CELEX: 62016CO0369
Language: en
Date: 2017-12-07 00:00:00
Title: Order of the Court (Seventh Chamber) of 7 December 2017.#Ireland v European Commission.#Appeal — State aid — Article 181 of the Rules of Procedure of the Court of Justice — Exemption from excise duty on mineral oils used as fuel for alumina production — Existing or new aid — Regulation (EC) No 659/1999 — Article 1(b)(i) and (iv), and (d) — Limitation — Article 15 — Principle of legal certainty — Principle of the protection of legitimate expectations.#Case C-369/16 P.

ORDER OF THE COURT (Seventh Chamber)
7 December 2017 (*)
(Appeal — State aid — Article 181 of the Rules of Procedure of the Court of Justice — Exemption from excise duty on mineral oils used as fuel for alumina production — Existing or new aid — Regulation (EC) No 659/1999 — Article 1(b)(i) and (iv), and (d) — Limitation — Article 15 — Principle of legal certainty — Principle of the protection of legitimate expectations)
In Case C‑369/16 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 5 July 2016,

Ireland, represented by E. Creedon, L. Williams and A. Joyce, acting as Agents, and by P. McGarry, Senior Counsel,
applicant,
supported by:

theFrench Republic, represented by R. Coesme and D. Colas, acting as Agents,
intervener in the appeal,
the other parties to the proceedings being:

Aughinish Alumina Ltd, established in Askeaton (Ireland), represented by C. Little and C. Waterson, Solicitors,
applicant at first instance,

European Commission, represented by V. Bottka and N. Khan, acting as Agents,
defendant at first instance,
THE COURT (Seventh Chamber),
composed of A. Rosas, President of the Chamber, A. Prechal and E. Jarašiūnas (Rapporteur), Judges, 
Advocate General: H. Saugmandsgaard Øe,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court of Justice,
makes the following

Order

1        By its appeal, Ireland seeks to have set aside the judgment of the General Court of the European Union of 22 April 2016, Ireland and Aughinish Alumina v Commission, T‑50/06 RENV II and T‑69/06 RENV II, ‘the judgment under appeal’, EU:T:2016:227), in so far as the General Court, by that judgment, dismissed its application for annulment of 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 (OJ 2006 L 119, p. 12; ‘the decision at issue’).
 Legal context

2        Excise duties on mineral oils have been the subject of a number of directives, namely, Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12), Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils (OJ 1992 L 316, p. 19) and Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51), which repealed Directives 92/81 and 92/82 with effect from 31 December 2003.

3        Article 8(4) of Directive 92/81 provided:
‘The Council, acting unanimously on a proposal from the Commission, may authorize any Member State to introduce further exemptions or reductions for specific policy considerations.
A Member State wishing to introduce such a measure shall accordingly inform the Commission and shall also provide the Commission with all relevant or necessary information. The Commission shall inform the other Member States of the proposed measure within one month.
The Council shall be deemed to have authorized the exemption or reduction proposed if within two months of the other Member States’ being informed as laid down in the second subparagraph, neither the Commission nor any Member State has requested that the matter be considered by the Council.’

4        Under Article 8(5) of that directive:
‘If the Commission considers that the exemptions or reductions provided for in paragraph 4 are no longer sustainable, particularly in terms of fair competition or distortion of the operation of the internal market, or Community policy in the area of protection of the environment, it shall submit appropriate proposals to the Council. The Council shall take a unanimous decision on these proposals.’

5        Article 6 of Directive 92/82 fixed the minimum rate of excise duty on heavy fuel oil, as from 1 January 1993, at EUR 13 per 1 000 kg.

6        The second indent of Article 2(4)(b) of Directive 2003/96 provided that that directive did not apply to dual use of energy products, that is to say where products are used both as heating fuel and for purposes other than as motor fuel and heating fuel. The use of energy products for chemical reduction and in electrolytic and metallurgical processes is to be regarded as dual use. Hence, since 1 January 2004, when that directive became applicable, there has no longer been any minimum excise duty for heavy fuel used in the production of alumina. Moreover, under Article 18(1) of Directive 2003/96, the Member States were authorised to continue to apply, until 31 December 2006, the reduced rates or exemptions set out in Annex II to that directive, which refers to the excise duty exemptions for heavy fuel oil used as fuel for the production of alumina in the region of Gardanne, in the Shannon region and in Sardinia.
 Background to the dispute

7        Ireland has exempted from excise duty mineral oils used for the production of alumina since 12 May 1983. That exemption (‘the exemption at issue’) was introduced into Irish law by Statutory Instrument No 126/1983, Imposition of Duties (No 265) (Excise Duty on Hydrocarbon Oils) Order, 1983, of 12 May 1983.

