CELEX: 62004TJ0025
Language: en
Date: 2007-09-12
Title: Judgment of the Court of First Instance (Second Chamber, extended composition) of 12 September 2007. # González y Díez, SA v Commission of the European Communities. # State aid - Aid to cover exceptional restructuring costs - Withdrawal of an earlier decision - Expiry of the ECSC Treaty - Competence of the Commission - Continuity of the Community legal order - No infringement of essential procedural requirements - Protection of legitimate expectations - Manifest error of assessment. # Case T-25/04.

Case T-25/04
      González y Díez, SA
      v
      Commission of the European Communities
      (State aid – Aid to cover exceptional restructuring costs – Withdrawal of an earlier decision – Expiry of the ECSC Treaty – Competence of the Commission – Continuity of the Community legal order – No infringement of essential procedural requirements – Protection of legitimate expectations – Manifest error of assessment)
      Summary of the Judgment
      1.      State aid – Aid falling with the scope of the ECSC Treaty ratione materiae and ratione temporis – Expiry of the ECSC Treaty – Continued review by the Commission under Article 88(2) EC
      (Art. 88(2) EC)
      2.      Acts of the institutions – Temporary application – Procedural rules – Substantive rules – Distinction – Retrospective effect
            of a substantive rule – Conditions
      (Council Regulation No 1407/2002; Commission Notice 2002/C 152/03)
      3.      Actions for annulment – Actionable measures – Measures producing binding legal effects –Commission decision closing the formal
            State aid review procedure provided for in Article 88(2) EC
      (Arts 88(2) EC and 230 EC)
      4.      Acts of the institutions – Withdrawal – Unlawful measures – Commission decisions on State aid  – Conditions
      (Council Regulation No 659/1999, Art. 9)
      5.      State aid – Aid authorised by the Commission – Incorrect use by the recipient  – Decision finding incorrect use of part of
            the authorised aid – Withdrawal – Opening of new investigation procedure
      (Art. 88(2) EC)
      6.      State aid – Commission decision to open a formal aid review procedure – Protection of legitimate expectations of the interested
            parties regarding the complaints accepted by the Commission against the aid measures investigated
      (Art. 88(2) EC; Council Regulation No 659/1999, Art. 6)
      1.      Although the succession of the legal framework of the EC Treaty to that of the ECSC Treaty has led, since 24 July 2002, to
         a change of legal bases, procedures and applicable substantive rules, that succession is part of the unity and continuity
         of the Community legal order and its objectives. In that regard, the putting in place and maintaining of a system of free
         competition, within which the normal competitive conditions are ensured and on which, in particular, the rules in the field
         of State aid are based, constitutes one of the essential objectives of both the EC Treaty and of the ECSC Treaty. In that
         context, although the rules of the ECSC and the EC Treaties governing the regime relating to State aid differ to a certain
         extent, it must be pointed out that aid granted under the ECSC Treaty falls within the meaning of aid for the purposes of
         Articles 87 EC and 88 EC. Thus, the pursuit of the aim of undistorted competition in the sectors which initially fell within
         the common market in coal and steel is not suspended by the fact that the ECSC Treaty has expired, since that objective is
         also pursued in the context of the EC Treaty.
      
      The continuity of the Community legal order and the objectives which govern its functioning thus require that, in so far as
         it succeeds the European Coal and Steel Community and in its own procedural framework, the European Community ensures, in
         respect of situations which came into being under the ECSC Treaty, compliance with the rights and obligations which applied
         eo tempore to both Member States and individuals under the ECSC Treaty and the rules adopted for its application. That requirement applies
         all the more in so far as the distortion of competition resulting from the non-compliance with the rules in the field of State
         aid is liable, under the EC Treaty, to expand its effects over time after the expiry of the ECSC Treaty.
      
      It follows that Article 88(2) EC must be interpreted as enabling the Commission to review, after 23 July 2002, the compatibility
         with the common market of State aid granted in the fields falling with the scope of the ECSC Treaty ratione materiae and ratione temporis, and the application by the Member States of decisions authorising State aid adopted pursuant to the ECSC Treaty, in respect
         of situations existing prior to the expiry of that Treaty.
      
      (see paras 55-57)
      2.      Although procedural rules are generally held to apply to all disputes pending at the time when they enter into force, this
         is not the case with substantive rules. The latter must be interpreted, in order to ensure respect for the principles of legal
         certainty and the protection of legitimate expectations, as applying to situations existing before their entry into force
         only in so far as it clearly follows from their wording, objectives or general scheme that such an effect must be given to
         them.
      
      From that point of view, the continuity of the Community legal order and the requirements relating to the principles of legal
         certainty and the protection of legitimate expectations require the application of substantive provisions drawn from the ECSC
         Treaty to the facts which fall within their scope of application ratione materiae and ratione temporis. Just because, by reason of the expiry of the ECSC Treaty, the regulatory framework in question is no longer in force at
         the time when the assessment of the factual situation is carried out does not alter that situation since that assessment concerns
         a legal situation which was definitively established at a time when substantive provisions adopted under the ECSC Treaty were
         applicable.
      
      In that context, Regulation No 1407/2002 on State aid to the coal industry may not be applied to legal situations which definitively
         existed before the expiry of the ECSC Treaty. It is clear from the wording of Article 14 of that regulation that that regulation
         applies to situations existing from 24 July 2002 at the earliest. The Commission was thus not justified in finding, in paragraph
         47 of the Communication concerning certain aspects of the treatment of competition cases resulting from the expiry of the
         ECSC Treaty, that State aid put into effect before 23 July 2002 without its prior approval would be subject to the provisions
         of Regulation No 1407/2002.
      
      (see paras 58-59, 67-68)
      3.      A final decision adopted by the Commission in order to conclude the formal review procedure provided for in Article 88(2)
         EC constitutes a measure which may be contested on the basis of Article 230 EC. Such a decision produces binding legal effects
         which are capable of affecting the interests of the parties concerned, since it concludes the procedure in question and definitively
         decides whether the measure under review is compatible with the rules applying to State aid. Accordingly, interested parties
         are always able to contest the final decision which concludes the formal review procedure and must, in that context, be able
         to challenge the various elements which form the basis for the position definitively adopted by the Commission 
      
      That right is independent of whether the decision to initiate the formal review procedure gives rise to legal effects which
         may be the subject-matter of an action for annulment. The right to contest a decision to initiate the formal procedure may
         not diminish the procedural rights of interested parties by preventing them from challenging the final decision and relying
         in support of their action on defects at any stage of the procedure leading to that decision.
      
      (see paras 91-92)
      4.      It is apparent from the wording of Article 9 of Regulation No 659/1999 laying down detailed rules for the application of Article
         [88 EC] that the procedure laid down in that provision applies only to the revocation of positive decisions on State aid taken
         pursuant to Article 4(2) or (3), or Article 7(2), (3) or (4) of that regulation, adopted on the basis of incorrect information
         provided during the procedure. It is therefore not applicable to negative decisions establishing the incorrect use of an amount
         of aid authorised or the incompatibility of an aid measure with the common market.
      
      That said, the Commission’s right to revoke a decision on State aid is not restricted solely to the situation referred to
         in Article 9 of Regulation No 659/1999. That provision is merely a specific expression of the general principle of law according
         to which retrospective withdrawal of an unlawful administrative act which has created subjective rights is permissible, in
         particular if the administrative act at issue was adopted on the basis of false or incomplete information provided by the
         party concerned. The right to withdraw retroactively an unlawful administrative act which has created subjective rights is
         not, however, limited to that situation alone, since such a withdrawal may always be carried out provided that the institution
         which adopted the act complies with the conditions relating to reasonable time-limits and the legitimate expectations of beneficiaries
         of the act who have been entitled to rely on its lawfulness.
      
      (see paras 96-97)
      5.      Where a Commission decision finds that part of the aid authorised has been incorrectly used, the other part of the aid in
         question which has not been found to have been incorrectly used remains within the scope of the authorising decision and benefits,
         as such, from a presumption that it has not been used incorrectly.
      
      The examination carried out by the Commission in the context of the new formal procedure, opened with a view to revoking its
         earlier decision finding that part of the aid had been used incorrectly and to adopt a new decision in that regard, must relate
         to all the amounts of aid covered by the first examination in the context of the procedure which led to the adoption of that
         earlier decision.
      
      Thus, an applicant cannot rely on a legitimate expectation that the amounts of aid which were not considered to have been
         used incorrectly by the earlier decision would not fall within the scope of the Commission’s examination in the context of
         the new formal procedure.
      
      (see paras 119-121)
      6.      Under Article 6 of Regulation No 659/1999 laying down detailed rules for the application of Article [88 EC], the decision
         to initiate the formal State aid review procedure must give the interested parties the opportunity effectively to participate
         in the formal investigation procedure, during which they will have the opportunity to put forward their arguments. For that
         purpose, it is sufficient for the parties to be aware of the reasoning which led the Commission provisionally to conclude
         that the measure in issue might constitute new aid incompatible with the common market.
      
      In carrying out the procedure involving review of State aid the Commission must take account of the legitimate expectations
         which the parties concerned may entertain as a result of what was said in the decision to initiate the procedure and, subsequently,
         that it will not base its final decision on the absence of information which, in the light of what was said in that decision,
         the parties concerned could not have formed the view that they were under a duty to make available to it.
      
      (see paras 124-125)
JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)
      12 September 2007 (*)
      
      (State aid – Aid to cover exceptional restructuring costs – Withdrawal of an earlier decision – Expiry of the ECSC Treaty – Competence of the Commission – Continuity of the Community legal order – No infringement of essential procedural requirements – Protection of legitimate expectations – Manifest error of assessment)
      In Case T‑25/04,
      González y Díez SA, established in Villabona-Llanera, Asturias (Spain), represented by J. Díez-Hochleitner and A. Martínez Sánchez, lawyers,
      
      applicant,
      v
      Commission of the European Communities, represented initially by J. Buendía Sierra, acting as Agent, and subsequently by C. Urraca Caviedes, acting as Agent, and
         by Buendía Sierra, lawyer,
      
      defendant,
      ACTION for the annulment of Articles 1, 3 and 4 of Commission Decision 2004/340/EC of 5 November 2003 concerning aid to the
         company González y Díez SA to cover exceptional costs (aid for 2001 and incorrect use of the aid for 1998 and 2000), amending
         Decision No 2002/827/ECSC (OJ 2004 L 119, p. 26),
      
      THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber, Extended Composition),
      composed of J. Pirrung, President, A.W.H. Meij, N.J. Forwood, I. Pelikánová and S.  Papasavvas, Judges,
      Registrar: K. Andová, Administrator,
      having regard to the written procedure and further to the hearing on 31 January 2007,
      gives the following
      Judgment
       Legal Framework
      1        Article 5(1) of Commission Decision No 3632/93/ECSC of 28 December 1993 establishing Community rules for State aid to the
         coal industry (OJ 1993 L 329, p. 12) is worded as follows: 
      
      ‘Aid to cover exceptional costs
      1. State aid to coal undertakings to cover the costs arising from or having arisen from the modernisation, rationalisation
         or restructuring of the coal industry which are not related to current production (inherited liabilities) may be considered
         compatible with the common market provided that the amount paid does not exceed such costs. Such aid may be used to cover:
      
      –        the costs incurred only by undertakings which are carrying out or have carried out restructuring,
      –        the costs incurred by several undertakings.
      The categories of costs resulting from modernisation, rationalisation and restructuring of the coal industry are defined in
         the Annex to this Decision.’
      
      2        The Annex to Decision No 3623/93, entitled ‘Definition of the costs referred to in Article 5(1)’, states inter alia:
      
      
      ‘I. Costs incurred only by undertakings which are carrying out or have carried out restructuring and rationalisation
      Exclusively:
      …
      (c) the payment of pensions and allowances outside the statutory system to workers who lose their jobs as a result of restructuring
         and rationalisation and to workers entitled to such payments before the restructuring;
      
      …
      (e) residual costs resulting from administrative, legal or tax provisions;
      (f) additional underground safety work resulting from restructuring;
      (g) mining damage provided that it has been caused by pits previously in service;
      (h) residual costs resulting from contributions to bodies responsible for water supplies and for the removal of waste water;
      (i) other residual costs resulting from water supplies and the removal of waste water;
      …
      (k) exceptional intrinsic depreciation provided that it results from the restructuring of the industry (without taking account
         of any revaluation which has occurred since 1 January 1986 and which exceeds the rate of inflation);
      
      (l) costs in connection with maintaining access to coal reserves after mining has stopped.
      …’
      3        Article 12 of Decision No 3632/93 states that that decision entered into force on 1 January 1994 and expired on 23 July 2002.
      
      4        Article 7 of Council Regulation (EC) No 1407/2002 of 23 July 2002 on State aid to the coal industry (OJ 2002 L 205, p. 1)
         is worded as follows:
      
      ‘Aid to cover exceptional costs
      1.      State aid granted to undertakings which carry out or have carried out an activity in connection with coal production to enable
         them to cover the costs arising from or having arisen from the rationalisation and restructuring of the coal industry that
         are not related to current production (“inherited liabilities”) may be considered compatible with the common market provided
         that the amount paid does not exceed such costs. Such aid may be used to cover:
      
      (a)      the costs incurred only by undertakings which are carrying out or have carried out restructuring, i.e. costs related to the
         environmental rehabilitation of former coal mining sites;
      
      (b)      the costs incurred by several undertakings.
      2.      The categories of costs resulting from the rationalisation and restructuring of the coal industry are defined in the Annex.’
      5        The Annex to Regulation No 1407/2002, entitled ‘Definition of costs referred to in Article 7’, states inter alia: 
      
      ‘1. Costs incurred and cost provisions made only by undertakings which are carrying out or have carried out restructuring
         and rationalisation
      
      Exclusively: 
      …
      (c) the payment of pensions and allowances outside the statutory system to workers who lose their jobs as a result of restructuring
         and rationalisation and to workers entitled to such payments before the restructuring;
      
      …
      (f) residual costs resulting from administrative, legal or tax provisions;
      (g) additional underground safety work resulting from the closure of production units;
      (h) mining damage provided that it has been caused by production units subject to closure due to restructuring;
      (i) costs related to the rehabilitation of former coal mining sites, notably:
      –        residual costs resulting from contributions to bodies responsible for water supplies and for the removal of waste water,
      –        other residual costs resulting from water supplies and the removal of waste water; 
      …
      (k) exceptional intrinsic depreciation provided that it results from the closure of production units (without taking account
         of any revaluation which has occurred since 1 January 1994 and which exceeds the rate of inflation).
      
