ORDER OF THE COURT (Seventh Chamber)

7 December 2017 ( )

(Appeal — State aid — Article 181 of the Rules of Procedure of the Court of Justice — Intervention — Cross-appeal — Admissibility — Exemption from excise duty on mineral oils used as fuel for alumina production — Principle of presumption of the legality and of the effet utile of acts of the institutions — Principle lex specialis derogat legi generali — Selective nature of the measure — Existing or new aid — Regulation (EC) No 659/1999 — Article 1(b)(ii) — Principle of legal certainty — Principle of the protection of legitimate expectations — Duty to state reasons)

In Case C‑323/16 P

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 8 June 2016,

Eurallumina SpA, established in Portoscuso (Italy), represented by L. Martin Alegi, L. Philippou and A. Stratakis, Solicitors,

applicant,

supported by:

French Republic, represented by D. Colas and R. Coesme, acting as Agents,

intervener in the appeal,

the other parties to the proceedings being:

Italian Republic, represented by G. Palmieri, acting as Agent, assisted by P. Grasso, avvocato dello Stato, with an address for service in Luxembourg,

applicant at first instance,

European Commission, represented by V. Bottka and N. Khan, acting as Agents,

defendant at first instance,

THE COURT (Seventh Chamber),

composed of A. Rosas, President of the Chamber, A. Prechal and E. Jarašiūnas (Rapporteur), Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 By its appeal, Eurallumina SpA, and by its cross-appeal, the Italian Republic seek to have set aside the judgment of the General Court of the European Union of 22 April 2016, Italy and Eurallumina v Commission (T‑60/06 RENV II and T‑62/06 RENV II, ‘the judgment under appeal’, EU:T:2016:233), by which the General Court dismissed their action for annulment of Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy (OJ 2006 L 119, p. 12; ‘the decision at issue’).

Legal context

2 Excise duties on mineral oils have been the subject of a number of directives, namely, Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12), Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils (OJ 1992 L 316, p. 19), and Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51), which repealed Directives 92/81 and 92/82 with effect from 31 December 2003.

3 Article 8(4) of Directive 92/81 provided:

‘The Council, acting unanimously on a proposal from the Commission, may authorize any Member State to introduce further exemptions or reductions for specific policy considerations.

A Member State wishing to introduce such a measure shall accordingly inform the Commission and shall also provide the Commission with all relevant or necessary information. The Commission shall inform the other Member States of the proposed measure within one month.

The Council shall be deemed to have authorized the exemption or reduction proposed if within two months of the other Member States’ being informed, as laid down in the second subparagraph, neither the Commission nor any Member State has requested that the matter be considered by the Council.’

4 Under Article 8(5) of that directive:

‘If the Commission considers that the exemptions or reductions provided for in paragraph 4 are no longer sustainable, particularly in terms of fair competition or distortion of the operation of the internal market, or Community policy in the area of protection of the environment, it shall submit appropriate proposals to the Council. The Council shall take a unanimous decision on these proposals.’

5 Article 6 of Directive 92/82 fixed the minimum rate of excise duty on heavy fuel oil, as from 1 January 1993, at EUR 13 per 1 000 kg.

6 The second indent of Article 2(4)(b) of Directive 2003/96 provided that that directive did not apply to dual use of energy products, that is to say, where products are used both as heating fuel and for purposes other than as motor fuel and heating fuel. The use of energy products for chemical reduction and in electrolytic and metallurgical products is to be regarded as dual use. Thus, since 1 January 2004 there is no longer a minimum rate of excise duty on heavy fuel oil used in alumina production. Moreover, under Article 18(1) of Directive 2003/96, the Member States were authorised to continue to apply, until 31 December 2006, the reduced rates or exemptions set out in Annex II to that directive, which refers to the excise duty exemptions for heavy fuel oil used as fuel for the production of alumina in the region of Gardanne, in the Shannon region and in Sardinia.

Background to the dispute

7 The Italian Republic has exempted from excise duty mineral oils used for the production of alumina in Sardinia since 1993.

8 That exemption (‘the exemption at issue’) was authorised until 31 December 1994 by Council Decision 93/697/EC of 13 December 1993 authorising certain Member States to apply or to continue to apply to certain mineral oils, when used for specific purposes, reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure provided for in Article 8(4) of Directive 92/81 (OJ 1993 L 321, p. 29). That authorisation was extended several times thereafter by the Council and ultimately, by means of Council Decision 2001/224/EC of 12 March 2001 concerning reduced rates of excise duty and exemptions from such duty on certain mineral oils when used for specific purposes (OJ 2001 L 84, p. 23), extended until 31 December 2006.

9 Recital 5 in the preamble to Decision 2001/224 stated that that decision was without prejudice ‘to the outcome of any procedures relating to distortions of the operation of the single market that may be undertaken, in particular under Articles [87 and 88 EC]’, and that it did not override ‘the requirement for Member States to notify instances of potential State aid to the Commission under Article [88 EC]’.

10 By Decision of 30 October 2001, the Commission initiated the procedure laid down in Article 88(2) EC (‘the formal investigation procedure’) in relation to the exemption at issue. That decision was notified to the Italian Republic by letter of 5 November 2001 and was published on 2 February 2002 in the Official Journal of the European Communities (OJ 2002 C 30, p. 17). By two other decisions delivered on the same day, the Commission initiated that procedure with regard to the same exemptions granted by Ireland in the Shannon region and by the French Republic in the Gardanne region (together with the exemption at issue, ‘the exemptions at issue’). On completion of that procedure, the Commission adopted the decision at issue, according to which:

– the exemptions at issue granted until 31 December 2003 constitute State aid for the purposes of Article 87(1) EC;

– aid granted between 17 July 1990 and 2 February 2002, to the extent that it is incompatible with the common market, is not to be recovered as this would be contrary to the general principles of Community law;

– the aid granted between 3 February 2002 and 31 December 2003 is incompatible with the common market within the meaning of Article 87(3) EC in so far as the beneficiaries did not pay a rate of EUR 13.01 per 1 000 kg of heavy fuel oils; and

– the latter aid must be recovered.

11 In the decision at issue, the Commission found that the exemptions at issue constituted new aid and not existing aid within the meaning of Article 1(b) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1). It based that assessment on the fact, in particular, that the exemptions at issue did not exist before the entry into force of the EC Treaty in the Member States concerned, that they had never been analysed or authorised on the basis of the State aid rules and that they had never been notified.

12 After setting out how the aid in question was incompatible with the common market, the Commission took the view that, having regard to the Council decisions authorising the exemptions at issue (‘the authorisation decisions’) and in the light of the fact that those decisions had been adopted on proposals by the Commission, the recovery of incompatible aid granted before 2 February 2002, the date of publication in the Official Journal of the European Communities of the decisions to initiate the formal investigation procedure, would be contrary to the principles of protection of legitimate expectations and legal certainty.

The proceedings prior to the appeal and the judgment under appeal

13 By applications lodged at the Registry of the General Court on 16 and 23 February 2006, the Italian Republic and Eurallumina brought actions for annulment of the decision at issue.

14 By judgment of 12 December 2007, Ireland and Others v Commission, T‑50/06, T‑56/06, T‑60/06, T‑62/06 and T‑69/06, not published, EU:T:2007:383, the General Court annulled the decision at issue. By judgment of 2 December 2009, Commission v Ireland and Others (C‑89/08 P, EU:C:2009:742), the Court of Justice set aside that judgment in so far as it annulled the decision at issue on the ground that, in that decision, the Commission failed to fulfil its obligation to state reasons with regard to the non-application, in the present case, of Article 1(b)(v) of Regulation No 659/1999.

