EN Official Journal of the European Union C 116/12

Appeal brought on 27 February 2008 by the Commission of the European Communities against the judgment of the Court of First Instance (Second Chamber, Extended Composition) delivered on 12 December 2007 in Joined Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06 Ireland and Others v Commission

(Case C-89/08 P)

(2008/C 116/22)

Languages of the case: French, English and Italian

Parties

Appellant: Commission of the European Communities (represented by: V. Di Bucci and N. Khan, Agents)

Other parties to the proceedings: Ireland, French Republic, Italian Republic, Eurallumina SpA, Aughinish Alumina Ltd

Form of order sought

— set aside the judgment of the Court of First Instance of the European Communities (Second Chamber, Extended Composition) of 12 December 2007 in Joined Cases T-50/06, T-56/06, T-60/06, T-62/06 and T-69/06 Ireland and Others v Commission;

— refer the cases back to the Court of First Instance for re-examination;

— reserve the costs at both instances.

Pleas in law and main arguments

The appellant relies on six pleas in law in support of its appeal, alleging, on the one hand, the lack of jurisdiction of the Court of First Instance and procedural irregularities adversely affecting the interests of the Commission (first two pleas in law) and, on the other, breach of Community law in the area of State aid (third to sixth pleas).

By its first plea, which has two parts, the appellant alleges the the Court of First Instance breached the principle that the subject-matter of an action is delimited in the application initiating proceedings and that it ruled ultra petita in so far as, at first instance, none of the appellants raised a plea in law alleging infringement of Article 1(b)(v) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (1). In addition, the plea raised of its own motion by the Court of First Instance is not a plea alleging failure to state reasons, which the Court may raise of its own motion, but a plea going to the substance, which is not based on the factual material included in the case-file.

By its second plea, the appellant alleges that the Court of First Instance breached the general principles of audi alteram partem and respect for the rights of the defence, since it raised of its own motion a plea which had never been argued, nor even touched upon, in the course of the proceedings at first instance.

By its third plea, which is comprised of three parts, the appellant claims that the Court of First Instance infringed Articles 230 EC and 253 EC in conjunction with Article 88 EC and the rules governing procedure for State aid cases.

In that regard, the appellant claims, first, that the classification of the disputed measures as ‘new’ aid cannot be called into question in an action brought against the final decision of the Commission, as the Member States and the other interested parties could have contested, in relation to that point, the decision to open the formal investigation procedure. As the decision to open that procedure was not contested, it became definitive and, the final decision therefore constitutes, on that point, a merely confirmatory act which is not actionable.

The appellant maintains, second, that the legality of an act should be assessed by reference to the factual and legal situation existing at the date on which the act was adopted. In the present case, nothing in the case-file suggests that the disputed national measures did not constitute aid at the time when they were introduced.

Third, the appellant claims that, in any case, it is for the Member State and, where appropriate, for interested third parties — and not for the Commission — to prove that the aid is existing. In the absence of such proof, the Commission cannot be required to provide a statement of reasons in that regard.

By its fourth plea, the appellant alleges infringement of Article 253 EC, in conjunction with Articles 87(1) EC and 88(1) EC, in so far as the Court of First Instance found a failure to state reasons in respect of the applicability of Article 1(b)(v) of Regulation No 659/1999, even though that article can apply only to measures which did not constitute aid at the time of their coming into force and that the Commission, in the decision which was contested at first instance, showed that the disputed measures have constituted aid ever since they were introduced. Moreover, none of the parties had shown that the common market had evolved so that measures which did not constitute aid at the time they came into force would become aid thereafter.

By its fifth plea, the appellant alleges infringement of the same rules, and of Article 1(b)(v) of Regulation No 659/1999, in so far as the Court of First Instance imposed a specific obligation on the Commission to state reasons as regards the application of that article on account of statements made by the Council and the Commission. However, the appellant has shown, unequivocally, that in the light of the settled case-law of the Court, such statements cannot have any impact on the assessment of national measures regarding Community rules on State aid, the concepts of aid and existing aid being strictly objective concepts.

By its sixth plea, the appellant claims, finally, that the Court of First Instance infringed Articles 88(1) and (2), and 253 EC, and Articles 4(4) and 6(1) of Regulation 659/1999 in so far as it annulled the decision of the Commission in its entirety, including that part of the decision which extended the formal investigation period beyond 31 December 2003. However, the Court of First Instance in no way explained how the alleged lack of reasoning in relation to the application of Article 1(b)(v) of Regulation No 659/1999 was sufficient to invalidate that aspect of the decision. Moreover, the Court of First Instance failed to have regard to the principle that, where a Member State does not provide any evidence to suggest that the disputed measures constitute existing aid, the Commission must treat those measures as new aid, within the procedural context laid down in Article 88(2) and (3) EC.

(1) OJ 1999 L 83, p. 1.