Case T‑542/11

Alouminion AE

v

European Commission

‛State aid — Aluminium — Preferential electricity tariff granted by contract — Decision declaring the aid unlawful and incompatible with the internal market — Termination of the contract — Judicial suspension, as an interim measure, of the effects of termination of the contract — New aid’

Summary — Judgment of the General Court (Fourth Chamber), 8 October 2014

State aid — Existing aid and new aid — Concept — Contract, concluded before the accession of the State concerned to the European Communities, granting a preferential electricity tariff — Termination of the contract — Interlocutory order of a national court suspending the effects of the termination of the contract — Classification as new aid — None

(Art. 108(1) and (3) TFEU; Council Regulation No 659/1999, Art. 1(b) and (c))

Under Article 108(3) TFEU the Commission must be informed of any plan to grant new aid before it is implemented and that any new aid granted without the Commission’s approval is unlawful.

Under Article 1(c) and (b) of Council Regulation (EC) No 659/1999, laying down detailed rules for the application of Article 108 TFEU, new aid means all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid and existing aid means authorised aid, that is to say, aid schemes and individual aid which have been authorised by the Commission or by the Council of the European Union.

Measures taken after the entry into force of the Treaty to grant or alter aid, whether or not the alterations relate to existing aid, must be regarded as new aid.

In that regard, the extension of an existing aid creates a new aid which is distinct from the aid which was extended and the amendment of the duration of an existing aid should also be regarded as a new aid.

However, for Article 108(1) and (3) TFEU to apply, the emergence of new aid or the alteration of existing aid must be determined by reference to the provisions providing for it, its detailed rules and its limits. It is therefore only where the alteration affects the actual substance of the original scheme that the latter is transformed into a new aid scheme.

In the context of an annulment action brought against a Commission decision declaring as new aid the suspension, by a national court, in interlocutory proceedings, provisionally and ex nunc, of the effects of the termination of a contract, concluded between the public electricity company and a company before the accession of the Member State to the European Communities, granting a preferential electricity tariff to that company, the intervention of the court hearing the interlocutory action, provisionally maintaining that tariff for a certain period, has neither the purpose nor the effect of altering the substance of the existing aid. It does not alter the contractual or legislative provisions relating to the preferential tariff, or alter the conditions or the limits of that tariff, but is merely an assessment as to whether the termination of the contract was lawful.

Hence, the court hearing the interlocutory action, rather than granting new aid, merely gave an interim ruling in the dispute before it in the matter of whether the contract under which the preferential tariff was granted had ceased to have effect. It necessarily follows that suspension of the termination of the contract after the interlocutory order is not regarded as being a new privilege separate from the existing aid.

(see paras 48-50, 53-56)