8        The continuation of the application of that exemption to the Shannon region was authorised by Council Decision 92/510/EEC of 19 October 1992 authorising Member States to continue to apply 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 (OJ 1992 L 316, p. 16) to certain mineral oils, when used for specific purposes. That authorisation was extended several times thereafter by the Council and ultimately, by means of Council Decision 2001/224/EC 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), extended until 31 December 2006.

9        Recital 5 in the preamble to Decision 2001/224 stated that that decision was without prejudice ‘to the outcome of any procedures relating to distortions of the operation of the single market that may be undertaken, in particular under Articles [87 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]’.

10      By Decision of 30 October 2001, the Commission initiated the procedure laid down in Article 88(2) EC (‘the formal investigation procedure’) in relation to the exemption at issue. That decision was notified to Ireland by letter of 5 November 2001 and was published on 2 February 2002 in the Official Journal of the European Communities (OJ 2002 C 30, p. 17). By two other decisions delivered on the same day, the Commission opened that procedure with regard to the same exemptions granted by the Italian Republic in Sardinia and by the French Republic in the Gardanne region (together with the exemption at issue, ‘the exemptions at issue’). On completion of that procedure, the Commission adopted the decision at issue, according to which:
–        the exemptions at issue granted until 31 December 2003 constitute State aid for the purposes of Article 87(1) EC;
–        aid granted between 17 July 1990 and 2 February 2002, to the extent that it is incompatible with the common market, is not to be recovered as this would be contrary to the general principles of Community law;
–        the aid granted between 3 February 2002 and 31 December 2003 is incompatible with the common market within the meaning of Article 87(3) EC in so far as the beneficiaries did not pay a rate of EUR 13.01 per 1 000 kg of heavy fuel oils; and
–        the latter aid must be recovered.

11      In the decision at issue, the Commission found that the exemptions at issue constituted new aid and not existing aid within the meaning of Article 1(b) 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). It based that assessment on the fact, in particular, that the exemptions at issue did not exist before the entry into force of the EC Treaty in the Member States concerned, that they had never been analysed or authorised on the basis of the State aid rules, and that they had never been notified.

12      After setting out how the aid in question was incompatible with the common market, the Commission took the view that, having regard to the Council decisions authorising the exemptions at issue (‘the authorisation decisions’) and in the light of the fact that those decisions had been adopted on proposals by the Commission, the recovery of incompatible aid granted before 2 February 2002, the date of publication in the Official Journal of the European Communities of the decisions to initiate the formal investigation procedure, would be contrary to the principles of protection of legitimate expectations and legal certainty.
 The procedure before the appeal and the judgment under appeal

13      Ireland brought an action for annulment of the decision at issue by application lodged at the Registry of the General Court on 17 February 2006.

14      By judgment of 12 December 2007, Ireland and Others v Commission, (T‑50/06, T‑56/06, T‑60/06, T‑62/06 and T‑69/06, not published, EU:T:2007:383), the General Court annulled the decision at issue. By judgment of 2 December 2009, Commission v Ireland and Others (C‑89/08 P, EU:C:2009:742), the Court of Justice set aside that judgment in so far as it annulled the decision at issue on the ground that, in that decision, the Commission failed to fulfil its obligation to state reasons with regard to the non-application in the case of Article 1(b)(v) of Regulation No 659/1999.

15      When the cases were referred back before it, the General Court, by judgment of 21 March 2012, Irelandand Others v Commission (T‑50/06 RENV, T‑56/06 RENV, T‑60/06 RENV, T‑62/06 RENV and T‑69/06 RENV, EU:T:2012:134), annulled the contested decision in so far as it finds, or is based on the finding, that the exemptions from excise duty on mineral oils used as fuel for alumina production granted by Ireland, the French Republic and the Italian Republic up to 31 December 2003 constitute State aid within the meaning of Article 87(1) EC and in so far as it orders those Member States to take all measures necessary to recover those exemptions from the beneficiaries to the extent to which the latter did not pay excise duty at the rate of at least EUR 13.01 per 1 000 kg of heavy fuel oil.

