CJEC, 6th chamber, March 21, 2002, No C-36/00

THE COURT (Sixth Chamber),

1 By application lodged at the Court Registry on 10 February 2000, the Kingdom of Spain applied under the first paragraph of Article 230 EC for annulment of Commission Decision 2000-131-EC of 26 October 1999 on the State aid implemented by Spain in favour of the publicly-owned shipyards (OJ 2000 L 37, p. 22; the contested decision).

The relevant legislation

2 Council Directive 90-684-EEC of 21 December 1990 on aid to shipbuilding (OJ 1990 L 380, p. 27), the application of which was extended by Council Regulation (EC) No 3094-95 of 22 December 1995 on aid to shipbuilding (OJ 1995 L 332, p. 1), lays down specific rules applicable to aid to that sector, which constitute an exception to the general prohibition set out in Article 87 (1) EC.

3 By Council Regulation (EC) No 1013-97 of 2 June 1997 on aid to certain shipyards under restructuring (OJ 1997 L 148, p. 1), the Council approved aid for the restructuring of shipyards in various Member States, including the publicly-owned yards in Spain.

4 Article 1 of Regulation No 1013-97 states:

1. Notwithstanding the provisions of Regulation (EC) No 3094-95, for the yards under restructuring specified in paragraphs 2, 3 and 4 of this article the Commission may declare additional operating aid compatible with the common market for the specific purposes and up to the amounts specified.

...

4. Aid for the restructuring of the publicly-owned yards in Spain may be considered compatible with the common market up to an amount of [ESP] 135 028 million in the following forms:

- interest payments of up to [ESP] 62 028 million in 1988 to 1994 on loans taken on to cover unpaid previously approved aid,

- tax credits in the period 1995 to 1999 of up to [ESP] 58 000 million,

- capital injection in 1997 of up to [ESP] 15 000 million.

All other provisions of Directive 90-684-EEC shall apply to these yards.

The Spanish Government agrees to carry out, according to a timetable approved by the Commission and in any case before 31 December 1997, a genuine and irreversible reduction of capacity of 30 000 cgrt [compensated gross registered tonnes].

5 In accordance with Regulation No 1013-97, on 6 August 1997 the Commission adopted a decision authorising, inter alia, aid to the publicly-owned shipyards in Spain (the authorising decision).

6 Following an exchange of correspondence between the Spanish authorities and the Commission and the initiation by the Commission of the inquiry procedure under Article 93(2) of the EC Treaty (now Article 88 (2) EC), on 26 October 1999 the Commission adopted the contested decision.

The factual framework

7 The factual framework, as outlined in paragraphs 6 to 9 of the grounds of the contested decision, is as follows:

(6) Under its August 1997 decision in State aid Case C 56-95 [OJ 1997 C 354, p. 2], the Commission [approved] State aids totalling a maximum of ESP 229.008 billion in support of the restructuring of the publicly-owned yards in Spain. The package of approved aids included "special" tax credits of up to ESP 58 billion in the period 1995 to 1999.

(7) The reason for the inclusion of these special tax credits was as follows. When the restructuring plan was originally drawn up, the yards were still part of the INI group (Instituto Nacional de Industria) and able to reduce by 28% after-tax losses through INI, in accordance with generally applicable Spanish national legislation, offsetting losses against profits elsewhere in the group. The financial projections under the plan assumed that such tax credits would continue to be available despite the fact that as from 1 August 1995 the yards had formed part of the loss-making State holding company Agencia Industrial del Estado (AIE). Legislation was accordingly passed (Law 13-96 of 30 December [1996, BOE No 315 of 31 December 1996, p. 38974]) allowing companies in such a position to continue, up until 31 December 1999, to receive from the State equivalent amounts to what they would have been entitled under a tax consolidation system. On the basis of the forecast losses under the restructuring plan, it was estimated that these tax credits for the publicly-owned shipyards would amount to 58 billion pesetas. ...

