CELEX: 62010CJ0081
Language: en
Date: 2011-12-08
Title: Judgment of the Court (Third Chamber) of 8 December 2011. # France Télécom SA v European Commission. # Appeal - State aid - France Télécom’s business tax regime - Concept of ‘aid’ - Legitimate expectations - Limitation period - Obligation to state reasons - Principle of legal certainty. # Case C-81/10 P.

Case C-81/10 P
      France Télécom SA
      v
      European Commission
      (Appeal – State aid – France Télécom’s business tax regime – Concept of ‘aid’ – Legitimate expectations – Limitation period – Obligation to state reasons – Principle of legal certainty)
      Summary of the Judgment
      1.        State aid – Concept – Special tax regime conferring an advantage on an undertaking
      (Art. 87(1) EC)
      2.        State aid – Concept – Undertaking’s special tax regime – Favourable tax differential covering a certain period offset by surplus
            tax paid in respect of another period on account of a fixed levy
      (Art. 87(1) EC)
      3.        State aid – Recovery of unlawful aid – Aid granted in breach of the rules of procedure laid down in Article 88 EC – Possible
            legitimate expectation on the part of the beneficiaries – Protection – Conditions and limits 
      (Art. 88(3) EC)
      4.        State aid – Recovery of unlawful aid – Ten‑year limitation period laid down in Article 15 of Regulation No 659/1999 – The
            point from which the limitation period starts to run – Date on which the aid was granted to the beneficiary 
      (Art. 88(2) EC; Council Regulation No 659/1999, Art. 15)
      5.        State aid – Commission decision finding aid incompatible with the common market and ordering its recovery – Whether it is
            possible for the Commission to entrust the national authorities with the task of calculating the exact amount of aid to be
            recovered – Infringement of the principle of legal certainty – None 
      1.        A special tax regime may confer an advantage on an undertaking for the purposes of Article 87(1) EC, even though the exact
         amount of aid granted under that regime has to be determined by reference to certain factors unrelated to the regime.
      
      Where the finding of the existence of aid depends on a number of circumstances unrelated to the special tax regime, such as
         the fact that the business tax is charged annually and the level of the tax rates voted each year by the local authorities,
         such circumstances do not in any way preclude the possibility that, even at the time of its adoption, the special tax regime
         could have been classified as State aid for the purposes of Article 87(1) EC. Indeed, it is necessary to make a distinction
         between, on the one hand, the adoption of the aid scheme, and, on the other, the grant of annual aid to the undertaking on
         the basis of that regime, the precise total amount of which depended on certain external factors.
      
      In such a case, the existence of an advantage may be attributable, first, to a fixed element forming part of the special tax
         regime applied to the undertaking, as opposed to the general law regime, and, second, to a variable element, which depends
         on factual circumstances, namely the location of premises or land in the various local authorities and the tax rate applicable
         in those authorities.
      
      (see paras 21-23, 27)
      2.        With regard to the concept of aid for the purpose of Article 87(1) EC, a measure cannot be saved from categorisation as aid
         where the aid beneficiary is subject to a specific charge which is different from and unconnected with the aid in question.
         
      
      Any determination as to whether the over-taxation of an undertaking at a certain period, attributable to a fixed levy to which
         it was subject, offsets the tax differential from which that undertaking benefited during another period depends on the analysis
         of the objective characteristics of the fixed levy applicable and on whether it may be regarded as a charge which is connected
         with the advantage enjoyed by the undertaking as a result of its being taxed under the special regime. The mere fact that
         the fixed levy and the special tax regime were both introduced by the same law does not prove that the undertaking’s liability
         to pay the fixed levy was connected with the creation of the special tax regime.
      
      (see paras 43-44, 48)
      3.        In view of the mandatory nature of the review of State aid by the Commission, undertakings to which aid has been granted may
         not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with
         the procedure laid down in Article 88 EC and a diligent business operator should normally be able to determine whether that
         procedure has been followed. In particular, where aid is implemented without prior notification to the Commission, with the
         result that it is unlawful under Article 88(3) EC, the recipient of the aid cannot have at that time a legitimate expectation
         that its grant is lawful.
      
      Moreover, where aid has not been notified to the Commission, any apparent failure to act on its part in relation to the measure
         is irrelevant.
      
      (see paras 59-60)
      4.        Article 15(1) of Regulation No 659/1999 on the application of Article 88 EC provides that the powers of the Commission to
         recover aid are subject to a limitation period of 10 years. It is apparent from Article 15(2) of the regulation that the limitation
         period does not begin to run until on the day on which the unlawful aid is awarded to the beneficiary. Consequently, the decisive
         factor in determining the starting point of the limitation period referred to in Article 15 is when the aid was in fact granted.
      
      It is apparent from Article 15(2) of Regulation No 659/1999 that, for the purpose of determining the date on which the limitation
         period starts to run, that provision refers to the grant of aid to a beneficiary, not the date on which an aid scheme was
         adopted.
      
      The determination of the date on which aid was granted may vary depending on the nature of the aid in question. In the case
         of a multi-annual scheme, entailing payments or advantages granted on a periodic basis, the date on which an act forming the
         legal basis of the aid is adopted and the date on which the undertakings concerned will actually be granted the aid may be
         a considerable period of time apart. In such a case, for the purpose of calculating the limitation period, the aid must be
         regarded as not having been awarded to the beneficiary until the date on which it was in fact received by the beneficiary.
      
      (see paras 80-82)
      5.        The principle of legal certainty – which is one of the general principles of European Union law – requires that rules of law
         be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations
         and legal relationships governed by European Union law.
      
      In the field of State aid, no provision of European Union law requires the Commission, when ordering the recovery of aid declared
         incompatible with the common market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission’s
         decision to include information enabling the recipient to calculate the amount itself, without overmuch difficulty.
      
      (see paras 100, 102)
JUDGMENT OF THE COURT (Third Chamber)
      8 December 2011 (*)
      
      (Appeal – State aid – France Télécom’s business tax regime – Concept of ‘aid’ – Legitimate expectations – Limitation period – Obligation to state reasons – Principle of legal certainty)
      In Case C‑81/10 P,
      APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 February 2010,
      France Télécom SA, established in Paris (France), represented by S. Hautbourg, L. Olza Moreno and L. Godfroid, avocats,
      
      appellant,
      the other parties to the proceedings being:
      European Commission, represented by E. Gippini Fournier and D. Grespan, acting as Agents, with an address for service in Luxembourg,
      
      defendant at first instance,
      French Republic, represented by G. de Bergues and J. Gstalter, acting as Agents,
      
      applicant at first instance,
      THE COURT (Third Chamber),
      composed of K. Lenaerts, President of the Chamber, J. Malenovský, R. Silva de Lapuerta (Rapporteur), E. Juhász and D. Šváby,
         Judges,
      
      Advocate General: N. Jääskinen,
      Registrar: A. Impellizzeri, Administrator,
      having regard to the written procedure and further to the hearing on 31 March 2011,
      after hearing the Opinion of the Advocate General at the sitting on 8 September 2011,
      gives the following
      Judgment
      1        By its appeal, France Télécom SA (‘FT’) seeks to have set aside the judgment of the Court of First Instance of the European
         Communities (now ‘the General Court’) in Joined Cases T‑427/04 and T‑17/05 France and France Télécom v Commission [2009] ECR II‑4315 (‘the judgment under appeal’), by which that court dismissed the action for annulment of Commission Decision
         2005/709/EC of 2 August 2004 concerning State aid paid by France to FT (OJ 2005 L 269, p. 30) (‘the contested decision’).
         
