CELEX: 62008CC0089
Language: en
Date: 2009-05-12
Title: Opinion of Mr Advocate General Bot delivered on 12 May 2009. # European Commission v Ireland and Others. # Appeal - State aid - Exemption from excise duty on mineral oils - Regulation (EC) No 659/1999 - Article 1(b)(v) - Failure to state reasons - Court acting of its own motion - Plea involving a matter of public policy raised by the Community judicature - Infringement of the rule that the parties should be heard - Scope of the obligation to state reasons. # Case C-89/08 P.

OPINION OF ADVOCATE GENERAL
      BOT
      delivered on 12 May 2009 1(1)
      
      Case C‑89/08 P
      Commission of the European Communities
      v
      Ireland,
      French Republic,
      Italian Republic,
      Eurallumina SpA,
       Aughinish Alumina Ltd
      (Appeal – State aid – Inadequate statement of reasons – Role of the Court when acting of its own motion – Breach of the obligation to state reasons – Plea in law concerning a matter of public policy which should be raised by the Community judicature of its own motion – Rule that the parties should be heard)1.        The present case should enable the Court of Justice to clarify the Community judicature’s obligations deriving from the rule
         that the parties should be heard where the Court raises an issue of public policy of its own motion.
      
      2.        This case is an appeal brought by the Commission of the European Communities against the judgment of the Court of First Instance
         of the European Communities of 12 December 2007 in Ireland and Others v Commission, (2) in which that court annulled Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty
         on mineral oils used as fuel for alumina production in Gardanne, in the Shannon-region and in Sardinia respectively implemented
         by France, Ireland and Italy. (3)
      
      3.        In the contested decision, the Commission classified as State aid incompatible with the common market exemptions from excise
         duties on mineral oils which had been granted by the Council of the European Union on a proposal from the Commission several
         years earlier in accordance with the relevant directives concerning excise duty.
      
      4.        In that decision, it considered that those exemptions constituted not existing aid but new aid, which should therefore, in
         principle, be recovered from the recipients. The Commission conceded, however, that the Council decisions authorising them
         had given rise to a legitimate expectation that they conformed with the rules of the common market. It therefore ordered recovery
         of the aid only as from the date of publication in the Official Journal of the European Communities of the notice of commencement of the formal procedure for examination of those exemptions in the light of the State aid rules.
      
      5.        Actions for annulment of the contested decision were brought by Ireland, the French Republic and the Italian Republic, and
         by two companies, Eurallumina SpA (4) and Aughinish Alumina Ltd. (5)
      
      6.        In the judgment under appeal, the Court of First Instance raised of its own motion the plea that the contested decision was
         vitiated by an inadequate statement of reasons, in that it stated, without supplying any explanation, that the exemptions
         in question did not constitute existing aid within the meaning of Article 1(b)(v) of Council Regulation (EC) No 659/1999. (6)
      
      7.        It annulled the contested decision on the basis of that plea, without first seeking the parties’ observations regarding it.
      
      8.        The Commission, in support of its claim that the judgment under appeal should be set aside, relies on several pleas. It submits,
         first, that the Court was not entitled to raise the issue in question of its own motion and, second, that it infringed the
         rule that the parties should be heard. It also asks the Court of Justice to hold that the judgment under appeal incorrectly
         stated that the contested decision was vitiated by a breach of the obligation to state reasons with regard to the non‑application
         of Article 1(b)(v) of Regulation No 659/1999.
      
      9.        I shall suggest that the Court of Justice hold that the Court of First Instance was perfectly entitled to raise that issue
         of its own motion but that it was required, in accordance with the rule that the parties should be heard, to obtain the parties’
         observations regarding it. From this, I shall infer that disregard of that requirement justifies the judgment under appeal
         being set aside.
      
      10.      I shall also suggest that the Court of Justice hold that the contested decision is not vitiated by an inadequate statement
         of reasons regarding the non-application of Article 1(b)(v) of Regulation No 659/1999 and that it refer the case back to the
         Court of First Instance for examination of the pleas put forward by the three Member States and the two companies seeking
         annulment of that decision.
      
      I –  Legal background
      A –    The directives concerning excise duties on mineral oils
      11.      Excise duties on mineral oils have been the subject of several directives, namely Council Directive 92/81/EEC of 19 October
         1992 on the harmonisation of the structures of excise duties on mineral oils, (7) Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils, (8) and Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products
         and electricity, (9) which repealed Directives 92/81 and 92/82 with effect from 31 December 2003.
      
      12.      Article 8(4) of Directive 92/81 enabled the Council, on a proposal from the Commission, to authorise any Member State to introduce
         exemptions or reductions of excise duty other than those provided for in that directive.
      
      13.      Directive 2003/96 provided, in the second indent of Article 2(4)(b), that it was not to apply to dual-use energy products,
         that is to say those intended to be used both as heating fuel and for purposes other than as motor fuel and heating fuel.
         Thus, since 31 December 2003, the date from which that directive applied, there is no longer a minimum rate of excise duty
         on heavy fuel oil used as a fuel in the production of alumina. In addition, Article 18(1) of Directive 2003/96 authorised
         the Member States, subject to prior review by the Council, to continue to apply until 31 December 2006 the reduced rates or
         exemptions listed in Annex II thereto, which mentions the exemptions from excise duties on heavy fuel oil used as a fuel in
         the production of alumina in the Gardanne and Shannon regions and Sardinia.
      
      B –    The rules governing State aid
      1.      The EC Treaty
      14.      Article 87(1) EC provides:
      
      ‘Save as otherwise provided in this Treaty, any aid granted by a Member State or through State resources in any form whatsoever
         which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall,
         in so far as it affects trade between Member States, be incompatible with the common market.’
      
      15.      Article 88 EC provides:
      
      ‘1.   The Commission shall, in cooperation with Member States, keep under constant review all systems of aid existing in those States.
         It shall propose to the latter any appropriate measures required by the progressive development or by the functioning of the
         common market.
      
      2.     If, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State
         or through State resources is not compatible with the common market having regard to Article 87, or that such aid is being
         misused, it shall decide that the State concerned shall abolish or alter such aid within a period of time to be determined
         by the Commission.
      
      …
      3.     The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid.
         If it considers that any such plan is not compatible with the common market having regard to Article 87, it shall without
         delay initiate the procedure provided for in paragraph 2. The Member State concerned shall not put its proposed measures into
         effect until this procedure has resulted in a final decision.’
      
      2.      Regulation No 659/1999
      16.      Under Article 1(b) of Regulation No 659/1999, the concept of ‘existing aid’ covers:
      
      ‘…
      (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.’
      
      II –  Background to the dispute
      17.      Ireland, since 1983, the Italian Republic, since 1993, and the French Republic, since 1997, have exempted from excise duty
         mineral oils used for the production of alumina in the Shannon region, Sardinia and the Gardanne region respectively.
      
      18.      Those exemptions were authorised respectively by Council Decision 92/510/EEC, (10) Council Decision 93/697/EC (11) and Council Decision 97/425/EC. (12) Those authorisations were extended by the Council on several occasions and, most recently, by Decision 2001/224/EC, (13) until 31 December 2006.
      
      19.      In recital 5 to Decision 2001/224, it was stated that the decision was to be without prejudice to the outcome of any procedures
         relating to distortions of the operation of the single market that might be undertaken, in particular under Articles 87 EC
         and 88 EC, and that it did not override the requirement for Member States to notify instances of potential State aid to the
         Commission under Article 88 EC.
      
      20.      By three decisions of 30 October 2001, published in the Official Journal of the European Communities on 2 February 2002, (14) the Commission initiated the procedure provided for in Article 88(2) EC regarding each of the exemptions at issue. On completion
         of that procedure, the Commission adopted the contested decision.
      
      21.      In that decision, the Commission considered that the exemptions granted before 1 January 2004, the date from which Directive
         2003/96 applied, constituted State aid within the meaning of Article 87(1) EC.
      