      …’
      6        The second subparagraph of Article 14(1) of Regulation No 1407/2002 states that that regulation is to apply from 24 July 2002.
         
      
      7        Communication 2002/C 152/03 from the Commission concerning certain aspects of the treatment of competition cases resulting
         from the expiry of the ECSC Treaty (OJ 2002 C 152, p. 3) specifies the consequences which the Commission intends to draw from
         the expiry of the ECSC Treaty as regards, in particular, the treatment of cases of State aid to the coal industry. 
      
       Background to the dispute
      8        The applicant is a mining undertaking whose operations are situated in Asturias. Those operations include an open‑cast operation
         in the ‘Buseiro’ sector and two underground operations in the ‘Sorriba’ Sector, one of which is situated in the subsector
         known as ‘La Prohida’ and the other in the subsector known as ‘Tres Hermanos’. 
      
      9        By Decision 98/637/ECSC of 3 June 1998 (OJ 1998 L 303, p. 57) and Decision 2001/162/ECSC of 13 December 2000 (OJ 2001 L 58,
         p. 24) on the granting by Spain of aid to the coal industry in 1998 and 2000 respectively, the Commission authorised the Kingdom
         of Spain, inter alia, to grant aid, pursuant to Article 5 of Decision No 3632/93, to cover the exceptional technical costs
         of closing down mining installations as a result of the measures to modernise, rationalise, restructure and reduce the activity
         of the Spanish coal industry.
      
      10      For the years 1998 and 2000, the Spanish authorities granted the applicant aid totalling ESP 651 908 560 (EUR 3 918 049.35)
         and ESP 463 592 384 (EUR 2 786 246.34) respectively, to cover the technical expenses of the annual production capacity cuts
         of 48 000 t in 1998 and 38 000 t in 2000. Those production capacity cuts were to take place in 1998 at the open‑cast mine
         of Busiero, where production was terminated completely, and in 2000 at the underground mine of Sorriba (La Prohida subsector)
         to the extent of 26 000 t and at the open-cast mine of Buseiro to the extent of 12 000 t. 
      
      11      On 23 July 1998, the company Mina la Camocha acquired 100% of the applicant’s capital. Prompted by information which appeared
         in the press in June 1999, suggesting that the aid received by the applicant in 1998 exceeded the costs of the supposed capacity
         reduction since it had been accounted for as operational income and had been paid to the parent company, the Commission decided
         to analyse the granting of the aid to cover exceptional costs to the applicant and, by letter of 25 October 1999, requested
         the Kingdom of Spain to provide it with information in that regard. In subsequent letters, the Commission extended its requests
         for information on the aid in respect of 2000 and 2001. As part of an exchange of correspondence which lasted until April
         2002, the Spanish authorities sent the information requested. 
      
      12      By letter of 21 November 2000, supplemented by letters of 19 and 21 March 2001, the Kingdom of Spain informed the Commission
         of the aid to the coal industry which it intended to grant during the 2001 financial year. That aid included, ESP 393 971 600
         (EUR 2 367 817) to cover the applicant’s costs of cutting annual production capacity by 34 000 t which was due to take place
         in 2001 in the La Prohida subsector. 
      
      13      By Decision 2002/241/ECSC of 11 December 2001 on the granting by Spain of aid to the coal industry in 2001 (OJ 2002 L 82,
         p. 11), the Commission authorised the Kingdom of Spain to pay aid to cover the technical costs of closing down mining installations
         as a result of the measures to modernise, rationalise, restructure and reduce the activity of the Spanish coal industry, with
         the exception, in particular, of the aid granted to the applicant on which the Commission stated that it would give a decision
         at a later date. In relation to that aid, the Commission proposed, first, to analyse the information to be sent to it by the
         Spanish authorities on the aid granted to the applicant for 1998 and 2000.
      
      14      By letter of 13 May 2002, the Kingdom of Spain informed the Commission that, in anticipation of the latter’s decision to that
         effect, it had paid the applicant ESP 383 322 896 (EUR 2 303 817) for 2001, which was less than the amount notified. 
      
      15      By Decision 2002/827/ECSC of 2 July 2002 on the granting by Spain of aid to the undertaking González y Díez, SA in 1998, 2000 and
         2001 (OJ 2002 L 296, p. 80), the Commission declared incompatible with the common market the aid granted to the applicant
         to cover exceptional restructuring costs in 1998, 2000 and 2001 totalling EUR 5 113 245.96 (ESP 850 772 542). That sum corresponded
         to the amount, first, of aid paid for 1998 and 2000 totalling EUR 2 745 428.96 (ESP 456 800 943) and, second, of the aid totalling
         EUR 2 367 817 (ESP 393 971 600) which was notified to the Commission by the Kingdom of Spain for 2001. 
      
      16      On 17 September 2002, the applicant brought an action for the annulment of Articles 1, 2 and 5 of Decision 2002/827. That
         action was registered at the Registry of the Court of First Instance as Case T‑291/02. 
      
      17      In the light of the arguments put forward in that action, the Commission expressed doubts about certain parts of the procedure
         which led to the adoption of Decision 2002/827. The Commission therefore decided to reopen the formal investigation procedure
         in the light of the revocation of Articles 1, 2 and 5 of Decision 2002/827 and of the replacement of that decision with a
         new decision. By letter of 19 February 2003, the Commission notified the Kingdom of Spain of its decision to initiate the
         procedure provided for in Article 88(2) EC. An invitation to submit comments in accordance with that provision was published
         in the Official Journal of the European Union on 10 April 2003 (OJ 2003 C 87, p. 17). 
      
      18      On 5 November 2003, the Commission adopted Decision 2004/340/EC concerning aid to the company González y Díez, SA to cover
         exceptional costs (aid for 2001 and incorrect use of the aid for 1998 and 2000), amending Decision No 2002/827 (OJ 2004 L
         119, p. 26) (‘the contested decision’). The contested decision was notified to the Kingdom of Spain on 6 November 2003 under
         the number C(2003) 3910 and was published in the Official Journal of the European Union on 23 April 2004. 
      
      19      Article 1 of the contested decision states that the aid totalling EUR 3 131 726.47 granted by the Kingdom of Spain to the
         applicant to cover exceptional restructuring costs for 1998 and 2000 pursuant to Article 5 of Decision 3632/93/ECSC constitutes
         an incorrect application of Decisions 98/637/ECSC and 2001/162/ECSC and is incompatible with the common market.
      
      20      Article 2 of the contested decision states that the aid totalling EUR 2 249 759.37 (ESP 374 328 463) granted to the applicant
         to cover, for 2001, exceptional costs of closure incurred during the period from 1998 to 2001 is compatible with Article 7
         of Regulation No 1407/2002 .
      
      21      Article 3(a) of the contested decision states that the aid totalling EUR 602 146.29 (ESP 100 188 713) granted for 2001, intended
         for investments in mining infrastructure for the working of the Tres Hermanos subsector is incompatible with Article 7 of
         Regulation No 1407/2002. Article 3(b) of the contested decision adds that the aid totalling EUR 601 012.10 (ESP 100 000 000)
         granted for 2001, intended to constitute a provision for covering future costs incurred by the closure of the La Prohida subsector
         and the partial closure of the Buseiro sector, which took place during the period from 1998 to 2001, is also incompatible
         with that provision. 
      
      22      Article 4(1)(a) of the contested decision orders the Kingdom of Spain to recover from the applicant the aid paid for 1998
         and 2000, referred to in Article 1 of that decision. Article 4(1)(b) of the contested decision orders the recovery from the
         applicant of the amount of EUR 54 057.63 (ESP 8 994 433), paid illegally before authorisation by the Commission for the 2001
         financial year, and constituting an unauthorised excess over the aid authorised pursuant to Article 2 and, where appropriate,
         any other amount paid illegally in the same circumstances.
      
      23      Article 6 of the contested decision states that Articles 1, 2 and 5 of Decision 2002/827 are repealed.
      
      24      Following a request by the Commission for a ruling that there was no need to adjudicate in the case, the Court of First Instance
         brought the proceedings in Case T‑291/02 González y Díez v Commission [2004] (not published in the ECR) to an end by order of 2 September 2004. 
      
       Procedure
      25      By application lodged at the Registry of the Court of First Instance on 22 January 2004, the applicant brought the present
         action.
      
      26      Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Second Chamber, Extended Composition) decided
         to open the oral procedure and, by way of measures of organisation of procedure as laid down in Article 64 of the Rules of
         Procedure of the Court put written questions to the parties to which they replied within the prescribed period.
      
      27      The parties presented oral argument and answered the questions put to them by the Court at the hearing on 31 January 2007.
      
      28      During the hearing, the applicant produced a document containing schematic presentations of the Sorriba sector. After the
         parties had been heard, that document was placed in the file by decision of the President of the Second Chamber, Extended
         Composition. 
      
      29      The Commission was authorised to lodge at the Registry of the Court of First Instance a document entitled ‘Annexo al informe
         pericial sobre la ayuda a la reducción de actividad de la empresa Gonzáles y Díez, SA’ (Annex to the expert’s report on the
         aid for the reduction of the activity of the company Gonzáles y Díez, SA), dated 17 September 2002. The applicant was given
         an opportunity to submit its comments on that document, which it did within the prescribed period. After the parties had been
         heard, the Court of First Instance decided to place the document in the file. 
      
      30      The oral procedure was closed by decision of the President of the Second Chamber, Extended Composition, on 9 March 2007.
      
       Forms of order sought
      31      The applicant claims that the Court should:
      
      –        annul Articles 1, 3 and 4 of the contested decision;
      –        order the Commission to pay the costs. 
      32      The Commission contends that the Court should:
      
      –        dismiss the action as unfounded;
      –        order the applicant to pay the costs.
       Law
      33      The applicant raises fours pleas in law, alleging, respectively, a lack of competence on the part of the Commission to adopt
         Articles 1, 3 and 4 of the contested decision, infringement of essential procedural requirements in the procedure followed
         to revoke Articles 1, 2 and 5 of Decision 2002/827 and to adopt the contested decision, infringement of the principle of the
         protection of legitimate expectations and of essential procedural requirements, and a manifest error of assessment. 
      
       The first plea, alleging a lack of competence on the part of the Commission to adopt Articles 1, 3 and 4 of the contested
            decision
       Arguments of the parties
      34      The applicant submits that neither the ECSC Treaty nor the EC Treaty grants the Commission the competence to adopt the decision
         to initiate the revocation procedure and to adopt the contested decision. 
      
      35      As regards the ECSC Treaty, the applicant claims that that treaty could not serve as a legal basis after its expiry on 23
         July 2002 (Opinion of Advocate General Alber in 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, point 48). 
      
      36      As regards the EC Treaty, the applicant submits that, pursuant to Article 305(1) EC, that treaty does not provide a legal
         basis for the Commission to rule on the aid granted for 1998, 2000 and 2001. 
      
      37      The provisions of the EC Treaty applicable to goods falling within the scope of the ECSC Treaty cannot be applied retroactively
         to earlier situations on expiry of that latter treaty. The applicant claims that the application of legal provisions to situations
         arising prior to their entry into force would be incompatible with the principle of legal certainty (Case C‑368/89 Crispoltoni [1991] ECR I‑3695, paragraph 17; Case C‑34/92 GruSa Fleisch [1993] ECR I‑4147, paragraph 22; Opinion of Advocate General Léger in Case C‑223/95 Moksel [1997] ECR I‑2379, points 40 to 42). In support of that submission, the applicant also refers to Article 28 of the Vienna
         Convention of 23 May 1969 on the Law of Treaties (United Nations Treaty Series, Volume 788, p. 354) which lays down the principle of non‑retrocactivity of treaties. According to the applicant, if the
         Member States had intended to authorise the application of the EC Treaty to the coal industry in respect of situations prior
         to 24 July 2002, they would have made express provisions to that effect. 
      
      38      Therefore, the Commission cannot use Article 88(2) EC and its rules of application as a basis for annulling or amending aid
         to the coal industry which was authorised under the ECSC Treaty or in respect of which no position had been adopted while
         that treaty was still in force. 
      
      39      In addition, Article 14(1) of Regulation No 1407/2002, which provides for that regulation to apply from 24 July 2002, confirms
         that the EC Treaty cannot be applied retroactively. The applicant also indicates that it is apparent from the substantive
         provision of that regulation that the Community legislature intended only to legislate for the future, since none of its provisions
         regulates aid granted to the coal industry before its entry into force. 
      
      40      The applicant points out that, in any event, neither the Member States nor the Community legislature can be unaware of the
         principle of non-retroactivity of provisions which are restrictive of individual rights, since the latter is enshrined in
         the constitutional orders of the Member States. 
      
      41      The applicant adds that the Commission was aware of the fact that the rules of the EC Treaty were not applicable to aid granted
         to the coal industry before the ECSC Treaty had expired. That is apparent from paragraph 25 of Communication 2002/C 152/03
         and from the fact that the Commission states, in paragraph 46 of that communication, that it found it necessary to close the
         proceedings concerning State aid to the coal industry before the expiry of the ECSC Treaty.
      
      42      The applicant submits that it is not trying to assert the existence of a legal vacuum after the expiry of the ECSC Treaty.
         It is merely claiming that the Commission should have used the powers conferred on it by the ECSC Treaty to revoke Articles
         1, 2 and 5 of Decision 2002/827.
      
