Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Ninth Chamber, Extended Composition)

15 September 2021 (*)

(State aid – Italian motorways – Prolongation of concessions for the execution of works – Services of general economic interest – Cap on toll charges – Decision not to raise any objections – Article 106(2) TFEU – Actions brought by competitors of the beneficiary – Abandonment by the Member State of the plan to grant aid – Plan not capable of being implemented as approved – Annulment not procuring any advantage to the applicants – No longer any legal interest in bringing proceedings – No need to adjudicate)

In Case T‑24/19,

INC SpA, established in Turin (Italy),

Consorzio Stabile Sis SCpA, established in Turin,

represented by H.-G. Kamann, F. Louis and G. Tzifa, lawyers,

applicants,

v

European Commission, represented by L. Haasbeek, D. Recchia and S. Noë, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for the annulment of Commission Decision C(2018) 2435 final of 27 April 2018 on State aid granted for the purposes of the Italian motorways investment plan (Cases SA.49335 (2017/N) and SA.49336 (2017/N)),

THE GENERAL COURT (Ninth Chamber, Extended Composition),

composed of M. J. Costeira, President, D. Gratsias (Rapporteur), M. Kancheva, B. Berke and T. Perišin, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 24 November 2020,

gives the following

Judgment

 Background to the dispute

1        By two letters of 13 October 2017, the Italian authorities notified the European Commission of a series of measures relating to an Italian motorways investment plan.

2        Approximately 5 800 kilometres of Italian motorways are currently managed by private operators under concession. Under the relevant contracts, the concessionaires are required to carry out works or provide services relating to the operation of the motorways. The concessionaires bear the risks involved in the construction and operation of the motorways and must comply with a series of obligations relating to the importance of that type of infrastructure for the public. Moreover, the applicable regulatory framework makes provision for a number of tariff systems aimed at ensuring the financial equilibrium between concession revenues and the cost of the concessionaires’ investments.

3        In that context, the Italian Republic developed a plan consisting essentially in the prolongation of the duration of certain concessions for the purpose of financing additional investments. In its subsequently revised version, the plan in question, as notified, related to motorways which were managed directly or indirectly – namely through participation in consortia – by Autostrade per l’Italia SpA and by Società Iniziative Autostradali e Servizi SpA.

 Contested decision

4        By Commission Decision C(2018) 2435 final of 27 April 2018 on State aid granted for the purposes of the Italian motorways investment plan (Cases SA.49335 (2017/N) and SA.49336 (2017/N)) (‘the contested decision’), the Commission found that certain measures taken in the context of that plan constituted State aid within the meaning of Article 107 TFEU and that they were compatible with the internal market pursuant to Article 106(2) TFEU. Accordingly, the Commission decided, without initiating the formal investigation procedure, not to raise objections to those measures (Section 5 of the contested decision).

5        In particular, the plan notified to the Commission by the Italian authorities concerns 16 motorways managed by Autostrade per l’Italia and 2 motorways managed by Società Iniziative Autostradali e Servizi. That plan essentially rests on two pillars. The first concerns the additional investments to be made by the concessionaires. The second concerns the prolongation of certain concessions, coupled with arrangements aimed at limiting toll tariffs to acceptable levels and avoiding the risk of overcompensation of concessionaires (recitals 12, 13 to 16, 18 to 21 and 34 of the contested decision).

 Motorways operated by Autostrade per l’Italia

6        The concession for the 16 motorways, totalling 2 857.50 kilometres, managed by Autostrade per l’Italia, arose from the concessions awarded to Autostrade-Concessioni e Costruzioni Autostrade SpA in 1968. The latter entity was privatised in 1999 and transferred its motorway concession activities to Autostrade per l’Italia in 2003. The concession at issue was modified, inter alia, in 1997 and the latest version of it was signed in 2007 as a ‘Convenzione Unica’ (single agreement), which was itself amended in 2013 by an ‘Atto Aggiuntivo’ (additional act). Under the amendment signed in 1997, the concession at issue was granted for a period of 40 years, expiring on 31 December 2038 (recitals 34, 35 and 136 of the contested decision).

