CELEX: 62016CO0373
Language: en
Date: 2017-12-07 00:00:00
Title: Order of the Court (Seventh Chamber) of 7 December 2017.#Aughinish Alumina Ltd v European Commission.#Appeal — State aid — Article 181 of the Rules of Procedure of the Court of Justice — Exemption from excise duty on mineral oils used as fuel for alumina production — Existing or new aid — Regulation (EC) No 659/1999 — Article 1(b)(i) — Principle of the protection of legitimate expectations — Duty to state reasons.#Case C-373/16 P.

ORDER OF THE COURT (Seventh Chamber)
7 December 2017 (*)
(Appeal — State aid — Article 181 of the Rules of Procedure of the Court of Justice — Exemption from excise duty on mineral oils used as fuel for alumina production — Existing or new aid — Regulation (EC) No 659/1999 — Article 1(b)(i) — Principle of the protection of legitimate expectations — Duty to state reasons)
In Case C‑373/16 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 4 July 2016, 

Aughinish Alumina Ltd, established in Askeaton (Ireland), represented by C. Little and C. Waterson, Solicitors,
applicant,
supported by:

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

Ireland,

applicant at first instance,

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

Order

1        By its appeal, Aughinish Alumina Ltd (‘AAL’) seeks to have set aside the judgment of the General Court of the European Union of 22 April 2016, Ireland and Aughinish Alumina v Commission, T‑50/06 RENV II and T‑69/06 RENV II, ‘the judgment under appeal’, EU:T:2016:227), in so far as the General Court, by that judgment, dismissed its application for annulment of Commission Decision 2006/323/EC of 7 December 2005 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy (OJ 2006 L 119, p. 12; ‘the decision at issue’).
 Legal context

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

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

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

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

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

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

8        The continuation of the application of that exemption to the Shannon region was authorised by Council Decision 92/510/EEC of 19 October 1992 authorising Member States to continue to apply existing reduced rates of excise duty or exemptions from excise duty, in accordance with the procedure provided for in Article 8(4) of Directive 92/81 (OJ 1992 L 316, p. 16) to certain mineral oils, when used for specific purposes. That authorisation was extended several times thereafter by the Council and ultimately, by means of Council Decision 2001/224/EC of 12 March 2001 concerning reduced rates of excise duty and exemptions from such duty on certain mineral oils when used for specific purposes (OJ 2001 L 84, p. 23), extended until 31 December 2006.

9        Recital 5 in the preamble to Decision 2001/224 stated that that decision was without prejudice ‘to the outcome of any procedures relating to distortions of the operation of the single market that may be undertaken, in particular under Articles [87 and 88 EC]’, and that it did not override ‘the requirement for Member States to notify instances of potential State aid to the Commission under Article [88 EC]’.

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

11      In the decision at issue, the Commission found that the exemptions at issue constituted new aid and not existing aid within the meaning of Article 1(b) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1). It based that assessment on the fact, in particular, that the exemptions at issue did not exist before the entry into force of the EC Treaty in the Member States concerned, that they had never been analysed or authorised on the basis of the State aid rules, and that they had never been notified.

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

13      AAL brought an action for annulment of the decision at issue by application lodged at the Registry of the General Court on 23 February 2006.

14      By judgment of 12 December 2007, Ireland and Others v Commission, (T‑50/06, T‑56/06, T‑60/06, T‑62/06 and T‑69/06, not published, EU:T:2007:383), the General Court annulled the decision at issue. By judgment of 2 December 2009, Commission v Ireland and Others (C89/08 P, EU:C:2009:742), the Court of Justice set aside that judgment in so far as it annulled the decision at issue on the ground that, in that decision, the Commission failed to fulfil its obligation to state reasons with regard to the non-application in the case of Article 1(b)(v) of Regulation No 659/1999.