      43      As regards the procedure which needs to be complied with to verify the performance of the obligations resulting from the ECSC
         Treaty in relation to the aid which was granted to it for 1998, 2000 and 2001, the applicant states that Article 226 EC is
         capable of being applicable.
      
      44      The applicant challenges the relevance of Article 3 EU in relation to the issue of the competence of the Commission and considers
         that that provision is unconnected with the Community system of attribution of competences. It also challenges the relevance
         of the principle put forward by the Commission which states that, in the absence of transitional provisions, a new rule applies
         to the future effects of a situation which came about under an old rule. The applicant states that it opposes only the retroactive
         application of the EC Treaty to a past situation, and not a future one, which came about under a rule which had been repealed.
         Finally, the applicant denies that a distinction may be made between substantive rules and procedural rules. 
      
      45      The Commission observes, first, that the issue of the Commission’s competence to adopt the contested decision must be resolved
         in the light of the unity of the Community legal order which encompasses the ECSC and EC Treaties, laid down in Article 3
         EU. It notes, next, that the Commission’s competence to monitor State aid is not in doubt since the ECSC and EC Treaties have
         both conferred on it monitoring powers in that field. 
      
      46      The Commission submits that, in the absence of transitional provisions, a new rule applies immediately to the future effects
         of a situation which came about under the old rule (Opinion of Advocate General Alber in International Power and Others v NALOO, point 48). No transitional provision of primary law has been adopted in the field of State aid. The Commission adds that
         the case-law excluding the application of the provisions of the EC Treaty in the field of State aid to situations covered
         by the ECSC Treaty, pursuant to Article 305 EC, concerns the resolution of conflicts between rules which are in force at the
         same time and does not apply to situations in which those rules succeed each other over time.
      
      47      It states that a distinction is traditionally made between procedural rules and substantive rules. As regards procedural rules,
         those which are applicable are the ones in force at the time at which the relevant phase is opened (Joined Cases C‑121/91
         and C‑122/91 CT Control (Rotterdam) and JCT Benelux v Commission [1993] ECR I‑3873, paragraph 22). Thus, the reopening of a procedure concerning aid granted before the expiry of the ECSC
         Treaty should be carried out on the basis of Article 88 EC and 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).
      
      48      As regards the applicable substantive law, the Commission considers that it is necessary to distinguish between the aid for
         2001 and that for 1998 and 2000. In relation to the aid for 2001, the contested decision had to apply Article 7 of Regulation
         No 1407/2002 in accordance with paragraph 47 of Communication 2002/C 152/03, to reflect the intention of the legislature expressed
         in recital 24 in the preamble to Regulation No 1407/2002 to apply it retroactively, as well as with Case C‑162/00 Pokrzeptowiz‑Meyer [2002] ECR I‑1049, paragraph 50, and the role of lex generalis which Article 305 EC affords to the EC Treaty in relation to the ECSC Treaty. 
      
      49      The Commission also submits that, in any event, the content of Article 7 and the Annex to Regulation No 1407/2002 is identical
         to that of Article 5 and the Annex to Decision No 3632/93 which was formerly applicable, save only that the new set of rules
         authorises aid for the complete closure of production units, whereas the ECSC rules also authorised aid for partial closure.
         Nevertheless, the Commission points out that, in the present case, the aid granted in 2001 is related to the complete closure
         of the installations of the La Prohida subsector. Since the rules applicable are thus identical in the present case, the succession
         over time of the rules applying under the ECSC Treaty and those applying under the EC Treaty did not adversely affect the
         applicant. 
      
      50      As regards the aid granted in 1998 and 2000, the Commission submits that the contested decision did not make any new analysis
         on the basis of the general rules of the ECSC Treaty or the EC Treaty, but merely verified whether the conditions laid down
         in Decisions 98/637 and 2001/162 had been complied with. The lawfulness of that aid should thus be assessed only in the light
         of the conditions laid down in those authorisation decisions, which are still fully in force. 
      
      51      In respect of the applicant’s argument that the Commission should have acted on the basis of Article 226 EC, the latter considers
         that, if it is accepted that the EC Treaty is applicable to ensure that the conditions pursuant to which the aid granted under
         the ECSC Treaty are complied with, the applicability of Article 88 EC, which is the provision applicable ratione materiae, cannot be challenged. 
      
      52      Finally, the Commission contends that the applicant’s submission alleging the lack of competence of the Commission would result
         in the Commission also having no competence to revoke Decision 2002/827 and that it would be impossible to have a decision
         taken under the ECSC Treaty annulled after the expiry of that Treaty, since the competence of the Community courts and that
         of the Commission have the same legal basis. 
      
       Findings of the Court
      53      The Community Treaties put in place a unique legal order (see, to that effect, Opinion 1/91 of the Court of 14 December 1991,
         ECR I‑6079, paragraph 21 and Case T‑120/89 Stahlwerke Peine‑Salzgitter v Commission [1991] ECR II‑279, paragraph 78) in the context of which, as is reflected in Article 305(1) EC, the ECSC Treaty constituted
         a specific regime derogating from the general rules established by the EC Treaty. 
      
      54      Pursuant to Article 97 thereof, the ECSC Treaty expired on 23 July 2002. Consequently, on 24 July 2002, the scope of the general
         scheme resulting from the EC Treaty was extended to the sectors which were initially governed by the ECSC Treaty. 
      
      55      Although the succession of the legal framework of the EC Treaty to that of the ECSC Treaty has led, since 24 July 2002, to
         a change of legal bases, procedures and applicable substantive rules, that succession is part of the unity and continuity
         of the Community legal order and its objectives. It should be pointed out, in that regard, that the putting in place and maintaining
         of a system of free competition, within which the normal competitive conditions are ensured and on which, in particular, the
         rules in the field of State aid are based, constitutes one of the essential objectives of both the EC Treaty (see, in the
         latter regard, to that effect, Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraph 31) and of the ECSC Treaty (see, to that effect, Joined Cases C‑280/99 P to C‑282/99 P Moccia Irme and Others v Commission [2001] ECR I‑4717, paragraph 33, and Case T‑89/96 British Steel v Commission [1999] ECR II‑2089, paragraph 106). In that context, although the rules of the ECSC and the EC Treaties governing the regime
         relating to State aid differ to a certain extent, it must be pointed out that aid granted under the ECSC Treaty falls within
         the meaning of aid for the purposes of Articles 87 EC and 88 EC. Thus, the pursuit of the aim of undistorted competition in
         the sectors which initially fell within the common market in coal and steel is not suspended by the fact that the ECSC Treaty
         has expired, since that objective is also pursued in the context of the EC Treaty. 
      
      56      The continuity of the Community legal order and the objectives which govern its functioning thus require that, in so far as
         it succeeds the European Coal and Steel Community and in its own procedural framework, the European Community ensures, in
         respect of situations which came into being under the ECSC Treaty, compliance with the rights and obligations which applied
         eo tempore to both Member States and individuals under the ECSC Treaty and the rules adopted for its application. That requirement applies
         all the more in so far as the distortion of competition resulting from the non-compliance with the rules in the field of State
         aid is liable, under the EC Treaty, to expand its effects over time after the expiry of the ECSC Treaty.
      
      57      It follows from the above that, contrary to what the applicant contends, Article 88(2) EC must be interpreted as enabling
         the Commission to review, after 23 July 2002, the compatibility with the common market of State aid granted in the fields
         falling with the scope of the ECSC Treaty ratione materiae and ratione temporis, and the application by the Member States of decisions authorising State aid adopted pursuant to the ECSC Treaty, in respect
         of situations existing prior to the expiry of that Treaty. 
      
      58      In addition, the succession, within the Community legal order, of rules of the EC Treaty in a field which was originally governed
         by the ECSC Treaty must take effect in conformity with the principles governing the temporal application of the law. In that
         regard, it follows from settled case-law that, although procedural rules are generally held to apply to all disputes pending
         at the time when they enter into force, this is not the case with substantive rules. The latter must be interpreted, in order
         to ensure respect for the principles of legal certainty and the protection of legitimate expectations, as applying to situations
         existing before their entry into force only in so far as it clearly follows from their wording, objectives or general scheme
         that such an effect must be given to them (see Joined Cases 212/80 to 217/80 Salumi [1981] ECR 2735, paragraph 9; Case 21/81 Bout [1982] ECR 381, paragraph 13; and Case T‑42/96 Eyckeler & Malt v Commission [1998] ECR II‑401, paragraph 55).
      
      59      From that point of view, as regards the question of the substantive provisions applicable to a legal situation which was definitively
         established before the expiry of the ECSC Treaty, the continuity of the Community legal order and the requirements relating
         to the principles of legal certainty and the protection of legitimate expectations require the application of substantive
         provisions drawn from the ECSC Treaty to the facts which fall within their scope of application ratione materiae and ratione temporis. Just because, by reason of the expiry of the ECSC Treaty, the regulatory framework in question is no longer in force at
         the time when the assessment of the factual situation is carried out does not alter that situation since that assessment concerns
         a legal situation which was definitively established at a time when substantive provisions adopted under the ECSC Treaty were
         applicable. 
      
      60      In the present case, the contested decision was adopted on the basis of Article 88(2) EC following a procedure carried out
         in accordance with Regulation No 659/1999. The provisions concerning the legal basis and the procedure followed until the
         adoption of the contested decision fall within the scope of procedural rules for the purposes of the case-law referred to
         in paragraph 58 above. Since the contested decision was adopted after the expiry of the ECSC Treaty, the Commission rightly
         applied Article 88(2) EC and the procedural rules contained in Regulation No 659/1999. 
      
      61      As regards substantive rules, and in so far as the applicant’s arguments seek to claim that the contested decision is unlawful
         by reason of the allegedly incorrect application of Regulation No 1407/2002, it should be pointed out, first of all, that
         the contested decision concerns legal situations which definitively existed before the expiry of the ECSC Treaty since all
         the relevant facts took place before 23 July 2002. The contested decision aims to examine, first, the possible misapplication
         of the aid granted for 1998 and 2000 and, second, the compatibility with the common market of the aid granted for 2001 in
         anticipation of authorisation from the Commission. 
      
      62      Thus, the review of the use of the State aid granted for 1998 and 2000 must be carried out under Authorising Decisions 98/637
         and 2001/162, since those decisions set out in the conditions for the granting of that aid. In so far as those authorising
         decisions require compliance with the reglementary framework established by Decision No 3632/93, the use of the State aid
         granted for 1998 and 2000 must be examined in the light of the rules laid down in that decision. 
      
      63      Similarly, the compatibility of the State aid paid for 2001 must be examined in the light of the rules set out in Decision
         No 3632/93. Although the reglementary framework which that decision established has not been in force since 24 July 2002 and
         thus cannot determine the compatibility of the aid granted after that date, that framework nevertheless constituted the regime
         applicable at the time of the facts at issue. 
      
      64      The Court finds, however, that, although the Commission stated, in recital 63(a) in the preamble to the contested decision,
         that it was reviewing the use of the aid corresponding to 1998 and 2000 in the light of the conditions laid down by Decisions
         98/637 and 2001/162 and, as a consequence, the rules set out in Decision No 3632/93, in recital 74 in the preamble to the
         contested decision the Commission nevertheless decided to proceed to analyse the aid to cover the exceptional costs of restructuring
         in the La Prohida subsector on the basis of Article 7 and the Annex to Regulation No 1407/2002. 
      
      65      Similarly, although, in recital 74 in the preamble to the contested decision, the Commission expressed its intention to examine
         the aid to cover the costs relating to the partial closure of the Buseiro sector on the basis of Decision No 3632/93, it nevertheless
         explicitly examined, in recitals 81 to 83 and 86 in the preamble to that decision, the compatibility with the common market
         of some of that aid on the basis of Regulation No 1407/2002. 
      
      66      In addition, in recital 63(b) in the preamble to the contested decision, the Commission stated that, pursuant to paragraph
         47 of Communication 2002/C 152/03, it intended to examine the compatibility of the aid for 2001, paid in anticipation of authorisation
         from the Commission, with Article 7 of Regulation No 1407/2002. 
      
      67      It must be pointed out, however, that, under the second subparagraph of Article 14(1) of Regulation No 1407/2002, that regulation
         is to apply from 24 July 2002. An exemption, laid down in Article 14(2), makes it possible, on the basis of a reasoned request
         by a Member State, for aid covering costs for 2002 to continue to be subject to the rules and principles laid down in Decision
         No 3632/93, with the exception of rules regarding deadlines and procedures. It is thus clear from the wording of Article 14
         of Regulation No 1407/2002 that that regulation applies to situations existing from 24 July 2002 at the earliest. 
      
      68      The Commission was thus not justified in finding, in paragraph 47 of Communication 2002/C 152/03, that State aid put into
         effect before 23 July 2002 without its prior approval would be subject to the provisions of Regulation No 1407/2002. 
      
      69      Moreover, the various arguments put forward by the Commission in support of that submission must be rejected. First, recital
         24 in the preamble to Regulation No 1407/2002 cannot lead to the conclusion that the legislature intended to give that regulation
         retroactive effect (see paragraph 58 above) so that its provisions could be applied to situations prior to 24 July 2002. That
         recital at most prefigures Article 14 of Regulation No 1407/2002, which provides that, although that regulation entered into
         force on the day of its publication in the Official Journal of the European Communities, namely 2 August 2002, it was already applicable from 24 July 2002. 
      
      70      Next, the Commission cannot rely on the judgment in Pokrzeptowicz‑Meyer. It must be found that the principle referred to in paragraph 50 of that judgment, according to which a new rule applies
         immediately to the future effects of a situation which came about under the old rule, applies only to situations which are
         current at the time of entry into force of the new rule, and not in respect of situations which, as in the present case, were
         definitively established under the old rule (see, to that effect, Pokrzeptowicz‑Meyer, paragraphs 51 and 52). 
      