      
       The facts of the dispute
      2        In the judgment under appeal, the General Court set out the legal background and the facts of the dispute before it as follows:
      
      ‘…
      2. Liability of FT to business tax 
      General business tax regime
      16      Business tax is a local tax, the rules of which are laid down by statute and codified in the General Tax Code.
      17      … business tax is payable each year by natural or legal persons regularly pursuing a self-employed occupation as at 1 January.
      18      … the imposition of business tax depends on the taxable person’s ability to pay, which is assessed in accordance with economic
         criteria on the basis of the extent of the business activities engaged in by the taxable person in the territory of the recipient
         body.
      
      19      It follows that the business tax is not based on the profit made by the undertaking’s business, but, at the material time,
         on a proportion of the value of the production factors – capital and labour – used by the taxable person in each municipality
         in which the tax is established.
      
      20      … for taxation relating to the years 1994 to 2002, in the case of legal persons liable to corporation tax, the basis for the
         business tax included (i) the rental value of the fixed assets which the taxable person had used to meet its business requirements
         during the reference period and (ii) a proportion of the salaries paid during the reference period.
      
      21      … the reference period … is to be the penultimate year preceding the year of taxation, where the financial year coincides
         with the calendar year, or, where that is not the case, the financial year ending during the penultimate year preceding the
         year of taxation.
      
      22      … the business tax is to be established in each municipality in which the taxable person has premises or land, on the basis
         of the rental value of the assets situated in that municipality or connected with it, and the salaries paid to staff.
      
      …
      Rules applicable to FT
      Principle of liability to tax under the ordinary law
      25      Law No 90‑568 [of 2 July 1990 on the organisation of the public postal and telecommunications services (JORF of 8 July 1990,
         p. 8069) (‘Law No 90‑568’)], by which FT … [was] founded, lays down special tax provisions.
      
      26      … subject to [certain] exceptions … FT is [in principle] to be subject to duties and taxes … payable by private undertakings
         carrying out the same transactions.
      
      Fixed levy
      27      … FT was, until 1 January 1994, to be subject only to such duties and taxes as were actually borne by the State. Consequently,
         FT was not liable inter alia for corporation tax or local taxes, such as business tax. In exchange, FT had to pay, for the
         years 1991 to 1993, a contribution fixed each year by the Finance Law, subject to a maximum amount, the base for which, before
         the application of discount factors, was equal to the balance shown by the additional budget for telecommunications for the
         year 1989 …
      
      Special tax regime
      …
      30      The tax [payable by way of business tax] – the basis of assessment for which, for the purposes of calculating specific tax
         bases, followed the general rules laid down in the General Tax Code … – was established through the application of a national
         weighted average rate, based on the rates voted the previous year by all the local authorities …
      
      31      Furthermore, a rate of 1.9% – instead of 8% – was applied to FT in respect of management costs, that is to say, an additional
         sum levied by the State to offset the expenses incurred by the tax authorities in assessing tax and collecting business tax
         for the local authorities.
      
      32      The tax revenue had to be paid to the State or, for the proportion exceeding the contribution paid for the year 1994, adjusted
         each year to reflect the fluctuation in the consumer price index, to the Fonds national de péréquation de la taxe professionnelle
         (National Business Tax Equalisation Fund) …
      
      …
      3. Administrative procedure
      35      On 13 March 2001, the Association des collectivités territoriales pour le retour de la taxe professionnelle de France Télécom
         et de La Poste dans le droit commun (Association of local authorities for the reinstatement under the general law of the business
         tax regime applicable to FT and La Poste) submitted a complaint to the Commission to the effect that the special tax regime
         constituted State aid which was incompatible with the common market. The complainant referred inter alia to the loss of revenue
         for certain municipalities as a result of the application of a national weighted average rate.
      
      36      Following that complaint, the Commission decided on 28 June 2001 to initiate the preliminary investigation procedure in respect
         of the special tax regime and sent the French Republic a request for information.
      
      37      By letter of 26 September 2001, the French Republic replied that the special tax regime did not constitute State aid, because
         it did not confer any advantage on FT and entailed no loss of State resources.
      
      38      On 30 January 2003, the Commission adopted a decision initiating the formal investigation procedure provided for under Article
         88(2) EC in respect inter alia of the exemption from business tax granted to FT from 1991 to 1993 and of the special tax regime
         (“the decision initiating the formal investigation”). The decision initiating the formal investigation was notified to the
         French Republic by letter of 31 January 2003. At the request of the French authorities, the Commission notified a rectified
         version of that decision on 7 March 2003. In the decision initiating the formal investigation, the Commission estimated the
         advantage conferred on FT as being worth approximately FRF 1 000 million per annum since 1994 (paragraphs 73 and 74). The
         initiation decision was published on 12 March 2003 (OJ 2003 C 57, p. 5).
      
      …
      4. The contested decision
      53      On 19 and 20 July 2004, at its 1 667th meeting, the College of Commissioners approved a draft decision finding that FT had
         received State aid during the period from 1994 to 2002 by virtue of the special tax regime (“the aid at issue”) and empowered
         the Member responsible for competition to adopt, with the agreement of the President, the definitive version of the decision
         in French – the authentic language – after “legal linguistic revision”.
      
      54      On 2 August 2004, the Commission adopted [the contested decision]. It was notified to the French Republic on 3 August 2004.
      …
      61      In the contested decision, the Commission found, first, that the fixed levy, provided … for the period from 1991 to 1993,
         could be regarded as replacing the business tax normally payable for those years. Accordingly, the exemption from business
         tax during that period did not constitute State aid (recitals 22 to 33 and 53 [of the contested decision]).
      
      62      On the other hand, the Commission found that the special tax regime applicable from 1994 to 2002 introduced State aid consisting
         in the difference between the tax which FT should have paid under the general law and the amount of business tax actually
         paid (“the tax differential”). Moreover, that new aid, implemented unlawfully in breach of Article 88(3) EC, was incompatible
         with the common market. It therefore had to be recovered (recitals 34 to 53 of the contested decision).
      
      63      The Commission gave the following reasons for categorising the special tax regime as State aid for the purposes of Article
         87(1) EC.
      
      64      First, the Commission set out the reasons why it considered it appropriate to discount the argument of the French authorities
         to the effect that the advantage found during the period from 1994 to 2002 was more than offset by the fixed levy which FT
         had had to pay during the period from 1991 to 1993 (recitals 35 to 41 of the contested decision).
      
      65      First of all, the Commission states that Law No 90‑568 had established two successive and distinct tax regimes: (i) an exemption
         regime, applicable from 1991 to 1993, under which a fixed levy replaced the general law taxes, including business tax, and
         (ii) a special regime introduced by way of derogation, as a result of which business tax was underpaid and which initially
         applied from 1994 and which was terminated with effect from the 2003 tax assessments (recitals 36 and 38 of the contested
         decision).
      
      …
      67      Consequently, the Commission found that it could not agree that the tax differential from which FT had benefited between 1994
         and 2002 had been offset by the fixed levy paid between 1991 and 1993, which was not connected with business tax either specifically
         by Law No 90‑568 or by the method by which it was calculated (recital 38 of the contested decision).
      