15 When the cases were referred back before it, the General Court, by judgment of 21 March 2012, Ireland and Others v Commission (T‑50/06 RENV, T‑56/06 RENV, T‑60/06 RENV, T‑62/06 RENV and T‑69/06 RENV, EU:T:2012:134), annulled the decision at issue in so far as it finds, or is based on the finding, that the exemptions from excise duty on mineral oils used as fuel for alumina production granted by Ireland, the French Republic and the Italian Republic up to 31 December 2003 constitute State aid within the meaning of Article 87(1) EC and in so far as it orders those Member States to take all measures necessary to recover those exemptions from the beneficiaries to the extent to which the latter did not pay excise duty at the rate of at least EUR 13.01 per 1 000 kg of heavy fuel oil.

16 That second judgment of the General Court was set aside by judgment of the Court of Justice of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812) which referred the cases back before the General Court.

17 Following that judgment, Cases T‑60/06 RENV II and T‑62/06 RENV II having been joined for the purposes of the oral procedure and the judgment, the General Court, by the judgment under appeal, dismissed the actions, ordered the Italian Republic to pay the costs in Cases T‑60/06, T‑60/06 RENV I and T‑60/06 RENV II, and to bear its own costs, and to pay one fifth of the costs incurred by the Commission in Cases C‑89/08 P and C‑272/12 P, and ordered Eurallumina to bear its own costs and to pay three quarters of the costs incurred by the Commission in Cases T‑62/06, T‑62/06 RENV I and T‑62/06 RENV II and three twentieths of the costs incurred by the Commission in Cases C‑89/08 P and C‑272/12 P. The Commission was ordered to bear one quarter of its own costs in Cases T‑62/06, T‑62/06 RENV I and T‑62/06 RENV II, and one fifth of its own costs in Cases C‑89/08 P and C‑272/12 P.

Procedure before the Court of Justice and the forms of order sought

18 By order of the President of the Court of Justice of 28 September 2016, the French Republic was granted leave to intervene in support of the form of order sought by Eurallumina.

19 By its appeal, Eurallumina asks the Court of Justice to set aside the judgment under appeal, to annul the decision at issue in so far as it orders the Italian Republic to recover the aid in question, or failing that to refer the case back before the General Court, and to order the Commission to pay the costs.

20 The French Republic seeks the same form of order.

21 In its reply and by its cross-appeal, the Italian Republic asks the Court of Justice to vary or set aside the judgment under appeal and to annul the decision at issue in so far as that decision finds that State aid was granted by the Italian Republic between 3 February 2002 and 31 December 2003, and orders the recovery of the aid in question. In the alternative, it asks that the case be referred back before the General Court. It is also claiming that the Commission should be ordered to pay the costs.

22 The Commission contends that the main appeal and the cross-appeal should be dismissed and that Eurallumina and the Italian Republic should be ordered to pay the costs. It also asks that the French Republic be ordered to pay the costs of the intervention.

The appeals

23 Under Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss the appeal in whole or in part.

24 That provision must be applied in the present case.

The pleas of inadmissibility raised by the Commission against the cross-appeal in its entirety

25 Arguing that the cross-appeal is inadmissible in its entirety, the Commission submits, in the first place, that the Italian Republic cannot be regarded as a party to the relevant case before the General Court for the purposes of Article 172 of the Rules of Procedure. Eurallumina and the Italian Republic raised before the General Court, in support of their respective actions, different pleas in law and, despite the joining of the two cases for the purposes of the oral procedure and the judgment, they are separate cases. Consequently, the Italian Republic’s cross-appeal is inadmissible in that it relates to findings in the judgment under appeal other than those relating to the pleas in law raised before the General Court by Eurallumina.

26 However, it must be observed that the Court of Justice has already held that, since a party must be able to challenge all the grounds for a judgment adversely affecting it, where the General Court has joined two cases and given a single judgment which answers all the pleas submitted by the parties to the proceedings before that Court, each of those parties may criticise the reasoning concerning pleas which, before the General Court, were raised only by the applicant in the other joined case, provided that that reasoning adversely affects it (see, to that effect, judgments of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 34, and of 14 October 2014, Buono and Others v Commission, C‑12/13 P and C‑13/13 P, EU:C:2014:2284 paragraph 52 and case-law cited).

27 In the present case, it appears from the judgment under appeal, in particular paragraphs 32, 33 and 51 to 57, that both Eurallumina and the Italian Republic challenged the decision at issue before the General Court in so far as that decision establishes the existence of State aid and orders its recovery, relying on pleas in law and arguments that are partly different and partly similar. Since the General Court rejected all of those pleas in law and arguments in order to dismiss the actions, it is all of the reasoning that led to that dismissal which adversely affects the Italian Republic.

28 It follows therefore that cases joined by the General Court for the purposes of the oral procedure and the judgment cannot be regarded as separate cases and that the Italian Republic is entitled to challenge all of the considerations of the judgment under appeal in so far as they adversely affect it, including those answering the pleas raised before the General Court solely by Eurallumina.

29 In the second place, the Commission submits that it follows from Article 178(3) of the Rules of Procedure that the grounds of appeal raised in support of the cross-appeal must be different from those put forward in the main appeal. The Italian Republic raises grounds of appeal some of which are identical to those of the main appeal, so that, in its opinion, they should have been submitted, not in the cross-appeal, but in the response.

30 In that regard, it must be recalled that, in accordance with Articles 172 and 174 of the Rules of Procedure, parties to the relevant case before the General Court having an interest in the appeal being allowed or dismissed may submit a response which seeks to have the appeal allowed or dismissed, in whole or in part. Those parties may also, by virtue of Articles 176 and Article178(1) and (3) of those rules submit a cross-appeal which must be introduced by a document, separate from the response, which seeks to have set aside, in whole or in part, the decision of the General Court by relying on grounds of appeal and arguments that are separate from those relied on in the response.

31 In the present case, by its cross-appeal, the Italian Republic seeks to have set aside the judgment under appeal by relying on grounds of appeal that are partly distinct and independent from those relied on in the main appeal. By virtue of the rules recalled in the preceding paragraph, such a request and such grounds of appeal could not be submitted in its response (see, to that effect, judgment of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 20) and therefore it did bring the cross-appeal in compliance with those rules. In those circumstances, it cannot be blamed for having set out in the separate document all of the grounds of appeal put forward in support of its application to have the judgment under appeal set aside, including the ground which was also submitted in its response and those which could have been submitted in that response, instead of dividing its grounds between that separate document and the response, at the risk of harming the consistency of its reasoning.

32 In the third place, the Commission argues that the cross-appeal is also inadmissible, in the light of Article 169(2) of the Rules of Procedure, in that the Italian Republic almost invariably omitted to specify the paragraphs of the judgment under appeal which it intends to challenge.

33 It must be recalled in that respect that Article 178(3) of the Rules of Procedure requires that the grounds of appeal and legal arguments relied on in support of the cross-appeal must identify precisely those paragraphs in the grounds of the decision of the General Court which are contested. In the present case, since the omission which the Commission complains of does not concern all the grounds of appeal put forward in support of the cross-appeal, it could affect only the admissibility of some grounds and not the admissibility of the cross-appeal as a whole.

