CELEX: 62009CC0194
Language: en
Date: 2010-09-23 00:00:00
Title: Opinion of Mr Advocate General Jääskinen delivered on 23 September 2010. # Alcoa Trasformazioni Srl v European Commission. # Appeal - State aid - Preferential electricity tariff - Finding that there is no aid - Measure amended and extended - Decision to initiate the procedure under Article 88(2) EC - Existing or new aid - Regulation (EC) No 659/1999 - Article 1(b)(v) - Obligation to state reasons - Principles of legal certainty and the protection of legitimate expectations. # Case C-194/09 P.

OPINION OF ADVOCATE GENERAL
      JÄÄSKINEN
      delivered on 23 September 2010 1(1)
      
      Case C‑194/09 P
      Alcoa Trasformazioni Srl
      (Appeals – Preferential tariff schemes for electricity for certain large energy‑intensive industries in Italy – Non‑aid – Extension of schemes by the Italian authorities – Decision to initiate the procedure under Article 88(2) EC)
      1.        The present appeal by Alcoa Trasformazioni Srl (‘Alcoa’) seeks the annulment of the judgment of the Court of First Instance
         of 25 March 2009 (now ‘the General Court’) in Case T-332/06 Alcoa Trasformazioni v Commission (‘the judgment under appeal’) (2) and the partial annulment of Commission decision 2006/C 214/03 initiating the procedure laid down in Article 88(2) EC, concerning
         State aid C 36/06 (ex NN 38/06) – Preferential electricity tariff to energy-intensive industries in Italy, (3) (‘the contested decision’) in so far as that decision relates to the electricity tariffs applicable to the two primary aluminium
         plants owned by Alcoa.
      
      2.        This case is unusual in that Alcoa’s appeal does not relate to a final decision pursuant to Article 88(2) EC, but to a Commission
         decision concerning the initiation of a formal investigation procedure against a measure extending an arrangement in favour
         of Alcoa consisting in a preferential tariff classified by the Commission as non‑aid in 1995.
      
      3.        In that context the Court is required to consider the legal effects of a Commission decision classifying a measure as not
         constituting State aid within the meaning of Article 87(1) EC and the applicability of the principle of legitimate expectations.
      
      I –  The legal context 
      4.        Article 1 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), which came into force on 16 April 1999, sets out the following definitions: 
      
      ‘(a)      “aid” shall mean any measure fulfilling all the criteria laid down in Article [87(1) EC];
      (b)      “existing aid” shall mean: 
      (i)      … all aid which existed prior to the entry into force of the Treaty in the respective Member States, that is to say, aid schemes
         and individual aid which were put into effect before, and are still applicable after, the entry into force of the Treaty;
      
      (ii)      authorised aid, that is to say, aid schemes and individual aid which have been authorised by the Commission or by the Council;
      … 
      (v)      aid which is deemed to be an existing aid because it can be established that at the time it was put into effect it did not
         constitute an aid, and subsequently became an aid due to the evolution of the common market and without having been altered
         by the Member State. Where certain measures become aid following the liberalisation of an activity by Community law, such
         measures shall not be considered as existing aid after the date fixed for liberalisation;
      
      (c)      “new aid” shall mean all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations
         to existing aid;
      
      …
      (f)      “unlawful aid” shall mean new aid put into effect in contravention of Article [88(3) EC]; 
      …’
      5.        Under Article 2(1) of Regulation No 659/1999, ‘any plans to grant new aid shall be notified to the Commission in sufficient
         time by the Member State concerned’. Article 3 of the Regulation provides that new aid ‘shall not be put into effect before
         the Commission has taken, or is deemed to have taken, a decision authorising such aid.’ 
      
      6.        Article 4(4) provides as follows:
      
      ‘Where the Commission, after a preliminary examination, finds that doubts are raised as to the compatibility with the common
         market of a notified measure, it shall decide to initiate proceedings pursuant to Article [88(2) EC] (hereinafter referred
         to as a “decision to initiate the formal investigation procedure”).’
      
      7.        Article 6(1) of the same Regulation provides as follows:
      
      ‘The decision to initiate the formal investigation procedure shall summarise the relevant issues of fact and law, shall include
         a preliminary assessment of the Commission as to the aid character of the proposed measure and shall set out the doubts as
         to its compatibility with the common market. The decision shall call upon the Member State concerned and upon other interested
         parties to submit comments within a prescribed period which shall normally not exceed one month. In duly justified cases,
         the Commission may extend the prescribed period.’
      
      8.        With regard to measures which are not notified, Article 10(1) of Regulation No 659/1999 provides that ‘where the Commission
         has in its possession information from whatever source regarding alleged unlawful aid, it shall examine that information without
         delay’. Article 13(1) states that such examination is to result in a decision to initiate a formal investigation procedure,
         where appropriate. 
      
      9.        The procedure in relation to existing aid schemes is laid down in Articles 17 to 19 of Regulation No 659/1999. Under Article
         18, where the Commission ‘concludes that the existing aid scheme is not, or is no longer, compatible with the common market,
         it shall issue a recommendation proposing appropriate measures to the Member State concerned’. Where the Member State concerned
         does not accept the proposed measures, the Commission may, under Article 19(2), initiate a formal investigation procedure.
      
      II –  Facts, proceedings and the judgment under appeal
      10.      Alcoa is a company governed by Italian law which owns two plants producing primary aluminium, located at Portovesme, in Sardinia,
         and Fusina, in the Veneto region. Those plants were transferred to the applicant by Alumix SpA in the course of the latter’s
         privatisation.
      
      11.      By decision 96/C 288/04, which was notified to Italy and published on 1 October 1996, (4) (‘the Alumix decision’), the Commission found that the preferential tariff for the supply of electricity charged by ENEL
         to the plants acquired by Alcoa did not constitute State aid within the meaning of Article 87(1) EC. The tariff had been set
         in 1992 by decision No 13 of 24 July 1992 of the Joint Ministerial Committee for Prices. Under Article 2 of the Decree-Law
         of 19 December 1995 (5) (‘the 1995 Decree-Law’), the tariff was applicable until 31 December 2005. In that connection, the Commission found that
         ‘by charging a tariff for the production of primary aluminium [at the plants acquired by the applicant], that covers [its]
         marginal costs and makes a contribution to its fixed costs, ENEL [was] behaving [like an operator acting under normal market
         conditions] since these tariffs permit the supply of electricity to its biggest industrial consumers in regions where there
         is serious over-capacity in terms of electricity production’.
      
      12.      It appears from the file that, by decision No 148/04 of the Electricity and Gas Authority (‘the Authority’), the Cassa Conguaglio
         per il settore elettrico (Equalisation Fund for the Electricity Sector, ‘the Equalisation Fund’), a public body, was appointed
         to manage the preferential tariff. In that capacity it reimbursed Alcoa directly for the difference between the tariff charged
         to Alcoa by ENEL and the preferential tariff laid down by the 1995 Decree-Law, by means of a parafiscal levy on all electricity
         consumers in Italy. 
      
      13.      In 2005 Decree-Law No 35 of 14 March 2005, converted into Law No 80 of 14 May 2005 (ordinary supplement to GURI 91, 14 May
         2005, ‘the 2005 Decree-Law’), was adopted by the Italian authorities. Its Article 11(11) extended until 31 December 2010 the
         preferential tariff applying to the two Alcoa plants. 
      