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

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

17      Following that judgment, Cases T‑50/06 RENV II and T‑69/06 RENV II having been joined for the purposes of the oral procedure and the judgment, the General Court, by the judgment under appeal, dismissed the actions, ordered Ireland to bear its own costs and to pay three quarters of the costs incurred by the Commission in Cases T‑50/06, T‑50/06 RENV I and T‑50/06 RENV II, and three twentieths of the costs incurred by the Commission in Cases C‑89/08 P and C‑272/12 P, and ordered AAL to bear its own costs and to pay three quarters of the costs incurred by the Commission in Cases T‑69/06, T‑69/06 RENV I and T‑69/06 RENV II and three twentieths of the costs incurred by the Commission in Cases C‑89/08 P and C‑272/12 P. The Commission was ordered to bear one quarter of its own costs in Joint Cases T‑50/06 and T‑69/06, Joint Cases T‑50/06 RENV I and T‑69/06 RENV I, and Joint Cases T‑50/06 RENV II and T‑69/06 RENV II, and to bear one fifth of its own costs in Cases C‑89/08 P and C‑272/12 P.
 Procedure before the Court of Justice and the forms of order sought

18      By order of the President of the Court of Justice of 10 November 2016, the French Republic was granted leave to intervene in support of the form of order sought by AAL.

19      By its appeal, AAL asks the Court of Justice to set aside the judgment under appeal, in so far as, by that judgment, the General Court dismissed its action, to annul the decision at issue, in so far as it orders the recovery of the aid, and to order the Commission to pay the costs. In the alternative, it asks the Court of Justice to set aside the judgment under appeal and to refer the case back before the General Court.

20      The French Republic seeks the same form of order.

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

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

23      That provision must be applied in the present case.

24      It is appropriate to examine, first of all, the second ground of appeal and then the first ground of appeal.
 The second ground of appeal

 Arguments of the parties

25      By its second ground of appeal, AAL, supported by the French Republic, alleges that the General Court erred in law, in paragraphs 201 and 202 of the judgment under appeal, concerning the interpretation of Article 1(b)(i) of Regulation No 659/1999, in holding that, in order to be classified as ‘existing aid’ within the meaning of that provision, an aid scheme, before the accession of the Member State concerned to the European Economic Community (EEC), must not only have been granted, but also have been put into effect, in the sense that the actual payment of certain aid granted under that scheme must actually be made. In doing so, the General Court added an additional condition which has no legal basis and which goes against its own case-law. 

26      In addition, the General Court distorted the evidence submitted to it by stating that it was common ground between the parties that the exemption at issue had, in any event, been put into effect only from 1983. AAL and the Republic of Ireland accepted that that exemption had been incorporated into Irish legislation in the course of 1983, but disputed the fact that it could be regarded as having been implemented before Ireland’s accession to the EEC.

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

28      It should be recalled that, under Article 1(b)(i) of Regulation No 659/1999, existing aid means, ‘without prejudice to Articles 144 and 172 of the [Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1)], all aid which existed prior to the entry into force of the Treaty in the respective Member States, that is to say, aid schemes and individual aid which were put into effect before, and are still applicable after, the entry into force of the Treaty.’

29      It follows from the actual wording of that provision, especially the use of the term ‘put into effect’, that, in order to be classified as existing aid within the meaning of that provision, the aid or the aid scheme at issue must have actually been implemented and not only envisaged before the entry into force of the treaty in the Member State concerned.

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

31      The second ground of appeal must, therefore, be rejected as manifestly unfounded.
 First ground of appeal

 Arguments of the parties

32      In support of its first ground of appeal, AAL claims that the General Court wrongly held, in paragraph 224 of the judgment under appeal, that the publication of the decision to initiate the formal investigation procedure had brought to an end the legitimate expectations which it had in the lawfulness of the exemption at issue.

33      First, the General Court misapplied the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), when it took the view, in paragraph 222 of the judgment under appeal, that it was clear from that judgment that the publication of the decision to open the formal investigation procedure had brought an end to those legitimate expectations, when that judgment did not determine the point at which AAL’s legitimate expectations had come to an end and did not rule on the issue whether the Commission’s decision to limit recovery of the aid was sufficient in the circumstances of the case. 

34      Secondly, the General Court erred in law in concluding that the Commission’s unreasonable delay in adopting the decision at issue could not have revived legitimate expectations that recovery of the aid would be prevented. Although it acknowledged that there was a delay, it made an incorrect analysis of the effects of that delay on the legitimate expectations when it found, in paragraphs 253 and 254 of the judgment under appeal, that there was a fundamental difference between the circumstances of the present case and those of the case which gave rise to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502), whereas the Commission’s delay and other circumstances present in the first case are at least comparable to those of the second. In failing to take that into account, the General Court accepted as a fundamental difference between the two cases the fact that, in the second case, the aid had been granted before the opening of the formal examination procedure. In addition, it failed to explain the reasons why that difference was sufficient to distinguish those two cases.