34 It follows that the pleas of inadmissibility raised by the Commission against the cross-appeal in its entirety must be rejected

35 It is therefore necessary to examine the various grounds of the cross-appeal. The first, second and third grounds, and then the eighth, ninth and tenth grounds of the cross-appeal will be examined before the fourth to seventh grounds of that cross-appeal which, since they are similar to the various parts of the ground of the main appeal, will be examined with them.

The first ground of the cross-appeal

Arguments of the parties

36 By its first ground, the Italian Republic claims that the judgment under appeal is flawed in its entirety in that the General Court rejected the pleas in law alleging infringement of the principles of protection of legitimate expectations, legal certainty and the presumption of the legality of acts of the EU institutions. In view of the authorisation decisions, Eurallumina and the Italian Republic had legitimate expectations in the legality, including with regard to the rules on State aid, of the exemption at issue and presumed that those decisions were entirely lawful. The General Court was wrong in considering that the publication of the decision to initiate the formal investigation procedure had brought to an end those legitimate expectations for the reasons set out in support of the other grounds of the cross-appeal.

37 The Commission contests that ground of appeal.

Findings of the Court

38 It should be noted that the Italian Republic, in its first ground of the cross appeal, makes general observations on the infringement of the principles of protection of legitimate expectations and legal certainty allegedly vitiating the judgment under appeal, without specifying the paragraphs in the grounds of that judgment which it challenges. In so far as that ground can be understood, not as a mere introduction, but as an independent ground, it is therefore inadmissible pursuant to Article 178(3) of the Rules of Procedure. However, inasmuch as the Italian Republic refers, in relation to the scope of the publication of the decision to initiate the formal investigation procedure, to its arguments advanced below in support of its other grounds, those arguments will be answered during the examination of those grounds.

The second ground of the cross-appeal

Arguments of the parties

39 By its second ground, concerning the infringement of the principles of legal certainty and the presumption of the legality and of the effet utile of acts of the EU institutions, the Italian Republic complains that, by relying almost exclusively on the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), the General Court merely stated that the decision by which the Commission declared the exemption at issue to be unlawful derives expressly from the role which the treaty attributes to it concerning State aid. Such an approach is restrictive and therefore wrong, since the Commission also has exclusive competence, as provided for in Article 17(2) TEU, to propose legislation, competence which, in the present case, it exercised by proposing Directives 92/81 and 2003/96 authorising the exemptions at issue. The General Court provides no explanation on the balance which has to be sought in the exercise of the Commission’s powers, on the limits which may be imposed by the principles of legal certainty and the presumption of the legality and of the effet utile of acts of the EU institutions, and on the consequences which may arise from a lack of coordination, and therefore consistency, in the exercise of those powers. The judgment under appeal fails to provide adequate reasons on that point.

40 The Commission contests that ground of appeal.

Findings of the Court

41 Although the Italian Republic refers only to paragraphs 62 to 64 of the judgment under appeal, it is clear that its second ground of appeal seeks to challenge the reasons set out in paragraphs 62 to 75 of that judgment.

42 It must be noted, as was done in paragraphs 70 and 187 of the judgment under appeal, that, where the Court of Justice sets aside a decision of the General Court and refers the case back before the General Court for judgment, the latter is bound, under the second paragraph of Article 61 of the Statute of the Court Justice of the European Union, by the points of law decided by the Court of Justice.

43 In the present case, in paragraphs 45 to 53 of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), the Court of Justice, as was stated in paragraphs 65 to 69 of the judgment under appeal, referred to the respective powers of the Council and Commission in the area of harmonisation of legislation relating to excise duties, on the one hand, and in the area of State aid, on the other, finding, inter alia, that the procedure laid down in Article 8(4) of Directive 92/81 had a purpose and scope which differed from those of the rules established in Article 88 EC. It therefore held that a Council decision authorising a Member State, in accordance with Article 8(4) of that directive, to introduce an exemption of excise duties could not have the effect of preventing the Commission from exercising the powers conferred on it by the Treaty and, consequently, setting in motion the procedure laid down in Article 88 EC in order to review whether that exemption constituted State aid and on the conclusion of that procedure, if appropriate, to adopt a decision such as the contested decision. The Court of Justice also held that respect for that division of powers prompted recital 5 of Decision 2001/224, which was in force in the period for which the contested decision orders the recovery of aid, to state that Decision 2001/224 was to be without prejudice to the outcome of any procedures that might be undertaken under Articles 87 EC and 88 EC and that it did not override ‘the requirement for Member States to notify instances of potential State aid to the Commission’.

44 In paragraph 52 of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), the Court of Justice stated that, it is true that the authorisation decisions had been adopted on a proposal from the Commission, that the Commission had never used the powers available to it to seek amendment or abolition of the authorisation decisions, annulment of those decisions or a declaration to the effect that Directive 92/81 was invalid, and that it was clear, in that regard, from the decision at issue that the Commission had taken the view, when the Council adopted the authorisation decisions, that those decisions did not give rise to a distortion of competition and did not impede the proper functioning of the internal market. However, in paragraph 53 of that judgment, the Court observed that the concept of ‘State aid’ corresponds to an objective situation and cannot depend on the conduct or statements of the institutions, and that consequently the fact that the authorisation decisions had been adopted on a proposal from the Commission could not preclude those exemptions from being classified as ‘State aid’, within the meaning of Article 87(1) EC, if the conditions governing the existence of State aid were met. It held that that fact, however, had to be taken into consideration in relation to the obligation to recover the incompatible aid, in the light of the principles of protection of legitimate expectations and legal certainty, as was done by the Commission in the contested decision when it declined to order the recovery of aid granted before the date of publication in the Official Journal of the European Communities of the decisions to initiate the formal investigation procedure.

45 Next, the Court held, in paragraph 54 of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), that the reasons given by the General Court in the judgment of 21 March 2012, Ireland and Others v Commission (T‑50/06 RENV, T‑56/06 RENV, T‑60/06 RENV, T‑62/06 RENV and T‑69/06 RENV, EU:T:2012:134), for annulling the decision at issue could not provide a legal basis for the General Court’s conclusion that that decision called into question the validity of the authorisation decisions and was in breach of the principles of legal certainty and the presumption of legality attaching to EU measures, as was the case with the conclusion that the Commission had infringed the principle of sound administration.

46 It must be observed that, as is apparent from paragraph 39 of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), the General Court in the judgment of 21 March 2012, Ireland and Others v Commission (T‑50/06 RENV, T‑56/06 RENV, T‑60/06 RENV, T‑62/06 RENV and T‑69/06 RENV, EU:T:2012:134), held inter alia that, in the light of the fact that the rules governing the harmonisation of national fiscal legislation and the rules on State aid have a shared objective, namely to promote the proper functioning of the internal market, by combating, inter alia, ‘distortions of competition’, the concept of distortion of competition had to be regarded as having the same scope and the same meaning in both those areas, in order to ensure the consistent implementation of those rules. The General Court had stated, in that regard, that Article 8(4) and (5) of Directive 92/81 conferred in particular on the Commission, which submits a proposal, and the Council, which enacts a measure, the responsibility for assessing whether there is any distortion of competition, in order to decide whether or not to authorise a Member State to apply or continue to apply an exemption from the harmonised excise duty and that, if the assessments differ, the Commission had the option of bringing an action for annulment of the Council’s decision.