      71      Finally, it follows precisely from the lex generalis nature of the EC Treaty in relation to the ECSC Treaty, enshrined in Article 305 EC, that the specific regime resulting from
         the ECSC Treaty and the rules enacted for its implementation is, in accordance with the principle lex specialis derogat legi generali, applicable only to situations existing prior to 24 July 2002. 
      
      72      It follows that Regulation No 1407/2002 did not constitute the regulatory framework on the basis of which the incorrect application
         of the aid for 1998 and 2000 or the compatibility with the common market of the aid granted for the year 2001 could be examined.
         
      
      73      The Commission submits, however, that the content of Article 7 and of the Annex to Regulation No 1407/2002 is identical to
         that of Article 5 and the Annex to Decision No 3632/93 and that the application of the rules under the EC Treaty instead of
         the rules under the ECSC Treaty did not adversely affect the applicant. 
      
      74      It must be pointed out, in that regard, that the irregularity found in the present case would render the contested decision
         unlawful and, consequently, lead to its annulment only in so far as that irregularity might affect its content. If it were
         established that, in the absence of that irregularity, the Commission would have arrived at exactly the same conclusion since
         the irregularity in question was, in any event, incapable of influencing the content of the contested decision, it would not
         be necessary to annul that decision (see, to that effect, in relation to disputes regarding the appropriate legal basis, Case
         C‑491/01 British American Tobacco (Investments) and Imperial Tabacco [2002] ECR I‑11453, paragraph 98; Case C‑211/01 Commission v Council [2003] ECR I‑8913, paragraph 52; and Case C‑210/03 Swedish Match [2004] ECR I‑11893, paragraph 44; see also, to that effect, in relation to the infringement of procedural rights, Case 30/78
         Distillers v Commission [1980] ECR 2229, paragraph 26; Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 31; and, finally, Case T‑314/01 Avebe v Commission [2006] ECR I‑0000, paragraph 67).
      
      75      It should be pointed out that the substantive provisions of Regulation No 1407/2002 on the basis of which the incorrect use
         and the compatibility of the aid were examined, namely Article 7 and point 1(c), (f), (g), (h), (i) and (k) of the Annex to
         that Regulation, contain rules identical to those laid down in Article 5 and paragraph I(c), (e), (f), (g), (h), (i) and (k)
         of the Annex to Decision No 3632/93. Consequently, the Commission would have arrived at exactly the same conclusion if it
         had correctly applied Decision No 3632/93. 
      
      76      Furthermore, it is also apparent from the contested decision that, in certain cases, the Commission nevertheless applied Decision
         No 3632/93 carefully since it examined whether certain costs fell within the category referred to in paragraph I(l) of the
         Annex to that decision, which is a category of costs which was not included in the Annex to Regulation No 1407/2002. 
      
      77      Given that the incorrect application of Regulation No 1407/2002 instead of Decision No 3632/93 did not have any repercussions
         on the meaning and the content of the contested decision, it cannot be found that that irregularity, as regrettable as it
         may be, is sufficient to render the contested decision unlawful. 
      
      78      For all of the above reasons, the first plea, alleging a lack of competence on the part of the Commission to adopt the contested
         decision on the basis of Article 88(2) EC must be rejected. That same finding also applies in so far as the applicant claims
         by its first plea that the contested decision is unlawful by reason of the application of Regulation No 1407/2002. 
      
       The second plea, alleging infringement of essential procedural requirements in the procedure followed to revoke Articles 1,
            2 and 5 of Decision 2002/827 and to adopt the contested decision
       Arguments of the parties
      79      The applicant submits that the procedure used by the Commission to adopt the contested decision was not appropriate. 
      
      80      In response to the Commission’s arguments, the applicant denies that the plea is inadmissible and claims that a decision to
         initiate an investigation procedure on the basis of Article 88(2) EC is capable of being challenged in so far as it classifies
         the aid as existing or new (Joined Cases T‑126/96 and T‑127/96 BFM and EFIM v Commission [1998] ECR II‑3437, paragraphs 39 to 43). First, the applicant has not challenged the classification of the aid examined
         in the present case by Decision 2002/827 and, second, the decision of 19 February 2003 to initiate the investigation procedure
         did not alter the classification in question. There was thus no need to bring an action against the latter decision. 
      
      81      The applicant next submits that neither Article 88(2) EC nor Regulation No 659/1999 contains a provision stipulating the procedure
         to be followed to revoke an unfavourable decision. Article 9 of Regulation No 659/1999 is applicable only to the revocation
         of favourable decisions taken pursuant to Article 4(2) or (3), or Article 7(2), (3), (4) of that regulation, that is to say,
         decisions by which the Commission finds there not to be aid or that aid is compatible with the common market, whether that
         be with or without conditions. The revoked articles concerned aid which was either regarded as having been used incorrectly
         or declared to be incompatible with the common market. In addition, Article 9 of Regulation No 659/1999 provides for the revocation
         of a decision where that decision is based on incorrect information which is provided during the procedure and which is a
         determining factor in reaching that decision. However, the revocation of Articles 1, 2 and 5 of Decision 2002/827 was not
         the result of incorrect information but of an unlawful act caused by the infringement of the applicable rules of procedure.
         
      
      82      The applicant submits that, since Regulation No 659/1999 does not lay down any procedure for the revocation of unfavourable
         decisions which are unlawful, the Commission should have revoked the contested decision of its own motion and without delay.
         By applying the procedure laid down in Article 9 of Regulation No 659/1999 to revoke Articles 1, 2 and 5 of Decision 2002/827,
         the Commission infringed the principle of legality in so far as it maintained those provisions in force until the date on
         which the contested decision was adopted, namely 5 November 2003, even though it was aware that they were unlawful, thereby
         forcing the applicant to bear the costs and disadvantages related to the enforcement proceedings initiated by the Spanish
         authorities. The Commission also infringed the principle of good administration, as laid down in Article 41(1) of the Charter
         of Fundamental Rights of the European Union, according to which every person has the right to have his or her affairs handled
         within a reasonable time by the institutions and bodies of the Union.
      
      83      The applicant adds that, given that it found it necessary to revoke Articles 1, 2 and 5 of Decision 2002/827, the Commission
         cannot dispute the unlawfulness of that decision. 
      
      84      In addition, it disputes the relevance of the fact that the action was not brought against Article 6 of the contested decision,
         since the action does not seek annulment of the revocation made by that provision, but concerns the revocation procedure followed
         by the Commission. 
      
      85      The Commission considers that that plea is inadmissible because it was brought out of time. The decision of 19 February 2003
         to initiate the procedure precludes the immediate revocation of Articles 1, 2 and 5 of Decision 2002/827. The applicant should
         thus have brought an action against the decision to initiate the procedure. 
      
      86      In addition, the Commission states that, since the action is not brought against Article 6 of the contested decision, which
         revokes Articles 1, 2 and 5 of Decision 2002/827, the action cannot be directed at the way in which that revocation was carried
         out. If the Commission had immediately revoked the decision it would, in any event, have been required to initiate the procedure
         laid down in Article 88(2) EC to re-examine the compatibility of the aid in question. According to the Commission, the failure
         to have revoked the decision immediately does not affect the provisions at issue in the present action in any way. In addition,
         on the assumption that Article 9 of Regulation No 659/1999 does not permit the type of revocation which was carried out in
         the present case, that unlawful act concerned only Article 6 of the contested decision, which is a provision which the present
         action is not directed at. 
      
      87      The Commission next submits that Decision 2002/827 turned out to be based on partially incorrect information as a result of
         qualifications occasioned by the applicant when it submitted new information as part of the procedure which led to the adoption
         of the contested decision. It concedes that the reasons which led it to reopen the procedure, namely doubts about the procedure
         which led to the adoption of Decision 2002/827 and an interest in strengthening procedural guarantees, are not expressly laid
         down in Article 9 of Regulation No 659/1999. However, according to the Commission, the cases of revocation specified in that
         provision are not exhaustive. The general principles of Community law permit the revocation of negative decisions where doubts
         arise in respect of the regularity of the adoption procedure (Case 15/85 Consortia Cooperative d’Abruzzo v Commission [1987] ECR 1005, paragraphs 12 and 17). 
      
      88      As regards the way in which the re-examination was carried out, the Commission submits that that re-examination was likely
         to have an effect on the applicant’s competitors. The method of re-examination of the situation was thus, according to the
         Commission, in conformity with the principles of legality and good administration. 
      
       Findings of the Court
      –       Admissibility 
      89      According to settled case-law, any measure the legal effects of which are binding on, and capable of affecting the interests
         of, the applicant by bringing about a distinct change in his legal position is an act or a decision which may be the subject
         of an action for annulment in terms of Article 230 EC for a declaration that it is void (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9; Case T‑81/97 Regione Toscana v Commission [1998] ECR II‑2889, paragraph 21; and order of the Court of First Instance in Case T‑276/02 Forum 187 v Commission [2003] ECR II‑2075, paragraph 39).
      
      90      In the case of acts or decisions adopted by a procedure involving several stages in particular where they are the culmination
         of an internal procedure, an act is open to review only if it is a measure definitively laying down the position of the institution
         on the conclusion of that procedure, and not a provisional measure intended to pave the way for that final decision (IBM v Commission, paragraph 10, and Case T‑64/89 Automec v Commission [1990] ECR II‑367, paragraph 42).
      
      91      In accordance with that case-law, the final decision adopted by the Commission in order to conclude the formal review procedure
         provided for in Article 88(2) EC constitutes a measure which may be contested on the basis of Article 230 EC. Such a decision
         produces effects which are binding on and capable of affecting the interests of the parties concerned, since it concludes
         the procedure in question and definitively decides whether the measure under review is compatible with the rules applying
         to State aid. Accordingly, interested parties are always able to contest the final decision which concludes the formal review
         procedure and must, in that context, be able to challenge the various elements which form the basis for the position definitively
         adopted by the Commission (Case T‑190/00 Regione Siciliana v Commission [2003] ECR II‑5015, paragraph 45).
      
      92      That right is independent of whether the decision to initiate the formal review procedure gives rise to legal effects which
         may be the subject-matter of an action for annulment. The right to contest a decision to initiate the formal procedure may
         not diminish the procedural rights of interested parties by preventing them from challenging the final decision and relying
         in support of their action on defects at any stage of the procedure leading to that decision (Regione Siciliana v Commission, paragraphs 46 and 47).
      
      93      Therefore, the Commission cannot rely on the fact that the second plea put forward by the applicant was raised out of time.
      
      –       Substance
      94      The applicant submits, in effect, that the contested decision is vitiated by a substantial procedural defect. Since the procedure
         laid down in Article 9 of Regulation No 659/1999 is not applicable, the Commission infringed the principles of legality and
         good administration by revoking Articles 1, 2 and 5 of Decision 2002/827 only at the end of the formal investigation procedure
         initiated with a view to the adoption of the contested decision and not immediately when the decision to initiate that formal
         procedure was adopted. 
      
      95      It should be pointed out, in that regard, that the procedure laid down in Article 9 of Regulation No 659/1999 was not applied
         in the present case. Neither the decision to initiate the formal investigation procedure nor the contested decision refer
         to the application of the procedure laid down in Article 9 of Regulation No 659/1999. It follows that, in so far as the applicant
         submits in the context of this plea that the Commission was wrong to use the procedure laid down in Article 9 of Regulation
         No 659/1999, the plea must be rejected as lacking any factual basis. 
      
      96      In addition, as the applicant contends, that procedure was not applicable. It is apparent from the wording of Article 9 of
         Regulation No 659/1999 that the procedure laid down in that provision applies only to the revocation of positive decisions
         taken pursuant to Article 4(2) or (3), or Article 7(2), (3) or (4) of that regulation, adopted on the basis of incorrect information
         provided during the procedure. In the present case, Articles 1, 2 and 5 of Decision 2002/827 constitute a negative decision
         since they establish the wrongful application of an amount of aid authorised for 1998 and 2000 and the incompatibility with
         the common market of the aid granted unlawfully for 2001. 
      
      97      That said, it must be pointed out that, in any event, the Commission’s right to revoke a decision on State aid is not restricted
         solely to the situation referred to in Article 9 of Regulation No 659/1999. That provision is merely a specific expression
         of the general principle of law according to which retrospective withdrawal of an unlawful administrative act which has created
         subjective rights is permissible (see, inter alia, Joined Cases 7/56 and 3/57 to 7/57 Algera and Others v Assembly [1957] ECR 39, at 56; Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraph 10; and Case T‑197/99 Gooch v Commission [2000] ECR-SC I-A-271 and II-1247, paragraph 53), in particular if the administrative act at issue was adopted on the basis
         of false or incomplete information provided by the party concerned (see Case 42/59 and 49/59 S.N.U.P.A.T. v High Authority [1961] ECR 53, at 87). The right to withdraw retroactively an unlawful administrative act which has created subjective rights
         is not, however, limited to that situation alone, since such a withdrawal may always be carried out provided that the institution
         which adopted the act complies with the conditions relating to reasonable time-limits and the legitimate expectations of beneficiaries
         of the act who have been entitled to rely on its lawfulness. 
      
      98      In the present case, it is apparent from the decision to initiate the formal investigation procedure that the reason for initiating
         that formal procedure was not based on an erroneous assessment by the Commission in Decision 2002/827 of the unlawful nature
         of the application of the aid authorised for 1998 and 2000 and the compatibility with the common market of aid granted for
         2001, but only on doubts that had arisen as to whether the applicable rules of procedure had been complied with. 
      
      99      In addition, it does not appear from the documents before the Court that, when the formal procedure was initiated the Commission
         had information at its disposal indicating that Articles 1, 2 and 5 of Decision 2002/827 were based on an erroneous assessment
         of the compatibility of the aid at issue.
      
