Judgment of the General Court (Fifth Chamber) of 27 September 2012 — Wam Industriale v Commission

(Case T-303/10)

‛State aid — Undertaking with subsidiaries in certain non-member countries — Reduced rate loans — Decision declaring aid in part incompatible with the common market and ordering it to be repaid — Decision taken following the annulment by the General Court of the initial decision concerning the same procedure — Execution of a judgment of the General Court — Duty to state reasons — Principle of sound administration — Duty to exercise diligence — Duty of care’

1. State aid — Commission decision finding aid to be incompatible with the common market — Characterising of the adverse effect on competition and of the affecting of trade between Member States — Duty to state reasons — Scope (Arts 107(1) TFEU and 296 TFEU) (see paras 23-24, 49, 53)

2. State aid — Effect on trade between Member States — Adverse effect on competition — Decision concerning aid intended to finance expenses of commercial penetration in non-member countries — Criteria for assessment (Art. 107(1) TFEU) (see paras 25-27, 52)

3. Proceedings — Time limit for producing evidence — Article 48(1) of the Rules of Procedure of the General Court — Scope — Documents obtained following a request for access to the file held by the national authorities — No justification for lateness where request not made in time (Rules of Procedure of the General Court, Arts 48(1) and 66(2)) (see paras 69-70)

4. State aid — Commission decision finding aid to be incompatible with the common market — Duty to state reasons — Scope — No obligation to justify a change of assessment in relation to earlier decisions (Arts 107 TFEU, 108 TFEU and 296 TFEU) (see paras 88, 124)

5. State aid — Planned aid — Duty of prior notification and provisional suspension of the implementation of the aid — Scope (Art. 108(3) TFEU) (see para. 99)

6. State aid — Existing aid and new aid — No investigation for a relatively long period of a new unnotified aid — Transformation into an existing aid — Exclusion (Art. 108(3) TFEU) (see para. 101)

7. State aid — Existing aid and new aid — Classification as existing aid — Criteria — General aid scheme approved by the Commission — Need for an express decision (Council Regulation No 659/1999, Art. 1(b)(ii)) (see para. 104)

8. State aid — Examination by the Commission — Duty of diligence of the Member State granting the aid and of its recipient as regards notification of all relevant matters — No observations by the persons concerned — No effect on the validity of the Commission’s decision — Obligation to examine matters not expressly invoked by the Commission’s own motion — None (Arts 107(3)(c) TFEU and 108(2) TFEU) (see paras 118-120)

9. State aid — Categories of aid, defined by regulation, capable of being regarded as compatible with the common market — Exemption regulations by category — Aid of minor importance — Regulation No 1998/2006 — Scope — Aid in favour of export activities — Meaning (Art. 107(1) TFEU; Commission Regulations No 70/2001, Art. 1(2)(b), No 1998/2006, Art. 1(1)(d) and No 800/2008, Art. 1(2)(a)) (see paras 126-131)

10. State aid — Effect on trade between Member States — Aid of minor importance — Parcelling of aid exceeding the applicable ceiling in order to benefit from the de minimis rule as to part — Not permissible (Arts 107(1) TFEU and 108(3) TFEU) (see paras 141-144)

11. State aid — Recovery of unlawful aid — Restoration of the prior situation — Calculation of the amount of aid to be recovered — Loan granted at a preferential rate — Refund of the difference between the interest payable at the market rate and that actually paid — Assessment of the market rate having regard to interest rates charged at the time the loan was approved (Art. 108 TFEU; Council Regulation No 659/1999, Art. 14(1)) (see paras 157-159)

12. State aid — Recovery of unlawful aid — Aid granted in breach of the procedural rules of Article 108 TFEU — Principle of the protection of legitimate expectations — Invocation of the principle by a Member State to hinder recovery — Not permissible — Legitimate expectations entertained by the recipients — Admissibility in exceptional circumstances (Art. 108 TFEU) (see para. 169)

13. Actions for annulment — Judgment annulling a measure — Scope — Commission decision finding aid incompatible with the common market and ordering its recovery — Annulment for insufficient statement of reasons — Adoption of a new measure on the basis of valid earlier measures of inquiry — Lawfulness (Art. 108 TFEU) (see paras 180-182)

14. State aid — Examination by the Commission — Principle of sound administration — Duty to act within a reasonable time — Assessment of actual situation — Damage for the recipient linked to interest to be paid on recovery — None (Art. 108 TFEU) (see paras 192, 203)

Re:

APPLICATION for annulment of Commission Decision 2011/134/EU of 24 March 2010 concerning State aid C 4/03 (ex NN 102/02) implemented by Italy for Wam SpA (OJ 2011 L 57, p. 29).