16      That second judgment of the General Court was set aside by judgment of the Court of Justice of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), which referred the cases back before the General Court.

17      Following that judgment, Cases T‑50/06 RENV II and T‑69/06 RENV II having been joined for the purposes of the oral procedure and the judgment, the General Court, by the judgment under appeal, dismissed the actions, ordered Ireland to bear its own costs and to pay three quarters of the costs incurred by the Commission in Cases T‑50/06, T‑50/06 RENV I and T‑50/06 RENV II, and three twentieths of the costs incurred by the Commission in Cases C‑89/08 P and C‑272/12 P, and ordered Aughinish Alumina Ltd (‘AAL’) to bear its own costs and to pay three quarters of the costs incurred by the Commission in Cases T‑69/06, T‑69/06 RENV I and T‑69/06 RENV II and three twentieths of the costs incurred by the Commission in Cases C‑89/08 P and C‑272/12 P. The Commission was ordered to bear one quarter of its own costs in Joint Cases T‑50/06 and T‑69/06, Joint Cases T‑50/06 RENV I and T‑69/06 RENV I, and Joint Cases T‑50/06 RENV II and T‑69/06 RENV II, and to bear one fifth of its own costs in Cases C‑89/08 P and C‑272/12 P.
 Procedure before the Court of Justice and the forms of order sought

18      By order of the President of the Court of Justice of 29 November 2016, the French Republic was granted leave to intervene in support of the form of order sought by Ireland.

19      By its appeal, Ireland asks the Court of Justice to set aside the judgment under appeal, in so far as, by that judgment, the General Court dismissed its action, and to order the Commission to pay the costs.

20      The French Republic seeks the same form of order. In addition, it asks the Court of Justice to hold that the state of the proceedings permits a final decision to be made and to give a final ruling on the proceedings, in accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, by annulling the decision at issue.

21      The Commission contends that the appeal should be dismissed, that Ireland should be ordered to pay the costs of the appeal and that the French Republic should be ordered to pay the costs of the intervention.
 The appeal

22      Under Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss the appeal in whole or in part.

23      That provision must be applied in the present case.

24      It is appropriate to examine in turn the fourth, third, first and second grounds of appeal.
 The fourth ground of appeal

 Arguments of the parties

25      By its fourth ground of appeal, Ireland, supported by the French Republic, criticises the General Court for having dismissed its plea that the exemption at issue could be considered to be aid which existed before its accession to the European Economic Community (EEC), by finding, in paragraph 201 of the judgment under appeal, that, in order to be classified as ‘existing aid’ within the meaning of Article 1(b)(i) of Regulation No 659/1999, an aid scheme, before the accession of the Member State concerned, must not only have been granted, in the sense that the competent national authority committed itself through a legally binding measure to grant aid in accordance with that scheme, but also have been put into effect, in the sense that the actual payment of certain aid granted under that scheme actually took place. According to Ireland, that provision does not require that the payment of certain aid takes place for it to be able to be classified as ‘existing aid’. 

26      In addition, the finding in paragraph 202 of the judgment under appeal that it is common ground between the parties that the exemption at issue was, in any event, put into effect only from 1983 is inaccurate. Even if it was acknowledged that no payment had been made before 1983, that does not mean that the binding commitment had been put into effect, for the purposes of Regulation No 659/1999, only at that stage.

27      The Commission contests that ground of appeal.
 Findings of the Court

28      It should be recalled that, under Article 1(b)(i) of Regulation No 659/1999, existing aid means, ‘without prejudice to Articles 144 and 172 of the [Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1)], 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.’

29      It follows from the actual wording of that provision, in particular the use of the term ‘put into effect’, that existing aid, for the purposes of that provision, does not mean aid or an aid scheme which was created before the entry into force of the Treaty in the respective Member State, but which was implemented in that State only after that date (see, to that effect, judgment of 27 June 2017, Congregación de Escuelas Pías Provincia Betania, C‑74/16, EU:C:2017:496, paragraphs 87 and 88).