(8) On 1 September 1997, the yards were absorbed into Sociedad Estatal de Participaciones Industriales (SEPI) which, like INI, is able to take advantage of general tax consolidation rules to offset losses against profits.

(9) The aid package was approved on the condition that the total sum, as well as the amounts per category of aid were maximum amounts. ... According to the information available to the Commission within the context of its monitoring of the restructuring plan, the yards received in 1998 a special tax credit of ESP [18.451] billion, notwithstanding the fact [that] the yards also received a tax credit under general measures in 1998, corresponding to their losses in 1997, based on general Spanish tax consolidation rules, as a result of their integration [into] SEPI.

8 In those circumstances, the Commission expressed doubts as to the consistency of the special tax credit of ESP 18.451 billion with the authorising decision and as to its compatibility with the common market.

The contested decision

9 In paragraph 57 of the grounds of the contested decision, the Commission concluded that the publicly-owned yards in Spain had received aid in the form of special tax credits of ESP 18.451 billion which cannot be legally justified. Although the overall limit on such aid payment had not been exceeded, that amount represented solely a maximum. Within that maximum the aid was to correspond only to taxable losses and was based on the assumption that the yards were unable to benefit from tax credits under Spain's general tax consolidation system (general tax credits). According to the Commission, this was an essential condition for approval of the aid and therefore for the compatibility of the aid with the common market pursuant to Article 87 (3) (e) EC.

10 In paragraph 58 of the grounds of the contested decision, the Commission found that, in the circumstances of the case, the special tax credit of ESP 18.451 billion accorded in 1998 was no longer compatible either with Article 87 (3) (e) EC or with the common market for the purposes of Article 87 (1) EC and thus decided that that sum, with interest, was to be recovered.

11 The contested decision was notified to the Kingdom of Spain on 2 December 1999.

The application

12 The Spanish Government, which puts forward four pleas in support of its application, claims that the Court should annul the contested decision and order the Commission to pay the costs.

13 The Commission contends that the application should be dismissed as unfounded and that the Kingdom of Spain should be ordered to pay the costs.

The first plea

Arguments of the parties

14 By its first plea, the Spanish Government submits, first of all, that the contested decision is in breach of Article 88 (1) EC by virtue of failure to apply that provision. According to the Government, as soon as the Commission considered the aid referred to in the contested decision to have become incompatible with the common market, it was obliged to review that aid, pursuant to Article 88 (1) EC, as existing aid and not, as it did, as new aid.

15 The Spanish Government claims next that the contested decision is based on an alleged failure by the Spanish authorities to comply with a condition laid down by the authorising decision, that condition being that the shipyards continue to come under a tax system which did not allow them to receive general tax credits. Accordingly, instead of waiting until after the last of the payments previously authorised before initiating the procedure provided for in Article 88 (2) EC, the Commission should have informed the national authorities of this so-called infringement. Since it failed to do so, it has acted in breach of the principles of legal certainty and sound administration.

16 Finally, by considering that, from the time at which the shipyards had again been entitled to general tax credits, the aid previously authorised in the form of special tax credits had become incompatible with the common market because it was no longer essential, the Commission introduced without any warning a new criterion of incompatibility of the aid which it had already expressly approved. In doing so, it acted in breach of the principles of legal certainty, the protection of legitimate expectations, cooperation and good faith. Furthermore, even though it is necessary to justify the application of aid already approved, in the present case, the complexity and inadequacy of the grounds of the authorising decision required, at the very least, that the Commission warn the Spanish authorities about it.

17 The Commission disputes the premiss on which the Spanish Government bases its first plea. Fiscal aid can be regarded as authorised only if it satisfies all the conditions in the authorising decision. Where they have not been satisfied, the aid is automatically deprived of the protection bestowed by that decision and should thus be regarded as new aid. In respect of new aid, the procedure provided for in Article 88 (2) EC, which was followed in the present case, is the appropriate procedure for assessing the compatibility of that aid with the common market.