47 The General Court, in the judgment of 21 March 2012, Ireland and Others v Commission (T‑50/06 RENV, T‑56/06 RENV, T‑60/06 RENV, T‑62/06 RENV and T‑69/06 RENV, EU:T:2012:134), had also found, as is apparent from paragraphs 41 and 42 of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), that recital 5 of Decision 2001/224 could not be construed as a manifestation of the Council’s intention to make the effects of its authorisation conditional on compliance with any subsequent procedures and decisions of the Commission in the area of State aid and that the Commission’s interpretation of that recital would result, in the circumstances of the case, in an inconsistent implementation of the rules governing the harmonisation of fiscal legislation and the rules on State aid, since, inter alia, the authorisation decisions, adopted unanimously on a proposal from the Commission, were based on those two institutions’ shared assessment that the exemptions at issue did not give rise to a distortion of competition and did not impede the proper functioning of the internal market.

48 Since those grounds of the judgment of 21 March 2012, Ireland and Others v Commission (T‑50/06 RENV, T‑56/06 RENV, T‑60/06 RENV, T‑62/06 RENV and T‑69/06 RENV, EU:T:2012:134), were criticised by the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), the General Court, giving due effect to that judgment, held, first in paragraphs 71 and 72 of the judgment under appeal, that in setting in motion the formal investigation procedure, and in adopting, on the conclusion of that procedure, the decision at issue, the Commission was merely exercising powers conferred on it by the treaty in the area of State aid, without encroaching upon the competences vested in the Council by that treaty in the area of the harmonisation of legislation relating to excise duties and without infringing the authorisation decisions adopted by the Council in the exercise of those powers, and secondly, in paragraph 73 of that judgment, that the fact that the Commission had taken the view, at the time when the authorisation decisions were adopted, that the exemptions at issue did not give rise to a distortion of competition and did not impede the proper functioning of the internal market could not preclude those exemptions from being classified as ‘State aid’, if the conditions governing the existence of State aid were met.

49 In doing so, the General Court gave its ruling in accordance with the provisions of the second paragraph of Article 61 of the Statute of the Court Justice of the European Union, and has given sufficient reasons for its rejection of the complaint alleging infringement of the principles of legal certainty and the presumption of the legality and of the effet utile of acts of the institutions.

50 It follows that the second ground of the cross-appeal must be rejected as manifestly unfounded.

The third ground of the cross-appeal

Arguments of the parties

51 By its third ground of appeal, relating to the infringement of the principle of the protection of legitimate expectations and to the unlawfulness of the order for recovery of the aid in question, the Italian Republic, in essence, criticises the General Court for having dismissed its application by relying on a definition of the concept of ‘State aid’ which must correspond to an objective situation and cannot depend on the conduct or statements of the institutions, thereby wrongly precluding the subjective aspect of the conduct of the institutions from having any effect in determining whether the safeguards attached to the principle of legal certainty, including that of compliance with the principle of the protection of legitimate expectations, were observed. The facts show that the Commission failed to fulfil its obligations in that respect, and the judgment under appeal contains no statement of reasons on that point.

52 The Commission contests that ground of appeal.

Findings of the Court

53 The Italian Republic does not identify the paragraphs in the grounds of the judgment under appeal which the third ground of the cross-appeal seeks to challenge. Since that ground alleges infringement of the principle of the protection of legitimate expectations and the unlawfulness of the order for recovery of the aid, it does not appear to refer to paragraph 73 of the judgment under appeal in which the General Court, in its examination of the complaint alleging infringement of the principles of legal certainty and the presumption of the legality and of the effet utile of acts of the institutions, referring to paragraphs 52 and 53 of the judgment of 10 December 2013, Commission v Ireland and Others, (C‑272/12 P, EU:C:2013:812), observed that the concept of ‘State aid’ corresponds to an objective situation. If that were the case, that ground would have to be dismissed for the reasons set out in paragraphs 42 to 49 above. Thus, given that the shortcomings of the cross-appeal in the light of Article 178(3) of the rules of procedure cannot be resolved, it is necessary to dismiss the third ground of that appeal as manifestly inadmissible.

The eighth ground of the cross-appeal

Arguments of the parties

54 By its eighth ground of appeal, alleging the incompatibility of the judgment under appeal with the principle lex specialis derogat legi generali and a failure to state reasons, the Italian Republic criticises the judgment under appeal for not explaining in paragraphs 83 and 84 the reasons why the measures provided for in Article 113 TFEU, which also seek to avoid distortions of competition, could not be regarded as measures of a special nature compared with the measures of a more general nature provided for in Articles 107 et seq. TFEU, merely stating that the institutions referred to in Articles 108 and 113 TFEU have different functions.

55 The Commission contests that ground of appeal.

Findings of the Court

56 Contrary to what the Italian Republic maintains, the General Court, in paragraphs 83 and 84 of the judgment under appeal, sufficiently set out the reasons why it rejected the complaint alleging infringement of the principle lex specialis derogat legi generali. After observing that the Court of Justice, in paragraphs 45 to 48 of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), had established a clear distinction between the respective powers of the Council and the Commission in the area of harmonisation of legislation relating to excise duties, on the one hand, and in the area of State aid, on the other, and had ruled that the procedure laid down in Article 8(4) of Directive 92/81 had a purpose and scope which differed from those of the rules established in Article 88 EC, the General Court therefore concluded that the rules in the area of harmonisation of fiscal legislation, in particular Article 93 EC and its implementing measures, and the rules in the area of State aid, including Articles 87 and 88 EC, are two autonomous bodies of rules and that the first cannot be regarded as lex specialis in relation to the second.

57 Since that conclusion is consistent with the points of law decided by the Court of Justice in the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), the eighth ground of the cross-appeal is manifestly unfounded.

The ninth ground of the cross-appeal

Arguments of the parties

58 By its ninth ground of appeal, the Italian Republic claims that the General Court, in paragraph 101 of the judgment under appeal, erred in law by attributing a selective character to the exemption at issue, without specifying in what competitive context the exemption at issue took effect and placed Eurallumina’s competitors at a disadvantage. In view of the specific features of the alumina market in Europe, the General Court should have specified the type of investors which were discouraged from investing outside the territory of Sardinia and the other producers or other productions competing with Eurallumina which could have been put at a competitive disadvantage. The reasons given in the judgment under appeal contain no appraisal of the actual selective nature of the exemption at issue.

59 The Commission contests that ground of appeal.

Findings of the Court

60 Contrary to the idea underlying the Italian Republic’s ninth ground of appeal, the appraisal of the condition relating to the selectivity of an advantage does not require the undertakings, the type of undertaking or the productions which were actually disadvantaged by the national measure at issue to be identified. As the General Court rightly recalled in paragraph 98 of the judgment under appeal, it is clear from settled case-law that the appraisal of that condition requires assessment of whether, under a particular legal regime, a national measure is such as to favour ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued by that regime, are in a comparable factual and legal situation (judgments of 15 November 2011, Commission and Spain v Government of Gibraltar and United Kingdom, C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraph 75; of 21 December 2016, Commission v Hansestadt Lübeck, C‑524/14 P, EU:C:2016:971, paragraph 41; and of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 54).