      100    In addition, it must be found that the fact that Articles 1, 2 and 5 of Decision 2002/827 were not immediately revoked was
         not capable of having any bearing whatsoever on the content of Articles 1, 3 and 4 of the contested decision, which are the
         subject of this action for annulment. The applicant has not shown, or even claimed, that the maintaining in force of Decision
         2002/827 during the formal investigation procedure was likely to affect the right of the parties concerned to submit their
         observations. 
      
      101    As regards, once more, the circumstance alleged by the applicant (see paragraph 82 above), that the fact that the abovementioned
         articles were not revoked immediately forced it to bear the costs and disadvantages related to the enforcement proceedings
         initiated by the Spanish authorities, it is sufficient to point out that, by its very nature, that permit is not relevant
         in the context of the present action for annulment. 
      
      102    Thus, even if it were to be considered as the applicant contends, that the Commission infringed the principles of legality
         and good administration by failing to revoke Articles 1, 2 and 5 of Decision 2002/827 at the time at which the formal investigation
         procedure was initiated, such an irregularity, assuming that one is established, would not, in any event, be capable of rendering
         Articles 1, 3 and 4 of the contested decision invalid. 
      
      103    The second plea must therefore be rejected.
      
       The third plea, alleging infringement of the principle of the protection of legitimate expectations and essential procedural
            requirements 
       Arguments of the parties
      104    The third plea is divided into two parts, the first constituting the primary submission and the second the alternative one.
      
      105    In the first part, the applicant submits that the decision to initiate the formal investigation procedure indicated that that
         procedure had been reopened with a view to revoking Articles 1, 2 and 5 of Decision 2002/827 and to replacing that decision
         with a new final decision. 
      
      106    The contested decision declared unlawful and unjustified the aid totalling EUR 513 757.49 (ESP 85 482 054) unlawful, relating
         to the north overburden excavation, in the Busiero sector and the aid totalling EUR 508 456.24 (ESP 84 600 000), relating
         to the construction of ventilation shafts and other ventilation works in the Sorriba sector. According to the applicant, that
         aid could, however, have been regarded as compatible with the common market by Decision 2002/827, and was thus not covered
         by Articles 1, 2 and 5 thereof. 
      
      107    In so far as the Commission’s favourable position as regards the aid mentioned above was not based on inaccurate information,
         one of the conditions laid down in Article 9 of Regulation No 659/1999 has not been met. The decision to initiate the revocation
         procedure was based solely on the infringement of essential procedural requirements in the procedure followed for the purposes
         of adopting Decision 2002/827. Consequently, since the conditions for the application of Article 9 of Regulation No 659/1999
         were not met, the Commission infringed the principle of the protection of legitimate expectations in so far as the applicant
         was legitimately entitled to consider that Decision 2002/827 was definitive inasmuch as it concerned the aid which had not
         been declared incompatible with the common market. 
      
      108    The applicant submits that the assessment made by the Commission in Decision 2002/827 is based on a document concerning the
         restoration of abandoned mining works which set out a breakdown of the costs caused by the closure of part of the mining installations.
         Those costs expressly included the expenses at which the amount of EUR 1 022 213.33 was directed in respect of the north overburden
         excavation, in the Buseiro sector and the construction of shafts and other ventilation works in the Sorriba sector. In addition,
         it is apparent from the decision to initiate the formal investigation procedure in order to revoke Decision 2002/827 that
         the Commission used that document in support of its preliminary analysis of the aid received by the applicant. 
      
      109    The applicant denies that the statement of reasons in Decision 2002/827 does not cover the costs at which the amount of EUR 1 022 213.33
         was directed and notes that the reasoning of an act must be evaluated in the light not only of its literal reading but also
         of its context and the facts of the case (Case C‑17/99 France v Commission [2001] ECR I‑2481, paragraph 36, and Case C‑114/00 Spain v Commission [2002] ECR I‑7657, paragraph 63).
      
      110    In the second part of that plea, the applicant submits in the alternative that, if the Court of First Instance were to find
         that Article 9 of Regulation No 659/1999 permitted, in the present case, the revocation of Decision 2002/827, the Commission
         infringed the procedure applicable under Article 6 of Regulation No 659/1999. 
      
      111    That provision requires that, before revoking a favourable decision, the Commission must initiate a formal investigation procedure
         and that, in the decision to open that formal procedure, it must carry out a preliminary examination of the parts of the decision
         which it intends to revoke and express its doubts as to the compatibility of the aid in question with the common market. The
         purpose of that requirement is to enable the interested parties to submit their observations, in accordance with the principle
         that no unfavourable decision may be adopted without giving the parties adversely affected by the act the opportunity to submit
         their observations in respect of the doubts which might be entertained by the Commission (Case C‑301/87 France v Commission [1990] ECR I‑307, paragraph 29; the Opinion of Advocate General Alber in Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, I‑7876, points 96 and 99; and Joined Cases T‑228/99 and T‑233/99 Land Nordrhein‑Westfalen v Commission [2003] ECR II‑435, paragraphs 142 and 147).
      
      112    The formal investigation procedure initiated by the Commission concerned only the revocation of Articles 1, 2 and 5 of Decision
         2002/87 and not the views set out in that decision that were favourable to the undertaking, declaring some of the aid to be
         compatible with the common market. In addition, the Commission did not carry out any form of preliminary examination or express
         any doubts about the aid which had been the subject of a positive assessment in Decision 2002/827. On the contrary, according
         to the applicant, in the decision to initiate the formal investigation procedure the aid considered to be compatible with
         the internal market in Decision 2002/827 would have been considered as such once again. 
      
      113    By not informing the Spanish authorities and the applicant of either the doubts which it had in respect of the aid which had
         been considered to be compatible with the common market in Decision 2002/827 or of the possible revocation of that decision
         to a greater extent than only Articles 1, 2 and 5 thereof, the Commission did not enable the Kingdom of Spain and the applicant
         to submit relevant observations in that regard. Articles 1, 3 and 4 of the contested decision are thus vitiated by a procedural
         error. 
      
      114    The Commission denies that this plea in law is well founded.
      
       Findings of the Court
      115    As regards the first part of this plea, the Court observes that it is apparent from recital 3 in the preamble to Decision
         2002/827 that the purpose of that decision was, in particular, to examine, first, the possible incorrect use of the aid to
         cover exceptional costs referred to in Article 5 of Decision No 3632/93, granted for 1998 and 2000 totalling EUR 3 918 049.35
         (ESP 651 908 560) and EUR 2 786 246.34 (ESP 463 592 384) respectively and which was covered by authorising decisions 98/637
         and 2001/162 and, second, the compatibility with the common market of the aid to cover exceptional costs referred to in Article
         5 of Decision No 3632/93, granted for 2001 in anticipation of the Commission’s decision, totalling EUR 2 367 817 (ESP 393
         971 600).
      
      116    It is apparent from Articles 1 and 2 of Decision 2002/827, read in the light of recitals 3 and 19 to 22 in the preamble to
         that decision, that the Commission considered that EUR 2 745 428.96 (ESP 456 800 943) of the aid to cover exceptional costs
         authorised for 1998 and 2000 had been incorrectly used. As regards the aid to cover exceptional costs granted for 2001, the
         Commission considered that the whole of that aid, namely EUR 2 367 817 (ESP 393 971 600), was incompatible with the common
         market. 
      
      117    It must thus be found that Articles 1, 2 and 5 of Decision 2002/827 declared incompatible with the common market and ordered
         the Kingdom of Spain to recover all of the aid to cover exceptional costs granted for 1998, 2000 and 2001, with the exception,
         however, of the sum of EUR 3 958 866.73 (ESP 658 700 000) granted for 1998 and 2000, which the articles referred to above
         do not rule on, and which therefore remained within the scope of authorising decisions 98/637 and 2001/162. 
      
      118    According to the applicant, the amounts of EUR 513 757.49 (ESP 85 482 054) and EUR 508 456.24 (ESP 84 600 000) relating, respectively,
         to the north overburden excavation in the Buseiro sector and the construction of ventilation shafts and other ventilation
         works in the Sorriba sector form part of the amount of EUR 3 958 866.73 (ESP 658 700 000) which corresponds to the part of
         the aid to cover exceptional costs granted for 1998 and 2000 which was not declared to have been used incorrectly. 
      
      119    In that regard, contrary to what the applicant claims, it must be made clear that, although the Commission did not state in
         Decision 2002/827 that that part of the aid to cover exceptional costs granted for the years 1998 and 2000 had been incorrectly
         used, it cannot however be considered, a contrario, that it took the view that that aid had been used in accordance with the requirements of Article 5 of Decision No 3632/93.
         In the light of the information which was submitted for its appraisal, the Commission considered only that those amounts of
         aid had not been used incorrectly. Thus, the fact that Decision 2002/827 found that only part of the aid to cover exceptional
         costs granted for the years 1998 and 2000 had been incorrectly applied does not confer any additional individual right on
         the applicant which had not already been conferred by the initial authorising decisions in respect of the other part of the
         aid in question which was not found to have been incorrectly used. As has already been pointed out in paragraph 117 above,
         that part of the aid remained within the scope of Authorising Decisions 98/637 and 2001/162 and benefits, as such, from a
         presumption that it was not used incorrectly (see, to that effect, Joined Cases T‑111/01 and T‑133/01 Saxonia Edelmetalle and Zemag v Commission [2005] ECR II‑1579, paragraph 86).
      
      120    In addition, in so far as the Commission intended to revoke Articles 1, 2 and 5 of Decision 2002/827, namely the provisions
         relating to the incompatibility with the common market of the aid to cover exceptional costs granted for 1998, 2000 and 2001,
         and to adopt a new decision in that regard, it was bound, in respect of the examination of the possible incorrect use of the
         aid granted for 1998 and 2000 to carry out that re-examination on a factual basis identical to that which existed when Decision
         2002/827 was adopted. Similarly, in so far as the whole of the aid to cover exceptional costs granted for 2001 was declared
         incompatible with the common market, the Commission had to re-examine that aid in its entirety. Therefore, the examination
         carried out in the context of the new formal procedure had to relate to all the amounts of aid covered by the first examination
         in the context of the procedure which led to the adoption of Decision 2002/827. As was pointed out in paragraph 115 above,
         it is apparent from recital 3 in the preamble to Decision 2002/827 that the purpose of that decision was to examine, first,
         the possible incorrect use of the amounts of EUR 3 918 049.35 (ESP 651 908 560) and EUR 2 786 246.34 (ESP 463 592 384) granted
         to the applicant for 1998 and 2000 respectively, in the context of Article 5 of Decision No 3632/93, and, second, the conformity
         with that provision of the amount of EUR 2 367 817 (ESP 393 971 600), granted to the applicant for the year 2001, in anticipation
         of the Commission’s decision. 
      
      121    In the light of the above, the applicant cannot rely on a legitimate expectation that the amounts of aid which were not considered
         to have been used incorrectly by Decision 2002/827 would not fall within the scope of the Commission’s examination in the
         context of the new formal procedure in which the decision to initiate was notified to the Kingdom of Spain by letter of 19
         February 2003. 
      
      122    For those reasons, even if it were to be considered, as the applicant contends, that the amounts of EUR 513 757.49 (ESP 85 482 054)
         and EUR 508 456.24 (ESP 84 600 000) relating, respectively, to the north overburden excavation in the Busiero sector and the
         construction of ventilation shafts and other ventilation works in the Sorriba sector, were not covered by Articles 1, 2 and
         5 of Decision 2002/827, it cannot, in any event, be found that the contested decision was adopted in breach of the principle
         of the protection of legitimate expectations based on the fact that, in that latter decision, the Commission considered that
         the amounts of aid in question were compatible with the common market.
      
      123    The first part of the third plea must therefore be rejected.
      
      124    As regards the second part of that plea, alleging infringement of the procedure applicable under Article 6 of Regulation No
         659/1999, it must be noted that, in accordance with that provision, the decision to initiate the formal procedure must give
         the interested parties the opportunity effectively to participate in the formal investigation procedure, during which they
         will have the opportunity to put forward their arguments. For that purpose, it is sufficient for the parties to be aware of
         the reasoning which led the Commission provisionally to conclude that the measure in issue might constitute new aid incompatible
         with the common market (Joined Cases T‑195/01 and T‑207/01 Government of Gibraltar v Commission [2002] ECR II‑2309, paragraph 138, and Joined Cases T‑269/99, T‑271/99 and T‑272/99 Diputación Foral de Guipúzcoa and Others v Commission [2002] ECR II‑4217, paragraph 105).
      
      125    In carrying out the procedure involving review of State aid the Commission must take account of the legitimate expectations
         which the parties concerned may entertain as a result of what was said in the decision to initiate the procedure (Case T‑6/99
         ESF Elbe-Stahlwerke Feralpi v Commission [2001] ECR II-1523, paragraph 126) and, subsequently, that it will not base its final decision on the absence of information
         which, in the light of what was said in that decision, the parties concerned could not have formed the view that they were
         under a duty to make available to it.
      
      126    In the present case, the applicant submits that, in the decision to initiate the formal investigation procedure, the Commission
         did not express any doubts in respect of the compatibility with the internal market of the amounts of EUR 513 757.49 (ESP
         85 482 054) and EUR 508 456.24 (ESP 84 600 000) relating, respectively, to the overburden excavation in the Buseiro sector
         and the construction of ventilation shafts and other ventilation works in the Sorriba sector. 
      
      127    The Court finds, however, that the decision to initiate the formal investigation procedure contained observations which enabled
         the interested parties to submit their arguments in relation to the compatibility with the common market of the amounts of
         aid at issue. 
      
      128    As regards the aid to cover the amount of EUR 513 757.49 (ESP 85 482 054) relating to the overburden excavation in the Busiero
         sector, it should be observed that, in point 5 of the decision to initiate the formal procedure, entitled ‘Request for information’,
         the Commission requested that it be sent a report of independent mining experts containing, in particular, ‘evidence as to
         whether the costs of moving earth in the Buseiro open-cast mine were entered for the financial year in which they were required
         as operating costs or investment costs’. 
      
