Judgment of the General Court (First Chamber) of 17 September 2019 –

Italy and Eurallumina v Commission

(Joined Cases T‑119/07 and T‑207/07)

(State aid — Directive 2003/96/EC — Excise duties on mineral oils — Mineral oils used as fuel for alumina production — Exemption from excise duty — Selective nature — Guidelines on regional State aid — Community guidelines on State aid for environmental protection of 2001 — Legitimate expectations — Presumption of legality attaching to measures of the institutions — Principle of sound administration — Obligation to state reasons — Contradictory reasoning)

1. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Plea not based on matters which have come to light in the course of the procedure — Amplification of an existing plea — No amplification — Inadmissibility (Statute of the Court of Justice, Arts 21, first para. and 53, first para.; Rules of Procedure of the General Court (1991), Arts 44(1)(c) and 48(2)) (see paras 56-58, 142-144)

2. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Abstract statement — Inadmissibility (Statute of the Court of Justice, Arts 21, first para. and 53, first para.; Rules of Procedure of the General Court (1991), Arts 44(1)(c) and 48(2)) (see paras 61-63)

3. State aid — Meaning — Selective nature of the measure — Derogation from the general tax system — Justification derived from the nature and general scheme of the system — Burden of proof (Art. 87(1) EC) (see paras 70-74, 154-156)

4. State aid — Respective powers of the Council and the Commission — Council decision authorising a Member State to introduce an exemption from excise duty — No effect on the distribution of those powers by the Treaty (Arts 87 and 88 EC; Council Directive 2003/96, Art. 18(1) and Annex II) (see paras 77, 78, 117, 147)

5. State aid — Prohibition — Exceptions — Aid which may be considered compatible with the common market — Aid for regional development — Criteria — Existence of a particular regional handicap — Obligation to establish the need for regional development aid (Art. 87(3)(a) EC; Commission notice 98/C 74/06, points 4.15 to 4.17) (see paras 86, 87)

6. State aid — Prohibition — Exceptions — Aid which may be considered compatible with the common market — Aid for protection of the environment — Community guidelines on State aid for environmental protection — Aid in the form of an exemption from a tax — Criteria for assessment (Art. 87(3) EC; Commission notice 2001/C 37/03) (see paras 93-95, 98-104)

7. State aid — Recovery of unlawful aid — Aid granted in breach of the procedural rules under Article 88 EC — Legitimate expectations entertained by the recipients — Protection — Conditions and limits — Exceptional circumstances — None (Arts 87(1) and 88 EC; Council Directive 2003/96) (see paras 111-122)

8. State aid — Prohibition — Exceptions — Discretion of the Commission — Commission Decision making authorisation for the payment of aid subject to prior repayment by the undertaking concerned of unlawful aid previously received — Condition laid down in order to prevent an accumulation of aid from adversely affecting trading conditions to an extent contrary to the common interest — Decision within the power of the Commission (Art. 88(2) EC) (see paras 130-134)

9. State aid — Commission decision — Assessment of the legality by reference to the information available at the time of adoption of the decision (Art. 88(2) EC) (see para. 157)

10. EU law — Principles — Equal treatment — Need to comply with the principle of legality — Impossible to rely on an unlawful act committed in favour of a third party (see para. 158)

11. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision falling within a context known to the person concerned, enabling him to understand the scope of the measure taken against him — Whether summary statement of reasons sufficient (Art. 253 EC) (see paras 169, 170)

Re:

Applications pursuant to Article 263 TFEU for annulment, in whole or in part, of Commission Decision 2007/375/EC of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia implemented by France, Ireland and Italy respectively (C 78/2001 (ex NN 22/01), C 79/2001 (ex NN 23/01), C 80/2001 (ex NN 26/01)) (OJ 2007 L 147, p. 29), in so far as it finds that State aid was granted by the Italian Republic, from 1 January 2004, on the basis of the exemption from excise duty on mineral oils used as fuel for alumina production in Sardinia (Italy), and in so far as it orders the Italian Republic to recover the aid or to cancel or suspend its payment.

Operative part

The Court:

1. Dismisses the actions;

2. Orders the Italian Republic to pay the costs in Case T‑119/07;