Case T-69/06: Action brought on  23 February 2006  — Aughinish Alumina v Commission
Date: 2006-02-23
Institutions: Court of First Instance
Subjects: European Commission, State aid, action for annulment (EU), excise duty, fuel, mineral oil, tax exemption

22.4.2006

EN

Official Journal of the European Union

C 96/29

Action brought on 23 February 2006 — Aughinish
Alumina v Commission

(Case T-69/06)

(2006/C 96/47)

Language of the case: English

Parties

Applicant: Aughinish Alumina Ltd (Askeaton, Ireland) [repre-
sented by: J. Handoll and C. Waterson, Solicitors]

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Decision of 7 December 2005, regis-
tered under document number C (2005) 4436 def.
concerning the exemption from excise duty on mineral oils
used as fuel for alumina production in, among others, the
Shannon region,
insofar as it
relates to the applicant
(C 78/2001 (ex NN/2001) —
Ireland);

implemented by Ireland,

— order the Commission to pay the costs incurred by the

applicant in the current proceedings.

Pleas in law and main arguments

that

the
By the contested Decision the Commission found that
exemption from excise duty granted by, among other Member
States, Ireland in respect of heavy fuel oils used in the produc-
tion of alumina until 31 December 2003, constitute State aid
within the meaning of Article 87(1) EC. Whilst concluding that
aid granted between 17 July 1990 and 2 February 2002, to the
extent
it was incompatible with the common market,
should not be recovered and that aid granted between 3
February 2002 and 31 December 2003 is compatible with the
common market, within the meaning of Article 87(3) EC,
insofar as the beneficiaries pay at least a rate of EUR 13.01 per
1 000 kg of heavy fuel oils, the Commission also decided that
the same aid was incompatible with the common market
insofar as the beneficiaries did not pay that rate and instructed,
to take all necessary measures to
among others,
recover from the beneficiaries the incompatible aid.

Ireland,

The applicant, an Irish company who was a beneficiary of the
alleged aid, requests the annulment of the contested Decision.
In support of its application it alleges, first of all, that the
Commission wrongly failed to treat the aid in question as
existing aid falling under Article 88(1) EC. In this respect, the

applicant advances three alternative submissions: The aid was
the subject of a binding commitment given before the acces-
sion of Ireland; the aid was notified in January 1983 and it was
not until 2000 that the Commission even considered initiating
proceedings and; even if the aid was to be regarded as unlawful
aid, the Commission wrongly concluded that it could only
partially be deemed to be existing aid pursuant to Article 15 of
Regulation 659/99 (1).

The applicant also contends that the contested Decision violates
the principle of legal certainty as it undermines authorisations
granted by the Council under Article 93 EC and the Commis-
sion failed to use the procedures available to it under Article 8
of Directive 92/81 (2) to resolve State aid or other concerns, or
indeed to seek the annulment of the relevant Council Deci-
sions.

Further, according to the applicant the Commission failed to
take account of the fundamental requirements of Articles 3 and
157 EC,
to strengthen the competitiveness of Community
industry and to ensure the existence of necessary conditions for
it.

The applicant also invokes the principles of protection of legiti-
mate expectations and legal certainty. In this respect the appli-
cant points again to the fact that the Commission took no
negative action for a period of 17 years after the aid's notifica-
tion and failed to challenge the Council's Decisions extending
the exemption until December 2006.

The applicant argues further that the procedure under Article
88(2) EC lasted 43 months, according to the applicant an
excessively long time violating the principles of good adminis-
tration and legal certainty.

the applicant considers that

Finally,
the Commission failed
properly to analyse the relevant markets and their competitive
structure, as it was required to do in view of the fact that it had
itself accepted earlier that there was no distortion of competi-
tion and taking into account the fact that the Council had
authorised the exemptions until 31 December 2006.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty, OJ L 83 , 27/03/1999 p. 1

(2) Council Directive 92/81/EEC of 19 October 1992 on the harmoni-
zation of the structures of excise duties on mineral oils, OJ L 316 ,
31/10/1992 p.12