      22.      It indicated that they should be regarded as new aid and not existing aid. The Commission based that assessment in particular
         on the fact that the exemptions in question did not exist before the entry into force of the Treaty in the Member States concerned,
         that they had never been authorised by the Council or itself on the basis of the State aid rules and that Article 4(6) of
         Regulation No 659/1999 was not applicable. (15)
      
      23.      In point 69 of the statement of reasons for the contested decision, the Commission stated that Article 1(b)(v) of Regulation
         No 659/1999 was not applicable to the present case.
      
      24.      It went on to explain the extent to which the aid in question was incompatible with the common market.
      
      25.      As regards the exemptions granted from 1 January 2004, it decided to initiate the formal investigation procedure provided
         for in Article 88(2) EC.
      
      26.      Finally, the Commission examined the extent to which the aid represented by the exemptions granted until 31 December 2003
         had to be recovered. It pointed out that Member States are required to recover unlawful aid declared incompatible with the
         common market, unless to do so would be contrary to a general principle of Community law, such as the principle of the protection
         of legitimate expectations or the principle of legal certainty.
      
      27.      The Commission took the view that, in the light of the exemption decisions and the fact that those decisions, including Decision
         2001/224, had been adopted on the basis of its own proposals, the beneficiaries of the exemptions at issue were entitled to
         claim a legitimate expectation that those exemptions were in conformity with Community law in general, but that applied only
         until 2 February 2002, the date of publication in the Official Journal of the European Communities of the decisions initiating the procedure provided for in Article 88(2) EC.
      
      28.      In the operative part of the contested decision, it is stated that the exemptions granted until 31 December 2003 constitute
         State aid within the meaning of Article 87(1) EC, that the aid granted between 3 February 2002 and 31 December 2003 is incompatible
         with the common market to the extent to which the beneficiaries have not paid a duty of at least EUR 13.01 per 1 000 kg of
         heavy fuel oil and that such incompatible aid should be recovered by the three Member States concerned.
      
      III –  The procedure before the Court of First Instance and the judgment under appeal
      29.      By applications lodged at the Registry of the Court of First Instance on 16, 17 and 23 February 2006, Ireland, the French
         Republic, the Italian Republic, Eurallumina and Aughinish Alumina brought actions for total or partial annulment of the contested
         decision. The various cases were joined for the purposes of the oral procedure, and then for the purposes of the judgment.
      
      30.      According to the judgment under appeal, the applicants essentially put forward 23 pleas in law, alleging, in particular, the
         wrongful classification of the exemptions in question as new aid, whereas they constituted existing aid, breach of the principles
         of the protection of legitimate expectations, legal certainty, observance of a reasonable time‑limit, the presumption of validity,
         the principle lex specialis derogat legi generali, and the principles of effectiveness and sound administration. Also alleged were breaches of Article 87 EC and of the obligation
         to state reasons with regard to the application of that article.
      
      31.      In paragraph 46 of the judgment under appeal, the Court of First Instance stated that it considered it appropriate to raise
         of its own motion the issue of an inadequate statement of reasons for the contested decision regarding the non‑application
         of Article 1(b)(v) of Regulation No 659/1999.
      
      32.      After pointing out that a lack or inadequacy of a statement of reasons is a matter of public policy which should be raised
         by the Community judicature of its own motion, and referring to the case-law on the scope of the obligation to state the reasons
         for a Community act, it stated that the Commission, in the contested decision, had considered whether the exemptions at issue
         constituted new aid or existing aid and had asserted that Article 1(b)(v) of Regulation No 659/1999 was not applicable to
         the case, without giving the reasons for such inapplicability.
      
      33.      In paragraphs 56 to 62 of the judgment under appeal, the Court of First Instance considered that the following particular
         circumstances were such as to require the Commission to give specific reasons for not applying that provision.
      
      34.      First, in a number of decisions authorising the exemptions in question, it is indicated that the Commission recognises that
         those exemptions do not entail any distortion of competition and there is nothing to support the view that the scope of the
         concept of distortion of competition in fiscal matters might differ from its scope in the field of State aid. It is also indicated
         in a number of those decisions that the Commission will regularly review the exemptions in question in order to ensure that
         they are compatible with the operation of the internal market and other objectives of the Treaty.
      
      35.      Second, in point 97 in the statement of reasons for the contested decision, the Commission accepted that those authorisation
         decisions, adopted on the basis of its own proposals, might have given the impression that the exemptions in question could
         not be classified as State aid when they were put into effect. The fact that that paragraph appears in the part of the statement
         of reasons relating to the recovery of the aid cannot, according to the Court of First Instance, restrict its scope regarding
         the classification of the exemptions in question as State aid.
      
      36.      Third, the exemptions in question were authorised and extended by the Council on a proposal from the Commission and, with
         the exception of Decision 2001/224, none mentioned any possible conflict with the State aid rules. In point 96 of the statement
         of reasons for the contested decision, the Commission states that the interested parties would not expect the Commission to
         submit proposals to the Council which were incompatible with Treaty provisions.
      
      37.      The Court of First Instance inferred from those circumstances that the Commission had infringed its obligation to state reasons
         under Article 253 EC in relation to the failure to apply Article 1(b)(v) of Regulation No 659/1999 to this case.
      
      38.      It annulled the contested decision and ordered the Commission to pay the costs.
      
      IV –  The appeal
      39.      The Commission asks the Court to set aside the judgment under appeal, to refer the cases back to the Court of First Instance
         and to reserve the costs.
      
      40.      Ireland, the French Republic, the Italian Republic, Eurallumina and Aughinish Alumina ask the Court to dismiss the appeal
         and order the Commission to pay the costs.
      
      41.      In the alternative, Eurallumina asks the Court, in the event of its upholding the Commission’s sixth ground of appeal, to
         the effect that the Court of First Instance was not entitled to annul the contested decision to the extent to which the latter
         extended the formal investigation procedure to the exemptions for the period after 1 January 2004, to set aside the judgment
         under appeal only with respect to that extension.
      
      42.      In support of its claim that the judgment under appeal should be set aside and the cases should be referred back to the Court
         of First Instance, the Commission puts forward six pleas.
      
      43.      The first plea seeks to establish that the Court of First Instance exceeded its jurisdiction by raising of its own motion
         the issue of an inadequate statement of reasons for the contested decision. The second plea alleges breach of the rule that
         the parties should be heard and breach of the rights of the defence. The third plea seeks to prove that the question whether
         the aid in question falls within Article 1(b)(v) of Regulation No 659/1999 was not open to examination. The fourth and fifth
         pleas seek to establish that the Court of First Instance erred in law by holding that the contested decision was vitiated
         by a breach of the obligation to state reasons regarding the non-application of Article 1(b)(v) of Regulation No 659/1999.
         Finally, in its sixth plea, the Commission claims that the Court of First Instance was not entitled to annul the contested
         decision to the extent to which it extends the formal investigation procedure to exemptions post-dating 31 December 2003.
      
      44.      Before I examine those pleas, it should be borne in mind that, in paragraph 46 of the judgment under appeal, the Court of
         First Instance stated that it had considered it appropriate to raise of its own motion the issue of an inadequate statement
         of reasons for the contested decision regarding the non-application of Article 1(b)(v) of Regulation No 659/1999.
      
      45.      At the hearing, it was confirmed that, although the applicants before the Court of First Instance indeed challenged the classification
         as new aid adopted by the Commission in the contested decision and thus contended that the exemptions in question should be
         classified as existing aid, they did not at any time base their arguments on the provisions of Article 1(b)(v) of Regulation
         No 659/1999. (16)
      
      46.      It must therefore be taken as established, for the purposes of the reasoning to be set out below, first, that the parties
         did not argue before the Court of First Instance that the exemptions at issue should be classified as existing aid under Article
         1(b)(v) of Regulation No 659/1999 and, second, that the issue raised of its own motion by the Court of First Instance, concerning
         breach of the obligation to state reasons regarding the non-application of that provision, was not discussed by the parties.
      