7        However, the Italian Republic explained that Autostrade per l’Italia had still to carry out investments in the network which it managed. Following decisions taken by the competent authorities as to the nature of the investments in question, the cost of those investments is estimated at approximately EUR 8 billion. Of that amount, EUR 4.908 billion is for works considered to be ‘already foreseen’ in the concession contract as in force before the modification at issue, including the ‘Gronda di Genova’ (Genoa bypass), for which EUR 4.32 billion is earmarked. The remaining EUR 3.03 billion is for ‘additional works’, that is to say works not provided for in the concession contract as in force before the modification at issue. In accordance with the concession contract in force, carrying out the investments in question would require toll charges to be increased to exorbitant levels for users. In that context, the Italian Republic proposed, first, to prolong the duration of the concession, secondly, to cap the increase in toll charges and, thirdly, to provide for a ‘takeover value’ to be paid to the concessionaire at the end of the concession by any new concessionaire. Thus, according to that plan, the duration of the concession would be prolonged by four years, until 31 December 2042, and a takeover value capped at between 1.3 and 1.5 times EBITDA would be paid to the current concessionaire by any potential successor concessionaire after that date (recitals 36 to 43 of the contested decision).

 Motorways managed by the Società Iniziative Autostradali e Servizi

8        The two motorways managed by Società Iniziative Autostradali e Servizi forming the subject matter of the contested decision are the SATAP A4 Torino – Milano and the A33 Asti – Cuneo. The concession relating to the construction and operation of the SATAP A4 Torino – Milano motorway dates from 1989 and, following modifications in 2007 and 2013 to the legal instruments governing it, expires on 31 December 2026. The concession contract relating to the construction and operation of the A33 Asti – Cuneo motorway was signed on 1 August 2007 following an award procedure and provides that the concession is to be granted for a period of 27.5 years: 4 years for execution of the works and the remaining 23.5 years, calculated from completion of the works, for managing the concession. In the light of the latter stipulation, the Commission takes the view that that concession is to end in 2043 (recitals 19 and 20 of the contested decision).

9        The planned works for the A33 Asti – Cuneo motorway were not completed on time and the related costs increased considerably for reasons which, according to the Italian Republic, were not imputable to Società Iniziative Autostradali e Servizi, the concessionaire of that motorway. At the same time, the construction of only 55 kilometres of motorway, instead of the 90 kilometres initially planned, restricted toll revenues to modest levels. Construction of the missing sections of motorway would have therefore required an increase in toll charges to prohibitive levels. In that context, the Italian Republic proposed that the concessionaire make the investments necessary to achieve a functional link between the various completed sections of the A33 Asti – Cuneo motorway. Those investments consist in the construction of approximately 13 kilometres of motorway at a cost of EUR 350 million, instead of the remaining 35 kilometres initially planned, which would have cost EUR 589 million. The works in question are considered to have been already foreseen in the initial concession contract. Moreover, investments with a total value of EUR 153 million are to be made in the SATAP A4 Torino – Milano motorway. Of the latter amount, EUR 109 million is regarded as relating to works already foreseen in the initial concession contract and EUR 44 million as relating to additional works. All those works should be completed by the end of 2022 (recitals 21 to 23 of the contested decision).

10      With regard to covering the costs of the works in question, the Italian Republic proposed cross-financing the works on the A33 Asti – Cuneo motorway from the revenues of the SATAP A4 Torino – Milano motorway, subject to a cap on toll tariffs for the two motorways in question. However, according to the Italian Republic, that cap leads to a loss of income for the concessionaires. Thus, in a manner similar to that which it proposed in relation to the motorways managed by Autostrade per l’Italia (see paragraph 7 above), the Italian Republic expressed its intention, first, to adjust the duration of those two concessions and, secondly, to provide for a takeover value to be paid to the outgoing concessionaire by any new concessionaire if those concessions were not renewed at the end of their term. In particular, the duration of the concession for the SATAP A4 Torino – Milano motorway would be extended for four years until 31 December 2030, while the duration of the A33 Asti – Cuneo motorway would be reduced so as also to end on 31 December 2030, instead of 2043 (see paragraph 8 above). That arrangement would allow a new joint call for competition relating to the concession for both motorways for the period from 1 January 2031. Moreover, the takeover value would be capped at 1.4 times EBITDA to be paid to the current concessionaire by any successor concessionaire as from 1 January 2031 (recitals 25 to 31 of the contested decision).