18 The Commission contends that, in the circumstances of the present case, it was not required to point out the consequences of the yards' absorption into SEPI when that took place. That takeover did not of itself signify an infringement of the provisions of the authorising decision. Moreover, as soon as the Commission became aware of the infringement it commenced the preliminary inquiry which led to the initiation of the procedure under Article 88 (2) EC.

19 In the Commission's submission, it was for the Spanish Government to inform the Commission of its decision to continue granting special tax credits to the shipyards, in spite of their takeover by SEPI. Since it failed to do so, the Government cannot invoke legitimate expectations.

Findings of the Court

20 At the outset, it is appropriate to recall the relevant rules of the system for reviewing State aid laid down by the Treaty.

21 According to Article 87 (1) EC, save as otherwise provided by the Treaty, any aid granted by a Member State or through State resources which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, insofar as it affects trade between Member States, to be incompatible with the common market.

22 Article 88 EC provides for a special procedure whereby the Commission is to keep State aid under constant review.

23 The rules of procedure laid down by the Treaty vary according to whether the aid at issue constitutes existing aid or new aid. While the former is subject to Article 88 (1) and (2) EC, the latter is governed by Article 88 (2) and (3) EC (Case C-47-91 Italy v Commission [1992] ECR I-4145, paragraph 22).

24 Where the Commission finds that aid alleged to have been made in pursuance of a previously authorised scheme of aid does not comply with the conditions laid down in its decision approving the scheme and is therefore not covered by it, that aid must be regarded as new aid (see, to that effect, Case C-47-91 Italy v Commission [1994] ECR I-4635, paragraphs 24 to 26).

25 If, when aid is granted in pursuance of a previously authorised scheme, the Member State does not comply with the conditions to which the Commission made its decision approving the scheme subject, since the aid paid is new aid, the Commission is obliged to institute the special procedure provided for by the first subparagraph of Article 88 (2) EC (see, to that effect, Case C-294-90 British Aerospace and Rover v Commission [1992] ECR I-493, paragraph 13).

26 The facts of the present case must be examined in the light of these findings.

27 It is clear from the authorising decision that it was in the light of the legal and tax position of the publicly-owned shipyards in Spain, as it appeared at the time, that the Commission authorised aid in the form of special tax credits totalling ESP 58 billion. The purpose of that aid was to enable those yards which, when they were part of the INI group, were able to reduce their after-tax losses by 28% under the general tax consolidation rules applicable (general tax credits), to continue to enjoy the same treatment even after they had ceased to be part of INI.

28 When they belonged to INI, the shipyards were able to offset their after-tax losses against profits made elsewhere in the group. When that offsetting of losses was no longer possible, after the yards were absorbed by AIE, Law 13-96 allowed them none the less to continue to enjoy tax treatment equivalent to that to which they had previously been entitled.

29 It is not disputed that, after they were absorbed into SEPI on 1 September 1997, the yards were again able to offset their after-tax losses against profits made elsewhere within that group. They were therefore entitled to general tax credits as when they were part of INI but were also receiving special tax credits in the form of State aid authorised by the authorising decision.

30 In those circumstances, the Commission was entitled to find that the conditions enabling the grant of the aid were no longer satisfied and that the Spanish Government's payment in 1998 of the sum of ESP 18.451 billion in the form of special tax credits was no longer in accordance with the authorising decision.

31 It follows that the aid at issue is not covered by the authorising decision.

32 Consequently, the aid granted in 1998 for the 1997 financial year in the form of special tax credits must be characterised as new aid for the purposes of Article 88 (3) EC.

33 The Spanish Government's argument to the effect that the Commission should have informed it, prior to the payment of the aid at issue, that that aid had become incompatible with the common market as the result of a change in circumstances cannot be accepted.

34 The Commission was not under an obligation to deduce from the fact that, during 1997, the yards had again been absorbed by a holding company to which the general tax consolidation system was applicable that the Spanish Government would continue to grant them special tax credits.

