragraphs 26 and 27 of the present order, the Commission informed the Court of Justice, which was hearing the second infringement action, that, in its view, the Kingdom of Spain had fulfilled its obligation to recover the aid and the Court ordered the Kingdom of Spain to pay a lump sum of EUR 30 million for the period of non-compliance (judgment of 13 May 2014, Commission v Spain, C‑184/11, EU:C:2014:316).
105
By letters of 10 June 2014 and 11 February 2015, the Spanish authorities provided information to the Secretariat-General of the Commission about the amounts recovered from the recipients and about the actions brought by the recipients before the Spanish courts against recovery orders.
106
On 3 June 2015, the authorities of the Province of Álava sent the author of the contested measure an email which elicited a response by the latter in the form of the contested measure.
107
In that email, the authorities of the Province of Álava sent a list of undertakings which were parties in the disputes pending before the Spanish courts. In those disputes a response to the issue of the incentive effect of the aid granted to those undertakings was expected by those authorities. The applicant appears among the undertakings mentioned.
108
In the light of those exchanges, it cannot be held that the Kingdom of Spain notified the aid granted to the applicant, which would oblige the Commission to take a view on the compatibility of that aid
109
It is not stated anywhere that the Spanish authorities intended to notify the aid granted to the applicant.
110
Furthermore, the contested measure does not contain any explicit reference to Article 108(3) TFEU which is the legal basis for the notification requirement.
111
However, it follows from the words used in the correspondence exchanged and, specifically, in the email from the Provincial Authorities of Álava of 3 June 2015, that, by their requests, those authorities seek information from the Commission in order to answer, in the submissions they were required to lodge before the Spanish courts, the questions arising for certain recipients who challenged the recovery orders.
112
In those circumstances, the email sent by the Provincial Authorities of Álava cannot be regarded as containing a notification of aid paid to the applicant, notification which would have required the Commission to adopt a decision under Regulation No 659/1999.
The binding effect supposedly recognised by the Spanish authorities
113
The applicant submits that the contested measure has the nature of a decision because the Spanish authorities treated it as binding before the Spanish courts. It claims that those authorities declared themselves without jurisdiction to take a final decision on the applicant’s situation explaining, in a document lodged on 14 July 2014, that ‘the assessment of compatibility is the sole responsibility of the Commission’.
114
In that connection, it must be recalled that, according to settled case-law, the existence of binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position must be established by looking at their substance (see, to that effect, judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9; of 22 June 2000, Netherlands v Commission, C‑147/96, EU:C:2000:335, paragraph 27; and of 18 November 2010, NDSHT v Commission, C‑322/09 P, EU:C:2010:701, paragraph 46).
115
The existence of such effects cannot be based on other elements, in particular on the perception that its recipients might have. By nature such perception has a subjective nature. The conditions for a successful action cannot depend of elements which may vary according to the authorities, the undertakings or individuals.
116
If that were not the case, acts would avoid the review of legality if they are not perceived as binding by one or more addressees even though their substance indicated that they did in fact produce binding legal effects. Conversely, acts would be subject to a review of legality on the basis of the perception of their addressees where they do not produce any binding legal effects and where such a review is not therefore necessary or even useful.
117
Therefore, the perception of the Spanish authorities of the legal effects produced by the contested measure, even assuming it to be established, cannot serve to determine the admissibility of the action against the contested measure.
118
In light of all the foregoing considerations, it must be held that the contested measure was adopted in the context of the implementation of the 2001 decision and it does not correspond to a notification by the Spanish authorities capable of leading to the opening of separate proceedings under the rules on State aid.
119
Since it does not and is not intended to produce binding legal effects capable of affecting the applicant by bringing about a distinct change in his legal position, the contested measure cannot constitute a measure open to challenge for the purposes of Article 263 TFEU. Therefore, the objection of inadmissibility must be upheld and, thus, the present action must be dismissed on the ground of inadmissibility.
The claim that the Court should issue directions
120
In accordance with Article 142(2) of the Rules of Procedure, there is no longer any need to adjudicate the case on the request by the Kingdom of Spain for leave to intervene since the action is inadmissible.
Costs
121
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.
122
Since the applicant has been unsuccessful, it must, in accordance with the forms of order sought by the Commission, be ordered to pay, in addition to its own costs, the costs incurred by the latter.
123
Furthermore, pursuant to Article 144(10) of the Rules of Procedure, the Kingdom of Spain must bear its own costs relating to the application to intervene.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1.
The action is dismissed as inadmissible.
2.
There is no longer any need to adjudicate on the application for leave to intervene lodged by the Kingdom of Spain.
3.
Guardian Glass España, Central Vidriera, SLU is to bear its own costs and to pay those incurred by the European Commission.
4.
The Kingdom of Spain is to bear its own costs relating to the application for leave to intervene.
Luxembourg, 11 October 2017.
E. Coulon
Registrar
I. Pelikánová
President
(
*1
)	Language of the case: Spanish.