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

(Case T-257/10)

‛State aid — Undertaking with subsidiaries in certain non-member countries — Reduced rate loans — Decision declaring aid incompatible in part with the internal market and ordering it to be repaid — Decision taken following the annulment by the General Court of the initial decision concerning the same procedure — Force of res judicata — Duty to state reasons’

1. State aid — Planned aid — Duty of prior notification and provisional suspension of the implementation of the aid — Scope — Subsequent notification of measures to the Commission — Annual reports on existing aid schemes — Insufficient (Art. 108(3) TFEU; Council Regulation No 659/1999, Arts 2 and 21) (see paras 24-27)

2. Proceedings — Application initiating proceedings — Formal requirements — Identification of the subject matter of the dispute — Summary statement of pleas (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 28)

3. 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 — Protection of the beneficiaries — Invocation by the Member State having granted the aid — Not permissible — Invocation of the principle by a Member State in its own right — Not permissible — Inaction of the Commission for a relatively long period — No effect (Arts 107 TFEU and 108 TFEU) (see para. 29)

4. State aid — Examination by the Commission — Opening of a formal examination procedure — Maximum period of two months — Inapplicable where aid not notified (Art. 108(3) TFEU; Council Regulation No 659/1999, Art. 4(6)) (see paras 35-37, 39)

5. State aid — Commission decision finding aid incompatible with the common market and ordering its recovery — Commission decision adopted subsequently to the annulment of a first decision for insufficient statement of reasons — No infringement of ne bis in idem principle (Art. 107 TFEU) (see para. 41)

6. Actions for annulment — Judgment annulling a measure — Effects — Duty to adopt implementing measures — Scope — Both the operative part and the grounds of the judgment to be taken into account — Adoption of a new measure on the basis of earlier preparatory measures — Lawfulness (Art. 266 TFEU) (paras 44-47)

7. Actions for annulment — Grounds — Lack of or inadequate statement of reasons — Plea distinct from that of the lawfulness of the contested decision (Arts 263 TFEU and 296 TFEU) (see paras 53-54, 74)

8. European Union law — Principles — Rights of defence — Whether applicable to administrative procedures initiated by the Commission — Examination of plans to grant aid — Scope (Art. 108 TFEU) (see paras 63, 66-67)

9. 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 75-76)

10. 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 77-79, 93-95, 97, 99-100)

11. Actions for annulment — Judgment annulling a measure — Scope — Absolute authority of res judicata — Scope — Both operative part and grounds to be taken into account — Commission decision adopted subsequently to the annulment of a first decision for insufficient statement of reasons (see paras 104, 111, 114)

12. State aid — Effect on trade between Member States — Aid of minor importance — Regulation No 1998/2006 — Scope — Exclusion of aid in favour of export activities — Meaning (Art. 107(1) TFEU; Commission Regulation No 1998/2006, Art. 1(1)(d)) (see paras 117, 119-121, 124)

13. 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 (Art. 107(1) TFEU and 108(3) TFEU) (see paras 127-130)

14. 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 135-137)

15. 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 147, 150-152)

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 the Italian Republic to pay the costs.

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

(Case T-257/10)

‛State aid — Undertaking with subsidiaries in certain non-member countries — Reduced rate loans — Decision declaring aid incompatible in part with the internal market and ordering it to be repaid — Decision taken following the annulment by the General Court of the initial decision concerning the same procedure — Force of res judicata — Duty to state reasons’

1. State aid — Planned aid — Duty of prior notification and provisional suspension of the implementation of the aid — Scope — Subsequent notification of measures to the Commission — Annual reports on existing aid schemes — Insufficient (Art. 108(3) TFEU; Council Regulation No 659/1999, Arts 2 and 21) (see paras 24-27)

2. Proceedings — Application initiating proceedings — Formal requirements — Identification of the subject matter of the dispute — Summary statement of pleas (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 28)

3. 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 — Protection of the beneficiaries — Invocation by the Member State having granted the aid — Not permissible — Invocation of the principle by a Member State in its own right — Not permissible — Inaction of the Commission for a relatively long period — No effect (Arts 107 TFEU and 108 TFEU) (see para. 29)

4. State aid — Examination by the Commission — Opening of a formal examination procedure — Maximum period of two months — Inapplicable where aid not notified (Art. 108(3) TFEU; Council Regulation No 659/1999, Art. 4(6)) (see paras 35-37, 39)

5. State aid — Commission decision finding aid incompatible with the common market and ordering its recovery — Commission decision adopted subsequently to the annulment of a first decision for insufficient statement of reasons — No infringement of ne bis in idem principle (Art. 107 TFEU) (see para. 41)

6. Actions for annulment — Judgment annulling a measure — Effects — Duty to adopt implementing measures — Scope — Both the operative part and the grounds of the judgment to be taken into account — Adoption of a new measure on the basis of earlier preparatory measures — Lawfulness (Art. 266 TFEU) (paras 44-47)

7. Actions for annulment — Grounds — Lack of or inadequate statement of reasons — Plea distinct from that of the lawfulness of the contested decision (Arts 263 TFEU and 296 TFEU) (see paras 53-54, 74)

8. European Union law — Principles — Rights of defence — Whether applicable to administrative procedures initiated by the Commission — Examination of plans to grant aid — Scope (Art. 108 TFEU) (see paras 63, 66-67)

9. 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 75-76)

10. 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 77-79, 93-95, 97, 99-100)

11. Actions for annulment — Judgment annulling a measure — Scope — Absolute authority of res judicata — Scope — Both operative part and grounds to be taken into account — Commission decision adopted subsequently to the annulment of a first decision for insufficient statement of reasons (see paras 104, 111, 114)

12. State aid — Effect on trade between Member States — Aid of minor importance — Regulation No 1998/2006 — Scope — Exclusion of aid in favour of export activities — Meaning (Art. 107(1) TFEU; Commission Regulation No 1998/2006, Art. 1(1)(d)) (see paras 117, 119-121, 124)

13. 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 (Art. 107(1) TFEU and 108(3) TFEU) (see paras 127-130)

14. 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 135-137)

15. 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 147, 150-152)

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;