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Concluziile avocatului general Stix-Hackl prezentate la data de10 iunie 2004.
Republica Italiană împotriva Comisiei Comunităților Europene.
Acțiune în anulare - Ajutor de stat.
Cauza C-400/99.

ECLI identifier: ECLI:EU:C:2004:361

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OPINION OF ADVOCATE GENERAL

STIX-HACKL

delivered on 10 June 2004 (1)

Case C-400/99

Italian Republic

Commission of the European Communities

(Aid for ferry undertakings – Decision concerning the initiation of the formal investigation procedure – Partial settlement of the situation giving rise to the action – Independent suspensory effect – Regulation (EC) No 659/1999 – Fair hearing)

I – Introduction

1. This Opinion concerns the continuation of the proceedings in Case C‑400/99 Italy v Commission. In these proceedings, the Italian Republic is applying for the partial annulment of the Commission decision, communicated to it by Commission letter SG(99) D/6463 of 6 August 1999, to initiate the formal procedure under Article 88(2) EC concerning State aid C 64/99 (ex NN 68/99) – Italy – granted to undertakings in the Tirrenia di Navigazione group (2) (hereinafter: the contested decision).

2. For the facts of the case, the procedure before the Commission, the forms of order sought by the parties and the relevant Community law, reference is made to the judgment of the Court of Justice of 9 October 2001 in this case (3) (hereinafter: the interlocutory judgment), in which the Court ruled on the objection of admissibility raised by the Commission pursuant to Article 91(1) of the Court’s Rules of Procedure. The objection was dismissed and it was ordered that the action proceed to judgment.

II – Subsequent developments

3. On 21 June 2001, the Commission adopted the ‘Decision on the State aid awarded to the Tirrenia di Navigazione shipping company by Italy’ (2001/851/EC) (4) (hereinafter: the first partial final decision). (5) It concerned only the abovementioned undertaking, which ‘assumes the role of group leader’ within the group of undertakings. The first partial final decision reads, in part, as follows:

‘THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Whereas:

…

6. CONCLUSION

(43) On the basis of the foregoing, the Commission notes that there are no further doubts regarding the compatibility of the aid awarded to Tirrenia di Navigazione under the 1991 agreement,

HAS ADOPTED THIS DECISION:

Article 1

The aid awarded by Italy to Tirrenia di Navigazione between 1 January 1990 and 31 December 2000 as compensation for providing a public service is compatible with the common market.’

4. On 16 March 2004, the Commission adopted the ‘Decision on State aid awarded by Italy to the Adriatica, Caremar, Siremar, Saremar and Toremar maritime transport companies (Tirrenia group) (hereinafter: the second partial final decision). (6) It concerned the other undertakings in the Tirrenia group not covered by the first partial final decision. The second partial final decision reads, in part, as follows:

‘THE COMMISSION OF THE EUROPEAN COMMUNITIES,

…

Whereas:

…

6. CONCLUSION

(171) On the basis of the foregoing, the Commission notes that there are no doubts regarding the compatibility with the common market of the aid awarded by Italy to the regional undertakings under the 1991 agreements since January 1992, except as regards the aid awarded to Adriatica from January 1992 to July 1994 for the Brindisi/Corfu/Igoumenitsa/Patras link, which is incompatible with the common market on the following three grounds …

HAS ADOPTED THIS DECISION:

Article 1

(1) Save as provided for in paragraph 2, the aid awarded by Italy to Adriatica from 1 January 1992 as compensation for providing a public service is compatible with the common market under Article 86(2) EC.

…

Article 2

(1) The aid awarded by Italy to Siremar, Saremar and Toremar from 1 January 1992 as compensation for providing a public service is compatible with the common market under Article 86(2) EC.

…

Article 3

(1) The aid awarded by Italy to Caremar from 1 January 1992 as compensation for providing a public service is compatible with the common market under Article 86(2) EC.