61 In the present instance, in order to reject the Italian Republic’s argument that the Commission had erred in law in the decision at issue in finding that the exemption at issue was selective when the fact that only Eurallumina’s Sardinian plant had benefited from that exemption was a purely factual situation, tied in with the specific nature of alumina production, the General Court cited, in paragraph 100 of the judgment under appeal, recitals 63 and 64 of the decision at issue from which it is clear that the Commission considered, first, that the exemption at issue was regionally selective, because the authorisation decisions authorised that exemption only in a region and potential investors wishing to make investments in alumina production in other regions could not be sure to receive similar treatment, and secondly, that, since EU law then obliges Member States, in principle, to impose excise duties on mineral oils, a specific exemption limited to a given production and a given region could not be regarded as being justified by the nature and general scheme of the system.

62 In paragraph 101 of the judgment under appeal, the General Court stated that, contrary to what the Italian Republic claimed, it followed from those considerations that the Commission had relied, in its analysis of the selectivity of the exemption at issue, not on the fact that that exemption had, in practice, benefited only a single alumina producer situated in Sardinia, namely Eurallumina, but on the dual fact that, in the reference framework corresponding to the Italian tax system, that exemption appeared to be a selective measure on the regional level, in so far as it favoured every alumina producer situated in Sardinia over potential investors wishing to make investments in alumina production in other Italian regions, and a selective measure from a substantive perspective, in that it favoured companies producing alumina and alumina production over companies producing other goods or services and other productions.

63 The General Court thus responded to the argument put forward without erring in law. On the basis of the content of that argument, the General Court, in order to respond to it, did not have to look any further into the selective nature of the exemption at issue and, in particular, to determine more precisely the undertakings or productions which were in a factual and legal situation comparable to that of Eurallumina.

64 In view of all the foregoing, the ninth ground of the cross-appeal must be rejected as being manifestly unfounded.

The tenth ground of the cross-appeal

Arguments of the parties

65 The Italian Republic, in support of its tenth ground of appeal, claims that the conclusion which the General Court reached concerning the classification of the exemption at issue as ‘existing aid’ is erroneous. The General Court merely stated that the aid could not be regarded as existing aid, referring to paragraph 49 of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), whereas qualifying aid as ‘existing aid’ within the meaning of Article 1(b)(ii) of Regulation No 659/1999 does not mean that the Commission does not have the right to exercise its powers in the area of State aid. The judgment under appeal is vitiated by a failure to state reasons in that respect. In addition, in order for aid to be classified as ‘existing’, Regulation No 659/1999 requires that the authorisation be granted by the Commission or by the Council. The argument that the Council’s decisions do not have the effect of authorising State aid is irrelevant. What is at issue in the present case is an authorised tax measure which could perhaps be classified as ‘State aid’.

66 The Commission contests that ground of appeal.

Findings of the Court

67 It is clear that, by its second ground of appeal, the Italian Republic takes issue with the reasons set out in paragraphs 106 to 112 of the judgment under appeal. That ground of appeal, in essence, reiterates the plea submitted by that Member State before the General Court seeking a ruling that the Commission committed an error, in the decision at issue, in assessing the lawfulness of the exemption at issue in the light of the rules applicable to new aid, even though it was existing aid within the meaning of Article 1(b)(ii) of Regulation No 659/1999, since it had been authorised by the authorisation decisions. As the General Court found in paragraph 109 of that judgment, that plea fails to take account of the points of law decided by the Court of Justice in the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812).

68 In paragraph 47 of that judgment, the Court of Justice, as has already been observed above, stated that the purpose and scope of the procedure laid down in Article 8(4) of Directive 92/81 differed from those of the rules established in Article 88 EC. It recalled in paragraph 48 of that judgment that the intention of the treaty, in providing through Article 88 EC for aid to be kept under constant review and supervised by the Commission, is that the finding that an aid may be incompatible with the common market is to be determined, subject to review by the General Court and the Court of Justice, by means of an appropriate procedure which it is the Commission’s responsibility to set in motion, that Articles 87 and 88 EC thus reserve a central role for the Commission in determining whether aid is incompatible and that the power conferred upon the Council in the area of State aid by the third subparagraph of Article 88(2) EC is exceptional in character, which means that it must necessarily be interpreted strictly. Consequently, the Court of Justice held in paragraph 49 of that judgment that a Council decision authorising a Member State, in accordance with Article 8(4) of Directive 92/81, to introduce an exemption of excise duties could not have the effect of preventing the Commission from exercising the powers conferred on it by the Treaty and, consequently, setting in motion the procedure laid down in Article 88 EC in order to review whether that exemption constituted State aid, and on the conclusion of that procedure, if appropriate, to adopt a decision such as the contested decision.

69 In the light of those reasons in the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), the General rightly considered, in paragraphs 110 and 111 of the judgment under appeal, that it was clear that the authorisation decisions adopted on the basis of Article 8(4) of Directive 92/81 could in no way be analysed as authorisation decisions for an aid scheme or for individual aid within the meaning of Article 1(b)(ii) of Regulation No 659/1999, and therefore did not permit, in the present case, the exemption at issue to be classified as ‘existing aid’ within the meaning of that provision. By responding in that way to the argument put forward, the General Court gave a sufficient statement of its reasons.

70 Consequently, it is necessary to dismiss the tenth ground of the cross-appeal as manifestly unfounded.

The first part of the ground of the main appeal and the fourth ground of the cross-appeal

Arguments of the parties

71 By the first part of the ground of the main appeal and the fourth ground of the cross-appeal, Eurallumina, supported by the French Republic, and the Italian Republic claim that the General Court erred in law in its interpretation of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), when, in paragraphs 189 and 190 of the judgment under appeal, it considered itself bound to find that the legitimate expectations which they could have had in the lawfulness of the exemption at issue had been brought to an end on publication of the decision to initiate the formal investigation procedure on 2 February 2002, whereas the Court of Justice did not rule on either the legitimate expectations or the extent in time of those expectations.

72 The Commission contests that complaint.

Findings of the Court

73 The Italian Republic, in its cross-appeal, does not mention the paragraphs in the grounds of the judgment under appeal which it is challenging, but refers to paragraphs 52 to 54 of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), the content of which is taken up in paragraph 187 of the judgment under appeal, from which it may easily be inferred that it challenges the reasoning for that paragraph, set out in paragraphs 185 to 190 of the judgment under appeal.

74 As to the substance, it must be recalled that, as was pointed out in paragraphs 44 and 48 above, the Court of Justice, in paragraph 53 of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), held that the fact that the authorisation decisions had been adopted on a proposal from the Commission could not prevent the exemptions at issue from being classified as ‘State aid’, within the meaning of Article 87(1) EC, if the conditions governing the existence of State aid were met. It added, as the General Court pointed out in paragraph 187 of the judgment under appeal, that that fact however had to be taken into consideration in relation to the obligation to recover the incompatible aid, in the light of the principles of protection of legitimate expectations and legal certainty, as was done by the Commission in the contested decision when it declined to order the recovery of aid granted before the date of the publication in the Official Journal of the European Communities of the decisions to initiate the formal investigation procedure. Next, in paragraph 54 of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), the Court of Justice held that the reasons used by the General Court in the judgment of 21 March 2012, Ireland and Others v Commission (T‑50/06 RENV, T‑56/06 RENV, T‑60/06 RENV, T‑62/06 RENV and T‑69/06 RENV, EU:T:2012:134), other than those relating to the non-attributability of the exemptions at issue to the Member States, in order to annul the decision at issue, could not provide a legal basis for that court’s conclusion that that decision called into question the validity of the authorisation decisions and was in breach of the principles of legal certainty and the presumption of legality attaching to the measures of the EU, and likewise the conclusion that the Commission had infringed the principle of sound administration.