35 Finally, the Spanish Government's assertion that, by the contested decision, the Commission announced a new criterion of compatibility with the common market of the aid referred to in the authorising decision is unfounded.

36 As is clear from paragraphs 27 to 30 above, the Commission based its assessment of the incompatibility of that aid on the failure of the Spanish authorities to comply with the authorising decision.

37 In those circumstances, the Spanish Government's claims of breach of the principles of legal certainty, the protection of legitimate expectations and sound public administration, which are based on that assertion, must be rejected.

38 In the light of the foregoing, the first plea must be rejected.

The second plea

Arguments of the parties

39 By its second plea, the Spanish Government claims in the alternative that the Commission failed to state any reasons for the contested decision in respect of the existence of new State aid. The contested decision does not even mention the existence of two of the four requirements laid down in Article 87 (1) EC which must be satisfied if measures are to constitute State aid, namely that those measures [affect] trade between Member States and that they [distort] or [threaten] to distort competition.

40 According to the Spanish Government, even in cases where it is clear from the circumstances in which the aid was granted that it is capable of affecting trade between Member States, the Commission is not exempted from the obligation to refer to those circumstances.

41 The Spanish Government asserts, contrary to the Commission's contention, that the contested decision does not make reference to earlier decisions or provisions in order to assess whether the requirement of affecting trade is satisfied.

42 The Commission states that, in the present case, it was already established and accepted by all parties that the measures of support to the shipyards constituted State aid, as is clear from the authorising decision. In the contested decision, the only issue was therefore the possibility of declaring the aid compatible with the common market. In those circumstances, the Commission considers that it was not required to open a discussion on the effect on trade between Member States and the distortion of competition.

43 In any event, in a sector such as that in question, which has serious structural over-capacity and where international competition is undeniable, it is obvious that any aid entails risks for competition and intra-Community trade.

44 The Commission adds that the aid at issue must be regarded as not having been notified, so that it is not required to show the actual effect of that aid. Furthermore, the Commission submits that the express reference in the contested decision to Directive 90-684, Regulation No 1013-97 and, above all, the authorising decision is sufficient for the contested decision to be regarded as adequately reasoned in respect of the elements raised by the applicant.

Findings of the Court

45 Regulation No 1013-97, pursuant to which the Commission adopted the authorising decision, was adopted on the basis of, in particular, Article 92 (3) (e) of the EC Treaty (now, after amendment, Article 87 (3) (e) EC).

46 Under that provision, categories of aid specified by decision of the Council may be considered to be compatible with the common market.

47 As is clear from paragraphs 30 and 33 of the judgment in Joined Cases C-356-90 and C-180-91 Belgium v Commission [1993] ECR I-2323, where aid is covered by derogating rules adopted under that provision, that aid is, as a matter of principle, at the outset incompatible with the common market and is considered to be compatible with the common market only on condition that it complies with the criteria for derogation contained in the decision approving that system.

48 Accordingly, where the Commission finds that aid authorised under derogating rules adopted pursuant to Article 87 (3) (e) EC is no longer covered by those rules, it is not required to reassess the compatibility of the aid in relation to the criteria set out in Article 87 (1) EC or to determine whether it affects trade between Member States and distorts competition.

49 Such a requirement would be illogical having regard to the context of the market and the need for management in question, since it was already established and accepted by all parties that the measures of support to the shipyards constituted State aid.

50 Moreover, in the case of derogating rules, it is necessarily presupposed that the aid referred to is at the outset incompatible with the common market (see, to that effect, Belgium v Commission, cited above, paragraph 33).

51 It is thus evident that the validity of the contested decision cannot be undermined by an alleged failure to state reasons in respect of the existence of aid within the meaning of Article 87 (1) EC.

