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European Commission


Brussels, 10 December 2013

State Aid: Commission welcomes Court ruling on exemptions from excise duty on mineral oils used as fuel for alumina production

The European Commission welcomes today's judgement of the EU Court of Justice, setting aside a General Court ruling that had annulled a Commission Decision of December 2005 finding exemptions from excise duty on mineral oils used as fuel for alumina production granted by France, Ireland and Italy to be in breach of EU state aid rules (case C-272/12 P). This ruling clarifies the powers of the EU Courts to raise pleas of their own motion and, most importantly, confirms again the Commission's exclusive competence regarding state aid control in the EU and the objectivity of the concept of State aid.

In the judgement set aside, the General Court had annulled the Commission's decision on the basis of a plea that it had raised of its own motion, namely that the exemptions at issue were not imputable to the Member States, but to the EU, as they derived from decisions of the Council of Ministers. As a consequence, the Court held that those exemptions did not constitute state aid in the meaning of the EU rules. The General Court had also considered that the contested Commission decision called into question the validity of the Council’s decisions to authorise certain exemptions and therefore breached the principles of legal certainty and the presumption of legality attached to EU measures and infringed the principle of sound administration.

Following an appeal brought by the Commission, the Court of Justice found today that a plea based on an infringement of Article 87(1) EC (now Article 107(1) of the Treaty on the functioning of the European Union – TFEU), namely the non-imputability of the measure in question to the State, cannot be raised by a court of its own motion.

The Court of Justice also found that a Council decision authorising a Member State, in accordance with an EU Directive on taxation to introduce an exemption from excise duties could not have the effect of preventing the Commission from exercising its duty conferred by the TFEU of controlling the compatibility of such exemptions with EU state aid rules. The Court moreover strengthened the principle that the concept of state aid corresponds to an objective situation and cannot depend even on the conduct or statements of EU institutions.

The Court of Justice sent the case back to the General Court, who will then adopt a new decision.


  • Ireland, the Italian Republic and the French Republic adopted reductions and exemptions of excise duties on mineral oils for alumina production on the basis of several Council decisions adopted on the basis of Article 8(4) of Directive 92/81/ECC of 19 October 1992 on the harmonization of the structures of excise duties on mineral oils ("Directive 92/81").

  • Under Council Directive 92/81, the Council, acting unanimously on a proposal from the Commission, could authorize any Member State to introduce further exemptions or reductions of excise duties for specific policy considerations. If, within two months of the other Member States' being informed by the Commission of the reduction or exemption proposal made to the Commission, neither the Commission nor any Member State requested that the matter be considered by the Council, the Council was deemed to have authorized the exemption or the reduction proposed.

  • Moreover, according to Article 8(5) of the Council Directive 92/81, the Commission could submit proposals to the Council if it considered that the reductions or exemptions adopted were no longer sustainable. The Council had to take unanimous decisions on those proposals.

  • The Commission Decision 2006/323/EC of 7 December 2005 established that the exemptions from excise duty on mineral oils used as fuel for alumina production granted by the French Republic, Ireland and the Italian Republic until 31 December 2003 constitute illegal and largely incompatible State aid to be recovered from the beneficiaries.

  • The Commission decision was challenged before the General Court, which annulled it by the judgement from 12 December 2007. The Commission appealed this judgement before the Court of Justice and, by its judgement on appeal from 2 December 2009, the Court of Justice set aside the judgement of the General Court and referred the joined cases back to it (see MEMO/09/533). The General Court has annulled this Commission Decision, for the second time, on the ground that the reductions and exemptions considered to be incompatible aid in the contested decision had been adopted in implementation decisions of the Council on the basis of Directive 92/81 and that, therefore, they were not imputable to the Member States concerned but to the European institutions. In addition, the assessment of the reductions and exemptions at stake under State aid rules would be contrary to the principle of legal certainty and the presumption of legality of the acts of the European institutions.

  • The Commission appealed this judgement of the General Court due to the fact that it entailed important implications for the Commission's powers under State aid rules and for the notion of State aid. More specifically, the judgement of the General Court went against established case law on the notion of imputability and the exclusive powers of the Commission regarding State aid rules.

  • The European Court of Justice now set again aside the judgement of the General Court delivered on 21 March 2012 in Ireland and Others v Commission, Joined Cases T-50/06 RENV, T-56/06 RENV, T-60/06 RENV, T-62/06 RENV and T-69/06 RENV and referred the case back to it.

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