30      Therefore, the General Court did not err in law in finding in essence, in paragraph 201 of the judgment under appeal, that a commitment made by the competent national authority to grant aid, but not acted upon before the accession of the respective Member State to the EEC, was not sufficient to classify that aid as ‘existing aid’, within the meaning of Article 1(b)(i) of Regulation No 659/1999. Having thus understood that provision, the General Court did not misrepresent the parties’ positions by stating in paragraph 202 of that judgment that it was common ground between them that the exemption at issue, which, according to the applicants at first instance, results from a commitment made by Ireland to the beneficiary of the aid before its accession to the EEC on 1 January 1973, was not put into effect until 1983, a date that was considerably later than the accession. Consequently, it was correct to conclude in paragraph 203 of that judgment that the exemption at issue did not constitute existing aid within the meaning of Article 1(b)(i) of Regulation No 659/1999.

31      The fourth ground of appeal must, therefore, be rejected as manifestly unfounded.
 The third ground of appeal

 Arguments of the parties

32      By its third ground of appeal Ireland, supported by the French Republic, claims that the General Court erred in law in concluding that the exemption at issue corresponded to an aid scheme within the meaning of Article 1(d) of Regulation No 659/1999 and that the limitation period laid down in Article 15 of that regulation started to run from each import of mineral oils by AAL.

33      First, historically there has been only one beneficiary of the aid in question in Ireland, and other undertakings could not have benefited from it; the suggestion in the judgment under appeal that other undertakings could have benefited from it disregards the specific terms of the authorisation decisions, and the nature and characteristics of alumina production. In addition, although the exact amount of the exemption at issue could vary, the nature of that exemption was fixed by Irish law. It could therefore be considered that the exemption at issue constituted a new aid each time that AAL imported or took delivery of raw materials. 

34      Secondly, since the aid in question has not been altered from the outset, the expiry of the limitation period had the effect, under Article 15(3) of Regulation No 659/1999, that the aid was deemed to be existing aid and that its recovery could not therefore be ordered.

35      The Commission contends that the third ground of appeal is inadmissible in that, first, it does not identify any points in the grounds of the judgment under appeal, contrary to the requirements of Article 169(2) of the Rules of Procedure; secondly, it calls for a fresh assessment of the facts as regards the nature of the Irish legislation, and thirdly, it introduces a new plea in law. In the alternative, it submits that that ground of appeal is unfounded.
 Findings of the Court

36      First of all, it is appropriate to dismiss the pleas of inadmissibility raised by the Commission. First, the contested paragraphs of the judgment under appeal are easily identifiable. Secondly, the third ground of appeal does not call for a fresh interpretation of Irish law in order to respond to that ground. Thirdly, the General Court, in paragraph 180 of the judgment under appeal, rejected AAL’s argument that the exemption at issue was not an aid scheme, but rather amounted to individual aid. Although that argument was not advanced by Ireland, that State is nevertheless entitled to challenge the grounds of the judgment under appeal which, like those contained in that paragraph, adversely affect it (see, to that effect, judgments of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 34, and of 14 October 2014, Buono and Others v Commission, C‑12/13 P and C‑13/13 P, EU:C:2014:2284, paragraph 52 and the case-law cited).

37      Next, with regard to the classification of the exemption at issue as an ‘aid scheme’, it must be recalled, as the General Court did in paragraph 178 of the judgment under appeal, that, under Article 1(d) of Regulation No 659/1999, an aid scheme, within the meaning of that regulation, means ‘any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner and any act on the basis of which aid which is not linked to a specific project may be awarded to one or several undertakings for an indefinite period of time and/or for an indefinite amount’.

38      In the present case, the General Court, in paragraph 179 of the judgment under appeal, held as follows:
‘In the present case, it is undisputed that the exemption at issue was introduced, in Irish law, by the [Imposition of Duties (No 265) Order of 12 May 1983], which took effect on 13 May 1983. That order grants a rebate on the excise duty applicable to mineral oils used as fuel for the production of alumina, whose amount is equal to that of the excise duty, which amounts, in practice, to introducing an exemption from that duty. Even taking into account the detailed conditions of a geographical and temporal nature set by the ... authorisation decisions ..., that measure corresponds to an “aid scheme”, within the meaning of Article 1(d) of Regulation No 659/1999, contrary to what AAL claims, in so far as the beneficiaries of the aid are defined, in a general and abstract manner, as being, in essence, alumina producers and the amount of the aid granted to them remains undetermined.’