11      All the measures relating to the motorways forming the subject matter of the contested decision are accompanied by commitments concerning the commencement of certain works envisaged before 1 January 2020. Other commitments have also been made concerning publication of the concession contracts, the stability in principle of the budgeted cost of the works, compliance with EU rules on the modification of concession contracts where the execution of additional works is necessary, the imposition of penalties in the event of infringement of the concessionaire’s obligations, the proportional reduction of the prolongation in the event of failure to execute the works, the presentation of annual and five-year reports on the works carried out and monitoring of the parameters taken into account and, finally, a review of the takeover value in the event of higher than anticipated traffic levels or failure to execute the works (recitals 23, 44 and 47 to 53 of the contested decision).

 The Commission’s assessment

12      In the Commission’s view, the granting of rights to use public domain may imply a waiver of State resources and confer an advantage on the beneficiaries of those rights. In the present case, the effect of the prolongation of the duration of the concessions for four years is that the concessionaires will collect the toll revenues during that period, thus excluding the possibility for the Member State to collect those funds itself. A finding that there was a waiver of State resources for the benefit of certain private operators was therefore made (recitals 61 to 63 of the contested decision).

13      As regards the existence of an advantage, the Commission took into account the investment and management obligations imposed on the concessionaires and concluded that the notified measures had to be analysed in the light of the four cumulative criteria established by the Court of Justice in its judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), namely the existence of public service obligations, the prior establishment in an objective and transparent manner of the parameters for compensation, the setting of the compensation at a level which covers the costs incurred in discharging the public service obligations and a reasonable profit and, finally, an analysis of the costs and profit in question. As regards the latter, the Commission noted that the Italian authorities had not produced an analysis of the costs which a typical undertaking, well run and adequately provided with means so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations. It follows that, also in view of the absence of an award procedure preceding the concessions at issue, the fourth Altmark criterion was not fulfilled. Moreover, taking into account the international dimension of the motorway construction and management market and the exclusivity conferred by the concession contracts, the advantages granted may affect trade between Member States. It follows that the contested measure constitutes aid within the meaning of Article 107(1) TFEU (recitals 64 to 73 of the contested decision).

14      The Commission nevertheless considered that it was necessary to assess the compatibility of the aid with the internal market in the light of Article 106(2) TFEU and, accordingly, the Communication from the Commission on the European Union framework for State aid in the form of public service compensation (2011) (OJ 2012 C 8, p. 15; ‘the Communication on public service compensation’) (recitals 75 to 77 of the contested decision).

15      In that context, the Commission considered:

–        first, that the construction and provision of motorway infrastructure at affordable cost to users constituted a genuine service of general economic interest within the meaning of Article 106(2) TFEU, with the result that the conditions in Section 2.2 of the Communication on public service compensation are fulfilled;

–        secondly, that the services of general economic interest at issue were entrusted to the concessionaires concerned under instruments which referred to the duration and object of the public service obligations, the commitments undertaken, the nature of the exclusive rights, the description of the compensation mechanisms and the relevant parameters, as well as the arrangements put in place to avoid and recover any overcompensation. Consequently, the conditions in Section 2.3 of the Communication on public service compensation are fulfilled (recitals 85 to 90 of the contested decision);

–        thirdly, that the duration of the prolongations ensured the financial equilibrium of the proposed plan, duly taking into account the cap on toll charges, the cost of the works to be carried out, the remuneration of concessionaires and the takeover value. Consequently, the conditions in Section 2.4 of the Communication on public service compensation are fulfilled (recitals 92 to 95 of the contested decision);

–        fourthly, that the notified measures did not infringe Commission Directive 2006/111/EC of 16 November 2006 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings (OJ 2006 L 318, p. 17), so that the conditions in Section 2.5 of the Communication on public service compensation are fulfilled (recitals 96 to 99 of the contested decision);

–        fifthly, that the notified measures complied with Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1) and, in particular, with Article 43 thereof, concerning the modification of concession contracts during their term;

–        sixthly, that the principles, objectives, parameters and methods for calculating the compensation paid to concessionaires did not infringe the principle of non-discrimination, with the result that the conditions in Section 2.7 of the Communication on public service compensation are also fulfilled (recitals 142 and 143 of the contested decision);

–        seventhly, that the compensation resulting from the modification of the concession contracts did not exceed what was necessary to cover the net cost of discharging the public service obligations, including a reasonable profit, in accordance with Section 2.8 of the Communication on public service compensation.