35      Thirdly, in paragraph 255 of the judgment under appeal, the General Court also misinterpreted the case-law arising from the judgment of 11 November 2004, Demesa and Territorio Histórico de Álava v Commission, C‑183/02 P and C‑187/02 P, EU:C:2004:701). In addition the General Court’s conclusion, based on that judgment, that the ‘mere infringement’, in the present case, of the reasonable time principle did not prevent the Commission from ordering the recovery of the aid, indicates a distortion of the facts and the pleas in law relied on before that court, which are not just limited to the delay in the formal investigation procedure. 

36      Fourthly, the judgment under appeal is vitiated by an error in law and a failure to state reasons, in that the General Court, in paragraph 251 of that judgment, failed to balance properly the public interests and the private interests, in particular AAL’s legitimate expectations reflecting its fundamental rights.

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

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

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

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

41      With regard to the first part of the first ground of appeal, it must be observed that the Court of Justice, in paragraph 53 of the judgment of 10 December 2013, Commission v Ireland and Others, (C‑272/12 P, EU:C:2013:812), held that the fact that the authorisation decisions had been adopted on a proposal from the Commission could not prevent those exemptions from being classified as ‘State aid’ within the meaning of Article 87(1) EC, if the conditions governing the existence of State aid were met. It added, as the General Court stated in paragraph 222 of the judgment under appeal, that that fact, however, had to be taken into consideration in relation to the obligation to recover the incompatible aid, in the light of the principles of protection of legitimate expectations and legal certainty, as was done by the Commission in the decision at issue when it declined to order the recovery of aid granted before the date of publication in the Official Journal of the decisions to initiate the formal investigation procedure. Next, in paragraph 54 of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), the Court of Justice held that the reasons given by the General Court, other than those relating to the non-attributability of the exemptions at issue to the Member States, for annulling the decision at issue could not provide a legal basis for the General Court’s conclusion that that decision called into question the validity of the authorisation decisions and infringed the principles of legal certainty and the presumption of legality attaching to EU measures, as was the case with the conclusion that the Commission had infringed the principle of sound administration.

42      Although, in view of the grounds of the General Court’s judgment which gave rise to the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), the General Court did not address the question whether the decision at issue infringed the principle of the protection of legitimate expectations, it nevertheless fell to the General Court to which the case was remitted, in its assessment of the applicants’ arguments at first instance alleging an infringement of that principle, to draw the necessary conclusions from the legal considerations laid down by the Court of Justice.

43      Thus, in the judgment under appeal, after first of all stating in paragraph 220 that the aid had been implemented unlawfully, in breach of Article 88(3) EC, and after setting out in paragraph 222 the legal considerations contained in paragraphs 52 to 54 of the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), the General Court found in essence, in paragraphs 223 and 224, that, although in view of the requirements resulting from the principles of protection of legitimate expectations and of legal certainty, the equivocal situation created by the wording of the authorisation decisions, adopted on a proposal from the Commission, precluded the recovery of the aid granted on the basis of the exemption at issue until the date of the publication in the Official Journal of the decision to initiate the formal investigation procedure, AAL must, however, have known as of that date that, if the exemption at issue constituted State aid, it had to be authorised by the Commission in accordance with Article 88 EC, so that that publication had brought to an end the legitimate expectation which that company could previously have had that the exemption at issue was lawful. For those reasons, the General Court, in paragraph 225 of the judgment under appeal, approved the Commission’s application, in the decision at issue, of the principle of the protection of legitimate expectations.

44      In so ruling, the General Court did not manifestly draw incorrect inferences from the judgment of 10 December 2013, Commission v Ireland and Others (C‑272/12 P, EU:C:2013:812), and following on from that, carried out its own assessment of the circumstances of the case which, as is apparent from Article 256 TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, does not, save where they distort the evidence, which is not claimed in this case, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraphs 84 and 85 and the case-law cited).