      129    As the Commission rightly pointed out in its responses to the Court’s written questions, it follows from Article 5 of Decision
         3632/93 that only costs which are not related to current production may benefit from aid to cover exceptional costs. That
         rule, which aims to ensure that the same cost does not benefit both from production aid and aid to cover exceptional costs,
         is applied in the fourth paragraph of point V of Decision 98/637 and in recital 41 in the preamble to Decision 2001/162. 
      
      130    Therefore, the applicant could not be unaware, given the applicable reglementary context, the rules of which were reiterated
         in Authorising Decisions 98/637 and 2001/162, that the entering in the undertaking’s accounts of the cost of moving earth
         in the Buseiro sector as a production cost was likely to lead the Commission to consider that the aid to cover exceptional
         costs did not comply with the conditions laid down in Article 5 of Decision No 3632/93. 
      
      131    In that regard, the Court notes that, although the applicant submits that the costs relating to the moving of earth in the
         Buseiro sector result from the closing of mining installations, it does not dispute the fact that those costs were partially
         covered by operating aid within the meaning of Article 3 of Decision No 3632/92 and that those costs thus benefited from cumulation
         of aid.
      
      132    In the light of the above, the Court considers that the Commission’s request for information, referred to in paragraph 128
         above, was capable of enabling the applicant to put forward its arguments and to provide the information which it might consider
         necessary in that regard with full knowledge of the facts. 
      
      133    As regards the aid to cover the amount of EUR 508 456.24 (ESP 84 600 000), concerning the construction of ventilation shafts
         and other ventilation works in the Sorriba sector, the Court finds that, in point 4.2 of the decision to initiate the formal
         investigation procedure relating to aid to cover exceptional costs for 2001, the Commission stated that ‘the costs corresponding
         to safety work within the mine [did] not correspond … to the restructuring which took place between 1998 and 2001, in the
         light of the fact that those works [involved] ventilation shafts necessary for the mining of other reserves in the Sorriba
         sector’. 
      
      134    In addition, in point 5 of that decision, relating to the application for information, the Commission requested that the report
         of the independent mining experts provide explanations regarding the question whether the objective of the extraction works
         in 2001, aimed at ensuring the safety of the adjacent sectors and the modification of the ventilation circuit, was to ensure
         the safety of the abandoned workings or to carry out the work necessary for the exploitation of new reserves.
      
      135    It must thus be found that the Commission expressed doubts as regards the conformity with Article 5 of Decision No 3632/93
         of the aid to cover the costs relating to the construction of ventilation shafts and other ventilation works in the Sorriba
         sector. Therefore, the applicant could reasonably have submitted its observations during the administrative procedure. 
      
      136    Since none of the arguments put forward by the applicant in support of the second part of the third plea can be upheld, that
         part must be rejected.
      
      137    Accordingly, the third plea must be rejected as unfounded in its entirety.
      
       The fourth plea, alleging manifest errors of assessment
      138    The applicant submits that the Commission committed manifest errors of assessment in declaring seven amounts of aid to be
         incompatible with the common market. The Court will examine, in turn, the complaints put forward by the applicant in relation
         to each of those amounts of aid. 
      
       The amount of EUR 295 409.47 (ESP 49 152 000) relating to the construction of 1 030 m of galleries in the La Phohida subsector
      –       Contested decision
      139    In recital 75 in the preamble to the contested decision, the Commission considered, in particular, that the cost of the construction
         of 1 030 m of galleries needed for the working of the 170 000 t of abandoned coal had been put down, in the undertaking’s
         accounts, to operating costs. In so far as 40% of those costs were covered by State aid, the Commission considered that, in
         order to avoid a cumulation of incompatible aid, a maximum of 60% of the construction costs of those 1 030 m of galleries
         could be justified, namely EUR 443 114.21 (ESP 73 728 000). The Commission thus took the view that the remainder, namely EUR 295 409.47
         (ESP 49 152 000), was not compatible with the common market. 
      
      –       Arguments of the parties
      140    The applicant submits that the Commission’s assessment is unjustified in the light of the definitive cessation of all workings
         in the La Prohida subsector and in the light of the fact that the Commission considered as compatible with the common market
         the aid to cover the costs related to the definitive abandonment of a total of 3 070 m of galleries in other parts of the
         La Prohida subsector. 
      
      141    Although the Commission considers that the estimate of the cost of construction of those 1 030 m of galleries is excessive,
         it did not provide any other comparative criterion which would make it possible to determine what that cost should be under
         prevailing market conditions. 
      
      142    The applicant denies that a significant part of the 1 030 m of abandoned galleries was allocated to the extraction of coal
         and states that the Commission does not indicate the precise part of those galleries which was used for the alleged mining
         of the coal reserves, nor the duration of that alleged use. It stresses that the abovementioned gallery was of no practical
         use before its closure in so far as it had been dug out only in order to gain access to 170 000 t of coal, the extraction
         of which had been abandoned, which is the reason why that gallery was valued according to its construction cost. 
      
      143    In response to the Commission’s arguments that 40% of the costs related to the definitive abandonment of 1 030 m of galleries
         in the La Prohida subsector were covered by operating aid, the applicant claims that operating aid and aid to cover exceptional
         costs have different objectives and must therefore be distinguished. The fact that those costs were entered as operating costs
         in the annual accounts does not prevent them from being assimilated to exceptional costs, since those costs do not result
         from current production but from the closure of mining installations. 
      
      144    The Commission denies that the arguments put forward by the applicant are well founded.
      
      –       Findings of the Court
      145    It should be noted that, in its written pleadings, the applicant expressly admits that the costs relating to the construction
         of the 1 030 m of galleries were entered as operating costs in the undertaking’s accounts. The applicant also does not contest
         the fact, stated in recital 75 in the preamble to the contested decision, that those costs were covered by operating aid within
         the meaning of Article 3 of Decision No 3632/93. In so far as the applicant submitted, at the hearing, that the proportion
         of the costs which were covered by operating aid was not established in a sufficiently precise manner by the Commission, it
         must be found that it did not provide any information that would show any error on that institution’s part.
      
      146    Accordingly, it cannot be found that the Commission made a manifest error of assessment by accepting the compatibility of
         the aid to cover exceptional costs in respect only of 60% of the costs considered. As the Commission rightly points out, to
         allow 100% of those cost and closure aid would give rise to a cumulation of aid of 140%, which would be manifestly incompatible
         with the common market.
      
      147    In addition, since the reason for which the amount of aid at issue was declared incompatible is based on the fact that the
         cost of the construction of 1 030 m of galleries was recorded as an operating cost, the applicant’s argument claiming that
         the Commission wrongly considered that the cost of the construction of those galleries was excessive, is irrelevant.
      
      148    Finally, the applicant also cannot plead that the Commission accepted the compatibility of the aid intended to cover the costs
         relating to the definitive abandonment of a total of 3 070 m of galleries in other parts of the La Prohida subsector. The
         Commission authorised that aid in the light of the fact that, in the undertaking’s accounts, the costs relating thereto were
         recorded as fixed assets.
      
      149    That complaint must therefore be rejected as unfounded. 
      
       The amount of EUR 513 757.49 (ESP 85 482 054) relating to the moving of 1 005 080 m³ of earth in the Buseiro sector 
      –       Contested decision
      150    In recital 81 in the preamble to the contested decision, the Commission stated that the amount of EUR 1 902 805.52 (ESP 316
         600 200) related to the movement of 1 005 080 m³ of earth in the Buseiro sector was entered in the undertaking’s accounts
         as an operating cost. The Commission observed that the applicant had received aid to cover operating losses, which were of
         the order of 27% of the production costs. Consequently, 27% of the EUR 1 902 805.52 (ESP 316 600 200) corresponding to the
         moving costs recorded by the undertaking, namely EUR 513 757.49, could not be covered by closure aid since they were already
         covered by aid to compensate the open-cast operating losses. 
      
      –       Arguments of the parties
      151    The applicant submits that the Commission merely considered that the volume of additional earth moved had been overvalued,
         without, however, providing any information which would make it possible to determine the volume which it might have been
         possible to regard as reasonable to move. The applicant disputes, in that regard, the relevance of the Commission’s argument
         alleging that the vein of abandoned coal had a high level of ash, given that, irrespective of the percentage of ash of the
         abandoned reserves of 585 000 t, the volume of earth moved to gain access at more than 545 m above sea level, which is the
         level at which those reserves were situated, had remained the same. 
      
      152    The applicant maintains, in addition, that the cost of moving 1 005 080 m³ of additional earth, namely ESP 315 per m³, was
         in line with the market conditions at the time it was carried out, as is confirmed by the report by independent mining experts.
         It adds that that price is lower than the cost borne by the applicant for the work involved in modernising, setting up, loading
         and transporting earth in 1995 and 1996, which amounted on average to ESP 352.60 per m³.
      
      153    In response to the Commission’s arguments, according to which 27% of the costs relating to moving earth in the Buseiro sector
         were covered by operating aid, the applicant claims that operating aid and aid to cover exceptional costs have different objectives
         and must therefore be distinguished. The fact that those costs were entered as operating costs in the annual accounts does
         not prevent them from being assimilated to exceptional costs, since those costs do not result from current production but
         from the closure of mining installations.
      
      154    The Commission denies that the arguments put forward by the applicant are well founded. 
      
      –       Findings of the Court
      155    In must be noted that, in its written pleadings, the applicant expressly admits that the costs relating to the moving of 1
         005 080 m³ of earth have been recorded as operating costs in the undertaking’s accounts, as is also indicated in the report
         of the independent mining experts. The applicant also does not dispute the fact, stated in recital 81 in the preamble to the
         contested decision, that approximately 27% of those costs were covered by operating aid. As the Court held in paragraph 145
         above, in so far as the applicant submitted, at the hearing, that the proportion of the costs which were covered by operating
         aid was not established in a sufficiently precise manner by the Commission, it must be held that it did not provide any information
         that would show any error on that institution’s part.
      
      156    Accordingly, it cannot be found that the Commission made a manifest error of assessment by accepting the compatibility of
         the aid to cover exceptional costs in respect only of 73% of the total costs of the moving of the 1 005 080 m³ of earth at
         issue. As the Commission rightly points out, to allow 100% of those costs as closure aid would give rise to a cumulation of
         aid of 127%, which would be manifestly incompatible with the common market.
      
      157    In addition, it must be found that, since, in the contested decision, the reason for which the amount of EUR 513 757.49 was
         declared incompatible with the common market was based on the fact that the costs relating to the moving of earth were recorded
         as operating costs in the undertaking’s accounts, the applicant’s arguments seeking to challenge the Commission’s views concerning
         the over evaluation of the volume of earth displaced and of the cost of that work, which were put forward for the sake of
         completeness, are irrelevant. 
      
      158    That complaint must therefore be rejected as unfounded. 
      
       The amount of EUR 547 066.46 (ESP 91 024 200) corresponding to the agreements signed with the Government of Asturias to guarantee
         the restoration of land
      
      –       Contested decision 
      159    In recital 85 in the preamble to the contested decision, the Commission stated that the costs amounting to EUR 547 066.46
         (ESP 91 024 200), corresponding to the agreements signed with the Government of Asturias to guarantee the restoration of land
         after the mining of the open-cast deposit, are part of the production costs of the coal extracted in the western zone of the
         Buseiro sector. It considered that ‘land restoration [was] the final part of the production cycle of an open-cast mine and
         [that] the cost of that restoration [was] a component of the total cost of the coal extracted’. It stated that the applicant
         ‘[did] not provide justification that abandonment of the mine waste tip involves additional restoration costs’ and that, on
         the contrary, it justified those expenses ‘on the basis of the legal obligation established by Royal Decree 1116/1984 of 9
         May 1984 and the Order of the Ministry of Industry and Energy dated 13 June 1984 developing it, which establishes that after
         operations, the areas affected [had to] be restored’. The Commission noted that ‘the company [had] received State aid to cover
         all operating losses, including the restoration of the open-cast mine of Buseiro, [and that] the new aid would be on top of
         that received to cover operating losses’. The Commission thus considered that the amount of EUR 547 066.46 (ESP 91 024 200)
         could not be authorised. 
      
      –       Arguments of the parties
      160    The applicant states that Royal Decree 1116/1984 of 9 May 1984 and the implementing decree of the Ministry of Industry and
         Energy dated 13 June 1984 require mining undertakings to restore land situated in open‑cast coal mines which have been abandoned.
         
      
      161    The applicant restored the 77 ha of land concerned by the mining of the open-cast deposit of Buseiro. A part of that area,
         namely 24.87 ha, corresponds to the area of a waste tip in the eastern zone of the Buseiro deposit which had been abandoned
         as a result of the new sea level. The applicant states that, in accordance with its statutory obligations, it provided securities
         to a total amount of EUR 1 693 504.15 (ESP 281 775 381) as a guarantee for the restoration of the land and that the cost of
         the restoration work for the 24.87 ha of the waste tip was evaluated proportionately in relation to the securities provided.
         That cost thus amounted to EUR 547 066.46 (ESP 91 024 200). 
      
      162    The applicant submits that the abandonment and the restoration of the land stemmed from the modernisation, rationalisation
         and restructuring which it had undertaken in order to benefit from the aid to cover exceptional costs laid down in Article
         5 of Decision No 3632/93, not from the end of the coal production cycle at the Buseiro site. It states that it is illogical
         for the Commission to consider the costs relating to the abandonment of the waste tip to be justified and not those related
         to its restoration, since the latter is directly related to the abandonment of the waste tip. 
      
      163    The applicant alleges that the Commission’s reasoning is such as to lead to the assumption that any costs borne in execution
         of a statutory obligation cannot be classed as exceptional costs within the meaning of Article 5 of Decision No 3632/93, which
         would mean that paragraph I(e) of the Annex to that decision, which classes residual costs resulting from administrative,
         legal or tax provisions as exceptional costs, has no practical effect. 
      