      A –    The first plea
      1.      Arguments of the parties
      47.      The appellant’s first plea formally alleges lack of jurisdiction of the Court of First Instance, procedural irregularities
         adversely affecting the appellant’s interests, breach of the principle that the subject‑matter of an action is delimited by
         the parties, infringement of the combined provisions of Articles 230 EC and 253 EC and of Article 21 of the Statute of the
         Court of Justice and of Articles 44(1) and 48(2) of the Rules of Procedure of the Court of First Instance.
      
      48.      This plea is divided into two parts.
      
      49.      With regard to the first part, the Commission claims that, by raising of its own motion the issue of an inadequate statement
         of reasons for the contested decision, the Court of First Instance went beyond the bounds of the dispute as defined by the
         parties and thus exceeded its jurisdiction, infringed the principle that the subject-matter of an action is delimited by the
         parties, ruled ultra petita and committed a procedural irregularity adversely affecting the Commission’s interests.
      
      50.      It states that, having regard to the obligations of the national court in implementing Community law, as set out in the judgments
         in van Schijndel and van Veen (17) and in van der Weerd and Others, (18) the Court of First Instance was not entitled to raise that issue of its own motion because it was entirely unconnected with
         the 23 pleas put forward by the parties. The parties did not at any stage argue that Article 1(b)(v) of Regulation No 659/1999
         might be relevant.
      
      51.      Above all, the issue raised by the Court of First Instance is unconnected with the facts recorded in the files of the five
         joined cases, which did not refer to any matter capable of giving the impression that the exemptions in question did not constitute
         aid when they were granted and that they became aid subsequently as a result of evolution of the common market.
      
      52.      In the second part of the plea, the Commission maintains that the issue raised by the Court of First Instance of its own motion
         in fact relates to the substantive legality of the contested decision and not to the statement of the reasons on which it
         is based, the statement of reasons insisted upon by the Court of First Instance not being necessary to enable interested parties
         to ascertain the justification for the contested decision or to enable the Court to carry out its review. The Court of First
         Instance thus infringed the rules concerning the role of the Community judicature with respect to the examination of the reasoning
         of contested measures, as set down in the case-law, in particular in Commission v Sytraval and Brink’s France, (19) in which the Court drew a clear distinction between pleas challenging the formal legality of the contested measure, which
         the Community judicature must, if appropriate, raise of its own motion, and pleas concerning substantive legality, which may
         be examined only if they have been raised by the parties.
      
      53.      The Commission maintains that the Court of First Instance, by raising that issue, which relates, in fact, to the substance
         of the contested decision, also infringed the rules concerning the obligation to set out pleas in law in the application,
         as laid down in Article 21 of the Statute of the Court of Justice and Articles 44(1) and 48(2) of the Rules of Procedure of
         the Court of First Instance.
      
      54.      The respondents do not accept that argument.
      
      2.      Assessment
      55.      Like the respondents, I am of the opinion that the complaints made by the Commission in its first plea are unfounded.
      
      56.      First, as far as the first part of the plea is concerned, the power of the Community judicature to raise on its own motion
         a matter such as that raised of its own motion by the Court of First Instance cannot be determined in the light of the judgments
         in van Schijndelandvan Veen or van der Weerd and Others, referred to by the Commission.
      
      57.      Those judgments concern the relationship between the procedural autonomy of the Member States and the principles of equivalence
         and effectiveness. They relate to the question whether a national court, depending on whether or not its national law provides
         for the possibility of raising matters of internal law of its own motion, must on its own initiative raise the question of
         the application of Community law by virtue of those principles. Those judgments clarify, in particular, the extent to which
         the principle of effectiveness requires the national court to raise of its own motion a matter of Community law where its
         procedural law does not enable it to raise of its own motion a plea of domestic law. It is in that context that it was held
         in van der Weerd and Others that the national court is not required to raise of its own motion the application of Community law where the parties, in
         the course of the procedure, have themselves had an opportunity to raise such a plea.
      
      58.      That limit on the scope of the principle of effectiveness cannot be transposed to this case, which is concerned with assessing
         the powers of the Community judicature. Those powers derive from autonomous rules, which derive either from rules governing
         procedure before the Community Courts or from the case-law.
      
      59.      Admittedly, as the Commission has rightly pointed out, it is also apparent from those rules, in particular Article 21 of the
         Statute of the Court of Justice and Article 44(1) of the Rules of Procedure of the Court of First Instance, that the dispute
         is to be determined and circumscribed by the parties. It follows that the Community judicature may not grant relief beyond
         that sought by the parties. It must also, in principle, rule on the parties’ claims within the legal and factual framework
         set out by them.
      
      60.      Accordingly, the role of the Community judicature is not passive and cannot be limited to assessing the merits of the positions
         taken by each of the parties to the dispute in strict adherence to the pleas and arguments put forward by the parties. The
         Community judicature does not merely act as a referee between the parties. It must also, under Article 220 EC, ensure compliance
         with Community law.
      
      61.      The rules on procedure before each Community Court, and also the case‑law, have thus identified several sets of circumstances
         in which the Community judicature, in order to fulfil its task as an arbiter of legality, has the power to raise an issue
         of law of its own motion.
      
      62.      Under the Rules of Procedure, it may of its own motion raise its own manifest lack of jurisdiction to take cognisance of an
         action or the manifest inadmissibility of an action or, if appropriate, the fact that the action is manifestly lacking any
         foundation in law. (20) It may therefore raise of its own motion matters constituting an absolute bar to proceeding with an action, (21) that is to say infringements of essential conditions for the admissibility of an action, such as observance of time-limits
         for bringing proceedings, (22) the existence of a challengeable act (23) and locus standi. (24)
      
      63.      It is also incumbent on the Court, under the case-law, to raise of its own motion a failure to comply with a rule of the Community
         legal order where that rule appears sufficiently important to be classified as a matter of public policy. Thus, it has been
         accepted that the Community judicature should raise of its own motion the res judicata rule (25) and the lack of powers of the originator of the act. (26) It must also raise of its own motion any infringement of essential procedural requirements, that is to say irregularities
         which affect the form of the measure or the procedure followed and adversely affect the rights of third parties or persons
         concerned by that measure or are liable to have an influence on the content of that measure, (27) such as, for example, the absence of due authentication (28) or lack of notification. (29)
      
      64.      In those various cases, the defect which vitiates the contested measure is sufficiently serious to justify an adverse finding
         by the Community judicature, even though it was not raised by the applicant. In other words, where the contested Community
         measure infringes the principle of res judicata or was adopted by an authority lacking powers to do so or derives from breach of an essential procedural requirement, it
         is of little importance whether that measure is also vitiated by defects referred to by the applicant in support of his claim
         for annulment. Defence of the Community legal order allows and, in appropriate cases, requires the Court, as the arbiter of
         legality, to find that the measure in question is vitiated by a defect which, in any event, calls for its annulment.
      
      65.      According to settled case-law, the lack of a statement of reasons amounts to a breach of essential procedural requirements
         and constitutes a matter of public policy which must be raised by the Community judicature of its own motion. (30)
      
      66.      The obligation thus identified would be deprived of any useful effect if the power of the Community judicature to raise one
         of the abovementioned issues of its own motion were made conditional upon a connection between it and the pleas and arguments
         put forward by the parties. Indeed, compliance with such a condition would run counter to the very purpose of that power to
         raise matters of the Court’s own motion, the purpose of which is precisely to make up for an omission by the parties where
         a rule of public policy has been infringed.
      