45      It follows that the first part of the first ground of appeal is clearly unfounded.

46      With regard to the second part of the first ground of the appeal, Ireland and AAL, having argued before the General Court, as is clear from paragraphs 205 and 208 of the judgment under appeal, that the Commission’s delay in adopting the decision at issue had reinforced the legitimate expectations which AAL had in the lawfulness of the exemption at issue, the General Court specifically recalled in that regard, in paragraph 215 of that judgment, that the reasonable time requirement in the conduct of an administrative procedure constitutes a general principle of EU law. In addition, referring to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502), it stated in paragraph 216 of the judgment under appeal that a delay by the Commission in deciding that aid is unlawful and that it must be abolished and recovered by a Member State may, in certain circumstances, establish a legitimate expectation on the recipients’ part so as to prevent the Commission from requiring that Member State to order the refund of that aid.

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

48      Contrary to what the Commission contends, the existence of a limitation period of 10 years for the recovery of aid, laid down in Article 15 of Regulation No 659/1999, does not mean that, in some situations, an unreasonable period in the conduct of the formal investigation procedure may increase the legitimate expectations which the beneficiaries of the aid have in the lawfulness of that aid. The General Court was therefore correct in examining the arguments of Ireland and AAL.

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

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

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

52      Although, as AAL claims, the judgment under appeal does not set out the reasons why the General Court considered that the fact that the aid in question in the case giving rise to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502) had been granted before the formal investigation procedure was opened fundamentally differentiated that case, from the point of view of compliance with the principle of the protection of legitimate expectations, from the present case, it appears, nevertheless, that the General Court noted other differences, including, in particular, the fact that the aid in question in the other case concerned supplementary costs of aid authorised by the Commission and a sector which had received aid authorised by the Commission. First, those circumstances, considered together, appear sufficient to distinguish those cases, so that the General Court did not err in law in finding that the exceptional circumstances which prevailed in the case giving rise to the judgment of 24 November 1987, RSV v Commission (223/85, EU:C:1987:502) were absent in the present case. Secondly, considered as a whole, the reasoning of the judgment under appeal in respect of the factual differences between those cases appears sufficient to enable the applicants at first instance to know the reasons why the General Court did not uphold their arguments and it provides the Court of Justice with sufficient material for it to exercise its powers of review (order of 13 December 2012, Alliance One International v Commission, C‑593/11 P, not published, EU:C:2012:804, paragraph 28).

53      It follows that the second part of the first ground of appeal is, in part, manifestly inadmissible and, in part, manifestly unfounded.

54      Similarly, with regard to the third part of that ground of appeal, the General Court did not commit a manifest error of law when it found, in paragraph 225 of the judgment under appeal, in the exercise of its power to find the facts, and by referring to paragraph 52 of the judgment of 11 November 2004, Demesa and Territorio Histórico de Álava v Commission (C‑183/02 P and C‑187/02 P, EU:C:2004:701), that the Commission’s failure to act in the present case — as inconsistent with the reasonable time principle as it may have been — was nevertheless not particularly significant from the perspective of applying the State aid rules to the aid in question.

55      In addition, by concluding in the same paragraph of the judgment under appeal that the ‘mere infringement’, in the present case, of the principle that action must be taken within a reasonable time in the adoption of the decision at issue did not prevent the Commission, in that decision, from ordering the recovery of the aid, the General Court did not in any way distort the facts or pleas in law relied on by the applicants at first instance as AAL claims, since the arguments of those parties, other than those alleging infringement of that principle, were also examined in the judgment under appeal.

56      Consequently, the third part of the first ground of appeal is manifestly unfounded. 

57      Finally, with regard to the fourth part of that ground of appeal, it is clear from paragraph 251 of the judgment under appeal that the General Court, as part of its assessment of the circumstances of the present case, did weigh up the requirements of legal certainty and the public requirements of recovery of unlawful aid. Therefore, that part is manifestly unfounded. 

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

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

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

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

2.      Orders Aughinish Alumina Ltd to pay the costs.

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

Luxembourg, 7 December 2017.

A. Calot Escobar
 
A. Rosas

Registrar
 
President of the Seventh Chamber

*      Language of the case: English.