A2A SpA v Agenzia delle Entrate.
Date: 2015-09-03
16. In the judgment in Commission  v Italy (C‑207/05, EU:C:2006:366, paragraph 54), the Court held that, by failing to adopt, within the prescribed period, the necessary measures to recover from the recipients aid declared unlawful and incompatible with the common market by Decision 2003/193, the Italian Republic had failed to fulfil its obligations under that decision.
20. In its request for a preliminary ruling, the referring court notes in that regard, referring to the judgment in Commission  v Département du Loiret (C‑295/07 P, EU:C:2008:707, paragraph 46), that neither EU law nor the Court’s case-law specified, at the time of adoption of Decision 2003/193, that the interest to be applied during the recovery of the State aid covered by that decision should be calculated on a compound basis. The referring court adds that the Commission’s practice consisted at the time in referring to provisions of national law. In accordance with Article 1282 of the Civil Code, Italian law applies simple interest and allows the application of compound interest to financial obliga tions only in accordance with the conditions laid down in Article 1283 of the Civil Code, conditions which are not satisfied as regards the recovery of the aid at issue in the main proceedings.
29. As regards, in the second place, the question of which regulation was applicable before the entry into force of Regulation No 794/2004 in order to determine whether the interest must be simple or compound, it should be noted that, in the judgment in Commission  v Département du Loiret , C‑295/07 P, EU:C:2008:707, paragraph 46, the Court held that, at the time the decision at issue in the case giving rise to that judgment was adopted, namely on 12 July 2000, neither Community law nor the case-law of the Court or of the General Court specified whether the necessary interest on aid to be recovered was to be calculated on a simple or on a compound basis. In the absence of a provision under EU law on that subject, the Court held that the Commission’s practice, set out inter alia in its letter to the Member States SG (91) D/4577, of 4 March 1991, linked the question of charging interest to the procedural rules for recovery and referred, in that regard, to national law (judgment in Commission  v Département du Loiret , C‑295/07, EU:C:2008:707, paragraphs 82 to 84).
30. It is only in its Communication on the interest rates to be applied when aid granted unlawfully is being recovered, published on 8 May 2003, that the Commission expressly stated that it would apply a compound interest rate in any decision ordering the recovery of unlawful aid that it might adopt in the future (judgment in Commission  v Département du Loiret , C‑295/07, EU:C:2008:707, paragraph 46) and that it expected the Member States to apply compound interest during the execution of recovery decisions.
35. In the third place, it should be noted that, by governing the method for calculating interest to be applied in the recovery of State aid declared incompatible with the common market, Decree-Law No 185/2008 seeks inter alia to implement Article 3 of Decision 2003/193. Therefore, it implements Article 14(1) of Regulation No 659/1999. It is settled case-law that where Member States adopt measures by which they implement EU law, they are required to respect the general principles of that law (judgment in Ålands Vindkraft , C‑573/12, EU:C:2014:2037, paragraph 125).
36. Those general principles include, inter alia, the principles of legal certainty and protection of legitimate expectations.
37. In that regard, it should be noted that, according to the Court’s settled case-law, whilst the principle of legal certainty precludes a regulation from being applied retroactively, namely to a situation which arose prior to the entry into force of that regulation, and irrespective of whether such applications might produce favourable or unfavourable effects for the person concerned, the same principle requires that any factual situation should normally, in the absence of any express contrary provision, be examined in the light of the legal rules existing at the time when the situation obtained. However, if the new law is thus valid only for the future, it also applies, save for derogation, to the future effects of situations which came about during the period of validity of the old law (see, to that effect, judgment in Bavaria , C‑120/08, EU:C:2010:798, paragraphs 40, 41 and the case-law cited).
38. Likewise, as is apparent from the Court’s settled case-law, the scope of the principle of the protection of legitimate expectations cannot be extended to the point of generally preventing new rules from applying to the future effects of situations which arose under the earlier rules (judgment in Stadt Papenburg , C‑226/08, EU:C:2010:10, paragraph 46 and the case-law cited).
42. Moreover, in the light of the long delay between the adoption, on 5 June 2002, of Decision 2003/193, by which the Commission requested the recovery of the State aid at issue in the main proceedings, and the issue, in 2009, of the tax assessment designed to ensure the effective recovery of that aid, it must be considered that the application of compound interest is a particularly appropriate means of neutralising the competitive advantage granted unlawfully to undertakings benefitting from that State aid.
44. As regards, in the last place, the question, raised by A2A in its written observations, whether Decree-Law No 185/2008 infringes the principle of equal treatment, it should be noted that, according to settled case-law, it is not necessary to examine questions submitted to the Court by the parties to the main proceedings other than those that were the subject of the national court’s order for reference (see, to that effect, judgment in Kersbergen-Lap and Dams-Schipper , C‑154/05, EU:C:2006:449, paragraphs 21 and 22 and the case-law cited).
46. In any event, the Court has no information with which it could determine whether A2A is attempting to invoke the benefit of a national decision-making practice which could run counter to the due process of law. According to the Court’s settled case-law, the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, to his benefit, on an unlawful act committed in favour of a third party (judgment in The Rank Group , C‑259/10 and C‑260/10, EU:C:2011:719, paragraph 62 and the case-law cited).