      14.      A decision of the electricity authority (Authority decision No 217/05, of 13 October 2005, pursuant to Article 11(11) and
         (13) of the 2005 Decree-Law) laid down the detailed provisions for the application of Article 11(11). The provisions stated
         that the 2004 tariff would continue in effect in 2005 and that the tariff granted to the Alcoa plants could be increased only
         by a maximum of 4% per year if the annual reference prices on the energy exchanges of Frankfurt am Main and Amsterdam rose.
         
      
      15.      Against that background, the Commission adopted the contested decision concerning the initiation of the procedure laid down
         in Article 88(2) EC for new aid. 
      
      16.      By application of 29 November 2006, Alcoa brought an action before the General Court seeking the annulment of the contested
         decision concerning the initiation of the formal investigation procedure. First of all, it claimed that the Commission wrongly
         classified the electricity tariff applying to its plants as State aid when in fact the tariff, which was a market tariff,
         conferred no advantage on them. Second, Alcoa claimed that the Commission disregarded the principles of the protection of
         legitimate expectations and legal certainty on the ground that the contested decision contradicted the Alumix decision. Third,
         Alcoa claimed, in the alternative, that the Commission wrongly examined the measure in question under the procedure applicable
         to new aid rather than that for existing aid. 
      
      17.      The General Court dismissed the action by judgment of 25 March 2009. 
      
      III –  The appeal 
      18.      In support of its appeal, Alcoa adduces two grounds, each divided into a number of specific complaints 
      
      19.      The first ground is that the General Court erred in law in finding that the Commission could initiate a procedure without
         considering whether the findings of the Alumix decision had ceased to apply. Accordingly the General Court erred, first, in
         confining its review of the contested decision to manifest error; second, in not applying the case‑law and the fundamental
         principles of Union law which require the Commission to take account of its previous decisions in the same case; third, in
         finding, on the basis of insufficient evidence, that the Commission could justify the initiation of the formal investigation
         procedure; fourth, in finding that the Alumix decision was for a limited duration; fifth, in failing to consider whether,
         in the contested decision, the Commission disregarded the principles of sound administration and the right to be heard, and,
         sixth, in finding that the contested decision contained an insufficient statement of reasons. 
      
      20.      Alcoa’s second ground of appeal is that the General Court erred in law in finding that the procedure applicable to new aid
         applied in the present case. In support, Alcoa complains that the General Court, first, relied on case-law concerning the
         extension of compatible aid for a further period; second, the General Court interpreted the Alumix decision as being for a
         limited duration; third, the General Court wrongly took as its basis the technical alterations in 1999 and 2004; fourth, the
         General Court disregarded the need to protect legal certainty and legitimate expectations in relation to the initiation of
         a formal procedure. 
      
      21.      Alcoa claims that the judgment should be set aside and that Commission decision 2006/C 214/03, notified to Italy on 19 July
         2006, should be annulled in so far as it relates to the electricity tariffs applicable to Alcoa’s aluminium plants. In the
         alternative, Alcoa claims that the case should be remitted to the General Court for reconsideration in accordance with the
         judgment of the Court of Justice. Alcoa asks that the Commission be ordered to pay the costs, including reimbursement of the
         sums paid to the Commission as costs in connection with the proceedings at first instance. 
      
      22.      The Commission contends that the appeal should be dismissed and that the applicant should be ordered to pay the costs, including
         those at first instance. 
      
      IV –  Introduction
      23.      First of all, I observe that the question arising in the present appeal is: in what circumstances can a measure which was
         found by the Commission not to constitute State aid within the meaning of Article 87(1) EC be regarded as a different measure
         when the national authorities make certain modifications to it and decide to extend its duration. 
      
      24.      I find that the fundamental difference between Alcoa’s position and that of the Commission is that, for Alcoa, it is a matter
         of extending the measure which the Commission has already examined while, for the Commission, the case involves a separate
         measure which therefore can be examined only from the viewpoint of new aid. 
      
      25.      In that connection, it must be observed at the outset that the reasoning of the General Court is based on a finding, at paragraph
         132 of the judgment under appeal, that the measure in question cannot be regarded as existing aid, not only because the period
         it covers differs from that examined in the Alumix decision, but also because it consists, no longer in ENEL applying the
         tariff laid down in the 1995 Decree-Law, which was equivalent to a market tariff, but in the grant of a reimbursement by the
         Equalisation Fund in order to offset the difference between the tariff charged by ENEL and that laid down in the 1995 Decree-Law,
         as extended by the 2005 Decree-Law. According to the General Court, it is therefore a different measure. 
      
      V –  General observations on measures which are not State aid and a possible change in their classification 
      26.      Article 88 EC provided for and regulated the constant review and supervision of State aid by the Commission. Under Article
         88(1) EC, the Commission is required to keep under constant review all systems of aid existing in the Member States. With
         regard to new aid which the Member States intend to grant, the Treaty sets up a preliminary procedure without which no aid
         can be regarded as duly granted. The first sentence of Article 88(3) EC requires the Commission to be informed of any plans
         to grant or alter aid before they are put into effect.
      
      27.      It is therefore necessary to distinguish between, on the one hand, the preliminary examination procedure laid down by Article
         88(3) EC, which is intended only to allow the Commission to form a prima facie opinion on the partial or complete conformity
         of the aid in question and, on the other hand, the formal investigation procedure referred to in Article 88(2) EC. The latter
         procedure permits detailed examination of State measures and has a dual purpose. It aims to protect the right of third parties
         who may have an interest and to enable the Commission to be fully informed of all the facts of the case before making its
         decision. (6)
      
      28.      The Court has already had occasion to give a ruling, in Belgium and Forum 187 v Commission, on the consequences of a Commission decision which modifies the assessment in an earlier decision finding that a measure
         did not constitute State aid. (7)
      
      29.      Furthermore, in his opinion in that case, Advocate General Léger observed that the decision by which the Commission finds
         that a measure does not constitute State aid for the purposes of Article 87(1) EC does not create a legal situation which
         may be regularly altered by the institutions in the exercise of their discretionary power, as may be the case in an area such
         as that of the common organisation of the markets, the objective of which involves constant adjustment to reflect changes
         in economic circumstances. (8)
      
      30.      If follows, according to Advocate General Léger, that where a national measure has been notified to the Commission in accordance
         with Article 88(3) EC and the latter has given a decision that the measure does not constitute aid for the purposes of Article
         87(1) EC, both the State which introduced the measure and the beneficiaries of it can, once the time-limit for bringing proceedings
         to challenge the decision has passed, be certain that the scheme does not contravene the Community rules on State aid. The
         parties concerned are thus entitled to believe that such a decision may generally be qualified only where there has been an
         evolution in the common market. (9)
      
      31.      While I concur with that reasoning, I find that the substantive differences between the present case and Belgium and Forum 187 v Commission do not allow the examination of the present case to be limited to that finding. 
      
      32.      In Belgium and Forum 187 v Commission it was found that the measure in question had not been materially altered after notification. (10) In the present appeal, the main issue is the consequences attaching to the modifications of a measure which had previously
         been considered to fall outside the scope of Article 87(1) EC. 
      