75 Although, in view of the grounds of the General Court’s judgment which gave rise to the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), the General Court did not address the question whether the decision at issue infringed the principle of the protection of legitimate expectations, it nevertheless fell to the General Court to which the case was remitted, in its assessment of the applicants’ arguments alleging that there were exceptional circumstances which gave Eurallumina legitimate grounds to assume that the exemption at issue — and thus the aid in question — was lawful, to draw the necessary conclusions from the legal considerations laid down by the Court of Justice.

76 Thus, in the judgment under appeal, after first of all stating in paragraph 185 that neither the Italian Republic nor Eurallumina disputed the fact that the aid had been notified to the Commission, and after setting out in paragraph 187 the legal considerations contained in paragraphs 52 to 54 of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), the General Court found in essence, in paragraphs 188 and 189, that, although in view of the requirements resulting from the principles of protection of legitimate expectations and of legal certainty, the equivocal situation created by the wording of the authorisation decisions, adopted on a proposal from the Commission, precluded the recovery of the aid granted on the basis of the exemption at issue until the date of the publication in the Official Journal of the decision to initiate the formal investigation procedure, Eurallumina must, however, have known as of that date that, if the exemption at issue constituted State aid, it had to be authorised by the Commission in accordance with Article 88 EC, so that that publication had brought to an end the legitimate expectation which that company could previously have had that the exemption at issue was lawful. For those reasons, the General Court, in paragraph 190 of the judgment under appeal, approved the Commission’s application, in the decision at issue, of the principle of the protection of legitimate expectations.

77 In so ruling, the General Court did not manifestly draw incorrect inferences from the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), and following on from that, carried out its own assessment of the circumstances of the case.

78 It follows that the first part of the ground of the main appeal and the fourth ground of the cross-appeal are manifestly unfounded.

The second part of the ground of the main appeal and the fifth ground of the cross-appeal





Arguments of the parties

79 By the second part of the ground of the main appeal and the fifth ground of the cross-appeal, Eurallumina, supported by the French Republic, and the Italian Republic claim that, as a consequence of the error complained of in the first part of the main appeal and the fourth ground of the cross-appeal, the General Court failed to assess their arguments regarding the continuation of their legitimate expectations after the publication of the decision to initiate the formal investigation procedure, or assessed them in a distorted legal framework and erroneously.

80 First, the General Court failed to assess their arguments that (i) their legitimate expectations were based on exceptional circumstances, given that the Commission admitted in the decision at issue that the decision to initiate the formal investigative procedure had not brought those expectations to an end; (ii) it was apparent from the wording of that decision that it concerned only the situation after the expiry of the exemption at issue, on 31 December 2006; (iii) the case-law of the EU courts confirms that legitimate expectations may continue after the formal investigative procedure is initiated, and (iv) where investments have been made in reliance on the legality of EU acts, the aid beneficiary must have the necessary transitional period to adjust.

81 Secondly, instead of considering that the exceptional circumstances of the case gave rise to legitimate expectations beyond 2 February 2002, the General Court regarded the situation after that date as a straightforward case of unnotified aid, without taking the past into account.

82 The Commission contests that part of the ground of the main appeal and that ground of the cross-appeal.

Findings of the Court

83 Eurallumina and the Italian Republic do not identify the paragraphs in the grounds of the judgment under appeal which the second part of the ground of the main appeal and the fifth ground of the cross-appeal seek to challenge. However, where an appellant submits that the General Court did not respond to a plea, its submission cannot be challenged, in terms of the admissibility of the ground of appeal, on the basis that it does not cite any passage or part of the contested judgment as the specific object of its argument since, by definition, it is a failure to respond that is being alleged (judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 148). The second part of the ground of the main appeal and the fifth ground of the cross-appeal cannot therefore be declared inadmissible pursuant to Article 169(2) and Article 178(3) of the Rules of Procedure.

84 All the same, it must be noted, in the first place, that the arguments of Eurallumina and the Italian Republic on the existence of exceptional circumstances which gave rise to legitimate expectations that the exemption at issue — and thus the aid — was lawful, were examined in paragraphs 184 to 221 of the judgment under appeal. Consequently, the second part of the ground of the main appeal and the fifth ground of the cross-appeal, in so far as they relate to a failure to reply, are manifestly unfounded.

85 In the second place, it must be recalled that it is clear from Article 256 TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court’s assessment of the facts does not, save where the facts are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraphs 84 and 85 and the case-law cited).

86 In criticising the General Court, in that part and in that ground, for considering that the exceptional circumstances of the case could not have given rise to legitimate expectations beyond 2 February 2002 and for assessing, therefore, the exemption at issue as a straightforward case of unnotified aid, Eurallumina and the Italian Republic seek to challenge the factual assessment made by the General Court which led to the conclusion, in paragraph 220 of the judgment under appeal, that the applicants had not demonstrated the existence of exceptional circumstances such as to prevent recovery of the aid. Since there is no claim that the facts have been distorted, that complaint is manifestly inadmissible.

87 It follows that the second part of the ground of the main appeal and the fifth ground of the cross-appeal must be dismissed as being, in part, manifestly unfounded and, in part, manifestly inadmissible.

The third part of the ground of the main appeal and the sixth ground of the cross-appeal

Arguments of the parties

88 In the third part of the ground of the main appeal and the sixth ground of the cross-appeal, Eurallumina, supported by the French Republic, and the Italian Republic claim that the General Court was wrong to rule, in paragraphs 211 to 217 of the judgment under appeal, that the Commission’s unreasonable delay in taking the decision at issue was not capable of having given rise to legitimate expectations on the part of Eurallumina preventing recovery of the aid. The General Court erred in law in its assessment of the impact of that delay on the legitimate expectations by examining that impact only from the perspective of whether it could have justified new legitimate expectations on the part of Eurallumina and the Italian Republic, as if the exceptional circumstances which created their earlier legitimate expectations were no longer relevant.

89 The General Court failed to carry out the necessary balancing between private interests, in the present case the fundamental right to respect for legitimate expectations, and public interests, where no specific public interest in recovering the aid has been established. In that regard, the General Court did not take into account the fact that the exemption at issue did not constitute State aid, since it was attributable to the EU institutions, that no provision of EU law required the imposition of excise duty on oils used as fuel for metallurgical purposes and that, with regard to protection of competition, there had been no complaint from competitors in the present case. The General Court also erred in law and failed to comply with its obligation to state reasons in holding that the facts of the case which gave rise to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502), were different from those of the present case. Furthermore, it misinterpreted the judgment of 11 November 2004, Demesa and Territorio Histórico de Álava v Commission (C‑183/02 P and C‑187/02 P, EU:C:2004:701).

90 The French Republic, while supporting Eurallumina, claims that the General Court erred in law in holding, in paragraphs 193 to 218 of the judgment under appeal, that the Commission’s infringement of the reasonable time principle during the formal investigation procedure did not, in itself, require the annulment of the decision at issue, since it had not been demonstrated that that delay could reasonably have created the impression that the Commission’s doubts as to the lawfulness of the exemption at issue no longer existed and that that exemption would no longer be objected to. In doing so, the General Court established an inherent link between the reasonable time principle and the principle of protection of legitimate expectations where the infringement of the first of those principles, in itself, justified the annulment of the decision at issue.