…’

III – The subject-matter of the proceedings

5. As the Court stated in the interlocutory judgment, the action was brought against the contested decision only ‘in so far as it rules on the suspension of the measures in question’. (7) Four pleas in law are raised:

1. Breach of the principle of legal certainty and the rules on transparency with regard to Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (8) (hereinafter: Regulation No 659/1999);

2. Breach of the guarantees afforded by the audi alteram partem rule and the rights of the defence and infringement of Article 11(1) of Regulation No 659/1999;

3. Misuse of powers in the adoption of the suspension injunction, since it is based on grounds other than those laid down in Article 88(3) EC (formerly Article 93(3) of the EC Treaty);

4. Infringement of Article 87(1) EC and Article 88(1) and (3) EC, breach of the principle of legal certainty and infringement of Regulation No 659/1999 with regard to the declaration that the aid existed and was unlawful because there was uncertainty, there was no investigation and no statement of reasons, and the factual preconditions were not satisfied.

A – Need to proceed to judgment in the main action

1. Submissions of the parties

6. In its reply – that is to say before the second partial final decision was adopted – the Commission argued that there was no need to adjudicate with respect to the undertaking covered by the first partial final decision. The first partial final decision was not challenged within the prescribed period and is therefore fully effective. It is therefore clear in the final analysis that the measures in support of the undertaking covered by the first partial final decision constitute unlawful aid that is, however, compatible with the common market. The contested decision has therefore been rendered legally redundant.

2. Assessment

7. There is no need to adjudicate in aid cases if and in so far as, by virtue of the legal effects of the final decision, (9) the decision on the initiation of the formal procedure no longer produces independent legal effects. (10)

8. Before I consider the interrelationship between the legal effects of the contested decision and those of the two partial final decisions, I would first like to draw attention to the statement made in the interlocutory judgment (11) about the independent suspensory effect of a decision concerning the initiation of the formal procedure.

In paragraph 62 of that judgment, the Court stated inter alia:

‘… where the Commission initiates the procedure under Article 88(2) EC in relation to a measure in the course of implementation which it classifies as new aid … the choice made by the Commission entails independent legal effects, particularly in relation to the suspension of the measure concerned’.

9. It must therefore be examined whether and to what extent the previously independent legal effects of the contested decision have now been eliminated or supplanted by virtue of the adoption of the two partial final decisions.

10. The present case – as will be shown – deals with a special situation in several respects: not all the measures affected by the suspensory effect of the contested decision were subject to a final assessment under the rules on aid in the two partial final decisions, (12) one of the measures at issue could not be implemented immediately after the contested decision for reasons of national law (13) and another measure was objectively not aid within the meaning of Article 87(1) EC, even when the contested decision was adopted. (14)

11. This situation means that it is necessary, first of all, to identify the measures taken by the Italian authorities in respect of which the contested decision has suspensory effect. It must then be considered to what extent each of these measures is covered by the legal effects of the two partial final decisions and, if so, whether the suspensory effect of the contested decision might thereby be eliminated. If they are not covered, it must be examined, lastly, whether there might be no need to proceed to a judgment on other grounds.

12. Only in so far as the examination shows that the suspensory effect of the contested decision remains for certain measures is it necessary to proceed to judgment and examine the grounds for annulment for these measures.

(a) The national measures which had to be suspended under the contested decision

13. The contested decision is not particularly clear as regards the description of the measures in respect of which the formal investigation procedure was initiated. In addition, the Commission was not certain at the time about the precise substance of and the interrelationship between the individual measures.

14. It can be seen from Chapter II (‘Arguments put forward in the preliminary procedure’) and Chapter III (‘Assessment’) of the contested decision that when the contested decision was adopted the Commission identified the following measures as possibly constituting unlawful aid: the 1991 agreements on public service obligations, which essentially concern annual compensatory payments for the operation of certain ferry services, the financing of unspecified investments in the fleets, where the Commission considers an implicit State guarantee to be possible, the operating subsidies under the five-year plan for 1995-1999, which were, in the view of the Commission, possibly further supplemented by investments under the industrial plan for 1999-2002 and, lastly, tax concessions for the supply of fuels and lubricants.

15. According to the statements made in the two partial final decisions, however, the system of measures in support of the undertakings in the Tirrenia group appears in general to be such that evidently not all the measures referred to in the contested decision are independent measures. (15) All in all, it must be stated that the contested decision could have had suspensory effect in practice only in respect of the following measures:

– The 1991 ‘agreements on public service obligations’ between the Italian Republic and the undertakings in the Tirrenia group (hereinafter: agreements on public service obligations), which essentially concerned annual compensatory payments and investment aid for the operation of ferry services.