      33.      The following cases offer useful guidance in that respect. 
      
      34.       On the one hand, I observe that, as regards notified measures, the Court has held that the prohibition on the implementation
         of aid measures, which is laid down in the last sentence of Article 93(3) of the EC Treaty (now Article 88(3) EC), applies
         to the proposed aid programme in its entirety and in the final version adopted by the national authorities. If the plan initially
         notified has in the meantime undergone alterations of which the Commission has not been informed, the prohibition applies
         to the plan as altered, unless the alteration in question is in actual fact a separate aid measure which should be assessed
         separately and which is therefore not such as to influence the assessment which the Commission has already made of the initial
         plan; in that case, the prohibition applies only to the aid measure introduced by the alteration. (11)
      
      35.      On the other hand, according to the Court, it is clear from both the terms and purposes of Article 93 of the EC Treaty (now
         Article 88 EC) that measures to grant or alter aid, where the alterations may relate to existing aid or initial plans notified
         to the Commission, must be regarded as new aid subject to the obligation of notification laid down by that provision. (12)
      
      36.      Furthermore, I note that the General Court has tried in its case-law to circumscribe the nature of the alteration to existing
         aid. (13) However, I consider that the nature of an extension or alteration and its consequences must be examined in each individual
         case which, in my view, precludes laying down a rule or general criteria relating to the nature of the alterations which are
         made. 
      
      37.      It seems to me that a measure previously classified by the Commission as not constituting State aid may fall within the scope
         of Article 87(1) EC, particularly in the following situations. 
      
      38.      First of all, by applying the concept of ‘evolution of the common market’ in Article 1(b)(v) of Regulation No 659/1999, which
         states that a measure which did not constitute an aid at the time it was put into effect may nevertheless be deemed to be
         an existing aid in so far as it ‘became an aid due to the evolution of the common market’. The measure then becomes an existing
         aid. 
      
      39.      Next, should the Commission go back on its assessment of the measure, particularly as a result of more rigorous application
         of the Treaty rules on State aid, the measure may be subject to the procedure for existing aid. (14)
      
      40.      Finally, where the Member State alters the measure in such a way that it has the characteristics laid down in Article 87(1)
         EC and becomes a different measure from that previously examined, the measure then becomes a new aid.
      
      41.      I am inclined to think that it is the last mentioned situation which arises here. 
      
      42.      It is true that, where a measure is found by the Commission not to constitute aid, merely extending that measure cannot lead
         the Commission to change its assessment. It goes without saying that an arrangement which remains essentially the same, that
         is to say, it still has none of the characteristics of State aid, is covered by the assurances concerning compatibility with
         Union law given by the Commission in the decision concerning the measure. 
      
      43.      Where a scheme or measure is merely extended, it seems appropriate to apply Article 1(b)(v) and Articles 17 to 19 of Regulation
         No 659/1999 by analogy in the event of changes in the market. 
      
      44.      However, any extension, coupled with a substantive change, after the decision classifying the measure as non-aid was made
         by the Commission, constitutes a substantive alteration of the measure and may lead to a review of the classification when
         the arrangement has been put into effect. The measure may be changed into one which may fall within the scope of Article 87(1)
         EC. Such a measure necessarily differs from the arrangement already in existence.
      
      45.      Consequently the Commission is required to make an analysis of the nature of the changes which have been made. Where the arrangement
         was found not to constitute State aid, the Commission would, by means of a sufficiently detailed examination and before initiating
         a preliminary procedure, have to ascertain whether it is a case of extension without alteration or of a substantive alteration.
         
      
      46.      In my view, that requirement is connected with the protection of legitimate expectations and legal certainty. 
      
      47.      As Advocate General Léger pointed out, the question of whether a national measure falls within the scope of Article 87(1)
         EC does not depend on a discretionary assessment. The fact that the Commission has a broad discretion to determine whether
         a national provision falls within the ambit of that provision where the examination of the conditions required by that provision
         entails complex economic assessments does not mean that the Commission can, on a discretionary basis, alter at any time its
         finding as to the existence of aid. (15)
      
      48.      On that point I observe that a measure may be altered at different levels. 
      
      49.      If the public authority which adopted the measure changes, that is to say, the authority originating a certain arrangement
         which was deemed not to constitute aid, the change in question may be purely formal. Therefore it is normally the economic
         effect of such a change that should be decisive in determining whether there was a change in substance. 
      
      50.      A change may also be substantive where it relates to the manner in which the measure is put into effect, that is to say, the
         way in which the funds for financing the measure are channelled. 
      
      51.      In the present case, I do not think the alteration is purely formal. The two changes, one relating to the matter giving rise
         to the presumed advantage, namely the change from a public undertaking with a long-standing monopoly to a public body, the
         other relating to the arrangements for financing it, reflected in the change from a preferential tariff to a parafiscal levy
         on all electricity consumers, is liable to support the description of the alteration in question as one of substance. That
         may lead to the conclusion that the measure in question is a different measure and may justify the Commission’s decision to
         initiate a formal investigation procedure. 
      
      52.      In addition, the fact that the legal classification of a measure has already been examined should not prevent the competent
         authority from reconsidering the arrangement in question if the authority is uncertain, on the basis of new relevant information,
         whether it is compatible with the applicable rules. If a measure which was found not to be a State aid may be altered in such
         a way as to make it a different measure, the Commission must be able to use the abovementioned procedure in such a case. 
      
      53.      At the end of the preliminary examination stage concerning a State measure, the Commission has three choices: it may decide
         that the State measure at issue does not constitute State aid, or that that measure, although constituting aid, does not give
         rise to doubt regarding compatibility with the common market, or it may decide to initiate the formal investigation procedure. (16)
      
      54.      In the present case, so far as the preferential tariff granted to Alcoa is concerned, it is clear from the file that the Commission
         adopted the contested decision on the initiation of the formal investigation procedure after it became doubtful at the preliminary
         stage. The final decision finding that the price subsidy scheme in Alcoa’s favour was incompatible was adopted on 19 November
         2009. (17)
      
      VI –  Second ground of appeal, first complaint 
      55.      As this complaint seems to me to reveal matters which are crucial for the outcome of the present dispute, I shall consider
         it first. 
      
      A –    The parties’ observations 
      56.      Alcoa complains that the General Court based its reasoning on the judgment in Diputación Foral de Alava and Others v Commission (18) in order to argue that a time extension alone may convert a measure into new aid. However, that judgment concerns the extension
         of a measure which had been classified as compatible aid whereas, in the present case, the Commission described the measure
         as non-aid. According to Alcoa, the General Court erred in law in failing to take account of the relevant legal differences
         between a finding that aid is compatible and a finding that there is no aid. 
      
      57.      According to Alcoa, if there is a finding of non-aid, a change in market conditions may convert the measure into aid, but
         an extension of the measure as such cannot have that effect. In that case, Article 1(b)(v) of Regulation No 659/1999, which
         requires the measure to be treated as existing aid rather than new aid, applies.
      
      58.      The Commission observes that the contested decision is not based only on the extension of the measure, but also on the change
         in the measure into a theoretical tariff. That change is sufficient to justify the provisional classification of Article 11(11)
         of the 2005 Decree-Law as new aid.
      