      67.      The Community judicature, dealing with an application for annulment, cannot therefore be criticised for going beyond the bounds
         of the dispute, exceeding its jurisdiction, ruling ultra petita and infringing its Rules of Procedure where it raises of its own motion a matter of that kind, which relates precisely to
         the lawfulness of the measure whose annulment is sought.
      
      68.      Similarly, the Commission has no basis for claiming that, in the judgment under appeal, the Court of First Instance exceeded
         the bounds of the dispute on the ground that the issue raised of its own motion was unconnected with the facts set out by
         the parties.
      
      69.      It is not apparent how, by raising of its own motion the issue of breach of the obligation to state reasons, the Court of
         First Instance could be going beyond the bounds of the dispute when the requirement to state reasons applies to all Community
         acts, in accordance with Article 253 EC. Moreover, that argument has even less basis, given that Article 1(b)(v) of Regulation
         No 659/1999 is expressly referred to in the contested decision.
      
      70.      This analysis does not prejudge the question whether the Court of First Instance was right to consider that the contested
         decision was vitiated by an inadequate statement of reasons regarding the non‑application of Article 1(b)(v) of Regulation
         No 659/1999. I would merely point out at this stage of the analysis that, by raising that issue of its own motion, the Court
         of First Instance was performing its task as an arbiter of legality. That is why the Commission’s argument that the documents
         submitted to the Court of First Instance do not disclose any circumstance capable of giving rise to the impression that Article
         1(b)(v) of Regulation No 659/1999 was applicable relates, in my opinion, to the question whether or not the contested decision
         was vitiated by an inadequate statement of reasons regarding the non-application of that provision. That argument cannot call
         in question the power of the Court of First Instance to raise that issue of its own motion. 
      
      71.      The complaints made by the Commission in the first part of the plea in question are, therefore, in my opinion unfounded.
      
      72.      Second, contrary to what the Commission contends in the second part of this plea, the Court of First Instance did not, on
         the pretext of dealing with an inadequate statement of reasons, raise of its own motion a matter relating to the substantive
         legality of the contested decision.
      
      73.      Admittedly, it has been held on several occasions that, whilst the absence or inadequacy of a statement of reasons constitutes
         a matter of public policy which must be raised by the Community judicature, infringement of a rule of law concerning application
         of the Treaty, within the meaning of Article 230 EC, can be examined by the Community judicature only if it is raised by the
         applicant. (31) The Court of Justice has thus taken the view that the Court of First Instance erred in law when, purporting to be dealing
         with a breach of the requirement to state reasons, it criticised the institution from which the act emanated of in fact having
         committed an error of assessment. (32) However, the judgment under appeal in this case does not merit such a criticism.
      
      74.      It is clear from the case-law, and in particular the judgment in Commission v Sytraval and Brink’s France, that a plea alleging an inadequate statement of reasons is available not only where the contested measure lacks any statement
         of reasons whatsoever but also where that statement is defective on a point which might have a decisive impact on the conclusion
         reached by the Community institution in that act.
      
      75.      Thus, in that case, the Court of First Instance had annulled a Commission decision rejecting a complaint from the Chambre
         syndicale nationale des enterprises de transport de fonds et valeurs (Sytraval) and Brink’s France SARL asserting that aid
         granted by the French Republic to Sécuripost SA constituted State aid. The Court of Justice held that the Court of First Instance
         had been right to conclude that the decision in question was vitiated by an inadequate statement of reasons, first because
         the Commission had failed to respond to a charge expressly made in the complaint concerning the total or partial assumption
         by the State of responsibility for the remuneration of Sécuripost SA’s personnel, even though that charge was not of a merely
         secondary nature.
      
      76.      The Court of Justice also held that the Court of First Instance’s assessment was well founded, in the second place, regarding
         the complainants’ charge that Sécuripost SA paid no contributions to the unemployment insurance funds for seconded officials,
         to which the Commission responded simply by saying that ‘no contributions need to be made to unemployment insurance funds
         in respect of the employment of officials on secondment, since their employment is guaranteed by their status as officials’.
      
      77.      Conversely, the Court of Justice considered that the Court of First Instance, purporting to be dealing with an alleged inadequacy
         of a statement of reasons, had criticised the Commission for a manifest error of assessment and thus called in question the
         substantive legality of the decision in question by concluding, for example, that the fact that a loan of FRF 15 000 000 by
         the holding company of the subsidiary companies of La Poste to Sécuripost SA constituted a commercial transaction was not
         in itself sufficient to show that it did not amount to State aid, since such a transaction may be effected at a rate which
         represents a special advantage, so that the Commission should have considered whether the rate charged was in line with the
         market rate. (33)
      
      78.      Although, in the light of the last two examples, the boundary between an inadequate statement of reasons and an error of assessment
         may sometimes appear difficult to identify precisely, the fact nevertheless remains that the issue raised by the Court of
         First Instance of its own motion in the judgment under appeal was not a digression and relates clearly, in my opinion, to
         the reasoning of the contested decision.
      
      79.      In fact, let us not forget that the Court of First Instance considered that the contested decision was vitiated by an inadequate
         statement of reasons, in that it is stated, in point 69 of the statement of reasons, without any explanation being provided,
         that Article 1(b)(v) of Regulation No 659/1999 is not applicable to this case. The Court of First Instance was therefore unable
         to address the merits of the reasons for which the Commission considered that provision to be inapplicable, because those
         reasons were not stated.
      
      80.      Once again, this analysis does not prejudge the answer to the question whether the Commission should have set out the reasons
         for which Article 1(b)(v) of Regulation No 659/1999 was not applicable to this case or, in other words, whether the contested
         decision provides in this regard an inadequate statement of reasons such as to justify its annulment. That issue, which is
         the subject of the fourth and fifth pleas in this appeal, will be examined below. It must in my opinion be clearly distinguished
         from the issue examined in relation to the first plea, which concerns the scope of the Community judicature’s power to raise
         of its own motion a legal issue, such as that concerning breach of the obligation to state reasons.
      
      81.      At this stage of the analysis, I consider it important to confirm that the Court of First Instance, as arbiter of the legality
         of the contested decision, in fact had the necessary power to raise such an issue of its own motion, by virtue of the case-law
         according to which it should raise of its own motion any plea alleging infringement of essential procedural requirements.
      
      82.      I therefore suggest that the Court reject the first plea as unfounded.
      
      B –    The second plea
      1.      Arguments of the parties
      83.      The Commission claims that the issue raised by the Court of First Instance of its own motion was not discussed or even touched
         upon in the written and oral procedure before that Court. It maintains that the Court thus infringed the rule that the parties
         should be heard, which is a general principal applicable to proceedings before the Community judicature and is upheld in Article
         6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950
         (‘the ECHR’).
      
      84.      The respondents maintain in essence that, under Article 62 of the Rules of Procedure of the Court of First Instance, that
         Court has a discretion to order reopening of the procedure and that it follows from that article and from Article 113 of those
         rules that the obligation to hear the parties before raising an issue of its own motion applies only in relation to pleas
         leading to an action being declared inadmissible or a ruling that there is no need to adjudicate. They also maintain that
         Article 6 of the ECHR does not apply to legal persons governed by public law, such as the Commission. If that is not the case,
         they contend that the scope of the rule that the parties should be heard must be adapted to reflect the parties to the proceedings
         and the nature of the case.
      
      85.      The respondents submit that that principle was complied with in this case, in that the judgment under appeal is not based
         on documents or facts of which the Commission was unaware.
      
      86.      They also maintain that the Community’s interests were not affected. First, the Commission’s rights were not flouted: the
         Commission was not declared to be subject to any civil or criminal liability. Also, the inadequate statement of reasons could
         not be remedied after the event, so that reopening of the procedure would not have enabled the Commission to put forward arguments
         to persuade the Court not to raise that issue of its own motion.
      