– The ‘industrial plan’ for the 1999-2002 period (hereinafter: industrial plan for 1999-2002), which concerned investment aid for the procurement and maintenance of the required fleets. (16)

– The non-taxation of fuels and lubricants for ships, in so far as they were used not only at sea, but, for the undertakings in the Tirrenia group, also when the ships stayed in Italian ports (hereinafter: the tax concessions).

(b) The substance of the two partial final decisions and the possible consequences as regards the need to proceed to judgment

16. Each of the abovementioned measures must now be examined in turn with a view to determining whether it might be unnecessary to proceed to judgment as a result of the adoption of the two partial final decisions.

(i) The agreements on public service obligations

17. The agreements on public service obligations are – as can be seen from the partial final decisions – new (17) aid, (18) which is, however, for the most part compatible with the common market, since Article 86(2) EC is applicable. (19)

18. With the adoption of the two partial final decisions, it is therefore established with legal effect that, on account of their character as (new) aid, these measures are in any case subject to the suspensory effect of Article 88(3) EC.

19. Consequently, a suspensory effect under primary law applied to the agreements on public service obligations even when the contested decision was adopted, which supplanted the effect which the Commission was able to trigger through the decision on the initiation of the formal procedure.

20. It is not therefore necessary to proceed to judgment in the action brought against the suspensory effect of the contested decision in respect of the agreements on public service obligations as a result of the adoption of the two partial final decisions.

(ii) The industrial plan for 1999-2002

21. It should be stated, first of all, that this measure is not expressly mentioned in the operative part of each partial final decision. The operative part refers only to the agreements on public service obligations (20) (Article 1 of the first partial final decision and Articles 1 to 3 of the second partial final decision in connection with the ‘conclusions’ at the end of the assessment part of each decision).

22. Having regard to the principle of legal certainty, I therefore find it difficult to accept that the two partial final decisions can have an effect under the rules on aid even in respect of measures about which no findings are made in the operative part. However, applying a broad interpretation of the Court’s case-law, under which ‘the need to ensure legal certainty means that rules must enable those concerned to know precisely the extent of the obligations which they impose on them’, (21) the whole text of the respective partial final decision could be used to determine whether the Commission at least conducted an implicit assessment under the rules on aid of the industrial plan for 1999-2002.

23. The industrial plan for 1999-2002 is in any case mentioned in the assessment part of each partial final decision. However, it is merely stated there that its implementation ‘was suspended as a result of the initiation of the procedure’. (22) It is thus merely stated for the period that is relevant as regards the need to proceed to judgment (suspensory effect from the date of service of the contested decision to the date of service of the respective partial final decision) that the measure at issue had not been implemented. However, the Commission did not conduct an evaluation under the rules on aid. (23)

24. It is not therefore possible to say whether the implementation of the industrial plan for 1999-2002 would have constituted aid under Article 87(1) EC in the view of the Commission. Consequently, it cannot be assumed either that the suspensory effect of the contested decision in respect of the industrial plan for 1999-2002 is supplanted by the suspensory effect of Article 88(3) EC. Bearing this in mind, the legal effects of the partial final decisions have not obviated the need to proceed to judgment.

25. However, in addition, in the present case the planned investment aid under the industrial plan for 1999-2002 was evidently not granted, initially on the basis of the contested decision, but shortly thereafter on other grounds, namely grounds of national law. In the first partial final decision, the Commission states that ‘implementation of this plan was suspended as a result of the initiation of the procedure. The Commission finds that the obligations entered into by the Italian authorities for the 2000-2004 period preclude Tirrenia di Navigazione from making the additional investments … as planned’. (24)

26. If, therefore, the implementation of the industrial plan for 1999-2002 was suspended shortly after the adoption of the contested decision no longer on account of the suspensory effect of that decision, but on the basis of a new domestic agreement, there is no need to adjudicate in this respect. (25)

27. In my opinion, as a result of the national obligations that applied from 2000, it is not necessary to proceed to judgment in the present case in respect of the suspensory effect of the contested decision vis-à-vis the industrial plan for 1999-2002.