–        eighthly, that any concern relating to possible residual distortions of competition was dispelled in accordance with Section 2.9 of the Communication on public service compensation (recitals 167 to 171 of the contested decision).

16      Against that background, and having examined the transparency commitments made by the Italian Republic in accordance with Section 2.10 of the Communication on public service compensation and the arguments put forward by third parties, the Commission decided not to raise any objections and declared the aid compatible with the internal market under Article 106(2) TFEU (recitals 178 to 186 and Section 5 of the contested decision).

 Procedure and forms of order sought

17      By application lodged at the Registry of the Court on 11 January 2019, the applicants, INC SpA and Consorzio Stabile Sis SCpA, brought the present action. On 29 April 2019, the Commission lodged its defence. The reply and rejoinder were lodged on 18 July 2019 and 18 October 2019, respectively.

18      The composition of the Chambers of the Court having been changed, pursuant to Article 27(5) of the Rules of Procedure of the General Court, the Judge-Rapporteur was transferred to the Ninth Chamber, to which this matter was consequently assigned.

19      Acting on a proposal from the Ninth Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to a chamber sitting in extended composition.

20      The applicants claim that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

21      In its defence, the Commission contends that the Court should:

–        dismiss the application;

–        order the applicants to pay the costs.

22      Acting on a proposal from the Judge-Rapporteur, the Court (Ninth Chamber, Extended Composition) decided to open the oral part of the procedure and, by way of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, asked the parties to lodge certain documents and put to them written questions, asking them to reply at the hearing.

23      The parties replied to the Court by letters of 3 November 2020.

24      At the hearing, the Commission informed the Court of the decision of the Italian authorities not to implement the measures which were the subject of the contested decision, at least so far as Società Iniziative Autostradali e Servizi is concerned.

25      In that context, the Court requested the Commission to inform it in writing of any decisions of the Italian authorities concerning the implementation of the measures at issue in respect of both Società Iniziative Autostradali e Servizi and Autostrade per l’Italia. That was formally noted in the minutes of the hearing.

26      By letter of 14 December 2020, the Commission sent the Court a letter dated 10 December 2020, addressed to it by the Italian Ministry of Infrastructure and Transport. In the light of the content of that letter, the Commission observed that the measures in respect of which it had not raised any objections under the contested decision could not and would not be implemented by the Italian authorities, so that the applicants no longer had any legal interest in bringing proceedings.

27      By letter of 27 January 2021, the applicants submitted their observations and stated that they had a continuing legal interest in the annulment of the contested decision.

28      By way of measures of organisation of procedure adopted on 8 February and 11 March 2021, the Court requested additional information from the Commission, which it provided by letters of 26 February and 29 March 2021 respectively. On the basis of that information from the Italian authorities, the Commission reiterated its claim that the applicants no longer had a legal interest in having the contested decision annulled.

29      By letter of 28 April 2021, the applicants submitted their observations on those last letters and reiterated that they maintained a legal interest in pursuing the annulment of the contested decision for the reasons set out in their letter of 27 January 2021 (see paragraph 27 above).

30      The oral part of the procedure was closed on 29 April 2021 and deliberations started on that date.

31      Following the death of M. Berke on 1 August 2021, the three judges whose signature this judgment bears continued the deliberations, in accordance with Articles 22 and 24(1) of the Rules of Procedure.

 Law

32      The applicants, direct competitors of Autostrade per l’Italia and Società Iniziative Autostradali e Servizi in the motorway construction and concession sectors, raise two pleas in law in support of their action.