      B –    Assessment 
      59.      By this fundamental complaint Alcoa submits that the General Court erred in law in basing its reasoning on case-law which,
         according to Alcoa, is not applicable to measures which do not constitute aid and concludes that the procedure relating to
         new aid was applicable in the present case. 
      
      60.      On that point I observe that, at paragraph 128 of the judgment under appeal, the General Court correctly referred to the case-law
         relating to changes in existing aid in response to Alcoa’s argument that the Commission ought to have examined the measure
         at issue by means of the procedure for existing aid, rather than that for new aid, on the ground that the measure was not
         a substantive alteration to the measure referred to by the decision. The General Court also referred to the case-law relating
         to the extension of aid which is already in the course of implementation. 
      
      61.      The General Court then went on, at paragraph 129 of the judgment, to apply that case-law to the present case and concluded
         that, as the extension or alteration of a measure does not constitute State aid, such extension or alteration must give rise
         to the use of the procedure applicable to new aid. 
      
      62.      In support of that finding, at paragraphs 130 and 131 the General Court examined in detail the nature of the changes which
         had been made. At paragraph 134 it also rejected Alcoa’s argument that the changes in the present case were not substantive
         alterations. 
      
      63.      On that point I find that it is clear from paragraph 129 of the judgment under appeal that, after an extension of a measure
         regarded by the Commission as not constituting State aid, the Commission is entitled to use only the procedure for new aid.
         
      
      64.      However, that finding in principle does not follow directly from the case-law cited by the General Court in the previous paragraph
         of the judgment, which relates to the alteration of existing aid. Furthermore, it seems to me to conflict with the reasoning
         set out above concerning the effects attaching to the decision by virtue of which the Commission considers that the measure
         is outside the scope of Article 87(1) EC. 
      
      65.      That finding in principle also leaves out of account the considerations arising from the principle of legitimate expectations
         because, if there are no substantive changes in the measure or, exceptionally, no relevant new information which was not available
         when the Commission determined its position, the beneficiaries and entities concerned are justified in relying on the Commission’s
         assessment in the earlier decision, provided that Article 1(b)(v) of Regulation No 659/1999 is not applicable by analogy in
         relation to the effects of changes in the common market on a measure which has become State aid.
      
      66.      Consequently it seems to me that the General Court’s assessment at paragraph 129 of the judgment under appeal is erroneous
         in law. However, I do not think it would justify setting aside the judgment. 
      
      67.      In actual fact, the General Court did not take that finding as a basis for confirming the use of the procedure for new aid.
         As appears from paragraph 130 of the judgment under appeal, the General Court’s reasoning does not rest on the extension of
         the measure concerned, but on the fact that it differs from that which the Commission had previously examined in the context
         of the Alumix decision. 
      
      68.      As paragraphs 131 and 132 of the judgment under appeal make clear, the measure examined in the contested decision covers,
         according to the General Court, a different period and is based on a different administrative system. 
      
      69.      Paragraphs 130 to 133 of the judgment thus show that the General Court considered all the circumstances which led the Commission
         to adopt the contested decision in the present case. Therefore the Court’s assessment regarding the substantive nature of
         the changes made by means of the measure at issue, leading to the conclusion that it was a different measure, constitutes
         a matter of factual assessment 
      
      70.      However, it should not be forgotten that, on the basis of the general principle laid down in Article 58 of the Statute of
         the Court of Justice, an appeal against a judgment of the General Court is limited to points of law. Unless the facts and
         evidence have been distorted, the Court of Justice cannot review the facts as found by the General Court. (19)
      
      71.      As the General Court cannot be held to have distorted the facts, that complaint must be regarded as unfounded in that it seeks
         to call into question the Court’s assessment, which considered that the measure examined in the contested decision was a measure
         different from that previously examined by the Commission in the context of the Alumix decision. 
      
      72.      It must also be borne mind that, when the General Court has found or assessed the facts, the Court of Justice has jurisdiction
         under Article 225 EC to review the legal characterisation of those facts by the General Court and the legal conclusions it
         has drawn from them. (20)
      
      73.      Therefore, with regard to the abovementioned factual findings, at paragraph 132 of the judgment under appeal, to justify the
         application of the procedure for new aid to the measure regarded as a different measure, the General Court made its finding,
         which is not subject to appeal, that the latter covered a different period and constituted the introduction of a new system.
         
      
      74.      Consequently, even if the first complaint of the second ground of appeal is well-founded in so far as it relates to an error
         of law on the General Court’s part in finding, in the reasoning of the judgment under appeal, that in principle the Commission
         may examine an extended measure only by means of the procedure applicable to new aid, that complaint cannot call into question
         the judgment under appeal. 
      
      VII –  First ground of appeal 
      A –             First ground of appeal, first complaint 
      1.               The parties’ observations 
      75.      In the first complaint of the first ground of appeal, Alcoa submits that the General Court erred in law in finding that Alcoa’s
         first ground of appeal related to provisional questions with regard to which the Court’s review had to be limited to manifest
         error.
      
      76.      After observing that the initiation of a formal procedure against measures which have specifically been found not to constitute
         aid differs from the initiation of a procedure against measures which have not been the subject of any such finding, Alcoa
         submits that, in order for the earlier findings of non-aid not to be deprived of relevance, the Commission must at least determine,
         in its preliminary examination before initiating a formal procedure, whether there are grounds for believing that the considerations on which its earlier findings
         are based have ceased to be relevant and must state the reasons for this in its decision to initiate the procedure. 
      
      77.      The Commission replies that, so far as it is concerned, the General Court applied an adequate standard of review, that is
         to say, the standard applying to a provisional decision. (21)
      
      2.               Assessment
      78.      According to Alcoa, the General Court, in taking the view that the issue here is the extent of the review to be carried out
         of decisions to initiate a procedure, changed and restricted the subject of Alcoa’s complaint. 
      
      79.      In that connection, I wish to point out that a general principle of administrative law, recognised by the legal systems of
         several Member States, supports the limitation of the right to challenge, by an action for annulment, decisions which are
         only of a provisional nature. (22) I would point out that only preparatory acts that give rise to independent legal effects can be the subject of a separate
         judicial procedure. Decisions to initiate a preliminary examination may have specific and significant legal effects for the
         parties concerned and must therefore be open to challenge. However, in order to maintain the effectiveness of the necessary
         difference between the preliminary examination procedure and the substantive examination provided for by Article 88 EC, the
         former must not be subject to such onerous legal requirements as the latter. 
      
      80.      In view of the provisional nature of the decision to open the formal investigation procedure, which includes a preliminary
         assessment of the proposed measure by the Commission in order to determine whether the measure has the characteristics of
         State aid, the Community court’s review of its legality must be limited because it is only by virtue of the final decision
         based on the information obtained at the examination stage that all the relevant aspects can be examined and put in issue
         by the interested parties
      
      81.      Consequently at paragraphs 60 and 61 of the judgment under appeal the General Court correctly found in law that the Court’s
         review of the legality of a decision to initiate a formal investigation procedure must be limited. 
      
