Case C‑89/14

A2A SpA

v

Agenzia delle Entrate

(Request for a preliminary ruling from the Corte suprema di cassazione)

‛Reference for a preliminary ruling — State aid — Determination of the calculation of interest relating to the recovery of aid that is incompatible with the common market — Simple or compound interest — National legislation referring, for the calculation of interest, to Regulation (EC) No 794/2004 — Recovery decision notified before that regulation entered into force’

Summary — Judgment of the Court (Fifth Chamber), 3 September 2015

1. State aid — Recovery of unlawful aid — Payment of interest justified by the need to restore the situation previously obtaining — Application of interest rates on a compound basis — Regulation No 794/2004 — Scope ratione temporis — National legislation providing for the application of interest rates on a compound basis before the entry into force of Regulation No 794/2004 — Lawfulness — New, non-retroactive regulation applicable to the future effects of situations which arose under the earlier regulation — Infringement of the principles of legal certainty and the protection of legitimate expectations — No such infringement

   (Art. 108(2) TFEU; Council Regulation No 659/1999, Art. 14; Council Regulation No 794/2004, Arts 11(2) and 13)

2. Questions referred for a preliminary ruling — Reference to the Court — Assessment by the national court — Questions raised during the proceedings by the parties to the main action — No need to examine

   (Art. 267 TFEU)

3. EU law — Principles — Equal treatment — Need to uphold the principle of legality

1.  Article 14 of Regulation No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty, and Articles 11 and 13 of Regulation No 794/2004 implementing Regulation No 659/1999 do not preclude national legislation which, by means of a reference to Regulation No 794/2004, provides for the application of compound interest to the recovery of State aid, even though the decision declaring that aid incompatible with the common market and ordering its recovery was adopted and notified to the Member State concerned before that regulation entered into force.

   Article 11(2) of Regulation No 794/2004 is, in accordance with the fifth paragraph of Article 13 of that regulation, applicable only to recovery decisions notified after the date that regulation entered into force, namely after 20 May 2004. Therefore, Article 11(2) of that regulation is not, as such, applicableratione temporis to a decision ordering recovery of aid, notified to a Member State before that date. In the absence of a provision under EU law on that subject, it is for national law to determine whether, in this case, the interest rate must be applied on a simple or on a compound basis.

   In that regard, national legislation which refers solely to Chapter V of Regulation No 794/2004 cannot be regarded as contrary to Article 13 of that regulation. A principle prohibiting the Member States — which, before 20 May 2004 were solely competent to determine the basis of calculation of interest — from legislating in one way rather than in another cannot however be deduced from such a limitation of the applicability ratione temporis of Regulation No 794/2004, resulting from rules laid down by Article 13 thereof. Article 13 of Regulation No 794/2004 therefore does not introduce a rule of non-retroactivity applicable to national legislation before the entry into force of Regulation No 794/2004.

   Where State aid, declared incompatible with the common market by a Commission decision, notified before the entry into force of Regulation No 794/2004, had not been recovered or even set out in a tax assessment on the date of entry into force of national legislation imposing, for the recovery of such aid, the application of compound interest replacing previous provisions providing for the application of simple interest, that national legislation cannot be considered to affect a situation which arose earlier. Therefore, such national legislation has no retroactive effect and only applies new rules to the future effects of situations which arose under the earlier rules. Consequently, the general principles of legal certainty and protection of legitimate expectations do not preclude such legislation.

   (see paras 27-29, 32, 34, 39-41, 43, 48, operative part)

2.  See the text of the decision.

   (see paras 44, 45)

3.  See the text of the decision.

   (see para. 46)