33      The first plea concerns the measures relating to the motorways managed by Autostrade per l’Italia. In that regard, the applicants argue that the Commission’s assessment that the measures relating to the motorways managed by Autostrade per l’Italia satisfy the criteria of the Communication on public service compensation and are therefore compatible with the internal market is based on three incorrect premisses. The first is the categorisation of the construction works on the ‘Gronda di Genova’ as already foreseen works covered by a project for which Autostrade per l’Italia had already been granted a concession in 2002, when in reality this was an entirely new project in relation to the concessions in force, thereby necessitating a new award procedure. The second is that Autostrade per l’Italia is the concessionaire under a single concession, whereas, in reality, that company benefits from a set of separate concessions. The third is that the costs of carrying out the works justifying the prolongation at issue were accurately calculated by Autostrade per l’Italia and by the Italian authorities, whereas that is not the case. In addition, and independently of the analysis relating to the premisses in question, the applicants claim that the Commission’s analysis as to the compatibility of the measures at issue with Sections 2.2 to 2.10 of the Communication on public service compensation (see paragraph 15 above) is vitiated by errors.

34      The second plea concerns the measures relating to the motorways managed by Società Iniziative Autostradali e Servizi. In that regard, the applicants argue that the Commission’s assessment that the measures relating to the A33 Asti – Cuneo and SATAP A4 Torino – Milano motorways, managed by Società Iniziative Autostradali e Servizi, satisfy the criteria of the Communication on public service compensation and are therefore compatible with the internal market is based on four incorrect premisses. The first is that the 11-year delay in executing the works on the A33 Asti – Cuneo motorway and the resulting increase in costs are not imputable to Società Iniziative Autostradali e Servizi, the concessionaire of that motorway. The second is that the costs in question were accurately calculated by Società Iniziative autostradali e Servizi and by the Italian authorities, whereas that is not the case. The third is that the modifications made to the construction project for that motorway do not require a new award procedure. The fourth is that the limitation of the duration of the renewed concessions for two other motorways, namely the SATAP A21 motorway linking Turin and Brescia and the Torino – Ivrea – Valle d’Aosta motorway, until 2030 so as to allow a joint call for competition relating to the four motorways, namely the A33 Asti – Cuneo, the SATAP A4 Torino – Milano, the SATAP A21 and the Torino – Ivrea – Valle d’Aosta motorways, constitutes a commitment which limits the anti-competitive effects of the aid at issue. In addition, and independently of the analysis relating to the premisses in question, the applicants claim that the Commission’s analysis as to the compatibility of the measures at issue with Sections 2.2 to 2.10 of the Communication on public service compensation (see paragraph 15 above) is vitiated by errors.

35      By those pleas, the applicants argue that the Commission should have had serious doubts as to the compatibility of the measures examined with the internal market and, consequently, should have initiated the formal investigation procedure in accordance with Article 4(4) and Article 6 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 [TFEU] (OJ 2015 L 248, p. 9). In so doing, the Commission infringed the applicants’ procedural rights under Article 108(2) TFEU and Article 6(1) of Regulation 2015/1589.

36      According to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest, which is an essential and fundamental prerequisite of any legal action, requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see, to that effect, judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 55 and 58 and the case-law cited).

37      An applicant’s interest in bringing proceedings must be vested and current. It may not concern a future and hypothetical situation (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 56). If the interest upon which an applicant relies concerns a future legal situation, the applicant must demonstrate that the prejudice to that situation is already certain (judgment of 14 April 2005, Sniace v Commission, T‑141/03, EU:T:2005:129, paragraph 26, and order of 26 March 2012, Cañas v Commission, T‑508/09, not published, EU:T:2012:152, paragraph 49).

38      As regards, in particular, the rules on State aid, that interest must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 57). The question whether there is a need to adjudicate on the ground that there is no continuing interest in bringing proceedings may be raised by the EU Courts of their own motion (judgment of 6 September 2018, Bank Mellat v Council, C‑430/16 P, EU:C:2018:668, paragraph 49).

39      In that context, the competitors of the aid beneficiary have an interest in seeking the annulment of a decision under which, without initiating the formal investigation procedure, the Commission declares it compatible with the internal market in accordance with Article 4(3) of Regulation 2015/1589.

