Judgment of the Court (Third Chamber) of 9 June 2011 – Territorio Histórico de Vizcaya – Diputación Foral de Vizcaya and Others v Commission

(Joined Cases C-465/09 P to C-470/09 P)

Appeal – State aid – Action for annulment – Decision initiating the formal investigation procedure under Article 88(2) EC – Subsequent final decisions finding State aid schemes implemented by Spain in 1993 for certain newly established firms in the provinces of Álava, Vizcaya and Guipúzcoa incompatible with the common market – Exemption from corporation tax – Lis pendens – Concept of ‘authorised aid’ – Legitimate expectations – Observance of a reasonable time-limit – Not notified

1. Appeals – Grounds – Challenge, repeating the pleas in law and arguments raised before the General Court, to the latter’s interpretation or application of Union law – Admissibility (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the General Court, Art. 112(1)(c)) (see paras 78-79, 82)

2. Procedure – Introduction of new pleas during the proceedings – Conditions – New plea – Definition (Rules of Procedure of the General Court, Art. 48(2)) (see para. 84)

3. State aid – Existing aid and new aid – Classification as existing aid – Criteria – Unnotified aid measures – Authorisation by reason solely of the Commission’s silence – Not included (Art. 88(3) EC; Council Regulation No 659/1999, Art. 1(b)(ii)) (see paras 90-91, 94-97)

4. Appeals – Grounds – Review by the Court of the General Court’s refusal to order measures of inquiry – Scope (Rules of Procedure of the General Court, Art. 66(1)) (see paras 108-110)

5. State aid – Examination by the Commission – Compatibility of the aid with the common market – Assessment of the compatibility of unnotified aid with regard to guidelines adopted after the aid had been paid – No breach of the principle of legal certainty – No breach of the principle of non-retroactivity (Arts 87 EC and 88 EC; Commission Communication 98/C 74/06) (see paras 120-128)

6. State aid – Recovery of unlawful aid – Aid granted in breach of the procedural rules under Article 88 EC – Legitimate expectations possibly entertained by the recipients – Protection – Conditions and limits – No action taken by the Commission for a relatively long period – National authorities in breach of their duty to cooperate with the Commission – No legitimate expectations (Arts 87 EC and 88 EC) (see paras 150-156, 162-163)

7. Appeals – Grounds – Grounds of a judgment marred by infringement of Union law – Operative part well founded for other legal reasons – Rejection (see para. 171)

Re:

Operative part

The Court:

1.Dismisses the appeals;

2.Orders the Territorio Histórico de Vizcaya – Diputación Foral de Vizcaya, the Territorio Histórico de Álava – Diputación Foral de Álava and the Territorio Histórico de Guipúzcoa – Diputación Foral de Guipúzcoa to pay in equal shares the costs relating to the present appeals;

3.Orders the Kingdom of Spain to bear its own costs.