91 The Commission submits that that ground of appeal raised by the French Republic is inadmissible, in that it alters the context of the proceedings by going beyond Eurallumina’s heads of claim. Furthermore, it contends that the General Court erred in law in finding, in paragraph 182 of the judgment under appeal, that Regulation No 659/1999 setting a limitation period for the recovery of aid and providing an indicative deadline for the investigation of notified aid did not prevent the EU judicature from verifying whether that institution had failed to take a reasonable amount of time or had acted too slowly. There is therefore no need to examine the arguments relating to the delay in the formal investigation procedure.

92 In the alternative, the Commission submits that the arguments relating to the balancing of interests are inadmissible, since they were not raised before the General Court, that the argument relating to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502), is also inadmissible in that it seeks a review of the factual assessment made in the judgment under appeal and that all the arguments are, in any event, unfounded.

Findings of the Court

93 It must be recalled that a party who, pursuant to Article 40 of the Statute of the Court of Justice of the European Union, is granted leave to intervene in a case submitted to the Court may not alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by the main parties. It follows that arguments submitted by an intervener are not admissible unless they fall within the framework provided by those forms of order and pleas in law (judgments of 7 October 2014, Germany v Council, C‑399/12, EU:C:2014:2258, paragraph 27; of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraph 114; and of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 303).

94 In the present case, while Eurallumina relies, in support of its appeal, only on the infringement of the principle of protection of legitimate expectations by complaining that the General Court held that the Commission’s unreasonable delay during the formal investigation procedure was not capable of having given rise to legitimate expectations preventing recovery of the aid, the ground of appeal raised by the French Republic seeks a declaration that, irrespective of any infringement of that principle, the General Court erred in law with regard to the reasonable time principle. That Member State thus puts forward a ground of appeal which goes beyond the scope of the present proceedings and which is therefore inadmissible.

95 With regard to the grounds raised by the other parties, it must be observed that, since Eurallumina claimed before the General Court, as is apparent from paragraph 164 of the judgment appeal, that the Commission’s delay in adopting the decision at issue had created its legitimate expectations in the lawfulness of the exemption at issue, the General Court noted, inter alia, in that respect, in paragraph 180 of that judgment, that the need to conduct administrative procedures within a reasonable period is a general principle of EU law. In addition, referring to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502), it stated in paragraph 181 of the judgment under appeal that a delay by the Commission in deciding that aid is unlawful and that it must be abolished and recovered by a Member State may, in certain circumstances, establish a legitimate expectation on the recipients’ part so as to prevent the Commission from requiring that Member State to order the refund of that aid.

96 In paragraph 182 of the judgment under appeal, the General Court considered that the sole fact that Regulation No 659/1999, apart from a limitation period of 10 years from the grant of the aid at the end of which recovery of the aid may no longer be ordered, does not prescribe any time limit, even indicative, for the examination by the Commission of unlawful aid, does not prevent the EU judicature from verifying whether that institution failed to take a reasonable amount of time or acted too slowly.

97 Contrary to what the Commission contends, the existence of a limitation period of 10 years for the recovery of aid, laid down in Article 15 of Regulation No 659/1999, does not mean that, in some situations, an unreasonable period in the conduct of the formal investigation procedure may increase the legitimate expectations which the beneficiaries of the aid have in the lawfulness of that aid. The General Court was therefore correct in examining Eurallumina’s argument as part of its examination of the exceptional circumstances which they relied upon and which, in their opinion, was the basis of such legitimate expectations.

98 In that regard, having concluded in paragraph 189 of the judgment under appeal that the publication of the decision to initiate the formal investigation procedure had brought to an end the legitimate expectations which Eurallumina previously had in the lawfulness of the exemption at issue, the General Court considered in paragraph 193 of that judgment that the Commission’s delay in adopting the decision at issue was not an exceptional circumstance such as to revive such legitimate expectations. It set out the reasons for this in paragraphs 194 to 217 of the judgment under appeal after a detailed examination of the conduct of the formal investigation procedure in the present case, by stating that the investigation period for the aid had been unreasonable, but that the Commission’s delay in adopting the decision at issue could not reasonably have made Eurallumina think that the Commission no longer harboured doubts and that the exemption at issue would not be objected to.

99 In that context, the General Court, in paragraphs 212 to 216 of the judgment under appeal, considered in essence that, although in the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502), the Court of Justice held that the time limit of 26 months used by the Commission to adopt its decision could have created a legitimate expectation in the mind of the beneficiary of the aid that recovery of the aid would be prevented, it was nevertheless necessary to balance the requirements of legal certainty which protect private interests against the requirements of protection of public interests, including, in the area of State aid, the public interest in preventing the operation of the market being distorted, which means that unlawful aid should be returned.

100 On that basis, the General Court stated, in essence in paragraphs 214 to 216, of the judgment under appeal that it was apparent from the case-law that the solution adopted in the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502), related to the specific circumstances of the case giving rise to that judgment, in particular the fact that the aid in question in that judgment had been granted before the Commission opened the relevant formal investigation procedure, the fact that the aid was the subject of a formal notification sent to the Commission, albeit after the aid was paid, and the fact that it concerned supplementary costs of aid authorised by the Commission and a sector which had, since 1977, received aid authorised by the Commission. It observed that all of those exceptional circumstances were not to be found in the present case, stating in particular that the aid was granted in the present case after the formal investigation procedure was opened, and it considered that that fundamentally differentiated the circumstances of the case giving rise to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502), from those underlying the present case, and that therefore Eurallumina could not reasonably rely on that judgment.

101 In addition, in paragraph 217 of the judgment under appeal, the General Court stated that, in paragraph 52 of the judgment of 11 November 2004, Demesa and Territorio Histórico de Álava v Commission (C‑183/02 P and C‑187/02 P, EU:C:2004:701), the Court of Justice held that any apparent failure to act on the part of the Commission has no particular relevance when an aid scheme had not been notified to it, and that that was the case in the present proceedings.

102 It must be observed, in the first place, that the ground of appeal of Eurallumina and of the Italian Republic, alleging that the General Court failed to take account of the earlier exceptional circumstances at the initiation of the formal investigation procedure, seeks to call into question the General Court’s assessments in consequence of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), according to which Eurallumina must have known since the date of publication of the decision to initiate the formal investigation procedure that, if the exemption at issue constituted State aid, it had to be authorised by the Commission in accordance with Article 88 EC, so that that publication brought to an end the legitimate expectations which that company could have had previously in the lawfulness of the exemption at issue. With regard to the factual assessments, the Court of Justice, for the reasons set out in paragraph 85 above, has no jurisdiction to rule on them in the absence of any distortion of the facts.

103 In the second place, it must be observed that, contrary to what Eurallumina and the Italian Republic claim, the General Court, as is apparent from paragraph 213 of the judgment under appeal, did weigh up the requirements of legal certainty and the public requirements of recovery of unlawful aid.