      68      Moreover, the Commission found that payment of the fixed levy at issue was more akin to paying a share of the earnings to
         the owner of the capital than to taxation. In those circumstances, it was only by way of exception that the Commission had
         been able to accept that the levy offset the total exemption from business tax from which FT had benefited from 1991 to 1993.
         A normal application of the law could, on the contrary, have led to the conclusion that that exemption constituted State aid,
         the amount of which should have been added to that of the tax differential enjoyed by FT since 1994 under the special tax
         regime (recitals 38 and 39 of the contested decision).
      
      69      Lastly, the Commission found that the argument that the payments made by FT to the State between 1991 and 1993 should be set
         off against the under-taxation of FT from 1994 would involve categorising the surplus tax paid by FT (as compared with the
         tax payable under the general law) between 1991 and 1993 as a tax credit, which was not the aim of Law No 90‑568. Nor, according
         to the Commission, does that a posteriori theoretical justification reflect the normal application of French tax law: rather,
         it is designed solely to prevent recovery of the State aid granted to FT (recital 40 of the contested decision).
      
      70      Secondly, the Commission found that the tax differential represented an advantage for FT, granted from resources which should
         have been incorporated into the budget of the State and accordingly constituted State aid (recital 42 of the contested decision).
      
      71      Thirdly, in recitals 43 and 44 of the contested decision, the Commission stated that, in order to determine the net advantage
         from which FT had benefited, it could not take into consideration, at the stage of the decision establishing the existence
         of State aid, the French Republic’s argument that the corporation tax factor should be corrected downwards because of the
         higher amounts paid by way of business tax …
      
      72      Fourthly, the Commission – rejecting the arguments submitted by the French Republic to the effect that the aid at issue could
         not be recovered because of the limitation rules laid down in Article 15 of [Council] Regulation [EC] No 659/1999 [of 22 March
         1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1)] – found that the aid at issue
         was new aid, not existing aid (recital 45 [of the contested decision]).
      
      73      First, the Commission stated that the expiry of the limitation period laid down in Article 15 of Regulation No 659/1999 did
         not have the effect of converting new aid into existing aid, but only of preventing the Commission from ordering the recovery
         of aid granted more than 10 years before the date on which time began to run for the purposes of barring recovery (recitals
         46 to 48 of the contested decision).
      
      74      Second, the Commission argued that Law No 90‑568 had established an aid scheme and that any limitation concerns only the aid
         granted under that scheme and not the scheme itself. The point from which time starts to run is therefore the day on which
         each form of aid was actually granted to FT, that is to say, on the date, each year, on which the business tax was due (recital
         49 of the contested decision).
      
      75      Third, the Commission added that the limitation period had been interrupted by the request for information sent to the French
         Republic on 28 June 2001 (recital 50 of the contested decision).
      
      76      The Commission therefore concluded that, since the first form of aid identified had been granted in 1994 – that is to say,
         fewer than 10 years before 28 June 2001 – the aid at issue had to be recovered in its entirety (recital 51 of the contested
         decision).
      
      77      Fifth, the Commission stated that the French authorities had not put forward any focused argument to prove that the aid at
         issue was compatible with the common market and that the Commission could see no legal basis on which it could be declared
         compatible with the common market (recital 52 [of the contested decision]).
      
      78      Consequently, in recital 53 of the contested decision, the Commission concluded that (i) the business tax regime applicable
         to FT during the period from 1991 to 1993 did not constitute State aid and (ii) the tax differential from which FT had benefited
         during the period from 1994 to 2002, as a consequence of the special tax regime, constituted State aid which was incompatible
         with the common market and which had been unlawfully implemented, and which must therefore be recovered.
      
      79      However, the exact amount to be recovered could not be determined, owing to the discrepancies in the information submitted
         by the French authorities during the administrative procedure. The Commission estimated that the aid to be recovered was in
         the amount – net of interest – of between EUR 798 million and EUR 1 140 million (recitals 54 to 59 [of the contested decision]).
      
      80      In recital 54 of the contested decision, the Commission referred to a report presented to the French Parliament by the Directorate-General
         for Taxes in November 2001, according to which “the immediate normalisation of the conditions of taxation of FT in relation
         to business tax would involve, at an unchanged rate, an over-taxation of almost 198 million euros for the company”.
      
      81      In addition, the Commission relied on the estimate of 15 May 2003, the results of which are set out in tabular form in recital
         54 of the contested decision. According to the figures produced by the French Republic, the aggregate theoretical taxation
         of FT under the general law, for the years 1994 to 2002, was EUR 8 362 million. The aggregate actual taxation charged to FT
         for the same years, under the special tax regime, is EUR 7 222 million. The tax differential enjoyed by FT during the period
         from 1994 to 2002 is therefore EUR 1 140 million.
      
      82      The Commission also pointed out that, by letter of 29 January 2004, the French authorities had informed it of the amount of
         the tax charged to FT, under the general law, for the year 2003 (EUR 773 million) and confirmed that the estimate of 15 May
         2003 was sound (recital 55 of the contested decision). It was not until the meetings held on 16 and 23 June 2003 that the
         French authorities contested the reliability of those figures (recitals 56 and 57 of the contested decision).
      
      83      On 5 July 2004, of the French authorities submitted a new estimate. This gave different results, reproduced in tabular form
         in recital 58 of the contested decision. The aggregate theoretical taxation of FT under the general law, for the years 1994
         to 2002, had been reduced to EUR 8 020 million. The tax differential enjoyed by FT during the period from 1994 to 2002 is
         therefore EUR 798 million.
      
      84      Owing to the contradictory information provided by the French Republic during the administrative procedure, the Commission
         found that it was unable to determine the amount to be recovered, which was between EUR 798 million and EUR 1 140 million,
         plus interest. According to the Commission, the exact amount to be recovered had to be determined by the French authorities,
         in accordance with their duty to cooperate in good faith, when the contested decision was implemented (recitals 59 and 60
         of the contested decision).
      
      85      In consequence of all the foregoing, the enacting terms of the contested decision state:
      “Article 1
      The State aid granted illegally by [the French Republic] in infringement of Article 88(3) [EC] to FT under the business tax
         scheme applicable to that company during the period 1 January 1994 to 31 December 2002 ... is incompatible with the common
         market.
      
      Article 2
      1.      [The French Republic] shall take all necessary measures to recover from FT the aid referred to in Article 1.
      2.      Recovery shall be effected without delay and in accordance with the procedures of national law provided that they allow the
         immediate and effective execution of this Decision.
      
      3.      The aid to be recovered shall include interest from the date on which it was at the disposal of the recipient until the date
         of its recovery.
      
      …
      Article 3
      [The French Republic] shall inform the Commission, within two months of notification of this Decision, of the measures that
         it proposes to take and that it has already taken to comply with it. For that purpose, [the French Republic] shall use the
         questionnaire annexed to this Decision.
      
      Article 4
      This Decision is addressed to the French Republic.”
      86      On 25 October 2006, the Commission brought infringement proceedings, claiming that the Court of Justice should declare that,
         by failing to execute the contested decision within the prescribed period, the French Republic had failed to fulfil its obligations
         under Articles 2 and 3 of that decision, under the fourth paragraph of Article 249 EC and under Article 10 EC.
      