      82.      Therefore the first complaint of the first ground of appeal must be regarded as unfounded. 
      
      83.      The remaining problem to be considered relates to the steps which the Commission is said to have had to take before the formal
         decision to open the procedure, and I shall examine that problem together with the second complaint of the first ground of
         appeal. 
      
      B –    First ground of appeal, second complaint 
      1.      The parties’ observations 
      84.      By this complaint, Alcoa submits that, by not applying the case-law to the effect that the Commission must take account of
         its previous decisions in the same case, the General Court erred in law. (23) The judgment was erroneous in that it found that the Commission was not required to ascertain whether the criteria on the
         basis of which it found that there was no advantage in the Alumix decision were still valid. 
      
      85.      The Commission replies that Alcoa’s vague reference to ‘the measure’ is incorrect. Furthermore, the Commission points out
         the difference from the factual circumstances on which the Alumix decision is based, in which ENEL itself supplied Alcoa with
         electricity at the agreed tariff. The decision at issue is based on the fact that the State reimbursed Alcoa for part of the
         price paid to ENEL. The case-law in Italgrani II, cited above, is therefore not applicable and the General Court did not err in finding that Alcoa’s arguments that the tariff
         granted to it was a market price were not relevant. 
      
      2.               Assessment 
      86.      First of all, I observe that in ItalgraniI (24) the Court found that if a general aid scheme exists, the Commission must take account of the earlier decision concerning
         that scheme when it examines individual aid which falls within the scope of the scheme in question. The Court added, in Italgrani II, (25) that if the Commission could go back on its decisions at any time, that would lead to permanent uncertainty which could jeopardise
         the principles of the protection of legitimate expectations and legal certainty
      
      87.      It is true that those two judgments emphasise the need for the Commission to examine the findings of an earlier decision before
         initiating a formal investigation procedure. However, the two judgments refer to cases of existing aid and concern the relation
         between an aid scheme which has already been approved and individual aid putting it into effect. Individual aid is therefore
         a simple measure implementing a general aid scheme. That does not seem to me to be the case here because the measure in question
         was described by the General Court as a different measure. 
      
      88.      Consequently, if the Commission must take its earlier decision into account when examining an alteration to existing aid,
         that should not restrict the scope of its assessment with regard to the examination of non-notified measures resulting from
         a substantive modification of the measure which previously escaped classification as State aid. Article 10(1) of Regulation
         No 659/1999 should be applied in that situation.
      
      89.      Furthermore, with regard to the conditions for adopting a formal decision, it has consistently been held that the procedure
         under Article 88(2) of the Treaty is obligatory if the Commission experiences serious difficulties in establishing whether
         or not aid is compatible with the common market. The Commission cannot therefore limit itself to the preliminary procedure
         under Article 88(3) EC and take a favourable decision on a State measure which has been notified unless it is in a position
         to reach the firm view, following an initial investigation, that the measure cannot be classified as aid within the meaning
         of Article 87(1) EC or that the measure, whilst constituting aid, is compatible with the common market. On the other hand,
         if the initial analysis results in the Commission taking the contrary view of the aid’s compatibility with the common market
         or does not enable all the difficulties raised by the assessment of the measure in question to be overcome, the Commission
         has a duty to gather all necessary views and to that end to initiate the procedure under Article 88(2) EC. (26)
      
      90.      Therefore the case-law clearly indicates that the Commission has no discretion with regard to initiating the formal investigation
         procedure where, on completion of the preliminary examination, it still has serious doubts as to the nature of the measure
         at issue or its compatibility with the common market.
      
      91.      The same principles must apply where the Commission is still uncertain as to the classification of the measure examined as
         aid within the meaning of Article 87(1) EC. Therefore the Commission cannot be criticised for initiating that procedure even
         where, in the decision taken for that purpose, it expresses doubt as to whether the measures which are the subject of that
         decision constitute aid within the meaning of Article 87(1) EC. 
      
      92.      Finally, with regard to the General Court’s reasoning, it is clear from paragraph 70 of the judgment under appeal that the
         General Court, referring to the complex assessment which the Commission has to carry out as part of the formal investigation
         procedure, described as irrelevant Alcoa’s argument that the Commission ought to have ascertained whether the criteria on
         the basis of which it found that no advantage had been conferred in the Alumix decision remained valid. 
      
      93.      In view of the provisional nature of the contested decision, which reflects the Commission’s doubts and does not relate to
         a detailed examination of the measure concerned, that response seems to me well-founded in law. 
      
      94.      Consequently I propose that this complaint be dismissed as unfounded. 
      
      C –     First ground of appeal, third complaint 
      1.           The parties’ observations 
      95.      Alcoa claims that the General Court’s finding that the Commission was entitled to initiate a formal investigation procedure
         against the tariffs granted to Alcoa was based only on two factors, namely, first, the finding that the resources funding
         the reduction in tariffs were State resources and, second, the fact that Alcoa obtained reimbursement through the Equalisation
         Fund led to a reduction in the generally applicable tariff for supplying electricity. 
      
      96.      According to Alcoa, those two factors are not sufficient to justify the initiation of the procedure by the Commission because
         they were already present at the time of the Alumix decision. 
      
      97.      The Commission contends that this complaint merely repeats other arguments. It points out that Alcoa’s argument concerning
         normal market conditions was dismissed by the General Court and that the dismissal was not disputed in the appeal.
      
      2.               Assessment 
      98.      I find that the General Court’s reasoning disputed in the context of this complaint concerns the assessment of a possible
         manifest error on the Commission’s part. 
      
      99.      In view of the reply to the first complaint of the second ground of appeal, I consider that this complaint should be dismissed
         as unfounded. 
      
      D –     First ground of appeal, fourth complaint, and second ground of appeal, second complaint
      100. As the fourth complaint of the first ground of appeal is very much the same as the second complaint of the second ground of
         appeal, they should be examined together.
      
      1.               The parties’ observations 
      101. In Alcoa’s opinion, the General Court erred in law in finding that the Commission’s assessment in the Alumix decision was
         for a limited period. 
      
      102. According to Alcoa, in the judgment under appeal the General Court took the view that the Alumix decision was for a limited
         period. However, according to Alcoa, the decision contains no express limitation as to time with regard to the duration of
         its validity. Contrary to what is said in the judgment under appeal, even if the 1995 Decree‑Law were for a limited period,
         it cannot logically be concluded that the Alumix decision was also subject to a time limitation. 
      
      103. Alcoa observes that the three factors on which the Commission based the Alumix decision, namely (i) the tariff itself, (ii)
         the conditions in the electricity market in the regions of Sardinia and the Veneto, characterised by excess capacity, and
         (iii) Alcoa as a customer, being one of the biggest consumers in Italy, have not changed. Furthermore, as long as the Commission
         did not indicate that, in its opinion, those conditions had changed, the Italian Republic and Alcoa had every reason to believe
         that they were entitled to maintain the tariff. 
      
      104. The Commission replies that, if the market conditions did not change, it is difficult to understand why ENEL could not simply
         continue to apply the tariff in question in the Alumix decision and why the cost of the tariff granted to Alcoa is described
         as ‘onere’ by the Italian legislation. The analysis of advantages in the Alumix decision was based on the principle of operating in
         a market economy and Alcoa never attempted to explain how the payments by the Equalisation Fund conformed with that principle.
      