52 It follows that the second plea must be rejected.

The third plea

Arguments of the parties

53 By its third plea, which has three limbs, the Spanish Government submits that, as to substance, the contested decision is in breach of Article 87 (1) and (3) (e) EC, Regulation No 1013-97 and the principle of the protection of legitimate expectations.

54 By the first limb of this plea, the Spanish Government claims that it is clear from Regulation No 1013-97 and from the authorising decision that the condition for authorisation of the aid referred to is a genuine and irreversible reduction of capacity of 30 000 cgrt. By taking an opposing view, the Commission has acted in breach of that regulation and of the legitimate expectations induced by the authorising decision. If the authorising decision was meant to make payment of part of the aid conditional on the continuation of particular circumstances, the Commission should have mentioned it, which it did not.

55 The Spanish Government also submits that the amount of the reduction in after-tax losses which the shipyards would have obtained in remaining under the tax consolidation system could not be predicted, since it depends on the loss-making company's taxable amount. If, as the Commission contends, the authorising decision had authorised the grant of aid to the shipyards to offset what they were no longer receiving under the tax consolidation system, it would have stated that the yards could be repaid each year, by way of authorised State aid, a sum to be determined according to the taxable amount.

56 By the second limb of the third plea, the Spanish Government claims that the Commission's interpretation of the maximum nature of the aid authorised is in breach of Article 87 (3) EC and of the principles of legal certainty and the protection of legitimate expectations, since it is tantamount to negating the definitive nature of the authorising decision. If the interpretation proposed by the Commission were adopted, the authorising decision would be no more than a sort of provisional declaration of intent which, when the plan was carried out, would require the Spanish authorities to justify again the need to grant the approved aid.

57 According to the Spanish Government, the Commission also infringed Article 1 of Regulation No 1013-97, which states that it may declare additional operating aid compatible with the common market for the specific purposes and up to the amounts specified. The authorising decision authorised the aids referred to in their entirety, which provides a reason for them all to be declared compatible with the common market under a definitive Commission decision.

58 Finally, by the last limb of the third plea, the Spanish Government submits that, by adding to the aid authorised the sums paid under a general system, which do not constitute aid, the Commission is in breach of Article 87 (1) EC. It is contradictory to assert, as does the Commission, that the aggregation of the aid authorised, namely the special tax credits paid to the yards under Law 13-96, and the general measures, namely the general tax credits to which they are entitled under the general tax consolidation rules applicable in Spain, results in the shipyards receiving unlawful State aid.

59 The Commission contends that the Spanish Government's third plea misinterprets the authorising decision to the extent that it asserts that that decision made the authorisation of special tax credits subject to no condition other than compliance with the limit of ESP 58 billion and with the undertaking to make the agreed reductions of capacity. However, the authorisation was also justified by the fact that, following their absorption by AIE, the yards were no longer able to receive the general tax credits to which they had been entitled when they belonged to INI. Since that justification has ceased to exist, the authorisation has also come to an end. According to the Commission, the third plea must therefore be automatically rejected.

Findings of the Court

60 At the outset, it is appropriate to examine the Spanish Government's assertion that the fiscal aid was authorised as consideration for a reduction of the shipyards' capacity, so that that aid was lawful provided that it remained below the limits for aid laid down by Regulation No 1013-97.

61 On that point, as is clear from paragraphs 27 and 28 above, the Commission's authorisation of aid in the form of special tax credits totalling ESP 58 billion was based on the fact that it was impossible for the yards to continue to enjoy favourable tax treatment following their move from INI to AIE.

62 The fact that the Commission was required, when it adopted the authorising decision, to ensure that the amounts of aid authorised would not exceed the limits laid down by Regulation No 1013-97 does not restrict the conditions to be fulfilled when aid is granted to the shipyards in Spain in the maximum amount.

63 It follows that the Spanish Government's third plea is based on an incorrect premiss.

64 As regards the first limb of this plea, the Court finds that the authorising decision correctly made the grant of the aid concerned subject to the shipyards' inability to obtain the tax advantages which they enjoyed before 1 August 1995.