      87      By judgment of 18 October 2007 in Case C-441/06 Commission v France [2007] ECR I-8887, the Court of Justice held that the action was well founded.’
      
       The procedure before the General Court and the judgment under appeal
      3        In their actions before the General Court for annulment of the contested decision brought on 13 October 2004 and 10 January
         2005 respectively, the French Republic and FT submitted, in essence, that the Commission was incorrect in finding, first,
         that FT had benefited from unlawful aid and, second, that the aid had to be repaid.
      
      4        By the judgment under appeal, the General Court rejected all the pleas put forward by the French Republic and FT.
      
       Forms of order sought by the parties
      5        FT claims that the Court should:
      
      –        set aside the judgment under appeal;
      –        give final judgment as to the substance, in accordance with Article 61 of the Statute of the Court of Justice of the European
         Union, and grant the forms of order sought by FT at first instance;
      
      –        in the alternative, refer the case back to the General Court; and
      –        order the Commission to pay the costs.
      6        The French Republic claims that the Court should:
      
      –        set aside the judgment under appeal;
      –        give final judgment as to the substance, in accordance with Article 61 of the Court’s Statute;
      –        uphold the applicants’ claims at first instance;
      –        in the alternative, refer the case back to the General Court; and
      –        order the Commission to pay the costs.
      7        The Commission contends that the appeal should be dismissed and FT ordered to pay the costs.
      
       The appeal
      8        FT relies on five grounds of appeal, alleging that the General Court: (i) erred in law by classifying the special tax regime
         as State aid, when the existence of an advantage for FT depended on factors unrelated to that regime; (ii) misconstrued the
         concept of State aid in that the Commission failed to take account of the overall tax regime applicable to FT during the years
         from 1991 to 2002; (iii) failed to have proper regard for the principle of the protection of legitimate expectations; (iv)
         failed to state reasons in the judgment under appeal with regard to the principle of limitation and; (v) erred in law and
         failed to state adequate reasons for the judgment under appeal with regard to the principle of legal certainty.
      
       The first ground of appeal, alleging that the General Court erred in law by classifying the special tax regime as State aid,
            when the existence of an advantage for FT depended on factors unrelated to that regime
       Arguments of the parties
      9        FT submits that the existence of any financial advantage that may have been conferred on it as compared with the position
         under the general law depends on a range of variables, such as the different rates of business tax applicable in the French
         municipalities in which taxable assets are held and the geographical location of those assets. Consequently, the special tax
         regime applicable to FT from 1994 was not advantageous in itself and, as a result, the General Court should have rejected
         the classification of the tax regime at issue as State aid.
      
      10      FT takes the view that the General Court misconstrued the concept of State aid by finding, at paragraph 323 of the judgment
         under appeal, that the existence of any advantage did not depend on the specific features of the tax regime at issue, but
         on factors unrelated to that regime, the effects of which may be determined only ex post. The advantages or disadvantages
         deriving from those factors could not lead to a measure being characterised as aid when, at the time of its adoption, it could
         not be so characterised. 
      
      11      The French Republic submits that a special tax regime is not in itself capable of constituting State aid. Such a regime would
         not necessarily confer a selective advantage on the undertakings concerned. 
      
      12      The Commission considers that the ground of appeal in question is inadmissible, since it was not raised at first instance.
         
      
      13      The Commission also maintains that the ground is unfounded. It was not possible to determine in advance, for each year, the
         precise level of taxation under the special regime. However, that regime could have led to less tax being payable by comparison
         with the position under the general law on business tax. 
      
      14      The Commission adds that it is not unusual for the examination of State aid to require account to be taken of events that
         took place after the occurrence of the measure in question, in order to determine whether such aid in fact existed and to
         quantify it in order to recover the advantage obtained. 
      
       Findings of the Court
      15      With regard to the Commission’s claim that the first ground of appeal is inadmissible, it should be noted that that ground,
         which forms part of the submissions relating to the existence of State aid, was put forward at first instance in the context
         of the first and second pleas relied on before the General Court. 
      
      16      As regards whether that ground is well founded, according to settled case-law, the definition of aid is more general than
         that of a subsidy. It includes not only positive benefits but also measures which, in various forms, mitigate the charges
         which are normally included in the budget of an undertaking and which thus, without being subsidies in the strict sense of
         the word, are similar in character and have the same effect (see, Joined Cases C‑78/08 to C‑80/08 Paint Graphos and Others [2011] ECR I‑0000, paragraph 45 and the case-law cited). 
      
      17      It should also be noted that the concept of advantage that is intrinsic to the classification of a measure as State aid is
         an objective one, irrespective of the motives of the persons responsible for the measure in question. Accordingly, the nature
         of the objectives pursued by State measures and their grounds of justification have no bearing whatsoever on whether such
         measures are to be classified as State aid. It is established case-law that Article 87(1) EC does not distinguish between
         the causes or the objectives of State aid, but defines them in relation to their effects (see Case C‑409/00 Spain v Commission [2003] ECR I‑1487, paragraph 46 and the case-law cited). 
      
      18      As regards the present case, it should be noted that the tax regime to which FT was subject during the second period under
         consideration, namely during the years from 1994 to 2002, constituted an exception to the general law regime. In particular,
         that company benefited from specific tax treatment at national level, characterised by the fact that business tax was calculated
         on the basis of a weighted average rate, as opposed to the various rates applicable in the different local authorities, whereas
         the rates to which other undertakings were subject were those voted annually by those authorities. Moreover, FT was subject
         to a single rate of business tax in its principle place of business, whereas other undertakings were taxed at the different
         rates voted by the local authorities in the territory within which those undertakings had establishments. A rate of 1.9% was
         also applied to FT, as opposed to the rate of 8% applicable to other undertakings, in respect of management costs. 
      
      19      As regards the argument relied on in the present appeal that the General Court’s examination of the tax regime at issue should
         have taken account of a number of variables and extraneous factors, it should be noted that, even though, given the particular
         characteristics of that regime, the Commission was not in a position to determine in advance for each tax year the precise
         level of taxation for that year, it is nevertheless accepted that the regime was capable of resulting and in fact resulted
         – as is apparent from recital 59 of the contested decision and paragraph 225 of the judgment under appeal – in FT’s liability
         to business tax being lower than it would have been if the general law business tax regime had been applied. 
      
      20      It should also be noted that, irrespective of the rates of business tax adopted by the local authorities, FT benefited in
         all circumstances from a reduced rate in respect of management costs. 
      
      21      In those circumstances, the General Court was correct to hold, at paragraph 323 of the judgment under appeal, that the finding
         of the existence of aid depended on a number of ‘circumstances unrelated to’ the special tax regime, such as the fact that
         the business tax was charged annually and the level of the tax rates voted each year by the authorities in the territory in
         which FT had establishments. 
      
      22      Contrary to the French Republic’s and FT’s claims, such circumstances do not in any way preclude the possibility that, even
         at the time of its adoption, the special tax regime could have been classified as State aid for the purposes of Article 87(1)
         EC. Indeed, it is necessary to make a distinction between, on the one hand, the adoption of an aid scheme, namely in the present
         case the special tax regime, and, on the other, the grant of annual aid to FT on the basis of that regime, the precise total
         amount of which depended on certain external factors. 
      