(iii) The tax concessions

28. According to the statements made in the contested decision (26) and the descriptive part of each of the two partial final decisions, (27) the Commission took the view, on the basis of the information available to it when the contested decision was adopted, that the tax concessions were applied only to the undertakings in the Tirrenia group. From this perspective, they were a selective measure and therefore constituted aid within the meaning of Article 87(1) EC.

29. In neither of the partial final decisions, however, is there an express definitive assessment of whether tax concessions constitute aid. In particular, there is no mention of the measure in the operative part of each partial final decision. Only in the respective part on ‘Observations made by the Italian authorities’ (28) is it briefly mentioned that it was apparent from information that had not been communicated to the Commission until the formal investigation procedure that the tax concessions were available from the outset to all comparable undertakings.

30. Nevertheless, in my opinion, the Commission made definitively clear – not expressly, but undoubtedly recognisably for those to whom the decision was addressed (29) – that the measure did not constitute aid within the meaning of Article 87(1) EC at the time of the contested decision.

31. If, however, a measure does not constitute aid, the final decision cannot produce any suspensory effect under Article 88(3) EC which – as already explained above (30) – could supplant the independent suspensory effect of the contested decision. (31) Therefore, the contested decision would have to continue to have a suspensory effect in respect of the tax concessions and it would then still be necessary to proceed to judgment.

32. Before I suggest that, on the abovementioned grounds, the Court take the view that it is necessary to proceed to judgment in the present case in respect of the tax concessions, I would like to consider briefly – because of the fundamental importance of this issue – the possible consequences of the assumption – on which that suggestion is based – of the suspensory effect of a decision on the initiation of the formal procedure in respect of all measures covered by that decision:

If the independent suspensory effect also applies to non-aid, this means nothing more than that the Commission would also be able to enforce a temporary suspension of national measures that are lawful under the rules on aid through a decision on the initiation of the formal procedure. As is shown by the present case, this may mean that the mere suspicion that a measure is selective is sufficient to exclude apparently favoured undertakings from the enjoyment of a perfectly lawful measure, whilst competitors are able to continue to benefit from this measure, until the Commission concludes the formal procedure, which may take several years. (32)

This situation must also be seen in the light of the fact that the requirements for a lawful decision on the initiation of the formal procedure under Regulation No 659/1999 (Article 13(1) in conjunction with Article 4(4)) are relatively low (33) and it probably cannot be assumed either that it would be necessary for the initiation of the formal procedure, in addition to satisfaction of the requirements referred to in Regulation No 659/1999, to establish definitively the existence of aid within the meaning of Article 87(1) EC at that time. (34)

33. In my opinion, however, it is clear from the interlocutory judgment that decisions on the initiation of the formal procedure inevitably also have an independent suspensory effect in respect of measures that are objectively not aid. The Court of Justice (and, concurring with it in two more recent judgments, the Court of First Instance (35)) stated in paragraph 69 of the interlocutory judgment: ‘Concerning the other measures allegedly enjoyed by the Tirrenia group which are referred to by the decision to initiate the procedure under Article 88(2) EC, the Italian Government essentially argues that they do not constitute aid within the meaning of Article 87(1) EC. Therefore, for reasons similar to those set forth in paragraphs 59 and 60 of this judgment, the action must also be held admissible in so far as it refers to the part of the contested decision which refers to the suspension of those other(36) measures’. In the abovementioned paragraphs of the interlocutory judgment, the admissibility of the action was based primarily (37) on the existence of independent legal effects of a decision on the initiation of the formal procedure, which thus also occur in respect of measures that do not constitute aid within the meaning of Article 87(1) EC.

34. If, however, a decision on the initiation of the formal procedure can also have an independent suspensory effect in respect of measures that never constituted aid within the meaning of Article 87(1) EC, it appears all the more important to be able to continue an action against that decision even after the adoption of any partial final decision. It is therefore necessary to proceed to judgment, in my opinion, on the basis of fundamental considerations. (38)

35. In my view it cannot therefore be assumed that it is not necessary to proceed to judgment in so far as the action is directed at the suspensory effect of the contested decision in respect of the tax concessions.