40      Such an interest exists inasmuch as the annulment in question would require the Commission to initiate the formal investigation procedure in accordance with Article 4(4) of Regulation 2015/1589 and to invite competitors of the beneficiary of the measure to submit comments pursuant to Article 6(1) of that regulation as ‘interested parties’ within the meaning of Article 1(h) thereof (see, to that effect, judgment of 10 February 2009, Deutsche Post and DHL International v Commission, T‑388/03, EU:T:2009:30, paragraph 62).

41      It should nevertheless be noted that, in order for that interest to be considered to be ongoing until the delivery of the court decision, it is necessary that, at the time of any decision to annul the decision not to raise objections, there is still a plan to grant aid capable of being implemented by the notifying Member State and, thus, of being the subject of a formal investigation procedure.

42      Indeed, as is apparent from a combined reading of Article 108(3) TFEU and Articles 2, 4 and 9 of Regulation 2015/1589 that the formal investigation procedure concerns a plan to grant aid.

43      It is true that the existence of such a plan may be presumed by the mere fact of its notification by the Member State for the purposes of its approval by the Commission in accordance with the procedure laid down in Regulation 2015/1589, particularly since, under Article 10 of that regulation, the Member State may withdraw the notification before adopting the decision concluding the preliminary examination provided for in Article 4 thereof.

44      However, the fact that a Member State has not withdrawn the notification does not prevent it from definitively abandoning the plan after the Commission has adopted its decision not to raise objections. In particular, first, as is apparent from Article 10(1) of Regulation 2015/1589, the notification may be formally withdrawn only for as long as the Commission has not taken a decision pursuant to Article 4 of that regulation. Secondly, although Article 108(3) TFEU requires Member States to notify the Commission of their plans to grant aid before it is put into effect, it does not, however, require them to grant aid, even if it has been approved by a decision of that institution. The sole purpose and effect of such a decision is to authorise a plan to grant aid by declaring it compatible with the internal market, and not to impose its implementation on the Member State concerned (see order of 6 May 2020, Blumar and Others, C‑415/19 to C‑417/19, EU:C:2020:360, paragraph 23 and the case-law cited).

45      The fact that the Member State definitively abandoned the plan which was the subject of the Commission’s decision not to raise objections may affect the existence of a continuing interest in bringing proceedings such as that described in paragraph 40 above.

46      In particular, in such a situation, the annulment of the Commission’s decision not to raise objections is, in principle, no longer capable of procuring to the applicant the procedural advantage which the applicant seeks to obtain, namely the initiation of the formal investigation procedure and the opportunity to submit comments in the context of that procedure. This state of affairs eliminates any interest in bringing proceedings and leads, as the case may be, to a finding that the action is inadmissible or that there is no need to adjudicate (see paragraph 38 above).

47      In that regard, first of all, it is apparent from a combined reading of Article 108(3) TFEU and Articles 2, 4 and 9 of Regulation 2015/1589 that the formal investigation procedure concerns a plan to grant aid. It follows that the fact that the notifying Member State abandons, after the Commission has adopted a decision not to raise objections, the plan in question neutralises the effectiveness of that decision and, above all, renders the formal investigation procedure which the Commission would be obliged to initiate following the annulment of that decision devoid of purpose from the outset.

48      Accordingly, next, in the absence of any plan to grant aid, there is no longer any ‘beneficiary’, any ‘competitor’ of that beneficiary or, consequently, any ‘interested party’ within the meaning of Article 1(h) of Regulation 2015/1589, which would be invited to submit comments during any formal investigation procedure in accordance with Article 6(1) of that regulation. It follows that, in those circumstances, the annulment of the decision not to raise objections is not, in principle, capable of procuring to the applicant the advantage consisting in the opportunity to submit comments in the formal investigation procedure.

49      Finally, that conclusion is all the more compelling if it is apparent from the circumstances of the case that the notifying Member State no longer has the opportunity to rely on the Commission’s decision not to raise objections in the event that it decides, subsequent to its decision to abandon the plan to grant aid at issue, to reverse that decision and ultimately to implement the plan to grant aid in question. In such a situation, the annulment of that decision is not capable of procuring to the applicant, a competitor of the beneficiary, a separate advantage consisting in depriving that Member State of that opportunity.