      23      As the Advocate General stated at point 59 of his Opinion, the present case involves a dual categorisation, in which the existence
         of an advantage is attributable, first, to a fixed element forming part of the special tax regime applied to FT, as opposed
         to the general law regime, and, second, to a variable element, which depends on factual circumstances, namely the location
         of premises or land in the various local authorities and the tax rate applicable in those authorities. 
      
      24      On account of its specific features, as described at paragraph 18 above, the special tax regime could have resulted in FT’s
         liability to tax being less than it would have been had it been subject to business tax under the general law regime. 
      
      25      The fact that FT’s liability to professional tax was indeed lower as of 1994 is directly attributable to the specific features
         of the special tax regime applied to it, even though the exact amount of annual aid received by it under that regime depended
         on certain factors unrelated to the regime. 
      
      26      It is also apparent from the structure of the judgment under appeal that paragraph 323 of that judgment, which refers to circumstances
         unrelated to the special tax regime, concerns only the annual aid granted to FT under the special tax regime. In fact, that
         paragraph forms part of the analysis of the plea relating to the limitation in time of the Commission’s power to recover unlawful
         aid. The findings of the General Court in connection with that plea can relate only to aid actually received and, therefore,
         concern only the aid from which FT benefited under the special tax regime. 
      
      27      It follows from those considerations that the General Court did not err in law in finding that the special tax regime conferred
         an advantage on FT for the purposes of Article 87(1) EC, even though the exact amount of aid granted under that regime had
         to be determined by reference to certain factors unrelated to the regime. 
      
      28      The first ground of appeal is therefore unfounded. 
      
       The second ground of appeal, alleging that the General Court misconstrued the concept of State aid in that the Commission
            failed to take account of the overall tax regime applicable to FT during the years from 1991 to 2002
      29      The second ground of appeal relied on by FT is subdivided into three parts. It is appropriate to examine, first, the second
         part, relating to the purported misinterpretation of the contested decision. Second, the first and third parts of this ground
         of appeal will be examined together as they are closely connected. 
      
       The second part of the second ground of appeal, alleging that the General Court erred in law in its misinterpretation of the
         contested decision and substituted its own grounds 
      
      –       Arguments of the parties
      30      FT maintains that the General Court misinterpreted the contested decision by concluding that the Commission considered that
         the aid at issue did not consist in the special tax provisions applicable to that company but in the tax differential established
         each year between the amounts actually paid by the company and the business tax that would have been due under the general
         law regime, thus substituting its own grounds for those of the decision. FT also submits that that interpretation is inconsistent
         with the enacting terms of the contested decision, according to which the aid at issue consists in the business tax scheme
         applicable to that company during the period from 1 January 1994 to 31 December 2002. The Commission therefore relied not
         on the fact that the tax differential established with effect from 1994 arose on an annual basis, but on other reasons of
         a different nature. 
      
      31      The Commission argues in reply that the General Court’s reading of the contested decision in the judgment under appeal is
         consistent with the terms of the decision. It states that it was unnecessary to repeat in the enacting terms of the decision
         that the tax differential constituted an advantage. The aid from which FT benefited, which consisted in the under-taxation
         of that company as regards business tax between the years 1994 and 2002, was made available as a result of the business tax
         regime applicable to the company during that period. 
      
      –       Findings of the Court
      32      At paragraph 201 of the judgment under appeal, the General Court examined the part of the contested decision which found that
         the aid derived from a tax differential representing the difference between the amount which FT would have had to pay by way
         of business tax contributions if it had been subject to the tax under the general law and the amount which it was actually
         charged under the tax regime at issue. The General Court verified that there was a genuine tax differential at paragraphs
         219 to 225 of the judgment, without its findings in that regard being called into question by FT. 
      
      33      As regards the purported substitution of grounds on the part of the General Court, it is sufficient to note that the court
         did not exceed its powers of review in substituting its own assessment for that of the Commission, since the tax differential
         in question and the fact that the business tax is paid annually, as provided for in the General Tax Code, form an integral
         part of the reasoning adopted by the Commission in the contested decision. 
      
      34      Recital 42 of the contested decision states that ‘the difference between the business tax actually paid by FT and that which
         should have been due under the ordinary law from 1 January 1994 to 1 January 2003 constitutes State aid inasmuch as it represents
         an advantage for FT granted through resources which would otherwise have been incorporated in the budget of the State’. Recital
         49 of the decision states that the professional tax was payable annually. Furthermore, the point is also made that business
         tax is payable annually at recital 25 of the decision initiating the formal investigation, to which recital 15 of the contested
         decision refers. 
      
      35      Consequently, the General Court’s interpretation to the effect that the aid at issue consisted in the tax differential deriving
         from the application of the provisions establishing a special regime is consistent with the enacting terms of the contested
         decision, which categorises the regime applicable to FT between the years 1994 and 2002 as aid which is incompatible with
         the common market. Indeed, it is by virtue of that special regime that FT was not required to pay business tax in the amounts
         for which it would normally have been liable under the general law tax regime. 
      
      36      The second part of the second ground of appeal must therefore be rejected. 
      
       The first and third parts of the second ground of appeal, alleging that the General Court misconstrued the concept of State
         aid since it failed to carry out an overall analysis of the tax regime applicable to FT
      
      –       Arguments of the parties
      37      FT submits that the General Court failed to have regard to the obligation to carry out a comprehensive examination of all
         the provisions under the regime which derogated from the general law. In order to determine whether there was an advantage,
         the General Court should have compared the charges imposed under the derogating regime with the level of taxation that would
         have been applied to it if the company had been taxed under the general law regime. However, it confined that comparison to
         the period from 1994 to 2002, without taking account of the tax burden borne by FT during the period from 1991 to 1993. 
      
      38      FT is of the view that neither the fact that the tax is paid annually nor the differences between the two tax periods under
         consideration could justify a partial analysis confined to the tax regime applicable as of 1994. The General Court was therefore
         incorrect in refusing to take account of the fact that the company was over-taxed as a result of the fixed levy during the
         period from 1991 to 1993 when compared with the level of taxation it would have had to bear if it had been subject to the
         general law on business tax during that period. Even if the General Court were entitled in its analysis to take account of
         the fact that the business tax is payable annually, it should have recognised that, as regards the initial tax years under
         the general derogating tax scheme, namely from the years 1991 to 1993, the company was over-taxed. 
      
      39      FT is also of the view that the General Court erred in law in relying, at paragraph 207 of the judgment under appeal, on Case
         C‑66/02 Italy v Commission [2005] ECR I‑10901. The General Court was incorrect in concluding, in reliance on that judgment, that FT benefited from a
         reduction in charges for the period from 1994 to 2002 which could not be offset by a specific charge imposed on that company
         in respect of the period from 1991 to 1993. 
      
      40      Similarly, the French Republic maintains that the General Court misconstrued the concept of advantage when it adopted a restrictive
         approach as regards the link that must exist between an exemption and a charge established by the tax regime at issue. The
         General Court should have undertaken an overall analysis covering both the derogating scheme established by Law No 90‑568
         – in particular any advantages conferred on FT by that scheme – and the charges payable by FT under the general law. 
      
