208

In the context of the first part of the fourth plea, AAL argues that, in the contested decision, the Commission infringed the principles of protection of legitimate expectations and of legal certainty, particularly when it ordered the recovery of the aid at issue, on the grounds, set out in recitals 98 and 99 of Alumina Decision I, that, on the one hand, publication of the decision to initiate the formal investigation procedure had put an end to its legitimate expectation that the aid at issue was lawful and that, on the other, the principle of legal certainty had ceased to apply when it had clarified a situation which was, previously, equivocal. It is of the view that there are, in the present case, exceptional circumstances which permit it, in accordance with the case-law, to rely on a legitimate expectation that the aid at issue had been lawfully granted to it under Decision 2001/224 and would not be recovered and that the exemption at issue could be lawfully applied until 31 December 2006, in accordance with this latter decision, even after the publication of the decision to initiate the formal investigation procedure. That publication did not put an end to the equivocal situation regarding the lawfulness of the exemption at issue. In that regard, first, AAL relies on the notification of the exemption at issue to the Commission in 1983 and the Commission’s inaction or silence for 17 years. Second, it refers to the Council’s authorisation decisions, adopted unanimously on a proposal from the Commission, which led it to believe that the aid at issue was lawful in so far as those decisions stated or were based on the premiss that the exemption at issue did not give rise to a distortion of competition and authorised Ireland to apply the exemption at issue, most recently until 2006. Third, it relies on the proposal for a Council authorisation decision of November 1999, which revealed the Commission’s intention of phasing out the authorisation to apply the exemption at issue, but not of recovering the aid granted under that exemption, during the entire period in which it had been authorised by the Council. Fourth, it pleads its belief that Ireland was complying with its obligations under the State aid rules. Fifth, it refers to the publication of the decision to initiate the formal investigation procedure, which merely reflected the Commission’s doubts as to whether aid at issue was compatible with the common market and was not such as to affect its legitimate expectation, in the light of Decision 2001/224, that, in any event, the aid granted up to 2006 would not be recovered. Sixth, it cites its expectation that the formal investigation procedure would not culminate in a negative State aid decision. Seventh, it relies on the Commission’s delay in adopting Alumina Decision I, which, contrary to the principles of sound administration and legal certainty, was adopted more than 43 months after the Commission’s receipt, in April 2002, of Ireland’s reply to the last request for additional information sent by that institution, which reinforced its legitimate expectation that the aid at issue would not be recovered. Eighth, it refers to the Commission’s conduct at the time of the adoption by the Council of Directive 2003/96, in particular its press release of 27 October 2003 welcoming that adoption, which fuelled its legitimate expectation that the aid at issue was lawful under the State aid rules. Ninth, it cites the absence of an order from the Commission requiring Ireland to suspend payment of the unlawful aid allegedly granted until it had given a ruling on the compatibility of the aid with the common market, under Article 11(1) of Regulation No 659/1999. Tenth, it bases an argument on the significant long-term investments it made in good faith, in the autumn of 2003, corresponding to the construction of a combined heat and power plant, costing approximately EUR 100 million, and to an investment of EUR 70 million to increase its production capacity, based on its legitimate expectation that the exemption at issue would be applied until 31 December 2006 or, at the very least, that the aid granted up to that date would not be recovered.