      105. The Commission also observes that a decision such as the Alumix decision is never adopted in a legal void. The 1995 Decree-Law
         preceded the Alumix decision and it is not denied that the electricity tariff was fixed by the Decree-Law for ten years. 
      
      2.               Assessment 
      106. First of all, I observe that the General Court correctly found, at paragraph 106 of the judgment under appeal, that the Commission’s
         finding in the decision that the tariff that ENEL was charging the plants from 1996 to 2005 did not constitute State aid took
         into consideration the market conditions as foreseeable by the Commission for that period. 
      
      107. At paragraph 132 of the judgment, the General Court also pointed out that the measure referred to by the contested decision
         covered a period different from that examined in the Alumix decision, which Alcoa does not dispute in its appeal. 
      
      108. I think that finding alone is an effective reply to Alcoa’s complaint that the General Court was wrong in finding that the
         Alumix decision was of limited duration. It appears that Alcoa has misread the judgment under appeal on that point. 
      
      109. Moreover, at paragraphs 105 and 107 of the judgment, the General Court did not really examine the question whether the Alumix
         decision was for a limited period but, in considering whether the principle of the protection of legitimate expectations had
         been disregarded, cited the relevant passages of the contested decision showing that the Commission relied on such a finding.
         
      
      110. As the citations from the contested decision are correct, there was no distortion by the General Court of an application or
         a contested act. (27)
      
      111. Finally, it is true that the Court of Justice has jurisdiction to review the way in which the General Court reads and interprets
         a legal measure such as the Commission’s decision, as there may be an error in law. However, in the present case no error
         has been alleged, and none can be found, in the reading of paragraphs 44 and 47 of the grounds of the contested decision.
         
      
      112. I observe that the operative period of the Alumix decision is limited to the circumstances examined at the date when the Commission
         adopted the decision. With regard to the finding that the preferential tariffs did not constitute State aid, I do not think
         that the Commission should have determined the operative period more exactly, but if it had done so it would have had to add
         the necessary qualifications arising from the general principle of law rebus sic stantibus, (28) because any substantive change in the circumstances taken into account in the Commission’s position may have necessitated
         reclassification of the status of the measure. 
      
      113. On reading the Alumix decision and the judgment under appeal, and taking account of the submissions concerning, first, the
         connection with national law, which was clearly for a limited period, and, secondly, the different nature of the measure laid
         down by the 2005 Decree-Law, no reasonable and prudent businessman could expect the measure which is the subject of the contested
         decision to be covered by the Alumix decision. Alcoa’s allegations that the system was introduced in 1999-2004 cannot invalidate
         that conclusion. (29)
      
      114. Consequently I propose that the fourth complaint of the first ground of appeal and the second complaint of the second ground
         of appeal be dismissed as unfounded. 
      
      
      E –     First ground of appeal, fifth complaint
      1.               The parties’ observations 
      115. Alcoa submits that there are procedural errors in the contested decision owing to the Commission’s failure to adhere to the
         principles of sound administration and the right to be heard in the course of the procedure leading to the adoption of the
         contested decision, which the General Court ought to have taken into account. The Italian Republic had no opportunity to submit
         observations on the classification of the new aid measure during the preliminary examination stage.
      
      116. The Commission replies that this complaint must be ruled inadmissible because Alcoa did not raise it in its action before
         the General Court. In any case, the complaint is unfounded. In its appeal, Alcoa admitted that the Italian Republic had an
         opportunity to submit observations on the classification of the aid. Furthermore, the Italian Republic used that opportunity,
         as stated at paragraph 40 of the judgment under appeal. 
      
      2.               Assessment
      117. It must be observed that in an appeal the jurisdiction of the Court of Justice is in principle confined to review of the findings
         of law on the pleas argued before the General Court. (30) Therefore a party cannot in principle put forward for the first time before the Court of Justice a plea in law which it has
         not raised before the General Court because that would amount to allowing the Court of Justice to review the legality of the
         findings of the General Court, in the light of pleas of which the latter did not take cognisance. 
      
      118. From reading the judgment under appeal, it cannot be validly argued that that problem was considered by the General Court
         after a complaint was raised by Alcoa. 
      
      119. It is true that, at paragraphs 39 and 40 of the judgment, the General Court examined the evidence relating to the position
         taken by the Italian Republic. However, it considered the problem from the viewpoint of the admissibility of the action at
         first instance. 
      
      120. Consequently I propose that the fifth complaint of the first ground of appeal be ruled manifestly inadmissible. 
      
      F –             First ground of appeal, sixth complaint
      1.               The parties’ observations 
      121. In view of the irreversible consequences of initiating a formal investigation procedure, Alcoa submits that the General Court
         failed to take into account the extent of the Commission’s duty to state reasons, which should be proportionate to the seriousness
         of the consequences of the initiation of the procedure laid down in Article 88(2) EC. 
      
      122. Thus, the General Court was wrong to state that it was unnecessary to give the reasons for the difference between the Alumix
         decision and the contested decision. Because of the uncertainty which had been created, the Commission should at least have
         explained in what way the two decisions differed so that the interested parties would be able to establish the basis and the
         extent of the consequences of the contested decision. 
      
      123. The Commission replies that there was no error on the part of the General Court in the judgment under appeal in finding that
         the reasons for the contested decision were sufficiently stated.
      
      Assessment 
      124. Two observations are called for in response to this complaint. 
      
      125. Under Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal is limited
         to points of law and must be based on grounds of lack of jurisdiction of the General Court, breach of procedure before it
         which adversely affects the interests of the applicant, or infringement of Community law by the General Court. (31) It follows from those provisions and also from Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an
         appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also
         the legal arguments specifically advanced in support of the appeal. (32)
      
      126. In the context of the response to both the third complaint of the first ground of appeal and the second ground of appeal,
         the General Court examined the problem of the relation between the Alumix decision and the contested decision. As Alcoa does
         not indicate precisely the points which may constitute an error on the part of the General Court, this complaint could be
         ruled manifestly inadmissible. 
      
      127. However, it seems that Alcoa’s complaint refers more particularly to paragraph 88 of the judgment under appeal, where the
         General Court dismissed the applicant’s argument that the Commission failed to fulfil its obligation to provide a statement
         of reasons in the contested decision.
      