Operative part

The Court:

1. Dismisses the action;

2. Orders Wam Industriale SpA to pay the costs.

Judgment of the General Court (Fifth Chamber) of 27 September 2012 — Wam Industriale v Commission

(Case T-303/10)

‛State aid — Undertaking with subsidiaries in certain non-member countries — Reduced rate loans — Decision declaring aid in part incompatible with the common market and ordering it to be repaid — Decision taken following the annulment by the General Court of the initial decision concerning the same procedure — Execution of a judgment of the General Court — Duty to state reasons — Principle of sound administration — Duty to exercise diligence — Duty of care’

1. State aid — Commission decision finding aid to be incompatible with the common market — Characterising of the adverse effect on competition and of the affecting of trade between Member States — Duty to state reasons — Scope (Arts 107(1) TFEU and 296 TFEU) (see paras 23-24, 49, 53)

2. State aid — Effect on trade between Member States — Adverse effect on competition — Decision concerning aid intended to finance expenses of commercial penetration in non-member countries — Criteria for assessment (Art. 107(1) TFEU) (see paras 25-27, 52)

3. Proceedings — Time limit for producing evidence — Article 48(1) of the Rules of Procedure of the General Court — Scope — Documents obtained following a request for access to the file held by the national authorities — No justification for lateness where request not made in time (Rules of Procedure of the General Court, Arts 48(1) and 66(2)) (see paras 69-70)

4. State aid — Commission decision finding aid to be incompatible with the common market — Duty to state reasons — Scope — No obligation to justify a change of assessment in relation to earlier decisions (Arts 107 TFEU, 108 TFEU and 296 TFEU) (see paras 88, 124)

5. State aid — Planned aid — Duty of prior notification and provisional suspension of the implementation of the aid — Scope (Art. 108(3) TFEU) (see para. 99)

6. State aid — Existing aid and new aid — No investigation for a relatively long period of a new unnotified aid — Transformation into an existing aid — Exclusion (Art. 108(3) TFEU) (see para. 101)

7. State aid — Existing aid and new aid — Classification as existing aid — Criteria — General aid scheme approved by the Commission — Need for an express decision (Council Regulation No 659/1999, Art. 1(b)(ii)) (see para. 104)

8. State aid — Examination by the Commission — Duty of diligence of the Member State granting the aid and of its recipient as regards notification of all relevant matters — No observations by the persons concerned — No effect on the validity of the Commission’s decision — Obligation to examine matters not expressly invoked by the Commission’s own motion — None (Arts 107(3)(c) TFEU and 108(2) TFEU) (see paras 118-120)

9. State aid — Categories of aid, defined by regulation, capable of being regarded as compatible with the common market — Exemption regulations by category — Aid of minor importance — Regulation No 1998/2006 — Scope — Aid in favour of export activities — Meaning (Art. 107(1) TFEU; Commission Regulations No 70/2001, Art. 1(2)(b), No 1998/2006, Art. 1(1)(d) and No 800/2008, Art. 1(2)(a)) (see paras 126-131)

10. State aid — Effect on trade between Member States — Aid of minor importance — Parcelling of aid exceeding the applicable ceiling in order to benefit from the de minimis rule as to part — Not permissible (Arts 107(1) TFEU and 108(3) TFEU) (see paras 141-144)

11. State aid — Recovery of unlawful aid — Restoration of the prior situation — Calculation of the amount of aid to be recovered — Loan granted at a preferential rate — Refund of the difference between the interest payable at the market rate and that actually paid — Assessment of the market rate having regard to interest rates charged at the time the loan was approved (Art. 108 TFEU; Council Regulation No 659/1999, Art. 14(1)) (see paras 157-159)

12. State aid — Recovery of unlawful aid — Aid granted in breach of the procedural rules of Article 108 TFEU — Principle of the protection of legitimate expectations — Invocation of the principle by a Member State to hinder recovery — Not permissible — Legitimate expectations entertained by the recipients — Admissibility in exceptional circumstances (Art. 108 TFEU) (see para. 169)

13. Actions for annulment — Judgment annulling a measure — Scope — Commission decision finding aid incompatible with the common market and ordering its recovery — Annulment for insufficient statement of reasons — Adoption of a new measure on the basis of valid earlier measures of inquiry — Lawfulness (Art. 108 TFEU) (see paras 180-182)

14. State aid — Examination by the Commission — Principle of sound administration — Duty to act within a reasonable time — Assessment of actual situation — Damage for the recipient linked to interest to be paid on recovery — None (Art. 108 TFEU) (see paras 192, 203)

Re:

APPLICATION for annulment of Commission Decision 2011/134/EU of 24 March 2010 concerning State aid C 4/03 (ex NN 102/02) implemented by Italy for Wam SpA (OJ 2011 L 57, p. 29).

Operative part

The Court:

1. Dismisses the action;