      2.      Assessment
      87.      I unreservedly accept the Commission’s position.
      
      88.      Whilst, as I indicated earlier, the Court of First Instance was perfectly competent to raise such a matter of its own motion,
         it nevertheless seems to me to be essential to state that its power to do so could be validly exercised only in compliance
         with the rule that the parties should be heard.
      
      89.      The Court of Justice has upheld the importance of that rule and its very wide scope in the Community legal order. Thus, according
         to settled case-law, it is a fundamental principle, (34) which must be respected even if there are no specific rules, in any proceedings which may result in a decision of a Community
         institution perceptibly affecting a person’s interests. (35)
      
      90.      The rule that the parties should be heard consequently applies before the Community judicature. Moreover, its purpose is to
         benefit all the parties to proceedings, both private persons and Member States (36) or the institutions. According to the following statement in SNUPAT v High Authority, (37) ‘it would infringe a basic principle of law to base a judicial decision on facts and documents of which the parties themselves,
         or one of them, have not been able to take cognisance and in relation to which they have not therefore been able to formulate
         an opinion’.
      
      91.      That statement shows that the rule that the parties should be heard is inherent in the concept of a State governed by the
         rule of law and implies that there should be prior discussion of any matter on which a court dealing with a case is to base
         its decision, whatever the nature of the parties to those proceedings. Community institutions, the legality of whose acts
         is subject to review by the Community judicature and which, in that context, are parties to proceedings, must therefore also
         benefit from that rule, under the same conditions as the other persons referred to in Article 230 EC, regardless of whether
         or not they are entitled to allege an infringement of Article 6 of the ECHR before the European Court of Human Rights.
      
      92.      According to the case-law, the rule that the parties should be heard implies that every party to proceedings is entitled,
         first, to be apprised of the elements on which the Court is to base its decision and, second, to be able to discuss them. (38) That case-law is consistent with the interpretation of the right to adversarial proceedings given by the European Court of
         Human Rights, according to which that right falls within the concept of a ‘fair hearing’ referred to in Article 6 of the ECHR. (39)
      
      93.      The rule that the parties should be heard does not merely confer on each party to proceedings the right to be apprised of
         and discuss the documents produced and observations made to the Court by the other party. It also implies a right to be apprised
         of and discuss matters raised by the Court of its own motion, on which the Court intends basing its decision.
      
      94.      The Court of Justice has clearly recognised the existence of that right where the Court of First Instance bases its decision
         on facts and documents of which the parties had been unable to take cognisance. (40) On the other hand, unless I am mistaken, it does not seem that it has done so to date in a case in which the Community judicature
         envisaged deciding the case on the basis of a public policy issue raised of its own motion.
      
      95.      The obligation to observe the rule that the parties should be heard in such circumstances applies, in my view, in the same
         way.
      
      96.      As the Commission observed in its written submissions, that obligation can be very clearly inferred from the case-law of the
         European Court of Human Rights. According to that court, the courts themselves must observe the rule that the parties should
         be heard, in particular where they dismiss an appeal or decide a case on the basis of an issue raised of their own motion. (41)
      
      97.      Moreover, in the light of the objectives pursued by application of the rule that the parties should be heard, I see no difference
         between a situation of the kind dealt with in the judgment in Plant and Others v Commission andSouth Wales Small Mines, in which a court seeks to base its decision on facts or documents that have not been discussed by the parties, and a case
         in which it raises of its own motion a plea strictly confined to matters of law.
      
      98.      Indeed, the rule that the parties should be heard can be seen as having two objectives. The first is to provide information
         for the Court. The requirement that all matters liable to have an impact on the decision to be given in the case should be
         available for discussion by the parties thus enables the Court to give judgment on an entirely impartial basis and with full
         knowledge of all matters of fact and law.
      
      99.      The second aim is to underpin the confidence which subjects of law must be able to have in the judicial process. That confidence
         implies that the parties should have been guaranteed an opportunity to express themselves on all the matters on which the
         Court based its decision.
      
      100. These considerations are just as valid where the Community judicature raises of its own motion a matter of pure law. Thus,
         an outcome to a case based on the application of a legal rule in a dispute, even one concerning public policy, necessarily
         derives from an assessment by the Court, which can only be enhanced and supported or, as the case may be, undermined by the
         observations of the parties. Similarly, for the unsuccessful party, the lack of any opportunity to put forward his observations
         on the rule of law which places him in the wrong, even if it is a rule of public policy, may legitimately give him the impression,
         because he has been unable to defend himself, that the Court was in an alliance with the opposite party.
      
      101. It is true, as the respondents emphasise, that the rule that the parties should be heard is not absolute and may be subject
         to derogations.
      
      102. Thus, so far as concerns the documents and information produced to the Court, it must be accepted that their disclosure may
         be subject to restrictions where that is justified by the protection of fundamental rights or an important public interest,
         such as the protection of business secrets. (42) Similarly, the Community judicature, by virtue of its Rules of Procedure, is entitled to make interlocutory orders in proceedings
         for interim relief ‘even before the observations of the opposite party have been submitted’. (43) Finally, the Community judicature may, by issuing an order and without first hearing the applicant, dismiss an action where
         it is clear that it has no jurisdiction to take cognisance of it or the action is manifestly inadmissible or manifestly lacking
         any foundation in law. (44)
      
      103. However, the above cases must in my opinion be regarded as exceptions to a principle. They all involve very specific situations
         in which there is a legitimate reason for derogating from the rule that the parties should be heard. In the first two cases,
         it was a question of protecting an important public interest, against which the rule must be balanced, or of guaranteeing
         the effectiveness of the measure granted in response to an application for interim relief.
      
      104. Finally, so far as concerns orders made in cases of lack of jurisdiction, inadmissibility or manifest lack of any foundation
         in law, the derogation from the rule that the parties should be heard, although more debatable, can nevertheless be explained
         by the fact that the need to reject the application is so obvious that it is beyond dispute. In other words, it could be conceded
         that the dismissal of such an action derives not from an assessment of the case by the Court but from a mere finding that
         one of those grounds exists.
      
      105. It follows that Article 113 of the Rules of Procedure of the Court of First Instance cannot be interpreted as meaning that
         the Community judicature, where it raises an issue of its own motion, should respect the rule that the parties should be heard
         only in the cases referred to in that provision, that is to say when it raises an absolute bar to proceeding with the case
         or finds that the application has become devoid of purpose.
      
      106. In the light of the foregoing considerations, that article must in my view be understood as meaning that it upholds the Community
         judicature’s powers to raise matters of its own motion and not that it limits the scope of the rule that the parties should
         be heard. Quite the contrary: by expressly providing that the parties must be heard, that article fully confirms the importance
         of that fundamental principle where the Court raises a matter of its own motion. It must be construed as a specific application
         of the fundamental rule that the parties should be heard.
      
      107. The Community judicature must therefore respect that principle when it envisages giving a decision on the basis of a public
         policy matter raised of its own motion. To that end, it is under a responsibility to open that issue to discussion by the
         parties, if need be by reopening the procedure.
      
      108. It is undisputed that, in the present case, the Court of First Instance failed to have regard to that obligation.
      
      109. The respondents nevertheless deny that the rule that the parties should be heard was infringed because, as the inadequate
         statement of reasons could not be remedied, reopening of the procedure would not have enabled the Commission to put forward
         arguments prompting the Court not to uphold the plea which it had itself raised. The Commission’s interests were therefore
         not affected.
      
      110. Admittedly, the rule that the parties should be heard is connected with the right to a fair hearing and it is conceded that
         that right must not be applied in a purely formalistic manner. According to well‑established case-law, it is important, for
         a breach of a party’s right to a fair hearing to be established and give rise to the annulment of a Community act, that the
         interests of that party have been adversely affected. (45)
      
      111. However, in view of the objectives pursued by the rule that the parties should be heard and the value of that principle within
         the Community legal order, it would be very difficult, where the Court of its own motion raises a public policy issue on which
         it envisages basing its decision and which is not a matter for an order as to lack of jurisdiction or manifest inadmissibility,
         to say that the interests of the parties have not been affected. It must be borne in mind, in that regard, that Article 113
         of the Rules of Procedure of the Court of First Instance requires the Court to hear the parties concerning any absolute bar
         to proceeding with the case raised of the Court’s own motion, without imposing any restriction in that respect.
      