39      It must be observed that Ireland’s arguments, set out in paragraph 33 above, in no way call into question the findings of the General Court, since the fact that AAL was actually the only beneficiary of the exemption at issue and that the authorisation decisions set detailed conditions of a geographical and temporal nature does not mean that the beneficiaries of that exemption were defined in a general and abstract manner, and furthermore, according to those arguments, the amount of the exemption varied and was therefore not determined. Thus, those arguments are manifestly unfounded.

40      Finally, with regard to the limitation period, the General Court, in paragraph 181 of the judgment under appeal, held as follows:
‘... it is apparent from Article 15(2) of Regulation No 659/1999 that, under an aid scheme, the limitation period begins on the day on which the unlawful aid is granted to the beneficiary, which corresponds, in the present case, to each import by AAL or delivery to it, from a refinery or storage warehouse, of mineral oils intended to be used as fuel for the production of alumina in its plant in the Shannon region. It is at the time of each of those acts that AAL benefited, in practice, from the exemption at issue and was individually granted aid pursuant to it ... . Therefore, contrary to what the applicants claim, the limitation period laid down in Article 15 of Regulation No 659/1999 began in respect of each aid thus granted under the aid scheme corresponding to the exemption at issue, from the day on which the aid in question was granted ...’

41      Those findings are untainted by any error of law. It is apparent from Article 15(2) of Regulation No 659/1999 that the starting point for the limitation period is the day the unlawful aid is actually granted to the beneficiary, and not the date when the aid scheme was adopted (see, to that effect, judgment of 8 December 2011, France Télécom v Commission, C‑81/10 P, EU:C:2011:811, paragraphs 80 to 82).

42      Therefore, the General Court did not err in law, in paragraphs 183 and 184 of the judgment under appeal, having stated that the limitation period laid down in Article 15 of Regulation No 659/1999 had been interrupted, in respect of the exemption at issue, by a letter from the Commission of 17 July 2000, when it held that the Commission rightly considered that that limitation period had expired only in respect of the exemption granted before 17 July 1990 and that the aid granted after that date was not deemed to be existing aid within the meaning of Article 1(b)(iv) of that regulation, so that the Commission had not infringed that regulation by ordering the recovery of the aid.

43      In the light of the foregoing, the third ground of appeal must be dismissed as being manifestly unfounded.
 First ground of appeal

 Arguments of the parties

44      By its first ground of appeal, Ireland, supported by the French Republic, criticises the General Court for having rejected, in paragraphs 270 and 271 of the judgment under appeal, the pleas based on the principle of legal certainty, when the Commission at all times treated the exemption at issue as an existing aid, did not adopt any measures relating to the aid scheme before sending the letter of 17 July 2000 asking the Member States concerned to give notice of the exemptions at issue, and then, despite that, submitted to the Council in 2001 a proposal which led to Decision 2001/224 authorising those exemptions up to 31 December 2006. Furthermore, the requirement for legal certainty precludes the Commission from being able to delay the exercise of its power indefinitely. The General Court therefore erred in law in view of the extraordinary factual circumstances of the case, in particular in the light of the authorisation decisions adopted on a proposal from the Commission.

45      The Commission contests that plea in law.
 Findings of the Court

46      In its first ground of appeal, Ireland refers to and cites paragraphs 270 and 271 of the judgment under appeal which contain some of the reasons for the General Court’s rejection of the plea by which AAL claimed that the Commission had infringed the principle that action must be taken within a reasonable period, the principle of legal certainty and the principle of sound administration by delaying its adoption of the decision at issue. However, Ireland does not put forward any arguments against the reasons contained in those paragraphs, and the information which it relies on does not refer to those reasons. Therefore, as the Commission points out, the first ground of appeal is ineffective.
 The second ground of appeal

 Arguments of the parties

47      By its second ground of appeal, Ireland claims that the General Court erred in law in finding, in paragraphs 249 to 255 of the judgment under appeal, that the principle of the protection of legitimate expectations had not been infringed, despite the finding of an unjustified and inexcusable delay on the part of the Commission during the formal investigation procedure. In doing so the General Court made an incorrect analysis of the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502) and of the case-law of the General Court arising from that judgment in comparable circumstances. 