3. Conclusion

36. It is not necessary to proceed to judgment in so far as the action is directed at the suspensory effect of the contested decision in respect of the agreements on public service obligations and in respect of the industrial plan for 1999-2002. With regard to the suspensory effect of the contested decision in respect of the tax concessions, the grounds for annulment raised must be examined.

B – The grounds for annulment

1. Breach of the principle of legal certainty and the rules on transparency with regard to Regulation (EC) No 659/1999

(a) Submissions of the parties

37. The ItalianRepublic takes the view that in the contested decision the Commission should have relied on the provisions of Regulation No 659/1999, since that regulation was already applicable when the decision was adopted. The Commission therefore acted in breach of the principle of legal certainty and the rules on transparency.

38. The Commission contends that the contested decision was based directly on Article 88 EC and that there was therefore no need for express mention of Regulation No 659/1999. In the interlocutory judgment, the Court found that the contested decision does not contain any suspension injunction under Article 11(1) of Regulation No 659/1999.

(b) Assessment

39. The Commission’s legal opinion must be concurred with. The suspensory effect of the contested decision does not follow from a suspension injunction under Article 11(1) of Regulation No 659/1999, since no such suspension injunction is contained in the contested decision. (39)

40. According to the interlocutory judgment, the suspensory effect is to be regarded as independent and in the present case follows directly from the fact that the Commission initiated the formal procedure under Article 88(2) EC. (40) No explicit reference to Regulation No 659/1999 was therefore needed. The Commission correctly identified the legal basis for the suspensory effect of the contested decision.

41. There is therefore no breach of the principle of legal certainty or the rules on transparency with regard to the identification of the legal basis for the contested decision.

2. Breach of the guarantees afforded by the audi alteram partem rule and the rights of the defence and infringement of Article 11(1) of Regulation No 659/1999

(a) Submissions of the parties

42. The ItalianRepublic takes the view that the Commission should have given it an opportunity to express its views before the adoption of the decision having a suspensory effect. The breach of the right to be heard was particularly serious with respect to the industrial plan for 1999-2002 and the tax concessions, since those measures had never been mentioned to the Italian authorities before the adoption of the contested decision.

43. The Commission claims that the contested decision does not comprise a suspension injunction within the meaning of Article 11(1) of Regulation No 659/1999 and the hearing referred to in that provision is not therefore necessary. Article 10(2) of Regulation No 659/1999 is likewise not relevant. That provision establishes a right for the Commission to request information from the Member State in question in the case of non-notified aid. However, an obligation on the part of the Commission to give the Member State a separate hearing regarding the initiation of the formal procedure cannot be derived from that provision. Article 88(2) EC does not contain any indication either that the Commission may initiate the formal procedure in the case of non-notified aid only after it has given the Member State in question a hearing.

(b) Assessment

44. The Commission’s arguments must be rejected. As the Court has already repeatedly found, ‘observance of the rights of the defence is, in all procedures initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question’. (41)

45. As the Court has established, (42) the decision on the initiation of the formal procedure under Article 88(2) EC produces an independent suspensory effect, distinct from Article 88(3) EC, for all measures covered by such a decision and is therefore undoubtedly a measure having adverse effects. Before the contested decision was adopted, there should therefore have been a hearing on the suspensory effect of all the measures laid down therein that were regarded as questionable under the rules on aid.

46. The present case shows the importance of this particular right to a hearing on the initiation of the formal procedure. It appears that the tax concessions were not the subject of discussions conducted by the Commission with the Italian authorities before the adoption of the contested decision either. However, the lack of selectivity of the tax concessions would possibly have been apparent with a proper hearing even before the decision on the initiation of the formal procedure and could have led the Commission to exclude this measure from the contested decision. (43)

47. This right to a hearing must be distinguished from the right to a hearing laid down in Article 11(1) of Regulation No 659/1999. The right to a hearing under Article 11(1) of Regulation No 659/1999 relates to the planned adoption of a suspension injunction, whose legal effect is different from the suspensory effect of the decision on the initiation of the formal procedure produced in this case. In addition, a request for information by the Commission pursuant to Article 10(2) of Regulation No 659/1999 (44) could not therefore replace a hearing on the full content of a planned decision on the initiation of the formal procedure.