      112. It follows that even if, in the Court’s view, the solution to the dispute appears so clear that the observations of the parties
         would have no impact on it, the parties nevertheless have the right to be informed of that issue in advance and to submit
         their observations on it.
      
      113. Moreover, in the present case, the possibility cannot be ruled out that application of the rule that the parties should be
         heard could have had an impact on the Court’s decision.
      
      114. Indeed, it is of little importance, at this stage of the analysis, that an inadequate statement of reasons for a Community
         act is a defect which, in principle, cannot be remedied. What is important is that the Court’s analysis, to the effect that
         the contested decision is vitiated by a breach of the obligation to state reasons, derives from a genuine assessment and that
         there was an opportunity for the latter to be challenged.
      
      115. Any assessment of compliance with the requirement to state the reasons for a Community act must be based on a specific analysis
         of that act, in the light of a number of criteria, set out in settled case-law.
      
      116. The statement of reasons required by Article 253 EC must, according to settled case-law, be appropriate to the measure 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
         Community court to exercise its power of review. The requirements to be satisfied by a statement of reasons depend on the
         circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which
         the addressees of the measure or other parties to whom it is of direct and individual concern may have in obtaining explanations.
         It is not necessary for the statement of reasons to go into all the relevant facts and points of law, since the question whether
         the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but
         also to its context, and to all the legal rules governing the matter in question. (46)
      
      117. In the judgment under appeal, the Court of First Instance took care to set out, in paragraphs 56 to 62, the reasons for which,
         in its view, the Commission should have considered whether the exemptions at issue could be regarded as existing aid within
         the meaning of Article 1(b)(v) of Regulation No 659/1999 and from which it inferred that the contested decision, by merely
         stating that that provision was not applicable, was vitiated by an inadequate statement of reasons.
      
      118. It is conceivable that the Court’s assessment might have been different if it had given the Commission an opportunity to submit
         its observations on those matters and to put to the Court the same arguments as those which it has put forward in the fourth
         and fifth pleas of the present appeal.
      
      119. In view of all the foregoing considerations, I propose that the Court declare that the second plea put forward by the Commission
         is well founded and hold that the Court of First Instance, by annulling the contested decision on a ground which was raised
         by it of its own motion and was not discussed by the parties, infringed the rule that the parties should be heard and, in
         so doing, adversely affected the Commission’s interests.
      
      120. I therefore propose that the judgment under appeal be set aside.
      
      C –    The consequences of setting aside the judgment under appeal
      121. Where a judgment is set aside on appeal, Article 61 of the Statute of the Court of Justice provides that the Court may either
         refer the case back to the Court of First Instance or else itself give final judgment in the matter, where the state of the
         proceedings so permits.
      
      122. The dispute in the present case is of a twofold nature. First, the contested decision was the subject of an application for
         annulment based on a large number of pleas, which were not examined by the Court of First Instance, and consequently the state
         of the proceedings is not such that those pleas can be examined by the Court of Justice.
      
      123. Second, the Court of First Instance held that the decision in question was vitiated by a breach of the obligation to state
         reasons and that it was necessary for that issue to be examined before it assessed the pleas in annulment raised by the parties.
      
      124. In so far as the question whether the contested decision is vitiated by an inadequate statement of reasons regarding the non-application
         of Article 1(b)(v) of Regulation No 659/1999 has been discussed between the parties before the Court of Justice, I am of the
         opinion that, on that point, the state of the proceedings is such that a decision may be given.
      
      125. Moreover, as the Commission has stated, adjudication on that issue by the Court of Justice would appear necessary to ensure
         the sound administration of justice. It will make it possible to ensure that the discussion of this question is not repeated
         before the Court of First Instance and does not give rise to a judgment limited to that issue which, in the worst case, might
         be the subject of an appeal and a further reference back to the Court of First Instance for examination of the pleas in annulment
         raised by the parties.
      
      126. The Court of Justice followed that course of action in Plant and Others v Commission and South Wales Small Mines in which, after finding that the Court of First Instance had committed a procedural irregularity adversely affecting the
         applicants’ interests by declaring their action inadmissible on the basis of documents of which they had had no knowledge,
         it then decided to consider the admissibility of that action. (47)
      
      127. I therefore propose that the Court of Justice examine together the Commission’s fourth and fifth pleas, which seek to show
         that the judgment under appeal is incorrect in so far as the Court of First Instance held that the contested decision was
         vitiated by a defective statement of reasons regarding the non-application of Article 1(b)(v) of Regulation No 659/1999.
      
      1.      Arguments of the parties
      128. The Commission’s fourth and fifth pleas allege infringement of Article 253 EC, in conjunction with Articles 87(1) EC and 88(1)
         EC together with the rules governing procedure in relation to State aid matters and Article 1(b)(v) of Regulation No 659/1999.
      
      129. In support of its fourth plea, the Commission maintains that the statement of reasons for the contested decision shows that
         the exemptions in question have constituted aid ever since they were introduced, and that decision made it clear to the requisite
         legal standard and in accordance with the requirements of the case-law that those exemptions were capable of affecting trade
         between Member States and causing distortions of competition. In those circumstances, it was not necessary in the Commission’s
         view to explain in greater detail the reasons for which Article 1(b)(v) of Regulation No 659/1999 was not applicable.  
      
      130. In support of its fifth plea, the Commission states that the Court of First Instance erred in law by considering that special
         circumstances, all relating to the conduct of the Council or the Commission, required that the contested decision contain
         a specific statement of reasons regarding the applicability of Article 1(b)(v) of Regulation No 659/1999, in so far as the
         concept of State aid, whether existing or new, is objective in nature and cannot depend on the conduct or statements of the
         institutions, a fortiori where such conduct or declarations have no bearing on a procedure for the review of aid. The Court of First Instance’s finding
         thus ran counter to the position adopted by the Court of Justice in its judgment in Belgium and Forum 187 v Commission. (48)
      
      131. In response to the fourth plea, the respondents consider that the reasons for the inapplicability of Article 1(b)(v) of Regulation
         No 659/1999 cannot be clearly inferred from the contested decision which, therefore, does not meet the requirement of a clear
         and unequivocal statement of reasons. Moreover, what the Court of First Instance criticised the Commission for was its failure
         to set out its reasons for considering that the exemptions at issue distorted competition in the common market despite appearing
         to take a contrary view earlier. In that context, the Court of First Instance rightly held, having regard to the case-law,
         that the Commission should have given reasons showing that it had undertaken an analysis supporting its conclusion. By this
         plea, the Commission seeks, in their view, to compensate for the defective statement of reasons affecting the contested decision
         and to obtain from the Court of Justice a decision on matters of substance which are not connected with that defect.
      
      132. In response to the fifth plea, the respondents maintain that the Court of First Instance did not call into question the objective
         nature of the concept of State aid but merely considered that, in the light of the earlier decisions of the Council and the
         Commission and their legitimate expectations deriving therefrom regarding the lawfulness of the exemptions at issue, the Commission
         was under an obligation to explain, in the contested decision, the reasons objectively leading to the non‑application of Article
         1(b)(v) of Regulation No 659/1999. Since the reasons for a decision must appear in the body of its text, the explanations
         given by the Commission cannot make up for the lack of a statement of reasons.
      
      2.      Assessment
      133. I am of the opinion that the failure to explain the non-application of Article 1(b)(v) of Regulation No 659/1999 in the contested
         decision does not justify the annulment of the decision for breach of the obligation to state reasons.
      