48      The French Republic, while supporting Ireland, claims that the General Court erred in law in holding, in paragraphs 231 to 256 of the judgment under appeal, that the Commission’s infringement of the reasonable time principle during the formal investigation procedure did not, in itself, mean that the decision at issue should be annulled, since it had not been demonstrated that that delay could reasonably have created the impression that the Commission’s doubts as to the lawfulness of the exemption at issue no longer existed and that that exemption would no longer be objected to. In doing so, the General Court established an inherent link between the reasonable time principle and the principle of legitimate expectations, and likewise, in paragraphs 269 and 270 of that judgment, the same link between the reasonable time principle and the principle of sound administration where the infringement of the first of those principles, in itself, justified the annulment of the decision at issue.

49      The Commission contends that that ground of appeal raised by the French Republic is inadmissible, in that it alters the context of the proceedings by going beyond Ireland’s heads of claim. Furthermore, it contends that the second ground of appeal put forward by Ireland is also inadmissible and, in any event, unfounded, by nonetheless submitting that the General Court erred in law in finding, in paragraph 217 of the judgment under appeal, that Regulation No 659/1999 setting a limitation period for the recovery of aid and providing an indicative deadline for the investigation of notified aid did not prevent the EU judicature from verifying whether that institution had failed to take a reasonable amount of time or had acted too slowly.
 Findings of the Court

50      It must be recalled that a party who, pursuant to Article 40 of the Statute of the Court of Justice of the European Union, is granted leave to intervene in a case submitted to the Court may not alter the subject matter of the dispute as defined by the forms of order sought and the pleas in law raised by the main parties. It follows that arguments submitted by an intervener are not admissible unless they fall within the framework provided by those forms of order and pleas in law (judgments of 7 October 2014, Germany v Council, C‑399/12, EU:C:2014:2258, paragraph 27; of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraph 114; and of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 303).

51      In the present case, whereas Ireland, in support of its second ground of appeal, relies on an infringement of the principle of the protection of legitimate expectations, the ground raised by the French Republic seeks a declaration that, irrespective of any infringement of that principle or of the principle of sound administration, the General Court erred in law with regard to the reasonable time principle. That Member State thus puts forward a ground of appeal which goes beyond the scope of the present proceedings and which is therefore inadmissible.

52      It must also be observed that, in the context of its second ground of appeal, Ireland formulates certain arguments relating, in particular, to the fact that the Commission considered that the publication of the decision to initiate the formal investigation procedure had brought to an end the legitimate expectations of the beneficiary of the aid, the fact that the Commission did not seek the suspension of the aid pursuant to Article 11(1) of Regulation No 659/1999 and the fact that that institution took the view that this was a new aid. Under the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union, an appeal must be directed against a decision of the General Court. It follows that, since those arguments are aimed at the decision at issue rather than the judgment under appeal, they are manifestly inadmissible (see, to that effect, order of 27 September 2012, Brighton Collectibles v OHIM, C‑624/11 P, not published, EU:C:2012:598, paragraph 35 and the case-law cited). 

53      With regard to the Commission’s delay in adopting the decision at issue, Ireland and AAL, having argued before the General Court, as is clear from paragraphs 205 and 208 of the judgment under appeal, that that delay had reinforced the legitimate expectations which AAL had in the fact that the aid would not be recovered, the General Court in particular recalled, in paragraph 215 of that judgment, that the reasonable time requirement in the conduct of an administrative procedure constitutes a general principle of EU law. In addition, referring to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502), it stated in paragraph 216 of the judgment under appeal that a delay by the Commission in deciding that aid is unlawful and that it must be abolished and recovered by a Member State may, in certain circumstances, establish a legitimate expectation on the recipients’ part so as to prevent the Commission from requiring that Member State to order the refund of that aid.

54      In paragraph 217 of the judgment under appeal, the General Court considered that the sole fact that Regulation No 659/1999, apart from a limitation period of 10 years from the grant of the aid at the end of which recovery of the aid may no longer be ordered, does not prescribe any time limit, even indicative, for the examination by the Commission of unlawful aid, does not prevent the EU judicature from verifying whether that institution failed to take a reasonable amount of time or acted too slowly.

55      Contrary to what the Commission contends, the existence of a limitation period of 10 years for the recovery of aid, laid down in Article 15 of Regulation No 659/1999, does not mean that, in some situations, an unreasonable period in the conduct of the formal investigation procedure may increase the legitimate expectations which the beneficiaries of the aid have in the lawfulness of that aid. The General Court was therefore correct in examining the arguments of Ireland and AAL as part of its examination of the exceptional circumstances which they relied upon and which, in their opinion, was the basis of such legitimate expectations.