48. There has therefore been a breach of procedural rights and the contested decision must be annulled in respect of the suspensory effect of the contested decision concerning the tax concessions.

3. Misuse of powers in the adoption of the suspension injunction

(a) Submissions of the parties

49. The ItalianRepublic takes the view that, in adopting the suspension injunction, rather than classifying the measures as aid within the meaning of Article 87(1) EC and demonstrating whether it was new or modified aid within the meaning of Article 88(3) EC, the Commission based its decision solely on the view that competing undertakings could incur damage as a result of the implementation of the measure. The Commission therefore adopted the contested decision purely as a precautionary measure in case it should subsequently emerge that the measures in question constituted new or unlawfully modified existing aid.

50. The Commission claims that the contested decision does not comprise a suspension injunction. The information concerning precautionary suspension to avoid damage to competing undertakings is included only in case the contested decision also comprised a suspension injunction. However, since the decision related only to the initiation of the formal procedure, it had not been necessary at the time to show that unlawful aid had actually existed. The contested decision therefore contained the statement that the Commission had misgivings over the existence of unlawful aid and its incompatibility with the common market and it therefore satisfied the requirements for a decision on the initiation of the formal procedure under Article 88(2) EC.

(b) Assessment

51. The arguments made by the Italian Republic must be rejected. The Court has consistently held that a Commission decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated. (45)

52. However, the Commission did not rely on such grounds. In so far as it refers to the protection of competing undertakings, (46) these statements relate to the announced adoption of a suspension injunction under Article 11(1) of Regulation No 659/1999.

53. As the Court stated in the interlocutory judgment, however, the contested decision does not comprise a suspension injunction. (47) The suspensory effect in fact stems directly from the initiation of the formal procedure. (48) However, the initiation of the procedure itself was not justified by the Commission on grounds of protection of competing undertakings. Instead, the Commission asserted that it suspected that the measures in question constituted non-notified, new aid that was incompatible with the common market.

54. The Commission did not therefore misuse its powers in the adoption of the contested decision.

4. Infringement of Article 87(1) EC and Article 88(1) and (3) EC, breach of the principle of legal certainty and infringement of Regulation No 659/1999

(a) Main submissions of the parties

55. The ItalianRepublic takes the view that the Commission erred in law in assuming that the agreements on public service obligations constituted new aid within the meaning of Article 87(1) EC. The Commission failed to understand that, by virtue of Article 4(3) of Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage), (49) those agreements, as ‘existing public service contracts’, ‘may remain in force up to the expiry date of the relevant contract’, since they were concluded in 1991, before the entry into force of that regulation. In addition, information on those agreements was transmitted to the Commission in the years 1991 to 1997. Nevertheless, the Commission never expressed any misgivings in relation to the rules on aid. It must therefore be assumed that those measures were at least tacitly approved and that they could thus, at most, be ‘existing’ aid within the meaning of Article 88(1) EC.

56. The Commission takes the view that the regulation on maritime cabotage cited by the Italian Republic is not capable of precluding the application of the rules on aid, since it is based solely on Article 84(2) of the EC Treaty (transport policy). Furthermore, in the preliminary procedure prior to the adoption of the contested decision, the Italian authorities did not claim that the measures in question constituted existing aid within the meaning of Article 88(1) EC. With regard to the information that had supposedly been transmitted to it previously, the Commission claims that it certainly did not constitute notification within the meaning of the Lorenz ruling. (50) The lack of reaction by the Commission does not therefore in itself make the measures existing aid.

(b) Assessment

57. It is apparent from the submissions made by the parties that the alleged infringement of Article 87(1) EC and Article 88(1) and (3) EC, the breach of the principle of legal certainty and the infringement of Regulation No 659/1999 are being claimed only in respect of the agreements on public service obligations.

58. However, the parties’ submissions up to and including the reply by the Italian Republic were made before the adoption of the first partial final decision. Nevertheless, because, as a result of the adoption and service on the Italian Republic of the two partial final decisions, it is not now necessary to proceed to judgment in respect of the suspensory effect of the contested decision vis-à-vis the agreements on public service obligations, there is no need to consider further the grounds that have been put forward in this regard.