      41      The Commission submits that it is not possible to ‘offset’ aid by invoking charges of a different nature that are unconnected
         with the aid. That applies not only to the question of State resources but also that of the advantage conferred. A loss of
         State resources cannot be saved from categorisation as aid simply because such loss is ‘set off’ against other sums paid to
         the State in accordance with other obligations. Since there is no sufficient connection between the tax scheme applicable
         between 1991 and 1993 and the scheme in force as of 1994, the ‘offsetting’ supposition underlying FT’s argument is unfounded.
         
      
      –       Findings of the Court
      42      In the light of the arguments put forward by the parties, it is necessary to consider whether the General Court erred in law
         in finding, at paragraph 218 of the judgment under appeal, that the Commission had been correct in refusing in the contested
         decision to offset the amounts paid by FT by way of fixed levy from 1991 to 1993 against the tax differentials arising from
         the special tax regime for the period from 1994 to 2002, in order to determine whether that company benefited from State aid
         for the purposes of Article 87(1) EC. 
      
      43      While recognising that, when examining a measure likely to constitute State aid, the Commission is entitled to take account
         of the specific charges imposed on an advantage, the General Court nevertheless found, at paragraph 207 of the judgment under
         appeal, that a measure cannot be saved from categorisation as aid where the aid beneficiary is subject to a specific charge
         which is different from and unconnected with the aid in question. That affirmation on the part of the General Court is based
         on a correct interpretation of Article 87(1) EC (see Case 173/73 Italy v Commission [1974] ECR 709, paragraph 34), notwithstanding the fact that it referred incorrectly in that regard to the judgment in Case
         C‑66/02 Italy v Commission. 
      
      44      The General Court therefore did not err in law in finding, at paragraph 208 of the judgment under appeal, that the validity
         of the French Republic’s and FT’s argument that the over-taxation of FT between 1991 and 1993, attributable to the fixed levy
         to which it was subject, offset the tax differential from which that company benefited from 1994 to 2002 depends on the analysis
         of the objective characteristics of the fixed levy applicable between 1991 and 1993 and on whether it may be regarded as a
         charge which is connected with the advantage enjoyed by FT as a result of its being taxed under the special regime as of 1994.
         
      
      45      It should be noted that the levy applicable to FT between 1991 and 1993 was determined by different parameters from those
         applied with effect from 1994 under the special tax regime. The two tax regimes were in fact based on different legal models
         and operating parameters. 
      
      46      As is apparent from recital 17 of the contested decision and paragraph 209 of the judgment under appeal, under the tax scheme
         applicable to FT from 1991 to 1993, it did not have to pay any tax or levy other than the fixed levy. The amount of the fixed
         levy was established not in accordance with the parameters used to determine the amount of business tax but by reference to
         the earnings paid to the State by the entity from 1989 to 1990. The fixed levy was also temporary.
      
      47      On the other hand, under the special tax regime applicable from 1994 for an indefinite period, FT was required, in principle,
         to pay all the general law taxes. However, the rules governing its liability to business tax derogated from the general law
         and constituted the special tax regime. 
      
      48      In those circumstances, the General Court was entitled to find, at paragraph 213 of the judgment under appeal, that the fixed
         levy must be regarded not as a charge connected with the introduction of the special tax regime, but rather as a special tax
         mechanism for FT established for the years prior to 1994. In any event, as the General Court stated at paragraph 215 of the
         judgment under appeal, the mere fact that the fixed levy and the special tax regime were both introduced by Law No 90‑568
         does not prove that FT’s liability to pay the fixed levy from 1991 to 1993 was connected with the creation of the special
         tax regime for the years after 1994. 
      
      49      The General Court did not, therefore, err in law in concluding, at paragraph 218 of the judgment under appeal, that the Commission
         was entitled to refuse to apply a set-off between, on the one hand, the amounts paid by FT between 1991 and 1993 by way of
         fixed levy and, on the other, the tax differentials arising as a result of the special tax regime established for that company
         for the years 1994 to 2002. 
      
      50      Lastly, even if it were the case that the tax regime applicable to FT consisted of two inextricably linked periods, the first
         entailing over-taxation and the second under-taxation, it is accepted that Law No 90-568 introduced with effect from 1994
         a special tax regime intended to be of indefinite duration. That law did not contain any mechanism for offsetting amounts
         due by way of fixed levy for the period from 1991 to 1993 against amounts due as of 1994 under the special tax regime. It
         therefore provided no mechanism for determining the point at which over-taxation under the first regime should have been offset
         under the second regime. As the Advocate General observed at point 100 of his Opinion, that over-taxation should have exhausted
         its effects at a given time, which necessarily entailed the conferring of an advantage on FT under the special tax regime.
         
      
      51      The first and third parts of the second ground of appeal cannot therefore be upheld. Accordingly, the second ground must be
         rejected in its entirety. 
      
       The third ground of appeal, alleging breach of the principle of the protection of legitimate expectations
      52      The third ground of appeal put forward by FT comprises two parts. 
      
       The first part of the third ground of appeal, alleging an error of law as regards the circumstances in which the principle
         of the protection of legitimate expectations may be relied on
      
      –       Arguments of the parties
      53      FT claims, with regard to whether it is possible for it to rely on the principle of the protection of legitimate expectations,
         that the General Court erred in confining the situations in which it is possible to take account of certain exceptional circumstances
         to cases in which aid has been notified. The fact that, in the present case, it was possible to identify the existence of
         an advantage only a posteriori, in the light of changing circumstances unrelated to the special tax regime, constitutes such
         exceptional circumstances. 
      
      54      FT states that the General Court did not identify either the legal act that should have been notified or the date on which
         notification should have occurred. If the advantage consisted in a tax differential established at the end of each tax year,
         it would be impossible to identify an obligation of prior notification of the tax regime at issue. 
      
      55      FT adds that the General Court disregarded the fact that the intentions of the national legislature were among the factors
         to be taken into consideration for the purpose of determining whether that company could have entertained a legitimate expectation
         that the tax measure at issue complied with the rules on State aid. 
      
      56      The Commission states that undertakings receiving aid can, in principle, have a legitimate expectation that the aid will be
         deemed lawful only if it is granted in accordance with the procedure laid down in the EC Treaty. 
      
      57      It submits that the special tax regime applicable to FT during the period from 1994 to 2002 was introduced by way of derogation,
         was selective, attributable to the State and applied to a company active in markets open to competition and to trade between
         Member States. Consequently, the national authorities should have notified the special business tax regime applicable to that
         company before the date on which that tax became chargeable. 
      
      –       Findings of the Court
      58      It should be recalled, first, that the obligation to notify is one of the fundamental features of the system of control put
         in place by the Treaty in the field of State aid. Under that system, Member States are under an obligation, first, to notify
         to the Commission each measure intended to grant new aid or alter aid for the purposes of Article 87(1) EC and, second, not
         to implement such a measure, in accordance with Article 88(3) EC, until that institution has taken a final decision on the
         measure. 
      
      59      Consequently, in view of the mandatory nature of the review of State aid by the Commission, undertakings to which aid has
         been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in
         compliance with the procedure laid down in Article 88 EC and a diligent business operator should normally be able to determine
         whether that procedure has been followed. In particular, where aid is implemented without prior notification to the Commission,
         with the result that it is unlawful under Article 88(3) EC, the recipient of the aid cannot have at that time a legitimate
         expectation that its grant is lawful (see Joined Cases C‑183/02 P and C‑187/02 P Demesa and Territorio Histórico de Álava v Commission [2004] ECR I‑10609, paragraphs 44 and 45 and case-law cited). 
      