      164    In response to the written questions of the Court, the applicant stated that the contested decision contained an error in
         so far as it was stated that the 24.87 ha of the waste tip in question were situated in the western zone of the Buseiro sector
         although they were actually situated in the eastern zone of that sector. In addition, it stated that that land was not necessary
         for the mining activities carried out in the western zone of the Buseiro sector and that they had not been used for that purpose.
         However, at the hearing, the applicant went back on that statement and indicated that the area in question had been used for
         the storage of the rubble resulting from the extraction of coal in the western part of the Buseiro sector. 
      
      165    The Commission denies that the applicant’s arguments are well founded. 
      
      –       Findings of the Court
      166    The Court observes that the applicant claims only that the abandonment and the restoration of the land stemmed from the restructuring
         carried out in order to obtain aid under Article 5 of Decision No 3632/93. 
      
      167    Inasmuch as, in accordance with Royal Decree 1116/1984 of 9 May 1984, and as is common ground between the parties, the costs
         of restoring the land have to be borne in any case by the undertakings at the end of the production cycle, they are an inherent
         part of the activity of mining. Consequently, the Commission was entitled, without making a manifest error of assessment,
         to take the view that those costs should have been counted as production costs. 
      
      168    In the light of the fact that the applicant received aid to cover operating losses, the Commission was entitled to find that
         those costs had already been covered by operating aid and that aid to cover exceptional costs would be additional to the aid
         received to cover operating losses. 
      
      169    In that context, it must be found that it does not follow from the arguments put forward by the applicant that it provided
         information to the Commission during the administrative procedure intended to explain why, as a result of the abandonment
         of the mining of part of the reserves of the Buseiro sector, part of the costs relating to the restoration of the 24.87 ha
         of the waste tip in question had not been covered by the results of the mining activities. 
      
      170    In the light of the above, the Court takes the view that the Commission did not commit a manifest error of assessment in considering
         that the aid totalling EUR 547 066.46 (ESP 91 024 200) was incompatible with the common market. 
      
      171    As regards the argument put forward by the applicant alleging that the costs of restoration of the land should be able to
         benefit from aid to cover exceptional costs since other costs relating to the abandonment of the waste tip were considered
         to be justified, it is sufficient to point out that the restoration costs represent costs which the applicant had to bear
         in any case at the end of the production cycle. The Commission was thus entitled, without contradicting itself, to consider,
         first, that other costs relating to the abandonment of the waste tip could be covered by restructuring aid since those costs
         would not have had to be borne by the applicant if it had not reduced its production capacity and, second, that the restoration
         costs for the 24.87 ha of land should have been included with operating costs since, as pointed out in paragraph 167 above,
         those costs had to be borne in any case by the applicant at the end of the production cycle.
      
      172    In addition, the applicant has no basis for claiming that the Commission’s reasoning would deprive paragraph I(e) of the Annex
         to Decision No 3632/93 of any practical effect. The Commission’s reasoning is based on the fact that the restoration costs
         of the land had to be borne, in any event, by the applicant at one time or another since that restoration was part of the
         final phase of the production cycle. Paragraph I(e) of the Annex to Decision No 3632/93 none the less permits the covering
         of costs resulting from tax, legal or administrative provisions which the undertaking would never have had to bear in the
         absence of restructuring measures. 
      
      173    That complaint must therefore be rejected as unfounded. 
      
       The amount of EUR 372 176.75 (ESP 61 925 000) corresponding to the purchase price of the land bordering the western zone of
         the Buseiro sector, which was abandoned following the change in sea level
      
      –       Contested decision 
      174    In recital 86 in the preamble to the contested decision the Commission found as follows: 
      
      ‘The land acquired by the company for open-cast mining is registered among the company’s fixed assets, but is not an asset
         that depreciates. The Commission cannot authorise the aid amounting to EUR 372 176.75 ([ESP] 61 925 000) corresponding to
         the purchase price of the land, since this is not considered to be a lost asset and the aid is not covered by any of the points
         of the Annex [to] Regulation (EC) No 1407/2002.’
      
      –       Arguments of the parties
      175    The applicant claims that the purchase of the land at issue enabled the excavation work to be carried out and the embankment
         to be put in place which were necessary for the mining of the deposit in accordance with the initial project. However, those
         works ceased to be of any value following the change in sea level in the western zone of the seam. The applicant states that
         the difference in price between the areas of land which were acquired is attributable to the fact that the seller had managed
         to impose a selling price which was higher than the market value by reason of the urgency with which a large area of land
         needed to be acquired. 
      
      176    The applicant argues that that land is not a lost asset and does not constitute an asset that depreciates. In its view, the
         costs at issue could be classed as exceptional intrinsic depreciation within the meaning of paragraph I(k) of the Annex to
         Decision No 3632/93. 
      
      177    In addition, it submits that the Commission contradicts itself since, in considering the aid aimed at covering the residual
         value of the La Phohida subsector of EUR 2 053 495.41 (ESP 341 672 888) as justified, it included the cost of the acquisition
         of the land abandoned following the closure of the subsector for an amount of ESP 10 436 600.
      
      178    The Commission denies that the applicant’s arguments are well founded. 
      
      –       Findings of the Court
      179    Paragraph I(k) of the Annex to Decision No 3632/93 allows the aid referred to in Article 5 of that decision to extend to costs
         relating to ‘exceptional intrinsic depreciation provided that it results from the restructuring of the industry (without taking
         account of any revaluation which has occurred since 1 January 1986 and which exceeds the rate of inflation)’. 
      
      180    In the present case, it is sufficient to point out that the applicant admits, in its written pleadings, that the land at issue
         was not subject to depreciation after the activities for which it was used were brought to an end. The applicant thus cannot
         legitimately claim that those costs may fall within the category referred to in Paragraph I(k) of the Annex to Decision No
         3632/93. 
      
      181    Consequently, it cannot be found that the Commission made a manifest error of assessment by holding that the costs in dispute
         could not be covered by restructuring aid. 
      
      182    The applicant claims, however, that the Commission’s practice is incoherent and contradictory inasmuch as it accepted that
         the aid to cover the residual value of the La Phohida subsector also covers the cost of the acquisition of the abandoned land.
         It must be pointed out, however, that that fact does not alter the finding made above that the Commission did not make a manifest
         error of assessment in considering that the purchase value of the land acquired by the undertaking for the open‑cast mine
         did not amount to exceptional intrinsic depreciation as referred to in Paragraph I(k) of the Annex to Decision No 3632/93,
         since it is common ground that that land did not constitute a depreciating asset. 
      
      183    In addition, in so far as the Commission accepted that the costs of land which were not subject to depreciation were covered
         by aid to cover exceptional costs on the basis of Paragraph I(k) of the Annex to Decision No 3632/93, or an equivalent provision
         of Regulation No 1407/2002, that acceptance does mean that the contested decision is vitiated by a manifest error of assessment
         in that regard. It must instead be held that the Commission made a manifest error of assessment in accepting that the purchase
         cost of the non‑depreciated land abandoned after closure of the La Prohida subsector might be covered by aid to cover exceptional
         costs. In that regard, it is sufficient to point out that, by virtue of the principle of legality, the applicant cannot rely,
         in support of his claim, on an unlawful act committed in the context of the assessment of the compatibility with the common
         market of other amounts of aid (see, to that effect, Case T‑327/94 SCA Holding v Commission [1998] ECR II‑1373, paragraph 160).
      
      184    It follows from the above that this complaint must be rejected as unfounded. 
      
       The amount of EUR 1 403 316.30 (ESP 233 492 186) relating to the costs incurred following the repayment of the subsidies granted
         under the SPCA
      
      –       Contested decision 
      185     In recital 87 in the preamble to the contested decision, concerning the amount of EUR 1 403 316.30 (ESP 233 492 186) relating
         to the refundable subsidies received by the applicant under the programme entitled ‘Plan Estatéfico de Accíon Competitiva’
         (Strategic Plan for Competitive Action) (SPCA), whose purpose is to promote the production of coal in economically viable
         conditions and to increase productivity, the Commission stated that those loans had ‘[been] received during the period 1990
         to 1993 when the projects [had been] implemented’, and that it was apparent from Annex III to the agreement signed with the
         Ministry of Industry and Energy that the refundable loan of ESP 315 500 000 was mainly intended for the establishment of the
         new system of operation by ‘soutirage’. According to the Commission, ‘Annex III of the SPCA Agreement also refer[ed] to “clear
         indications of exceptional open-cast operations, which would enhance the estimated profitability of the whole” and of an annual
         production target of 240 000 marketable tonnes, which was exceeded’.
      
      186    The Commission found that the repayment of ESP 233 492 186 (EUR 1 403 316) in 1999 and 2000 corresponded to the repayments
         of the loans received between 1990 and 1993 and was unrelated to the plan notified to the Commission for the period from 1998
         to 2001 to reduce the undertaking’s activities. The Commission also stated that it was apparent from the letter of the Ministry
         of Industry and Energy sent by registered post on 22 December 1997, and other documents which were sent to it, that the repayments
         which the undertaking made in 1999 and 2000 were much higher than envisaged in the initial plan, owing to payment delays.
         It pointed out that the refundable loan of ESP 313 500 000 was accompanied by non‑refundable subsidies of ESP 209 000 000
         and ESP 23 000 000 for research and technological development activities. 
      
      187    The Commission noted that the applicant received aid each year to cover approximately 40% of the underground operating costs
         and 27% of the open-cast operating costs. In addition, the entire residual value on 31 December 2000 of the fixed assets in
         the La Prohida subsector and in a substantial part of the Buseiro sector was proposed to be authorised under the contested
         decision. The Commission thus considered that the aid amounting to ESP 233 492 186 (ESP 181 292 186 for 1998 and ESP 52 200
         000 for 2000) corresponding to the repayment of SPCA subsidies, which could include investments in mine works in the La Prohida
         subsector, would have resulted in a cumulation of aid incompatible with the common market.
      
      –       Arguments of the parties
      188    The applicant states that it received an amount of ESP 313 500 000 by way of a refundable subsidy which, in accordance with
         the contract concluded on 30 December 1989 with the Ministry of Industry and Energy, was allocated to the installations and
         assets aimed at increasing mining production. The schedule of repayments of that amount ran over the period from 1994 to 2000.
         During 1999 and 2000, the applicant repaid a total of ESP 233 492 186. 
      
      189    The applicant submits that it had to repay that amount, which was intended, originally, to increase its production capacity
         while engaging in a progress of progressive reduction of that capacity in 1998 and 2000 in the Buseiro and La Prohida seams.
         The applicant was thus not able to offset and write down the repayment of the amount at issue by increasing its extraction
         capacity. 
      
      190    The Commission denies that the applicant’s arguments are well founded. 
      
      –       Findings of the Court
      191    The applicant does not dispute that the authorisation of the aid for reconstruction would lead to a cumulation of incompatible
         aid since, first, the undertaking received aid to cover approximately 40% of the costs of the underground mine and 27% of
         the costs of the open-cast mine and, second, the aid to cover the entire residual value, as at 31 December 2000, of the fixed
         assets in the La Prohida subsector and in a substantial part of the Buseiro sector are authorised by the contested decision.
         The applicant also does not dispute that the repayment which it made in 1999 and 2000 were much higher than envisaged in the
         initial plan, owing to payment delays. 
      
      192    In addition, the Court notes that the applicant has provided no evidence to show that it sent the Commission, during the administrative
         procedure, precise information enabling the latter to determine, where necessary, the part of the loan granted under the SPCA
         which has not already been written down by the increase in the extraction capacity made before the restructuring measures
         were adopted and which has also not been included in the residual value of the mining works covered by the aid to cover exceptional
         costs. 
      
      193    In the light of the above, the Court considers that the Commission did not make a manifest error of assessment in recital
         87 in the preamble to the contested decision by refusing to authorise the amount of EUR 1 403 316.30 (ESP 233 492 186) relating
         to the costs incurred following the repayment of the subsidies granted under the SPCA.
      
      194    That complaint must therefore be rejected as unfounded. 
      
       The amount of EUR 602 146.29 (ESP 100 188 713) relating to the creation of shafts and other work to provide ventilation for
         the Sorriba sector
      
      –       Contested decision 
      195    In recitals 83 and 105 in the preamble to the contested decision, the Commission observed that the aid amounting to EUR 602
         146.29 (ESP 100 188 713) intended for the creation of shafts and other work to provide ventilation for the Tres Hermanas sector
         corresponded to investments in mining infrastructure. It considered that the new investments could not be regarded as liabilities
         inherited from the past within the meaning of Regulation No 1407/2002, or in accordance with Decision No 3632/93. The Commission
         also stated that, as could be deduced from the Kingdom of Spain’s notification of 19 December 2002 concerning the 2003 to
         2007 plan for the restructuring of the coal industry, Spain did not intend to grant aid for investments of the type envisaged
         in Article 5(2) of Regulation No 1407/2002. According to the Commission, such investment aid would moreover be incompatible
         with the aid to cover operating losses of the Sorriba sector which the Kingdom of Spain is granting to the applicant. That
         aid did not correspond to Part I(l) of the Annex to Decision No 3632/93, since the purpose of the investments in question
         was to work the reserves in the Tres Hermanas subsector. That aid also did not correspond to the Annex to Regulation No 1407/2002.
         According to the Commission, the new investments could thus not be regarded as liabilities inherited from the past.
      
      –       Arguments of the parties
      196    The applicant states that the progressive abandonment of the La Prohida subsector required the readaptation of the ventilation
         system of the mine which was still active. Thus 463 m of ventilation shafts were put in place for a total amount of EUR 581
         825.70 (ESP 96 807 659.90).
      
      197    It submits that the Commission made a manifest error of assessment by wrongly considering that the ventilation works were
         of use to operations in the Tres Hermanos subsector. It points out that the abandonment of the La Prohida subsector took place
         step by step making it necessary progressively to adapt the internal ventilation system for the galleries which continued
         to be mined temporarily, in accordance with the requirements of Spanish legislation. Since the ventilation shafts and the
         galleries served by those shafts are now closed, it cannot be considered that the adaptation of the ventilation system constituted
         a new investment. 
      