      128. While the obligation, laid down by Article 253 EC, to state reasons for a Community measure must be appropriate to the act
         at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the
         measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable
         the competent court to exercise its power of review, the Commission is not required to state the reasons why it made a different
         assessment of the regime in question in its previous decisions. The concept of State aid must be applied to an objective situation,
         which falls to be appraised on the date on which the Commission takes its decision. (33)
      
      129. Consequently the ground of appeal alleging an error in law on the part of the General Court in that it failed to have regard
         to the extent of the obligation to provide a statement of reasons in Commission decisions must be dismissed. It follows that
         the sixth complaint of the first ground of appeal is either manifestly inadmissible or, in any case, unfounded
      
      VIII –  Second ground of appeal 
       A -    Second ground of appeal, third complaint
      1.               The parties’ observations 
      130. Alcoa complains that the General Court based its reasoning on technical alterations which were not the subject of the contested
         decision. According to Alcoa, a reimbursement was made by the Equalisation Fund in 1994 and in 2004 by means of various legal
         transactions which were not the subject of the contested decision. The General Court therefore unlawfully extended the ambit
         of the decision. Furthermore, the transfer of the administration of the ENEL preferential tariff to the Equalisation Fund
         did not entail any significant substantive legal alteration in the tariffs granted to Alcoa. Alcoa points out that the Commission
         raised no objection to the technical alterations of 1999 and 2004. In addition, the General Court was wrong to disregard,
         at paragraphs 112 and 113 of the judgment under appeal, Decision N/490/2000 of 1 December 2004 concerning State aid – Italy,
         stranded costs in the electricity sector. (34)
      
      131. The Commission replies that the General Court correctly found that the change to a purely theoretical tariff constituted a
         substantive alteration of the measure approved by the Alumix decision. The system in question corrects the price charged by
         private suppliers by means of a direct compensatory payment. With regard to the 2004 decision on stranded costs, the Commission
         submits that it relates to the stranded costs borne by ENEL and does not contain an express finding on the administration
         of the Italian preferential tariff scheme with regard to the advantages conferred upon Alcoa which could have led it to entertain
         a legitimate expectation. Furthermore, the Commission initiated the formal investigation procedure concerning State aid C
         38/2004 (ex NN 58/04) – Aid for Portovesme Srl (35) and classified specifically as new aid the payments made by the Equalisation Fund in order to retain the tariff granted to
         Alcoa. 
      
      2.               Assessment 
      132. First of all, I observe that, citing paragraph 132 of the judgment under appeal, Alcoa criticises the General Court’s reasoning
         at several other points in the judgment replying to a plea in the context of which the Court examined the issue of the possible
         breach of the principles of the protection of legitimate expectations and legal certainty. 
      
      133. If nevertheless that complaint had to be interpreted as alleging that the General Court misread the contested decision, the
         following observations would arise.
      
      134. First, it is, in my opinion, sufficient to point out that at paragraph 131 of the judgment under appeal the General Court
         correctly set out the factors that led the Commission to entertain doubts as to the classification of the tariff charged by
         ENEL to the Alcoa plants from 2005 to 2010, but without extending its reasoning beyond the factors examined in the contested
         decision.
      
      135. Second, with regard to the effects of the 2004 decision introducing a system of reimbursement by the Equalisation Fund, as
         the Commission points out, Article 11(11) of the 2005 Decree-Law is not an independent provision, but has its whole purpose
         in the context of other provisions, particularly those which govern the administration of the tariff by the Equalisation Fund.
         
      
      136. In that connection, it appears from paragraphs 64 and 65 of the judgment under appeal that the General Court summarised the
         facts, which are not disputed by Alcoa, first by noting that Article 11(11) of the 2005 Decree-Law and the Authority decision
         No 217/05, which implemented the Decree-Law, extend until 31 December 2010 the grant to the applicant of the electricity tariff
         which it enjoyed in 2004 under the 1995 Decree-Law and, secondly, by pointing out that pursuant to decision No 148/04 the
         responsibility for administering the tariff was given to the Equalisation Fund, which entails a parafiscal tax on consumers.
      
      137. With regard to the consequences of the alterations to the measure examined in the contested decision, in view of the reply
         proposed in relation to the examination of the first complaint of the second ground of appeal, that part of the present complaint
         must be dismissed. 
      
      138. Finally, as appears from the applicant’s claims set out at paragraph 28 of the judgment under appeal, the action at first
         instance concerned only the electricity tariff for Alcoa’s plants. That finding excludes any reference to the tariffs for
         other operators. 
      
      139. Consequently, and in view of the subject-matter of the decision relating to stranded costs, which refers to the costs borne
         by ENEL and not by Alcoa and which concerns a system substantially different from the tariff granted to Alcoa, the General
         Court correctly found at paragraph 112 of the judgment under appeal that the applicant’s argument was  ineffective
      
      140. I therefore propose that the present complaint be dismissed as unfounded. 
      
       B -         Second ground of appeal, fourth complaint
      1.              The parties’ observations
      141. Alcoa complains that the General Court erred in law in failing to have regard to the need for legal certainty and the protection
         of legitimate expectations in connection with the initiation of a formal procedure. 
      
      142. Alcoa contends that the principles enshrined in Article 88 EC and resulting from those principles required the Commission
         at least to regard Alcoa’s tariffs as existing aid. 
      
      143. The Commission replies that Alcoa’s arguments are based on the erroneous assumption that Article 11(11) of the 2005 Decree-Law
         is only an extension of the very measure approved in the Alumix decision. According to the Commission, the Alumix decision
         is irrelevant because the contested decision relates not only to the extension of the preferential tariff granted in 1995,
         which was the subject of the Alumix decision, but [also] to the radical alteration in the administration of the electricity
         tariff, which the General Court, according to the Commission, correctly took into account. 
      
      2.      Assessment 
      144. Alcoa’s argument derives from a combination of the principles of legitimate expectations and legal certainty.
      
      145. The principle of legal certainty, which is fundamental to Union law, (36) requires, in particular, rules involving negative consequences for individuals to be clear and precise and their application
         predictable for those subject to them. (37) In other words, individuals must be able to ascertain unequivocally what their rights and obligations are and take steps
         accordingly. (38)
      
      146. The right to plead legitimate expectations presupposes that the institution concerned has given precise assurances such as
         to give rise to a legitimate expectation on the part of the person to whom they are given that the assurances comply with
         the applicable rules. (39)
      
      147. In that connection I observe that the General Court considered the question whether the Commission disregarded those principles
         in relation to the second ground of appeal, in particular at paragraphs 104 to 109 of the judgment under appeal. 
      
      148. As shown at paragraphs 105 to 107, the General Court explained, first, the main elements of the Alumix decision in the light
         of the case-law correctly applied at paragraphs 102 and 103 and, secondly, the doubts which led the Commission to conclude
         that the extension until 2010 of the tariff granted to Alcoa’s plants by the 2005 Decree-Law might constitute State aid. 
      
      149. In the present case, it is common ground, as the General Court rightly stated, that the Commission adopted the Alumix decision
         in the light of the market conditions as foreseeable by the Commission for the period in question.
      
      150. I also observe that the Court of Justice has already given a ruling concerning the application of the principle of protection
         of legitimate expectations and the need for transitional measures in relation to a decision altering the Commission’s earlier
         assessment. (40) In particular, the Court took into account the considerable investments made under a tax regime by the beneficiaries of the
         existing authorisation who requested renewal of the authorisation and the long-term commitments they had made. (41) In the present case, however, unlike the situation which gave rise to Belgium and Forum 187 v Commission, the earlier measure underwent substantive changes which led to the finding that it constituted new aid in the form of a
         different measure. Consequently Alcoa cannot plead legitimate expectations on the basis of the Alumix decision concerning
         an arrangement the object of which differs from that of the contested decision. 
      
      151. Having regard to those considerations, the General Court correctly found, at paragraphs 107 and 108 of the judgment under
         appeal, that the Commission did not question its assessment of the measure examined in the Alumix decision and that, consequently,
         it could not validly be alleged that the principle of the protection of legitimate expectations had been disregarded. 
      