      60      Moreover, the Court has held that, where aid has not been notified to the Commission, any apparent failure to act on its part
         in relation to the measure is irrelevant (see Demesa and Territorio Histόrico de Álava v Commission, paragraph 52).
      
      61      With regard to the present dispute, it is accepted that the tax regime at issue, which was introduced by Law No 90‑568, was
         not notified to the Commission. 
      
      62      In so far as FT argues that there was no obligation to notify, because it had not been established that there was an advantage,
         it should be noted that neither the purported complexity of the tax regime at issue nor the periodic nature of the aid measure
         can release the Member State from its obligation to notify or give rise to any legitimate expectation on the part of the company
         receiving the aid. 
      
      63      As regards the possible relevance of exceptional circumstances which may give rise, notwithstanding the considerations set
         out in the preceding paragraph, to a legitimate expectation that aid is lawful, it is sufficient to note that the General
         Court did not err in law in assessing such circumstances in the course of its detailed examination, at paragraphs 263 to 269
         of the judgment under appeal, of all the arguments relied on before it in that regard. 
      
      64      Consequently, the General Court concluded correctly, at paragraph 270 of the judgment under appeal, that the French Republic
         and FT had failed to prove the existence of exceptional circumstances enabling them to rely on the principle of the protection
         of legitimate expectations. 
      
      65      It must therefore be concluded that the first part of the third ground of appeal is unfounded. 
      
       The second part of the third ground of appeal, alleging an error in law as to the legal consequences flowing from another
         Commission decision on State aid
      
      –       Arguments of the parties
      66      FT is of the view that the General Court misinterpreted the legal consequences flowing from the Commission’s decision of 8
         February 1995 on La Poste (OJ 1995 C 262, p. 11) (‘the La Poste decision’). 
      
      67      FT submits that that decision was a positive act capable of producing legal effects and giving rise to a legitimate expectation
         that the tax regime at issue complied with the rules on State aid. 
      
      68      The Commission states that, since the special tax regime constituted a procedure for imposing business tax which derogated
         from the general law, it was capable of conferring an advantage on FT. In view of that regime’s particular characteristics,
         notification should have taken place no later than the date on which the business tax for which that company was liable for
         1994 became chargeable. 
      
      69      The Commission considers that another State aid investigation procedure could not give rise to a legitimate expectation on
         the part of FT concerning the special tax regime from which it benefited. 
      
      –       Findings of the Court
      70      As stated at paragraphs 59 and 60 above, the recipient of aid cannot, in principle, rely on considerations based on the principle
         of the protection of legitimate expectations where the aid in question has not been notified to the Commission. 
      
      71      The argument based on the La Poste decision does not contain any analysis of the special business tax regime applicable to
         FT. Accordingly, the General Court could do no other than point out, at paragraph 266 of the judgment under appeal, that the
         Commission had expressed no opinion at all on that special tax regime and had not, therefore, taken a view on whether it constituted
         aid. 
      
      72      As regards the argument that FT could have interpreted the context in which the La Poste decision was adopted as a definition
         of the Commission’s opinion on the tax regime at issue, it must be noted that the General Court, without erring in law, rejected
         that argument at paragraphs 265 to 269 of the judgment under appeal. 
      
      73      Consequently, the General Court was entitled to find that there was nothing of relevance in the La Poste decision that could
         have given rise to any legitimate expectation on the part of FT that the tax regime at issue was lawful in the light of the
         rules on State aid. The second part of the third ground of appeal is, therefore, unfounded. 
      
      74      In the light of the foregoing considerations, the third ground of appeal must be rejected in its entirety. 
      
       The fourth ground of appeal, alleging a failure to state reasons in the judgment under appeal with regard to the response
            to the arguments relating to the principle of limitation
       Arguments of the parties
      75      FT states that the French authorities explained, in the course of the administrative procedure, that any under-taxation during
         the period from 1994 to 2002 could not, in any event, be recovered, given that the tax regime at issue was introduced more
         than 10 years previously. Article 15 of Regulation No 659/1999 provides that Commission’s powers to recover aid are subject
         to a limitation period of 10 years. 
      
      76      According to FT, the General Court failed to adjudicate on the principle of limitation thus relied on before it. Instead,
         it substituted its own grounds in that regard for those of the contested decision. Moreover, the judgment under appeal did
         not specify the binding legal act which determined the point at which the limitation period began to run. The act which triggered
         the limitation period was Law No 90‑568. 
      
      77      The French Republic maintains that the General Court erred in law in finding that the limitation period in respect of the
         aid at issue could not have started to run before 1994. Even if it were accepted that the special tax regime constituted State
         aid, the only binding legal act identifiable for the purpose of determining the point at which the limitation period started
         to run as regards the measure in question was Law No 90‑568, which entered into force on 2 July 1990. The Commission decided
         to initiate the preliminary investigation procedure relating to FT’s special tax regime by sending a request for information
         to the French authorities on 28 June 2001. By that date, the limitation period pertaining to the Commission’s duty to recover
         aid had expired. 
      
      78      The Commission submits that the General Court was required to determine only whether recovery of the aid granted to FT under
         the special business tax regime in force from 1994 was time-barred. Consequently, the complaint that the General Court substituted
         its own grounds for those of the contested decision cannot be accepted. 
      
      79      The Commission states that the rules on limitation relating to State aid concern the recovery of such aid. Aid may be recovered
         only if it is possible to determine the aid amount. As regards the tax regime at issue, it was possible to identify the advantage
         only on an annual basis and a posteriori. 
      
       Findings of the Court
      80      As regards the principle of limitation, Article 15(1) of Regulation No 659/1999 provides that the powers of the Commission
         to recover aid are to be subject to a limitation period of 10 years. It is apparent from Article 15(2) of the regulation that
         the limitation period does not begin to run until on the day on which the unlawful aid is awarded to the beneficiary. Consequently,
         the decisive factor in determining the starting point of the limitation period referred to in Article 15 is when the aid was
         in fact granted. 
      
      81      It is apparent from Article 15(2) of Regulation No 659/1999 that, for the purpose of determining the date on which the limitation
         period starts to run, that provision refers to the grant of aid to a beneficiary, not the date on which an aid scheme was
         adopted. 
      
      82      The determination of the date on which aid was granted may vary depending on the nature of the aid in question. Thus, in the
         case of a multi-annual scheme, entailing payments or advantages granted on a periodic basis, the date on which an act forming
         the legal basis of the aid is adopted and the date on which the undertakings concerned will actually be granted the aid may
         be a considerable period of time apart. In such a case, for the purpose of calculating the limitation period, the aid must
         be regarded as not having been awarded to the beneficiary until the date on which it was in fact received by the beneficiary.
         
      
      83      It should be noted that, at recital 49 of the contested decision, the Commission stated that the limitation period started
         to run each year on the date on which the business tax was due from FT. 
      
      84      As is apparent from paragraph 320 of the judgment under appeal, the limitation period starts to run afresh each time an advantage
         is actually granted, which may be on an annual basis, so that the calculation of the limitation period may depend on how the
         advantage is identified. 
      