      134. According to the case-law referred to above, the question whether a Community measure satisfies the obligation to state reasons
         laid down by Article 253 EC must be the subject of a specific assessment, having regard, in particular, to the content of
         the measure in question, the circumstances in which it was adopted and the need for the persons directly and individually
         concerned by it to be given an explanation.
      
      135. We have seen that, in the contested decision, the Commission came to the conclusion that the exemptions from excise duties
         on mineral oils, which had been authorised by the Council on a proposal from it, constituted new aid which was incompatible
         with the Treaty rules on State aid. 
      
      136. As the Court of First Instance noted in paragraphs 56 to 62 of the judgment under appeal, the statements of reasons for the
         authorisation decisions give a number of indications on the basis of which the Member States and the undertakings concerned
         could legitimately believe that the Commission had taken the view that those exemptions did not constitute State aid, notably
         because they did not involve any distortion of competition. 
      
      137. It was therefore necessary for the Commission, in the contested decision, clearly to indicate the reasons for which it came
         to the opposite conclusion in the decision. It was under an obligation in particular to state the reasons for which it considered
         that the exemptions at issue distorted or threatened to distort competition, within the meaning of Article 87(1) EC.
      
      138. In that decision, the Commission cited, in points 58 to 64 of the statement of reasons, the reasons for which it considered
         that the exemptions in question constitute State aid. It thus stated that those exemptions fulfilled the conditions laid down
         by Article 87(1) EC, that is to say they confer an advantage on certain undertakings, that advantage is granted using State
         resources, they affect trade between the Member States and they are liable to distort or threaten to distort competition.
      
      139. Thus, point 59 of the statement of reasons for the contested decision states that the exemptions are financed through State
         resources since the State foregoes an amount of money which it could otherwise collect. Point 60 of the statement of reasons
         for that decision provides that the exemptions confer an advantage on the beneficiaries because they reduce the cost of an
         important raw material. Finally, according to points 61 and 62 of the statement of reasons for the decision it can be assumed
         that those exemptions affect intra-Community trade and distort or threaten to distort competition because alumina is traded
         between Member States, because the exemptions were introduced, according to the statements made by the beneficiaries themselves
         and the French Republic, in order to enable Community producers to compete at a global level and because alumina is also produced
         in Germany, Greece, Spain and Hungary.
      
      140. It must be held that, according to those assessments by the Commission, all those conditions are fulfilled, including that
         of distorting or threatening to distort competition between the Member States, without any limitation in time, that is to
         say ever since the exemptions in question were put into effect.
      
      141. It is thus clearly apparent from the statement of reasons that the Commission considered that the exemptions at issue did
         not become State aid following the evolution of the common market but rather fell within that classification from the outset,
         so that they do not, a priori, fall within the scope of Article 1(b)(v) of Regulation No 659/1999.
      
      142. We can also infer, from the wording of the contested decision so far examined, that, although the Commission had considered
         that those exemptions were not contrary to the Treaty rules on State aid when they were authorised by the Council, that assessment
         was incorrect and that, in the context of the specific review procedure provided for in Article 88 EC, it came to the opposite
         conclusion.
      
      143. In the contested decision, the Commission went on to set out the reasons for which the exemptions at issue constitute new
         aid and not existing aid. It thus indicated that those exemptions did not exist before the accession of the three Member States,
         that they had never been analysed on the basis of the Treaty rules on State aid and that they had not been notified.
      
      144. It was in that context that the Commission indicated, in point 69 of the statement of reasons for the contested decision,
         that Article 1(b)(v) of Regulation No 659/1999 was not applicable in this case.
      
      145. In the light of the interpretation of that provision given in Belgium and Forum 187 v Commission that statement appears well founded. Indeed, it was held in paragraph 71 of that judgment that that provision does not apply
         where the Commission alters its appraisal of a national measure.
      
      146. It is true that the Commission did not include that explanation in point 69 of the statement of reasons for the contested
         decision. It may possibly be a matter of regret that it did not indicate that its assessment of those exemptions in connection
         with their authorisation by the Council, under the directives concerning excise duty on mineral oils, could not justify bringing
         those exemptions within the scope of Article 1(b)(v) of Regulation No 659/1999. That regret might also be based on the fact
         that, when the contested decision was adopted, the judgment in Belgium and Forum 187 v Commission had not yet been delivered.
      
      147. But I consider that such an explanation was not truly necessary, having regard to the wording of Article 1(b)(v) of Regulation
         No 659/1999: that provision does not refer to a change of assessment by the Community institutions but merely to the ‘evolution
         of the common market’ or the ‘liberalisation of an activity by Community law’.
      
      148. In any event, the Court of First Instance was not right to criticise the Commission for failing to examine the question whether
         the exemptions at issue might be regarded as existing aid within the meaning of that provision, on the basis that they had
         not constituted aid when they were put into effect but became aid subsequently as a result of evolution of the common market
         and without any alteration of those exemptions by the Member States concerned.
      
      149. In my opinion, the Commission was not required to undertake any such examination, since it had stated, in points 58 to 64
         of the statement of reasons for the contested decision, that the exemptions at issue constituted State aid without any limitation
         in time, and therefore ever since they were introduced. Those reasons were, in my opinion, sufficient to enable the Member
         States and the undertakings directly and individually concerned by the contested decision to understand why the Commission
         considered that the exemptions at issue had not become State aid by reason of any evolution of the common market, and consequently
         did not come within the scope of Article 1(b)(v) of Regulation No 659/1999.
      
      150. This analysis does not prejudge the question whether the Commission, in the contested decision, showed to the requisite legal
         standard that the exemptions in question have fulfilled the conditions laid down in Article 87(1) EC from the outset and,
         in particular, that they distort or threaten to distort competition and have done so since being put into effect. I would
         merely point out that, in view of the indications given in points 58 to 64 of the statement of reasons for the contested decision,
         it was not necessary for the Commission to examine whether the exemptions at issue had become aid following an evolution of
         the common market and fell within the scope of Article 1(b)(v) of Regulation No 659/1999.
      
      151. In view of those considerations, I am of the opinion that the contested decision is not vitiated by a breach of the obligation
         to state reasons regarding the non-application of Article 1(b)(v) of Regulation No 659/1999.
      
      V –  Conclusion
      152. Having regard to the foregoing considerations, I propose that the Court of Justice should give judgment in the following terms:
      
      The Court hereby:
      (1)      sets aside the judgment of the Court of First Instance of the European Communities of 12 December 2007 in Joined Cases T‑50/06,
         T-56/06, T‑60/06, T-62/06 and T-69/06 Ireland and Others v Commission, to the extent to which:
      
      –        it annuls Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used
         as fuel for alumina production in Gardanne, in the Shannon-region and in Sardinia respectively implemented by France, Ireland
         and Italy, on the ground that, in that decision, the Commission of the European Communities infringed the obligation to state
         reasons in relation to the non-application to that case of Article 1(b)(v) of Council Regulation (EC) No 659/1999 of 22 March
         1999 laying down detailed rules for the application of Article [88 EC];
      
      –        it dismisses the action in Case T-62/06 as to the remainder; and
      –        it orders the Commission of the European Communities to bear its own costs and those incurred by the applicants, including
         those relating to the application for interim measures in Case T‑69/06 R;
      
      (2)      refers Cases T‑50/06, T‑56/06, T‑60/06, T‑62/06 and T‑69/06 back to the Court of First Instance of the European Communities.
      1 –	Original language: French.
      
      2 –	Joined Cases T‑50/06, T‑56/06, T‑60/06, T‑62/06 and T‑69/06, not published in the ECR (‘the judgment under appeal’).
      
      3 –	OJ 2006 L 199, p. 12 (‘the contested decision’).
      
      4 –	‘Eurallumina’.
      
      5 –	‘Aughinish Alumina’.
      
      6 –	Regulation of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1).
      
      7 –	OJ 1992 L 316, p. 12.
      