50      In the present case, it is apparent from recitals 61 to 63 of the contested decision that the Commission gave reasons for the involvement of State resources within the meaning of Article 107(1) TFEU solely by reference to the prolongation of the concessions at issue (see paragraph 12 above). In addition, it is apparent from recitals 64 to 73 of the contested decision that the Commission’s analysis relating to the existence of an advantage for the purpose of that provision is based on the premiss that the prolongation in question would generate revenue which, in the light of the information provided by the Italian authorities, cannot be compared with the costs which a typical undertaking, well run and adequately provided with means so as to be able to meet the necessary public service requirements, would have incurred in discharging the public service obligations in question (see paragraph 13 above).

51      However, by letter of 10 December 2020, addressed to the Commission and produced by the Commission on 14 December 2020 (see paragraphs 25 and 26 above), the Italian Ministry of Infrastructure and Transport set out inter alia the following:

‘… it is confirmed that the scenarios involving modifications to the concession contracts envisaged by the Commission Decision … are now entirely out of date and replaced by other solutions which do not provide for a prolongation of the duration of the concessions.

In particular, with regard to [the Asti – Cuneo and the SATAP A4 Torino – Milano motorways], a new scenario involving the revision of the financial plans was prepared [and] approved by deliberation of the [Comitato interministeriale per la programmazione economica (Interministerial Committee for Economic Programming)] on 14 May 2020 …

Autostrade per l’Italia prepared a new proposal to modify the concession, which does not provide for a prolongation of its term and which is currently being assessed.’

52      By way of a measure of organisation of procedure adopted on 8 February 2021, the Court requested the Commission to state, if necessary after consulting the Italian authorities, whether the terms of the letter of 10 December 2020 were to be understood as meaning that the prolongation of Autostrade per l’Italia’s concession had been definitively abandoned, notwithstanding the fact that the new proposal from that concessionaire was still under examination.

53      By letter of 26 February 2021, the Commission sent to the Court, inter alia, an email dated 10 February 2021 from the Italian Ministry of Infrastructure and Transport (see paragraph 28 above). The email in question states as follows:

‘Obviously I confirm that the scenario involving a prolongation of the concession of [Autostrade per l’Italia], for which a new proposal reaffirming the original end date of 2038 is currently being examined, is clearly out of date.’

54      Moreover, the email in question confirms that a new concession contract was signed in respect of the A33 Asti – Cuneo and SATAP A4 Torino – Milano motorways.

55      Finally, following a new measure of organisation of procedure, by letter of 29 March 2021, the Commission sent the Court a letter from the Ministry of Sustainable Infrastructure and Mobility, dated 26 March 2021 (see paragraph 28 above). In that letter, the ministry in question states, inter alia, that the additional acts concerning the concessions for the SATAP A4 Torino – Milano and Asti – Cuneo motorways have been finalised and that their stipulations render obsolete the circumstances which were the subject matter of the contested decision. According to the same letter, those additional acts do not provide for any prolongation of the concessions of the two motorways in question, but, rather, ‘confirm’ that the first will expire on 31 December 2026 and that the end of the second is ‘restored’ to 31 December 2031.

56      As regards the motorways managed by Autostrade per l’Italia, the letter in question states that the departments are examining together the proposal for a financial plan confirming the end of the concession on 31 December 2038 and that that proposal rules out a prolongation of the concession contract beyond that date, rendering the contested decision obsolete in that respect.

57      It is apparent from the information set out in paragraphs 51 to 56 above that the Italian Republic definitively abandoned the proposed prolongation of the concessions at issue, a prolongation which constitutes the element on the basis of which the Commission classified the measures which were the subject of the contested decision as State aid within the meaning of Article 107(1) TFEU (see paragraphs 12 and 13 above).

58      According to the information provided by the Italian Republic, in the case of motorways operated by Società Iniziative Autostradali e Servizi, an additional act which does not provide for a prolongation has already been signed and has entered into force. According to that additional act, the concession of the SATAP A4 Torino – Milano motorway will end on 31 December 2026, that is to say, on the date initially planned. According to the same additional act, the Asti – Cuneo motorway concession will end on 31 December 2031, that is to say, well before its initial term (see paragraph 8 above).