65 It follows that the first limb is unfounded.

66 As regards the second limb, according to which the contested decision negates the definitive nature of the authorising decision, it must be noted that, in that decision, the Commission found that there was new aid to the extent that the aid in the form of special tax credits had been authorised only in order to offset the exclusion of the shipyards from the benefit of general tax credits.

67 The Commission does not therefore cast doubt on the definitive nature of the authorising decision, but confines itself to ensuring compliance with the conditions laid down by that decision.

68 It follows that the second limb must be rejected.

69 Finally, the third limb, alleging aggregation by the Commission of the aid authorised and the general measures as a basis for its finding that the aid at issue was unlawful, misinterprets the contested decision. In that decision, the analysis of that aid is not based on its aggregation with the general tax credits, but solely on the Spanish authorities' failure to comply with the condition set in the authorising decision when they granted that aid in the form of special tax credits.

70 The third plea must therefore be rejected.

The fourth plea

Arguments of the parties

71 By its fourth plea, the Spanish Government claims, in the alternative, that even if the shipyards cannot aggregate the aid granted in the form of special tax credits and general tax credits, the ESP 58 billion of aid paid is no less justified in the light of the actual losses suffered by those yards during the period when they were controlled by AIE. Accordingly, by adopting the contested decision, the Commission committed a manifest error of assessment and acted in breach of the principle of the protection of legitimate expectations.

72 According to the Government, although the general tax credits received by the shipyards corresponded to 28% of the negative taxable amount in each tax year, the calculation of the aid authorised in the form of special tax credits was not made by reference to the 28% of the negative taxable amount foreseeable for the tax years 1995 to 1998. Since the aid was calculated on the basis of net results before tax, and not of the taxable amount, the calculation was always made according to the criterion of before-tax losses, or actual losses. In that case, all the aid paid, namely ESP 58 billion, is covered by the authorising decision, because the losses were greater than forecast.

73 The Commission submits that the Spanish Government's fourth plea is based, like the third, on an incorrect analysis. In order to calculate the amount of the aid declared incompatible by the contested decision, the Commission took as a basis the aid authorised, since it was no longer justified or, therefore, authorised. The aid authorised did not, contrary to the applicant's assertion, represent 28% of the losses forecast during the period under consideration, but aid intended to offset the inability to continue to take advantage of general tax credits because the shipyards belonged to a holding company which was overall in profit.

Findings of the Court

74 As is clear from paragraphs 27 and 28 above, the grant of fiscal aid by the Spanish authorities under Law 13-96, which was authorised by the authorising decision, was justified by the loss of the possibility for the shipyards to offset their after-tax losses against profits made elsewhere in the group to which they then belonged.

75 When the Commission calculated the amount of the aid granted in the form of special tax credits paid to the shipyards under Law 13-96, which it declared incompatible with the common market, it acted in accordance with the provisions of that law on the calculation of the amount of such tax credits on the basis of the taxable amount.

76 Contrary to the Spanish Government's claim, when the grant of those special tax credits ceased to be justified, following SEPI's takeover of the shipyards on 1 September 1997 - again enabling those yards to offset their after-tax losses against profits made elsewhere in that group -, the unlawful aid thus granted was to be calculated having regard to the legislation under which general tax credits are granted.

77 It follows that the Spanish Government's complaints about the calculation of the amount of the unlawful aid are unfounded and that it cannot be alleged that, by adopting the contested decision, the Commission acted in breach of the principle of the protection of legitimate expectations or committed a manifest error of assessment.

78 The fourth plea must therefore be rejected.

79 In view of all the foregoing, the application must be dismissed in its entirety.

Costs

80 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs, the Kingdom of Spain, which has been unsuccessful, must be ordered to pay the costs.

On those grounds,

THE COURT (Sixth Chamber)

hereby:

1. Dismisses the application;

2. Orders the Kingdom of Spain to pay the costs.