56      In that regard, having concluded in paragraph 224 of the judgment under appeal that the publication of the decision to initiate the formal investigation procedure had brought to an end the legitimate expectations which AAL previously had in the lawfulness of the exemption at issue, the General Court considered in paragraph 231 of that judgment that the Commission’s delay in adopting the decision at issue was not an exceptional circumstance such as to revive such legitimate expectations. It set out the reasons for this in paragraphs 232 to 255 of the judgment under appeal after a detailed examination of the conduct of the formal investigation procedure in the present case, by stating that the investigation period for the aid had been unreasonable, but that the Commission’s delay in adopting the decision at issue could not reasonably have made AAL think that the Commission no longer harboured doubts and that the exemption at issue would not be objected to.

57      In that context, the General Court, in paragraphs 250 and 251 of the judgment under appeal, considered in essence that, although in the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502) the Court of Justice held that the time limit of 26 months used by the Commission to adopt its decision could have created a legitimate expectation in the mind of the beneficiary of the aid that recovery of the aid would be prevented, it was nevertheless necessary to balance the requirements of legal certainty which protect private interests against the requirements of protection of public interests, including, in the area of State aid, the public interest in preventing the operation of the market being distorted, which means that unlawful aid should be returned. 

58      On that basis, the General Court stated, in essence in paragraphs 252 and 253, of the judgment under appeal that it was apparent from the case-law that the solution adopted in the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502) related to the specific circumstances of the case giving rise to that judgment, in particular the fact that the aid in question in that judgment had been granted before the Commission opened the relevant formal investigation procedure, the fact that the aid was the subject of a formal notification sent to the Commission, albeit after the aid was paid, and the fact that it concerned supplementary costs of aid authorised by the Commission and a sector which had, since 1977, received aid authorised by the Commission. It observed that all of those exceptional circumstances were not to be found in the present case, stating in particular that the aid was granted in the present case after the formal investigation procedure was opened, and it considered that that fundamentally differentiated the circumstances of the case giving rise to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502) from those underlying the present case.

59      In so far as the second ground of appeal put forward by Ireland may be construed as complaining that the General Court did not take into account the circumstances prior to the opening of the formal investigation procedure, it must be observed that that ground seeks to call into question the General Court’s assessments made following the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), according to which AAL must have known since the date of publication of the decision to open the formal investigation procedure that, although the exemption at issue constituted State aid, it had to be authorised by the Commission in accordance with Article 88 EC, so that that publication brought to an end the legitimate expectations which that company could have had previously in the lawfulness of the exemption at issue. These are factual assessments which, as is apparent from Article 256 TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, do not, save where they distort the evidence, which is not claimed in this case, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraphs 84 and 85 and the case-law cited).

60      Furthermore, although the judgment under appeal does not set out the reasons why the General Court considered that the fact that the aid in question in the case giving rise to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502) had been granted before the formal investigation procedure was opened fundamentally differentiated that case, from the point of view of compliance with the principle of the protection of legitimate expectations, from the present case, the fact remains that the General Court noted other differences, including, in particular, the fact that the aid in question in the other case concerned supplementary costs of aid authorised by the Commission and a sector which had received aid authorised by the Commission. Those circumstances, considered together, appear sufficient to distinguish those cases, so that the General Court did not err in law in finding that the exceptional circumstances which prevailed in the case giving rise to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502) were absent in the present case.

61      It follows that the second ground of appeal is manifestly inadmissible.

62      In the light of all the foregoing, the appeal must be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
 Costs

63      Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

64      In the present case, since Ireland has been unsuccessful and the Commission has applied for costs, Ireland must be ordered to pay the costs.

65      Article 140(1) of the Rules of Procedure, which applies to the procedure on appeal by virtue of Article 184(1) thereof, provides that the Member States and institutions which have intervened in the proceedings are to bear their own costs. Consequently, the French Republic is to bear its own costs.
On those grounds, the Court (Seventh Chamber) hereby:
1.      Dismisses the appeal.

2.      Orders Ireland to pay the costs.

3.      Orders the French Republic to bear its own costs.

Luxembourg, 7 December 2017.

A. Calot Escobar
 
A. Rosas

Registrar
 
President of the Seventh Chamber

*      Language of the case: English.