C – Conclusion

59. It is not necessary to proceed to judgment in the action brought against the Commission decision on the initiation of the formal procedure, in so far as it is directed at the suspensory effect of that decision vis-à-vis the agreements on public service obligations and vis-à-vis the industrial plan for 1999-2002.

60. The action should be upheld and the contested decision annulled in so far as, in adopting the contested decision concerning the tax concessions, the Commission infringed the rights of defence of the applicant.

IV – Conclusion

61. In the light of the foregoing, I propose that the Court rule as follows:

(1) It is not necessary to proceed to judgment in the action brought against Commission Decision SG(99) D/6463 concerning the initiation of the formal procedure under Article 88(2) EC, in so far as it is directed at the suspension, laid down therein, of the agreements on public service obligations concluded between the Italian Republic and the undertakings in the Tirrenia di Navigazione group in 1991 and the suspension of the industrial plan for 1999-2002;

(2) The action brought against Commission Decision SG(99) D/6463 shall be upheld, in so far as it is directed at the suspension of the tax concessions, and the abovementioned decision shall be annulled in this respect;

(3) Each party shall bear its own costs.

1 – Original language: German.

2 – OJ 1999 C 306, p. 2.

3 – Case C-400/99 Italy v Commission [2001] ECR I-7303.

4 – OJ 2001 L 318, p. 9.

5 – The Court was not informed by either of the parties about the adoption of the first partial final decision, which was only published in the Official Journal of the European Communities on 4 December 2001. The interlocutory judgment of 9 October 2001 was delivered without the possibility of considering the possible significance of the partial final decision for the present case.

6 – Not yet published in the Official Journal of the European Communities.

7 – Paragraph 1 of the interlocutory judgment (cited in footnote 3).

8 – OJ 1999 L 83, p. 1.

9 – The two partial final decisions have now become fully effective in respect of the Italian Republic through the expiry of the respective time-limits for challenging the decisions under Article 230(5) EC.

10 – Order of the Court of First Instance of 4 November 2002 in Case T-90/99 Salzgitter v Commission [2002] ECR II-4535, paragraph 16.

11 – Cited in footnote 3.

12 – See below, point 21 et seq. and 28 et seq.

13 – See below, point 25.

14 – See below, point 29 et seq.

15 – See in particular paragraph 41 of the first partial final decision and paragraph 164 of the second partial final decision with regard to the ‘integral’ connection between the agreements on public service obligations and, on the one hand, the operating subsidies under the five-year plan for the period 1995-1999 and, on the other hand, the unspecified other investment aid, where the Commission considers an implicit guarantee in the contested decision still to be possible.

16 – In paragraph 42 of the first partial final decision, there are observations regarding assistance for the procurement of two ships which did not in any case constitute separate measures, since they would clearly have been either part of the industrial plan for 1999-2002 or, because ‘their depreciation is fully included in the calculation of the annual compensatory payments’, part of the agreements on public service obligations.

17 – Paragraph 20 et seq. of the first partial final decision, paragraph 73 et seq. of the second partial final decision.

18 – Article 1, paragraph 43 of the first partial final decision, Article 1, paragraph 171 of the second partial final decision.

19 – Paragraph 26 et seq. of the first partial final decision, paragraph 84 et seq. of the second partial final decision.

20 – See No 15 above.

21 – See, for example, Case C-245/97 Germany v Commission [2000] ECR I-11261, paragraph 72, and Case C-177/96 Belgium v Banque Indosuez and Others and European Community [1997] ECR I-5659, paragraph 27.

22 – Paragraph 42 of the first partial final decision, paragraph 166 of the second partial final decision.

23 – In paragraph 42 of the first partial final decision, there are the beginnings of an assessment, but only with regard to the investment aid for two separately mentioned ships owned by the main undertaking in the Tirrenia group. However, the Commission finds that ‘their depreciation [can be] fully included in the calculation of the annual compensatory payments’. This investment aid was therefore probably more part of the agreements on public service obligations (see No 15 above) than part of the industrial plan for 1999-2002.

