Judgment of the General Court (Fifth Chamber) of 13 March 2018 –

Alouminion v Commission

(Case T‑542/11 RENV)

(State aid — Electricity — Decision declaring the aid unlawful and incompatible with the internal market and ordering its recovery — Preferential electricity tariff granted by a contract entered into with the incumbent supplier — Termination of the contract by the incumbent supplier — Judicial suspension, by way of interim measures, of the effects of termination of the contract — Annulment of the Commission’s decision by the General Court — Judgment of the General Court set aside by the Court of Justice — Referral of the case back to the General Court — Scope of the action after being referred back — Classification of the order granting interim measures as constituting new aid — Competence of the Commission — Effective judicial protection — Classification of the preferential tariff as State aid — Advantage — Legitimate expectations — Rights of defence of the recipient — Obligation to recover — Obligation to state reasons)

1. State aid—Existing aid and new aid—Examination by the Commission—Exclusive competence—Jurisdiction of the national courts—Limits (Art. 107 TFEU and 108 TFEU; Council Regulation No 659/1999, Art. 1(b)(i)) (see paras 51-61)

2. Union law—Principles—Right to effective judicial protection—Guaranteed by the European Convention on Human Rights—Reference to the EU Charter on Fundamental Rights (Charter of Fundamental Rights of the European Union, Art. 47) (see para. 67)

3. Acts of the institutions—Statement of reasons—Obligation—Scope (Art. 296, second para., TFEU) (see para. 80)

4. State aid—Meaning—Legal nature—Interpretation on the basis of objective factors—Complex evaluation of economic matters—Judicial review—Scope (Art. 107(1) TFEU) (see para. 112)

5. State aid—Meaning—Criteria for assessment—Cumulative conditions (Art. 107(1) TFEU) (see paras 113-115)

6. State aid—Meaning—Aid granted through a State-controlled organization—Preferential electricity tariff for a category of undertakings—Included (Art. 107(1) TFEU) (see paras 116, 124, 137)

7. State aid—Examination by the Commission—No observations by the persons concerned—Not relevant to the validity of the Commission decision—Obligation to examine matters not expressly invoked by the Commission’s own motion—None (Art. 108(2) TFEU) (see paras 125-128)

8. State aid—Meaning—Assessment in relation to Article 107(1) TFEU—Taking into account previous practice—Not included (Art. 107(1) TFEU) (see para. 135)

9. State aid—Effect on trade between Member States—Adverse effect on competition—Criteria for assessment (Art. 107(1) TFEU) (see paras 155-158)

10. State aid—Compatibility of aid with the internal market—Possible legitimate expectation of the persons concerned—Protection—Conditions and limits (Art. 108 TFEU) (see para. 172)

11. State aid—Examination by the Commission—Administrative procedure—Obligation of the Commission to give notice to the interested parties to submit their comments—Right of the aid beneficiary to be sufficiently associated with the proceedings—Limits (Art. 108(2) TFEU; Council Regulation No 659/1999, Arts 6(1) and 20(1)) (see paras 187, 189-196)

12. State aid—Commission decision finding aid incompatible with the internal market—Obligation to state reasons—Information required (Arts 107(1) TFEU and 296, second para., TFEU) (see paras 214, 216, 217)

Re:

Action based on Article 263 TFEU and seeking annulment of Commission Decision 2012/339/EU of 13 July 2011 on State aid SA.26117 — C 2/2010 (ex NN 62/2009) implemented by Greece in favour of Aluminium of Greece SA (OJ 2012 L 166, p. 83).

Operative part

The Court:

1. Dismisses the action;