104 With regard to the arguments submitted in that context that the General Court did not take into account the fact that the exemption at issue did not constitute State aid, since it was attributable to the EU institutions, that no provision of EU law required the imposition of excise duty on oils used as fuel for metallurgical purposes and that, with regard to protection of competition, there had been no complaint from competitors in the present case, they are inadmissible, since those points were not raised before the General Court, nor examined by it in the judgment under appeal. According to settled case-law of the Court of Justice, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court would in effect allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court (judgment 8 March 2016, Greece v Commission, C‑431/14 P, EU:C:2016:145, paragraph 55 and the case-law cited).

105 In the third place, with regard to the considerations in the judgment under appeal relating to the analysis of the circumstances which prevailed in the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502), it is true that there is no explanation of the reasons why the General Court considered in paragraph 216 of the judgment under appeal that the fact that the aid in question in the case which gave rise to that judgment had been granted before the initiation of the formal investigation procedure fundamentally differentiated the circumstances of that case from those underlying the present case. Nevertheless, the General Court set out, in paragraph 214 of the judgment under appeal, other differences between those two cases, in particular the fact that the aid in question in the other case related to additional costs connected with aid authorised by the Commission and concerned a sector which had received aid authorised by the Commission. First, those circumstances, considered together, appear sufficient to distinguish those cases, so that the General Court did not err in law in holding that Eurallumina could not reasonably rely on the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502). Secondly, considered as a whole, the reasoning of the judgment under appeal in respect of the factual differences between those cases appears sufficient to enable the applicants at first instance to know the reasons why the General Court did not uphold their arguments and it provides the Court of Justice with sufficient material for it to exercise its powers of review (order of 13 December 2012, Alliance One International v Commission, C‑593/11 P, not published, EU:C:2012:804, paragraph 28).

106 Finally, with regard to the interpretation of the judgment of 11 November 2004, Demesa and Territorio Histórico de Álava v Commission (C‑183/02 P and C‑187/02 P, EU:C:2004:701), the General Court did not commit a manifest error of law when it found, in the exercise of its power to find the facts, and by referring to that judgment, that the Commission’s failure to act in the present case — as inconsistent with the reasonable time principle as it may have been — was nevertheless not particularly significant from the perspective of applying the State aid rules to the aid in question.

107 Consequently, it is necessary to dismiss the third part of the ground of the main appeal and the sixth ground of the cross-appeal as, in part, manifestly inadmissible and, in part, manifestly unfounded.

The fourth part of the ground of the main appeal and the seventh ground of the cross-appeal

Arguments of the parties

108 By the fourth part of the ground of the main appeal and the seventh ground of the cross-appeal, Eurallumina, supported by the French Republic, and the Italian Republic claim that the General Court, in paragraph 192 of the judgment under appeal, misinterpreted Directive 2003/96 contra legem. It wrongly dismissed the argument that that directive had reinforced the legitimate expectations in the lawfulness of the exemption at issue by failing to examine the scope of the word ‘any’ used in recital 32 of that directive which states that ‘this Directive does not prejudice the outcome of any future State aid procedure that may be undertaken in accordance with Articles 87 and 88 [EC].’ Since the formal investigation procedure was initiated before that directive was adopted, it could be inferred from the use of that word that the authorisation, renewed by that directive, of the exemption at issue could not be affected by that procedure.

109 The Commission contends that there is no error in law.

Findings of the Court

110 In paragraph 192 of the judgment under appeal, the General Court stated, inter alia, that on the date when Article 18(1) of Directive 2003/96 became applicable, that is to say, on 1 January 2003, Eurallumina had to be informed of the existence of an ongoing formal investigation procedure, concerning the exemption at issue, and of the fact that, if the exemption at issue constituted State aid, it had to be authorised by the Commission, in accordance with Article 88 EC. It considered that that situation could not be altered by the adoption and entry into force of Directive 2003/96, on 27 and 31 October 2003, respectively, recital 32 of which explicitly stated that that directive did not prejudice the outcome of any future State aid procedure that may be undertaken in accordance with Articles 87 EC and 88 EC.

111 In the light of those findings, the General Court clearly did not commit any error of law in holding that Article 18(1) of Directive 2003/96 was not capable, after the publication of the decision to initiate the formal investigation procedure, of giving rise to a legitimate expectation, on the part of Eurallumina, that the exemption at issue was lawful under the State aid rules.

112 Consequently, the fourth part of the ground of the main appeal and the seventh ground of the cross-appeal are manifestly unfounded.

The fifth part of the ground of the main appeal

Arguments of the parties

113 In the fifth part of the ground of the main appeal, Eurallumina, supported by the French Republic, submits that the General Court erred in law, in paragraphs 219 and 240 of the judgment under appeal, when it rejected its arguments relating to the investments made in the Sardinian plant, including those made between 12 March 2001, when the exemption at issue was prolonged for six years, and 2 February 2002, the date of the initiation of the formal examination procedure. In order to do that, the General Court considered that those investments had not been based on commitments to the Italian Republic and thus failed to consider the real relevance of those investments to the legitimate expectations which Eurallumina had in the fact that the exemption at issue was authorised for a period of six years, ending on 31 December 2006.

114 The Commission contests that part of the ground of the main appeal.

Findings of the Court

115 In order to respond to Eurallumina’s arguments that the Commission should have taken into account the investments which it made in good faith in the Sardinian plant, in the light of the legitimate expectations which it had in the lawfulness of the exemption at issue until 31 December 2006, or at least in the absence of any legal possibility of recovering the aid, the General Court considered, in paragraph 219 of the judgment under appeal, that those arguments were irrelevant because, as was clear from its examination of the arguments of the Italian Republic relating to the infringement of the rules governing aid for environmental protection, it was not proved that Eurallumina had to make such investments in performance of commitments voluntarily undertaken with the Italian authorities or obligations imposed by those authorities in consideration of the benefit it derived from the aid. In addition, in paragraph 240 of that judgment, the General Court stated that the documents in the file do not lead, in the present case, to the conclusion that the investments made by Eurallumina in that plant were made in consideration of the benefit of the exemption at issue and that, therefore, it was not proved that those investments were made in consideration of the legitimate expectation which it allegedly had that those investments could be amortised by, inter alia, the benefit it would derive from the exemption at issue until 31 December 2006.

116 It follows that the General Court found that it was not proved that Eurallumina had made investments on the basis of commitments on its part or obligations to which the benefit of the exemption at issue was subject, or more generally, on the basis of the possibility that it was able to bear those investments due to the exemption at issue. In doing so, the General Court did indeed examine Eurallumina’s arguments in the light of the legitimate expectation it claimed to have in the fact that the exemption at issue was authorised for a period of six years ending on 31 December 2006.

117 It follows that the fifth part of the ground of the main appeal is manifestly unfounded.

118 In the light of all the foregoing, the main appeal and the cross-appeal must be dismissed in their entirety as being, in part, manifestly inadmissible and, in part, manifestly unfounded.

Costs

119 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

120 In the present case, since Eurallumina and the Italian Republic have been unsuccessful, and the Commission has applied for costs, they must be ordered to pay the costs of the main appeal and the cross-appeal respectively.

121 Article 140(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that the Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the French Republic is to bear its own costs.

On those grounds, the Court (Seventh Chamber) hereby:

1. Dismisses the main appeal and the cross-appeal.

2. Orders Eurallumina SpA to pay the costs relating to the main appeal.

3. Orders the Italian Republic to pay the costs relating to the cross-appeal.

4. Orders the French Republic to bear its own costs.





Luxembourg, 7 December 2017.





A. Calot Escobar A. Rosas