      8 –	OJ 1992 L 316, p. 19.
      
      9 –	OJ 2003 L 283, p. 51.
      
      10 –	Decision of 19 October 1992 authorising Member States to continue to apply to certain mineral oils when used for specific
         purposes, existing reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure provided
         for in Article 8(4) of Directive 92/81/EEC (OJ 1992 L 316, p. 16).
      
      11 –	Decision of 13 December 1993 authorising certain Member States to apply or to continue to apply to certain mineral oils,
         when used for specific purposes, reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure
         provided for in Article 8(4) of Directive 92/81/EEC (OJ 1993 L 321, p. 29).
      
      12 –	Decision of 30 June 1997 authorising Member States to apply and to continue to apply to certain mineral oils, when used
         for specific purposes, existing reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure
         provided for in Directive 92/81/EEC (OJ 1997 L 182, p. 22).
      
      13 –	Decision of 12 March 2001 concerning reduced rates of excise duty and exemptions from such duty on certain mineral oils
         when used for specific purposes (OJ 2001 L 84, p. 23).
      
      14 –	OJ 2002 C 30, pp. 17, 21 and 25.
      
      15 –	That provision states that aid is deemed to have been authorised where it has been notified to the Commission and the Commission
         has not taken a decision within a period of two months.
      
      16 –	Ireland and Aughinish Alumina maintained that the exemptions in question constituted existing aid under, first, Article
         1(b)(iii) of Regulation No 659/1999 by reason of the lack of a Commission decision within two months following notification
         of the aid, and second, the combined provisions of Articles 1(b)(iv) and 15(3) of the same regulation, on the ground that
         the exemptions had existed for more than 10 years and, finally, on the ground that those exemptions reflected legally binding
         commitments given by Ireland before its accession to the European Community. The Italian Republic relied on Article 1(b)(ii)
         of Regulation No 659/1999, on the basis that those exemptions had been duly authorised by the Council.
      
      17 –	Joined Cases C-430/93 and C-431/93 [1995] ECR I-4705.
      
      18 –	Joined Cases C-222/05 to C-225/05 [2007] ECR I-4233.
      
      19 –	Case C‑367/95 P [1998] ECR I-1719.
      
      20 –	Article 92(1) of the Rules of Procedure of the Court of Justice, Article 111 of the Rules of Procedure of the Court of
         First Instance and Article 76 of the Rules of Procedure of the Civil Service Tribunal.
      
      21 –	See Article 92(2) of the Rules of Procedure of the Court of Justice, Article 113 of the Rules of Procedure of the Court
         of First Instance and Article 77 of the Rules of Procedure of the Civil Service Tribunal.
      
      22 –	Case C-154/99 P Politi v European Training Foundation [2000] ECR I-5019, paragraph 15 and the case-law there cited.
      
      23 –	Order of 14 January 1992 in Case C-130/91 ISAE/VP and Interdata v Commission [1992] ECR I-69, paragraph 11.
      
      24 –	Case C-298/00 P Italy v Commission [2004] ECR I-4087, paragraph 35, and Case C-417/04 P Regione Siciliana v Commission [2006] ECR I-3881, paragraph 36.
      
      25 –	Joined Cases C-442/03 P and C-471/03 P P & O European Ferries (Vizcaya) and Diputación Foral de Vizcaya v Commission [2006] ECR I-4845, paragraph 45.
      
      26 –	Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 56.
      
      27 –	This definition has been taken from Rideau J., ‘Recours en annulation’, Jurisclasseur, 2008, volume 331, paragraph 24.
      
      28 –	Joined Cases C-287/95 P and C-288/95 P Commission v Solvay [2000] ECR I‑2391, paragraph 55.
      
      29 –	Case C-227/92 P Hoechst v Commission [1999] ECR I-4443, paragraph 72.
      
      30 –	Case C-265/97 P VBA v Florimex and Others [2000] ECR I-2061, paragraph 114.
      
      31 –	See Commission v Sytraval and Brink’s France (paragraph 67); VBA v Florimex and Others (paragraph 114); and also Joined Cases C‑172/01 P, C‑175/01 P, C‑176/01 P and C‑180/01 P International Power and Others v NALOO [2003] ECR I-11421, paragraph 145.
      
      32 –	See Commission v Sytraval and Brink’s France (paragraphs 68 to 72); VBA v Florimex and Others (paragraphs 111 to 115); and International Power and Others v NALOO (paragraph 144).
      
      33 –	Commission v Sytraval and Brink’s France (paragraph 70).
      
      34 –	Case C-413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I-0000, paragraph 61.
      
      35 –	Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9, and Case C‑315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281, paragraph 28.
      
      36 –	See, in particular, Case C-287/02 Spain v Commission [2005] ECR I-5093, paragraph 37.
      
      37 –	Joined Cases 42/59 and 49/59 [1961] ECR 53, 84.
      
      38 –	See, to that effect, Case C-480/99 P Plant and Others v Commission andSouth Wales Small Mines [2002] ECR I-265, paragraphs 25 to 34, and Case C-450/06 Varec [2008] ECR I-581, paragraph 47.
      
      39 –	See, in particular, the judgment of the European Court of Human Rights in the case of Nideröst-Huberv.Switzerland, 18 February 1997, Reports of Judgments and Decisions 1997-I, p. 108, paragraph 24.
      
      40 –	See Plant and Others v Commission andSouth Wales Small Mines (paragraphs 25 to 34). The Court held that the Court of First Instance had infringed the rule that the parties should be
         heard by basing its decision as to the inadmissibility of the applicants’ application on matters arising in a joined case,
         of which the applicants were unable to apprise themselves.  See also Case C‑78/03 P Commission v Aktionsgemeinschaft Recht und Eigentum [2005] ECR I-10737, paragraphs 44 to 50, in which the Court held to be well founded the complaint made by the Commission
         that the Court of First Instance had wrongly reclassified the applicants’ application as being intended to safeguard its procedural
         rights under Article 88(2) EC and, by so doing, had not enabled that institution to reply to the plea alleging breach of such
         procedural rights.
      
      41 –	See in particular the judgments of the European Court of Human Rights in the cases of Clinique des Acacias and Others v.France, 13 October 2005, paragraph 38, and Prikyan and Angelova v.Bulgaria, 16 February 2006, paragraph 42.
      
      42 –	In Varec (paragraphs 47, 50 and 51), the Court of Justice held that, in proceedings brought against a decision taken by a contracting
         authority for the award of a public contract, the rule that the parties should be heard in relation to all the information
         concerning the procedure for the award of the contract in question must be balanced against the right of other economic operators
         to protection of their confidential information and business secrets. See, to the same effect, Article 116(2) of the Rules
         of Procedure of the Court of First Instance, which provides that the President of the Court may prevent the disclosure to
         interveners of documents in the file which must be kept confidential.
      
      43 –	Article 84(2) of the Rules of Procedure of the Court of Justice, Article 105(2) of the Rules of Procedure of the Court
         of First Instance, and Article 104(3) of the Rules of Procedure of the Civil Service Tribunal.
      
      44 –	Article 92(1) of the Rules of Procedure of the Court of Justice, Article 111 of the Rules of Procedure of the Court of
         First Instance and Article 76 of the Rules of Procedure of the Civil Service Tribunal.
      
      45 –	See, as an example of the application of that case-law, the judgment in Case C‑199/99 P Corus UK v Commission [2003] ECR I-11177, paragraphs 19 to 25.
      
      46 –	See, inter alia, Case C-390/06  Nuova Agricast [2008] ECR I‑2577, paragraph 79, and Joined Cases C‑341/06 P and C‑342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I-0000, paragraph 88 and the case-law there cited.
      
      47 –	Plant and Others v Commission and South Wales Small Mines (paragraph 35).
      
      48 –	Joined Cases C‑182/03 and C‑217/03 [2006] ECR I-5479.