      152. With regard to the principle of legal certainty, the submissions at paragraphs 105 and 107 of the judgment under appeal indicate
         that Alcoa was clearly in a position to foresee the legal classification of the tariff conditions allowed by virtue of the
         2005 Decree-Law. As I have already explained at paragraph 112 of the present opinion, on reading the Alumix decision no reasonable
         and prudent businessman could expect the measure which is the subject of the contested decision to be covered by the Alumix
         decision.
      
      153. Consequently I propose that this complaint be dismissed as unfounded. 
      
      IX –  Conclusion
      154. I propose that the Court should rule as follows:
      
      –        dismiss the appeal in its entirety and
      –        order Alcoa Trasformazioni Srl to pay the costs. 
      1 –	Original language:  French.
      
      2 –	As the judgment under appeal was given on 25 March 2009 the references to provisions of the EC Treaty follow the numbering
         applicable before the Treaty on the Functioning of the European Union came into force. 
      
      3 –	OJ 2006 C 214, p. 5.
      
      4 –	OJ 1996 C 288, p. 4.
      
      5 –	GURI No 39, 16 February 1996, p. 8.
      
      6 –	Case 84/82 Germany v Commission [1984] ECR 1451, paragraph 13, and Case C-487/06 P British Aggregates v Commission [2008] ECR I-10505, paragraph 27.
      
      7 –	Joined Cases C-182/03 and C-217/03 Belgium and Forum 187 v Commission [2006] ECR I‑5479.
      
      8 –	Opinion of Advocate General Léger in Belgium and Forum 187 v Commission, points 403 to 405.
      
      9 –	Ibid., paragraph 404. 
      
      10 –	Paragraph 77. 
      
      11 –	Joined Cases 91/83 and 127/83 Heineken Brouwerijen [1984] ECR 3435, paragraph 22.
      
      12 –	Case C-295/97 Piaggio [1999] ECR I-3735, paragraph 48. See also Joined Cases C-346/03 and C-529/03 Atzeni and Others [2006] ECR I-1875, paragraph 51, and judgments cited, and Case C-138/09 Todaro Nunziatina & C. Snc [2010] ECR I‑0000.
      
      13 –	Joined Cases T-254/00, T-270/00 and T-277/00 Hotel Cipriani v Commission [2008] ECR II‑3269, paragraph 358, and Joined Cases T-195/01 and T-207/01 Government of Gibraltar v Commission [2002] ECR II-2309, paragraph 111. 
      
      14 –	Opinion of Advocate General Léger in Belgium and Forum 187 v Commission, points 36 and 208, and judgment in Belgium and Forum 187 v Commission, paragraph. 77.
      
      15 –	Opinion of Advocate General Léger in Belgium and Forum 187 v Commission, point 401.
      
      16 –	Case T-95/96 Gestevisión Telecinco v Commission [1998] ECR II-3407, paragraph 55, and Case T-17/96 TFI v Commission [1999] ECR II-1757, paragraph 28, and Government of Gibraltar v Commission, paragraph 73. 
      
      17 –	This decision is now the subject of an action brought by Alcoa before the General Court in Case T-177/10.
      
      18 –	Joined Cases T-127/99, T-129/99 and T-148/99 [2002] ECR II-1275, paragraph 128. 
      
      19 –	Case C-525/04 P Spain v Lenzing [2007] ECR I-9947, paragraph 54, and cases cited.
      
      20 –	Case C-551/03 P General Motors v Commission [2006] ECR I-3173, paragraph 51; Case C‑266/06 P Evonik Degussa v Commission and Council [2008] ECR I-81, paragraph 72, and Case C‑405/07 P Netherlands v Commission [2008] ECR I-8301, paragraph 44. 
      
      21 –	On that point, the Commission relies on Belgium and Forum 187 v Commission.
      
      22 –	Case 60/81 IBM v Commission [1981] ECR 2639, paragraphs 9 and 10, and Case T-64/89 Automec v Commission [1990] ECR II-367, paragraph 42.
      
      23 –	Judgment of 30 June 1992 in Case C-47/91 Italy v Commission [1992] ECR I-4145 (‘Italgrani I’), and judgment of 5 October 1994 in Case C-47/91 Italy v Commission [1994] ECR I-4635 (‘Italgrani II’).
      
      24 –	Italgrani I, paragraph 25.
      
      25 –	Italgrani II, paragraph 24.
      
      26 –	British Aggregates, paragraphs 185 to 187 and paragraph 113, and Case T-73/98 Prayon-Rupel v Commission [2001] ECR II-867, paragraph 42. 
      
      27 –	For the contrary situation, see Case C-164/98 P DIR International Films [2000] ECR I-447.
      
      28 –	In my opinion, this principle, the scope of which is disputed in the law of obligations and international law, clearly
         underlies the provisions of Article 1(b)(v) of Regulation No 659/1999. The classification of the measure as ‘non-aid’ must
         therefore be subject to that principle, obviously within the limits implied by the principles of legal certainty and the protection
         of legitimate expectations. 
      
      29 –	According to Alcoa, the reimbursement by the Equalisation Fund took place in 1999 and 2004 by means of various legal transactions
         which were not the subject of the contested decision. 
      
      30 –	Case C-266/05 P Sison v Council [2007] ECR I-1233, paragraph 95, and cases cited.
      
      31 –	Case C-284/98 P Parliament v Bieber [2000] ECR I-1527, paragraph 30, and the orders in Case C‑74/07 P Lavagnoli v Commission [2007] ECR I‑160, paragraph 20 and in Case C‑231/08 P Giannini v Commission [2009] ECR I‑11, paragraph 43.
      
      32 –	Case C-355/04 P Segi and Others v Council C-355/04 P [2007] ECR I-1657, paragraph 22, and order of 23  October 2009 in Joined Cases C-561/08 P and C‑4/09 P Commission v Potomianos, paragraph 58.
      
      33 –	Belgium and Forum 187 v Commission, paragraph 137.
      
      34 –	 OJ 2005 C 250, p. 9. 
      
      35 –	OJ 2005 C 30, p. 7.
      
      36 –	Case C-110/03 Belgium v Commission [2005] ECR I-2801, paragraph 30; Case C‑2/06 Kempter [2008] ECR I-411, paragraph 37, and Case C-201/08 Plantanol [2009] ECR I-8343, paragraphs 43 and 44.
      
      37 –	Case C-226/08 Stadt Papenburg [2010] ECR I-0000, paragraph 45; to the same effect, Case C‑63/93 Duff and Others [1996] ECR I-569, paragraph 20, and Case C-76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I-4405, paragraph 79.
      
      38 –	Case C-158/06 ROM-projecten [2007] ECR I-5103, paragraph 25, and Case C‑345/06 Heinrich [2009] ECR I-1659, paragraph 44.
      
      
      39 –	See, to that effect, Case C-207/99 P Commission v Hamptaux [2000] ECR I-9485, paragraph 47, and Case C-414/08 P Sviluppo Italia Basilicata v Commission [2010] ECR I-0000, paragraph 107.
      
      
      40 –	Belgium and Forum 187 v Commission and Case C-519/07 P Commission v Koninklijke Friesland Campina [2009] ECR I‑8495, paragraph 94.
      
      41 –	Commission v Koninklijke Friesland Campina.