      85      In the present case, since the finding as to whether aid existed depended on the different rates applicable in each municipality
         within whose territory FT’s establishments were situated, the General Court carried out an analysis, at paragraph 323 of the
         judgment under appeal, of the fact that business tax is charged annually and the consequences flowing from this. 
      
      86      The General Court was therefore correct in finding, at paragraph 324 of the judgment under appeal, that, in view of the annual
         nature of business tax, the aid at issue could not be regarded as having been awarded before the year 1994, because that was
         the year in which the binding legal acts were adopted which made it possible, for the first time, to establish the existence
         of a tax differential. 
      
      87      Moreover, the approach adopted by the General Court is confirmed by the wording of Article 15(1) of Regulation No 659/1999,
         from which it is apparent that it is the Commission’s powers to recover aid which are subject to a limitation period. 
      
      88      Lastly, as regards the argument that the General Court failed to have regard to the obligation to state reasons in relation
         to the principle of limitation, it is settled case-law that that court is not thereby required to provide an account that
         follows exhaustively and point by point all the reasoning articulated by the parties to the case. The reasoning may therefore
         be implicit on condition that it enables the persons concerned to know why the measures in question were taken and provides
         the competent court with sufficient material for it to exercise its power of review (see Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Electrotechnisch Gebied v Commission [2006] ECR I‑8725, paragraph 72; and Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, paragraph 46). 
      
      89      It should be noted in that connection that, at paragraphs 323 and 324 of the judgment under appeal, the General Court provided
         a clear assessment of the characteristics of the business tax scheme, which enabled it to conclude, at paragraph 325 of the
         judgment, that the limitation period provided for under Article 15 of Regulation No 659/1999 had not expired by 28 June 2001,
         the date on which a request for information was sent to the French Republic. 
      
      90      In those circumstances, the Court finds that the General Court responded to the requisite legal standard to the arguments
         relating to the principle of limitation relied on by FT and did not disregard the requirement to state reasons established
         in the case-law cited at paragraph 88 above. 
      
      91      In the light of all the foregoing considerations, the fourth ground of appeal cannot be accepted. 
      
       The fifth ground of appeal, alleging an error of law and failure to state reasons in the judgment under appeal in relation
            to the arguments alleging breach of the principle of legal certainty
      92      The fifth ground of appeal relied on by FT comprises two parts. 
      
       Arguments of the parties
      –       The first part of the fifth ground of appeal, alleging failure to state reasons and error of law on account of the fact that
         it is impossible to establish the amount of aid to be recovered
      
      93      FT claims that the General Court failed to respond to its argument that, where the Commission examines an advantage the true
         amount of which cannot be established, it cannot order recovery of such an advantage. 
      
      94      FT infers from this that the General Court infringed the principle of legal certainty since any amount to be recovered remains
         hypothetical and the quantification of recoverable aid cannot be based on approximate estimates. 
      
      –       The second part of the fifth ground of appeal, alleging failure to state reasons and error of law as regards the assessment
         of the methods of obtaining an approximate amount of the aid
      
      95      FT submits that the General Court erred in law by finding, at paragraphs 297 and 305 of the judgment under appeal, that the
         Commission was justified in establishing a range encompassing the amount of aid to be recovered on the basis of estimates
         provided by the French authorities and that breach of the principle of legal certainty could not therefore be established.
         
      
      96      FT explains that the estimates in question were not forwarded by the French authorities with a view to determining the actual
         extent of the tax differential during the period from 1994 to 2002. Those calculations were provided to demonstrate that any
         under-taxation of the company during that period was offset by the over-taxation which occurred during the first years of
         the special tax regime, namely during the period from 1991 to 1993. 
      
      97      In its response to the two parts of the fifth ground of appeal, the Commission submits that, in its findings concerning the
         principle of legal certainty, the General Court simply drew the appropriate conclusions from a number of elements in the judgment
         in Case C‑441/06 Commission v France [2007] ECR I‑8887. 
      
      98      The Commission therefore considers that the General Court gave appropriate reasons for its conclusion that FT was not justified
         in its submission that the principle of legal certainty had been infringed on the sole ground that, in order for the aid at
         issue to be recovered, it was necessary to specify the amount of aid. 
      
       Findings of the Court
      99      On account of the connection between them, it is appropriate to examine both parts of the fifth ground of appeal together.
         
      
      100    The principle of legal certainty – which is one of the general principles of European Union law – requires that rules of law
         be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations
         and legal relationships governed by European Union law (see, to that effect, Case C‑63/93 Duff and Others [1996] ECR I-569, paragraph 20; Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 79; and Case C‑158/07 Förster [2008] ECR I‑8507, paragraph 67). 
      
      101    As regards the argument relied on in support of the fifth ground of appeal, it should be observed that the General Court pointed
         out, at paragraph 301 of the judgment under appeal, that, on the basis of the Commission’s estimates, the aid at issue amounted
         to between EUR 798 million and EUR 1 140 million. Since those figures delimit the range within which the final amount was
         to be established, the General Court found, referring in particular to paragraphs 31 to 40 of Commission v France, that the contested decision contained the appropriate information to enable that amount to be determined without too much
         difficulty. 
      
      102    It should also be noted that the Court of Justice held, at paragraph 29 of Commission v France, that no provision of European Union law requires the Commission, when ordering the recovery of aid declared incompatible
         with the common market, to fix the exact amount of the aid to be recovered. It is sufficient for the Commission’s decision
         to include information enabling the recipient to calculate the amount itself, without overmuch difficulty (see also Case C‑480/98
         Spain v Commission [2000] ECR I-8717, paragraph 25, and Case C‑415/03 Commission v Greece [2005] ECR I-3875, paragraph 39).
      
      103    Thus, the General Court stated, at paragraphs 302 and 303 of the judgment under appeal, that that range was based on estimates
         provided by the French authorities during the administrative procedure and that, since that Member State had been unable to
         calculate exactly the amount of the advantage from which FT had benefited under the regime at issue, the Commission was entitled
         to rely on the data thus provided. 
      
      104    In those circumstances, the General Court correctly concluded, at paragraph 305 of the judgment under appeal, that the contested
         decision did not constitute a breach of the principle of legal certainty. 
      
      105    It follows from the foregoing that neither the French Republic nor FT can rely on that principle in order to prevent recovery
         of unlawful aid (see Case C‑148/04 Unicredito Italiano [2005] ECR I‑11137, paragraph 104). 
      
      106    The General Court was therefore entitled to find that the contested decision is not vitiated by unlawfulness because it simply
         refers to an indicative range as regards the amount of aid to be recovered. 
      
      107    Moreover, it is apparent from paragraphs 301 to 305 of the judgment under appeal that the judgment is not vitiated by an inadequate
         statement of reasons as regards the assessment of the plea alleging breach of the principle of legal certainty raised by FT
         and the French Republic. 
      
      108    The fifth ground of appeal relied on by FT cannot succeed and it must therefore be rejected in its entirety. 
      
       Costs
      109    Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful
         party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission
         applied for costs against FT and the latter has been unsuccessful, the appellant must be ordered to pay the costs. The French
         Republic must bear its own costs. 
      
      On those grounds, the Court (Third Chamber) hereby:
      1.      Dismisses the appeal;
      2.      Orders France Télécom SA to pay the costs;
      3.      Orders the French Republic to bear its own cost.
      [Signatures]
      * Language of the case: French.