      198    The applicant adds that, in addition to the construction of the ventilation shafts referred to above and the recovery of a
         transverse gallery, other works, which were necessary to restore ventilation to the mine, were carried out in order to link
         the fourth level of the Tres Hermanos subsector and the first level of the La Prohida subsector. It states that the construction
         of those ventilation shafts was the consequence of the abandonment of the La Prohida subsector and would not have taken place
         if that subsector had not been closed for good. 
      
      199    At the hearing the applicant specified that, at that time, the ventilation system of the Tres Hermanos subsector was still
         in operation and was based on a ventilator situated in the La Phohida subsector. Since then that subsector has been shut down
         entirely. 
      
      200    The Commission denies that the applicant’s arguments are well founded. 
      
      –       Findings of the Court
      201    It is evident from Article 5 of Decision No 3632/93 that aid to cover exceptional costs is intended to cover the costs arising
         from or having arisen from the modernisation, rationalisation or restructuring of the coal industry which are not related
         to current production. 
      
      202    As the applicant itself admits, the abandonment of the La Prohida subsector required that certain work be carried out in order
         to ensure the ventilation of the Tres Hermanos subsector, which remained active. Thus, even if it were to be accepted that
         the reason for the ventilation works in question was the closure of the mine at La Prohida, those works are still related
         to the current production of the mine at Tres Hermanos for the purposes of Article 5 of Decision No 3632/93. 
      
      203    Although the applicant claims that the work in question was necessary in order to ensure the ventilation of the La Prohida
         subsector during the period preceding the abandonment of that subsector, the Court finds that, in the light of the relationship
         between the amounts invested and the temporary nature of the ventilation of the La Prohida subsector during the period in
         which it was being abandoned, the Commission was entitled to consider, without making a manifest error of assessment, that
         the purpose of that work was, in reality, to ensure ventilation in the Tres Hermanos subsector and, consequently, that it
         was related to current production. The Commission’s assessment is supported by the fact, confirmed by the applicant at the
         hearing, that the ventilation system in question is still in use and provides ventilation in the Tres Hermanos subsector.
         
      
      204    Consequently, the Court considers that, in the light of the information at its disposal, the Commission did not make a manifest
         error of assessment by refusing to authorise the amount of EUR 602 146.29 (ESP 100 188 713), relating to the construction
         of ventilation shafts and other ventilation works in the Sorriba sector. 
      
      205    It follows from the above that this complaint must be rejected as unfounded. 
      
       The amount of EUR 601 012.10 (ESP 100 000 000) aimed at covering the exceptional restructuring costs which would be incurred
         in the future by the closure of the La Prohida subsector 
      
      –       Contested decision
      206    In recitals 84 and 106 in the preamble to the contested decision, the Commission observed that the provision of EUR 601 012.10
         (ESP 100 000 000) to cover exceptional restructuring costs which would be incurred in the future by the closure of the La
         Prohida subsector, the partial closure of the Buseiro sector, or both, had not been included in the notification of aid envisaged
         by the Kingdom of Spain for 2001. According to the Commission, that amount could not be declared compatible since it exceeded
         the amount notified and paid in advance by the Kingdom of Spain for that year. 
      
      –       Arguments of the parties
      207    The applicant submits, first, that the Commission made a manifest error of assessment in considering that the provision of
         aid in question concerned not only the La Prohida subsector but also the Buseiro sector. In that regard, the report of the
         independent mining experts shows that that provision of aid was intended solely to cover the future costs of the underground
         seam in the La Prohida subsector. 
      
      208    Next, the applicant claims that the notifications made by the Kingdom of Spain in relation to the aid granted to cover exceptional
         charges do not distinguish between individual costs depending on their intended use. Those notifications concerned the total
         amounts of aid to the mining industry, which is confirmed by the fact the Commission’s authorising decisions concerned overall
         amounts and did not analyse the specific costs of each of the undertakings to which the aid was to be granted. The applicant
         adds that Commission Decision No 341/94/ECSC of 8 February 1994 implementing Decision No 3632/93 (OJ 1994 L 49, p. 1) did
         not require the Member States to show the exact costs at which the aid to cover exceptional costs was targeted since, pursuant
         to Paragraph 3 of Annex 2 to Decision No 341/94, any format may be used to notify the aid provided for in Article 5 of Decision
         No 3632/93. Therefore, the Commission cannot claim that the provision of EUR 601 012.10 (ESP 100 000 000) made by the applicant
         to cover the future costs relating to surface damage was not included in the aid notification forecast by the Kingdom of Spain
         for 2001. 
      
      209    In addition, the aid was granted to the applicant in 1998, 2000 and 2001 not only in the light of the costs actually incurred
         but also in respect of estimated future costs. 
      
      210    The applicant also claims that the provision of aid in question amounted only to an increase in the provision which it had
         already made in 2001. The applicant’s annual accounts for 2001 confirm that a provision of ESP 70 000 000 had been made to
         cover the costs resulting from the termination of activity in the La Prohida subsector. That amount nevertheless turned out
         to be insufficient to cover those costs. 
      
      211    The Commission claims that that provision did not correspond to any aid notified and actually paid by the Kingdom of Spain.
         It is an attempt by the applicant to obtain a declaration of compatibility with the common market of part of the aid declared
         unlawful and incompatible by linking it to unspecified future costs in respect of which the Commission is not able to verify
         how they compare with the actual costs of closure. Accordingly, no aid can be authorised in that regard. It adds that the
         aid authorised in the present case amply covers the costs of closure without the need to provide for estimates of future additional
         costs. Moreover, the equivalent costs are much lower in other Member States. 
      
      –       Findings of the Court
      212    It should be pointed out, first of all, that the applicant disputes that the amount of EUR 601 012.10 (ESP 100 000 000) was
         not included in the aid notification forecast by the Kingdom of Spain for 2001. Consequently, it also disputes that that amount
         was not included in the aid actually granted for 2001 in anticipation of the Commission’s decision. 
      
      213    Next, it is apparent from the Commission’s responses to the Court’s questions that the Kingdom of Spain notified, for 2001,
         aid granted to the applicant totalling ESP 393 971 600, or EUR 2 367 817. As the Commission points out, Article 2 of the contested
         decision declares compatible with the common market the aid totalling EUR 2 249 759.37 (ESP 374 328 463) to cover, for 2001,
         the exceptional costs of closure. 
      
      214    Consequently, the Commission’s authorisation of the amount of EUR 601 012.10 (ESP 100 000 000) would have brought, by definition,
         the total amount of aid to cover exceptional costs for 2001 declared compatible with the common market to a level higher than
         the level notified by the Kingdom of Spain and than the amount of EUR 2 303 817 (ESP 383 322 896) which was actually paid
         to the applicant. 
      
      215    It must be found, however, that part of the amount of EUR 601 012.10 (ESP 100 000 000), namely EUR 54 057.63 (ESP 8 994 433),
         is less than the total amount of EUR 2 303 817 (ESP 383 322 896), which was actually paid to the applicant. 
      
      216    The Commission has not produced any information which would give grounds for considering that that amount of EUR 54 057.63
         was not included in the total amount of aid notified by the Kingdom of Spain to the Commission. 
      
      217    In so far as part of the amount of EUR 601 012.10 (ESP 100 000 000) constituting the provision in question could still be
         covered by the aid which was actually paid to the undertaking, it was the Commission’s task to determine whether that amount
         of EUR 601 012.10 (ESP 100 000 000) or, at the very least, the relevant part thereof, totalling EUR 54 057.63 (ESP 8 994 433),
         satisfied the legislative requirements to be eligible to benefit from aid to cover exceptional costs. 
      
      218    However, it is not apparent from the contested decision that the Commission carried out such an examination. The Commission
         did not examine the amount constituting the provision in question either in the light of Article 5 of Decision No 3632/93
         or in the light of Article 7 of Regulation No 1407/2002. As is evident from paragraph 206 above, the Commission merely found,
         in recitals 84 and 106 in the preamble to the contested decision, that the amount of EUR 601 012.10 (ESP 100 000 00) exceeded
         that which had been notified and that which had been paid in anticipation of authorisation. 
      
      219    Consequently, by refraining from examining whether, at the very least, the amount of EUR 54 057.63 (ESP 8 994 433), included
         in the total amount of EUR 601 012.10 (ESP 100 000 000) constituting a provision of aid to cover the exceptional costs of
         restructuring which would arise in the future as a result of the closure of the La Prohida subsector, could qualify as aid
         to cover exceptional charges, the Commission infringed the applicable provisions. 
      
      220    In so far as the Commission also claims, in its defence, that the provision of aid in question constitutes an attempt on the
         applicant’s part to obtain a declaration of compatibility for part of the aid declared unlawful and incompatible, it is sufficient
         to point out that that claim is not substantiated. In addition, since that fact does not appear in the statement of reasons
         in the contested decision which forms the basis of the Commission’s refusal to declare compatible with the common market the
         aid intended, by definition, to cover the amount of the provision in question, the lack of reasoning in that regard cannot
         be remedied in the course of proceedings (see, to that effect, Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22).
      
      221    This complaint must therefore be upheld. 
      
      222    In the light of the above, the fourth plea, concerning the complaint relating to the amount of EUR 601 012.10 (ESP 100 000
         000), corresponding to the provision intended to cover the exceptional costs of restructuring which would result in the future
         as a result of the closure of the La Prohida subsector must be upheld, up to a maximum of EUR 54 057.63 (ESP 8 994 433). However,
         that complaint and the whole of the fourth plea must be rejected as to the remainder. 
      
       Conclusion
      223    For all of the above reasons, Article 3(b) of the contested decision, in so far as it includes the amount of EUR 54 057.63
         (ESP 8 994 433) and Article 4(1)(b) of the contested decision must be annulled. The remainder of the action must be dismissed.
         
      
       Costs
      224    Pursuant to Article 87(3) of the Rules of Procedure, the Court of First Instance may order that the costs be shared or that
         each party bear its own costs where each party succeeds on some and fails on other heads.
      
      225    In the present case, since the action brought by the applicant has been only partially successful, the Court will make an
         equitable assessment of the case in holding that the applicant is to bear four-fifths of its own costs and pay four-fifths
         of the costs incurred by the Commission. The Commission is to bear a fifth of its own costs and pay a fifth of the costs incurred
         by the applicant. 
      
      On those grounds,
      THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)
      Hereby:
      1.      Annuls Article 3(b), in so far as it concerns the amount of EUR 54 057.63 (ESP 8 994 433), and Article 4(1)(b) of Commission
            Decision 2004/340/EC of 5 November 2003 concerning aid to the company González y Díez, SA to cover exceptional costs (aid
            for 2001 and incorrect use of the aid for 1998 and 2000), amending Decision No 2002/827/ECSC;
      2.      Dismisses the action as to the remainder;
      3.      Orders the applicant to bear four-fifths of its own costs and to pay four-fifths of the costs incurred by the Commission.
            The Commission shall bear a fifth of its own costs and pay a fifth of the costs incurred by the applicant.
      
      
               Pirrung 
            
            
               Meij 
            
            
               Forwood
            
         
               Pelikánová 
            
             
            
                     Papasavvas
            
         Delivered in open court in Luxembourg on 12 September 2007.
      
      
               E. Coulon
            
             
            
                     J. Pirrung
            
         
               Registrar 
            
             
            
                     President
            
         
      Table of contents
      
      Legal Framework
      Background to the dispute
      Procedure
      Forms of order sought
      Law
      The first plea, alleging a lack of competence on the part of the Commission to adopt Articles 1, 3 and 4 of the contested
         decision
      
      Arguments of the parties
      Findings of the Court
      The second plea, alleging infringement of essential procedural requirements in the procedure followed to revoke Articles 1,
         2 and 5 of Decision 2002/827 and to adopt the contested decision
      
      Arguments of the parties
      Findings of the Court
      – Admissibility
      – Substance
      The third plea, alleging infringement of the principle of the protection of legitimate expectations and essential procedural
         requirements
      
      Arguments of the parties
      Findings of the Court
      The fourth plea, alleging manifest errors of assessment
      The amount of EUR 295 409.47 (ESP 49 152 000) relating to the construction of 1 030 m of galleries in the La Phohida subsector
      – Contested decision
      – Arguments of the parties
      – Findings of the Court
      The amount of EUR 513 757.49 (ESP 85 482 054) relating to the moving of 1 005 080 m³ of earth in the Buseiro sector
      – Contested decision
      – Arguments of the parties
      – Findings of the Court
      The amount of EUR 547 066.46 (ESP 91 024 200) corresponding to the agreements signed with the Government of Asturias to guarantee
         the restoration of land
      
      – Contested decision
      – Arguments of the parties
      – Findings of the Court
      The amount of EUR 372 176.75 (ESP 61 925 000) corresponding to the purchase price of the land bordering the western zone of
         the Buseiro sector, which was abandoned following the change in sea level
      
      – Contested decision
      – Arguments of the parties
      – Findings of the Court
      The amount of EUR 1 403 316.30 (ESP 233 492 186) relating to the costs incurred following the repayment of the subsidies granted
         under the SPCA
      
      – Contested decision
      – Arguments of the parties
      – Findings of the Court
      The amount of EUR 602 146.29 (ESP 100 188 713) relating to the creation of shafts and other work to provide ventilation for
         the Sorriba sector
      
      – Contested decision
      – Arguments of the parties
      – Findings of the Court
      The amount of EUR 601 012.10 (ESP 100 000 000) aimed at covering the exceptional restructuring costs which would be incurred
         in the future by the closure of the La Prohida subsector
      
      – Contested decision
      – Arguments of the parties
      – Findings of the Court
      Conclusion
      Costs
      
      * Language of the case: Spanish.