Judgment of the General Court (Second Chamber) of 11 July 2018 –

Buonotourist v Commission

(Case T‑185/15)

(State aid — Undertaking operating networks of bus routes in the Regione Campania — Advantage — Service of general economic interest — Compensation for tariff obligations as a result of public service obligations, paid following a decision of a court ruling at final instance — Decision declaring the aid incompatible with the internal market — Existing aid and new aid — Regulation (EEC) No 1191/69 — Conditions for exemption from the requirement for notification — Article 4(5) and Article 7(6) of Regulation (EC) No 659/99 — Respective jurisdictions of the Commission and the national courts in respect of the monitoring of State aid — Force of res judicata of a judgment of a higher national court — Temporal application of the rules of substantive law — Legitimate expectations — Legal certainty)

1. Judicial proceedings — Introduction of new pleas during the proceedings — Amplification of a plea made earlier — Admissibility (Rules of Procedure of the General Court (1991), Art. 48(2)) (see para. 78)

2. State aid — Existing aid — Permanent examination by the Commission with the Member States — Legal status in the absence of a finding of incompatibility with the internal market made by the Commission (Art. 108(1) and (3) TFEU) (see para. 80)

3. State aid — Existing aid and new aid — Compensation for public service obligations in relation to regional transport — Exemption from the notification obligation laid down by Article 17(2) of Regulation No 1191/69 — Measure not respecting the material criteria of that regulation — Classification as new aid — Prior obligation notification (Art. 108 TFEU; Council Regulation No 1191/69, Art. 17(2)) (see paras 92, 106-115, 120)

4. 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 para. 110)

5. State aid — Meaning — Measures designed to compensate for the cost of public service missions undertaken by an undertaking — Not included — Conditions set out in the Altmark judgment — Cumulative nature (Art. 107(1) TFEU) (see paras 124-128, 132)

6. State aid — Effect on trade between Member States — Adverse effect on competition — Criteria for assessment (Art. 107(1) TFEU) (see paras 141-143)

7. State aid — Respective powers of the Commission and the national courts — Role of the national courts — Principle of res judicata — Non-enforceability of the principle of res judicata to the recovery of illegal aid — Non-enforceability of the principle of res judicata to a later Commission decision finding the existence of illegal State aid (Arts 107(1) TFEU and 108(3) TFEU) (see paras 183-190)

8. EU law — Principles — Protection of legitimate expectations — Limits — Application of new rules to the future effects of situations arising during the period of application of previous rules (see paras 203, 204)

9. Transport — Aid for transport — Regulation No 1370/2007 — Temporal application — Application to aid paid from the entry into force of the regulation, subject to transitional provisions (Arts 107(1) TFEU and 108(3) TFEU; European Parliament and Council Regulation No 1370/2007; Council Regulation No 1191/69) (see paras 209-212)

Re:

Application based on Article 263 TFEU and seeking annulment of Commission Decision (EU) 2015/1075 of 19 January 2015 on State aid SA.35843 (2014/C) (ex 2012/NN) implemented by Italy — Additional public service compensation for Buonotourist (OJ 2015 L 179, p. 128).

Operative part

The Court:

1. Dismisses the action;

2. Orders Buonotourist Srl, in addition to bearing its own costs, to pay those incurred by the European Commission;