24 – Paragraph 42 of the first partial final decision.

25 – The annulment of the suspensory effect of the contested decision sought by the present action would thus be deprived of its substance in practice, even if the action were successful.

26 – Chapter II(d) and III(a) of the contested decision.

27 – Paragraph 13 of the first partial final decision, paragraph 47 of the second partial final decision.

28 – Paragraph 18 of the first partial final decision, paragraph 56 of the second partial final decision.

29 – See also No 22 above.

30 – See No 19 above.

31 – It is likewise not a possibility here that there is no need to adjudicate on account of practical irrelevance, as was discussed above in point 25 et seq. on the suspensory effect in respect of the industrial plan for 1999-2002. It would be conceivable that the tax concessions not granted for the time being under the contested decision could be granted subsequently on the basis of the retroactive non-applicability of the suspensory effect following a successful action for annulment.

32 – The second partial final decision in the present case was, for example, not adopted until almost five years after the decision on the initiation of the formal procedure.

33 – Since other grounds for annulment have been raised in the present case, it is not necessary to deal with the question of the material grounds on which the action brought against the contested decision could have actually been based with respect to the tax concessions. The Commission had adopted the contested decision in any case on the basis of the information available to it at the time, which suggested that the existence of aid was perfectly possible.

34 – Otherwise, this could possibly lead to a considerable lead time before the initiation of the procedure which excludes third parties (e.g. competitors) who do not participate until the formal procedure from the investigations on the central issue of the decision on aid and ultimately reduce the formal procedure in practice to the issue of possible justifications under Article 87(2) and (3) EC and Article 86(2) EC.

35 – Joined Cases T-269/99, T-271/99 and T-272/99 Diputación Foral de Guipúzcoa and Others v Commission [2002] ECR II-4217, paragraph 37 and Joined Cases T-346/99, T-347/99 and T‑348/99 Diputación Foral de Álava and Others v Commission [2002] ECR II-4259, paragraph 33.

36 – Emphasis not in the original.

37 – However, the changes in the ‘legal position’ mentioned in paragraph 59 of the interlocutory judgment (cited in footnote 3) as grounds for the admissibility of the action can hardly be removed by a successful action for annulment with retroactive effect.

38 – For example, it would be advisable in practically any case where it is disputed in the preliminary procedure that a measure constitutes aid to seek a precautionary action for annulment against a decision on the initiation of the formal procedure in order to comply with the period under the fifth paragraph of Article 230 EC within which an action for annulment may be brought. It must be assumed that – in contrast to the situation thus far – such actions would in any case no longer be withdrawn where the final decision finds that aid does not exist. This could lead to a considerable increase in the number of cases.

39 – Paragraph 52 of the interlocutory judgment (cited in footnote 3).

40 – Paragraph 62 of the interlocutory judgment (cited in footnote 3).

41 – See, for example, Case C-288/96 Germany v Commission [2000] ECR I-8237, paragraph 99, Case C-301/87 France v Commission (‘Boussac’) [1990] ECR I-307, paragraph 29, Case 40/85 Belgium v Commission [1986] ECR 2321, paragraph 28, and Case 17/74 Transocean [1974] ECR 1063, paragraph 15.

42 – Paragraph 55 of the interlocutory judgment (cited in footnote 3).

43 – However, this will not be the case in all instances where it becomes apparent only in the course of the formal procedure that the measures contested in the individual case never constituted aid.

44 – It is clear from the introduction to the contested decision, i.e. at the end of that introduction, that such a request for information was made to the Italian authorities before the contested decision was adopted. Nothing further is known about its content.

45 – Consistent case-law; see, for example, Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 24, and Joined Cases 140/82, 146/82, 221/82 and 226/82 Walzstahl-Vereinigung andThyssen v Commission [1984] ECR 951, paragraph 27.

46 – ‘Conclusions’ chapter of the contested decision.

47 – Paragraph 52 of the interlocutory judgment (cited in footnote 3).

48 – Paragraph 62 of the interlocutory judgment (cited in footnote 3).

49 – OJ 1992 L 364, p. 7.

50 – Case 120/73 Lorenz [1973] ECR 1471.

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