59      As regards the motorways operated by Autostrade per l’Italia, the Italian Republic stated that the submission of a proposal for a review based on the expiry of the concession on 31 December 2038 rules out any prolongation of that concession beyond that date, which is the date which was initially stipulated (see paragraph 6 above).

60      Consequently, since the Italian Government has definitively abandoned the plan to grant aid at issue, any annulment by the Court of the contested decision would oblige the Commission only to initiate a formal investigation procedure which would be devoid of purpose from the outset, which renders devoid of purpose also the applicants’ submission of comments on a plan which is no longer capable of being implemented (see paragraphs 47 and 48 above).

61      Moreover, it should be noted that, as the Commission observes in its letter of 14 December 2020, it is apparent from recitals 23, 44 and 50 of the contested decision that the finding that the measures at issue are compatible with the internal market depends on the condition that certain works envisaged begin on 1 January 2020 at the latest. According to footnote 30, referred to in recital 50 of the contested decision, the planned agreements stipulated that, if works on the A33 Asti – Cuneo motorway did not begin by 1 January 2020, the plan for the motorways managed by Società Iniziative Autostradali e Servizi would be abandoned entirely. Similarly, according to the same footnote, if the construction works on the ‘Gronda di Genova’ and the interconnections of motorways A7/A10/A12 did not begin by 1 January 2020, the prolongation of Autostrade per l’Italia’s concession would be abandoned in its entirety.

62      Those clauses are explained by the fact that, as is apparent, inter alia, from recitals 44, 147, 151 and 152 of the contested decision, the financial equilibrium of the plan at issue depends, inter alia, on the calculation of certain rates of return on investment and on the taking into account of the current macro-economic conditions. Those factors are in turn based on data which may vary over time. Thus, according to recital 160 of the contested decision, the automatic abandonment of the prolongation of the concessions at issue under the conditions laid down in recital 50 of that decision (see paragraph 61 above) constitutes a necessary measure to avoid overcompensation of the concessionaires.

63      The Commission, which, according to the second indent of subparagraph (a) of recital 51 of the contested decision, should be informed of the progress of the works, states, in its letter of 14 December 2020, that the works which should have started by 1 January 2020 at the latest did not, a fact which the applicants do not dispute.

64      It follows from those findings that the Italian Republic cannot rely on the Commission’s conclusions concerning, in particular, the reasonableness of the benefit resulting from the measures at issue and the absence of overcompensation, as set out in recitals 151 to 165 of the contested decision (see the seventh indent of paragraph 15 above), should it decide in future to implement the plan at issue despite the fact that it claims to have abandoned it. Since the condition relating to the commencement before 1 January 2020 of the works referred to in paragraph 61 above is not satisfied, such a plan would not be the one with regard to which the Commission did not raise any objections under the contested decision.

65      Consequently, if the measure which the Italian Republic might subsequently envisage entailed the grant of State aid within the meaning of Article 107(1) TFEU, a new notification to the Commission would be necessary in accordance with Article 2 of Regulation 2015/1589, in respect of which the Commission would have to exercise its powers under Article 4 of that regulation.

66      The Commission is therefore right to state, in its letter of 14 December 2020, that the plan at issue cannot and will not be implemented by the Italian Republic as approved.

67      For their part, the applicants put forward, in essence, four arguments in support of their claim that they continue to establish an interest in pursuing the annulment of the contested decision.

68      In particular, first, the applicants submit that Autostrade per l’Italia’s new proposal has not yet been approved by the Italian authorities.

69      In that regard, in the first place, it should be noted that, in the light of the factors set out in paragraphs 51 to 56 above, the Italian Republic asserts that the fact that Autostrade per l’Italia introduced a new proposal based on the expiry of its concession on 31 December 2038 rules out the prolongation of that concession beyond that date. In the second place, and in any event, such a prolongation is ruled out by the fact that the works on the ‘Gronda di Genova’ and the A33 Asti – Cuneo motorway did not begin by 1 January 2020 (see paragraphs 61 to 63 above), which the applicants do not dispute.

70      Secondly, the applicants claim that the Italian authorities did not provide a detailed explanation of the new financial plans intended to replace the measures approved under the contested decision. In particular, the Italian authorities simply referred to the fact that the new plans did not provide for a prolongation of the concessions at issue, without offering any explanations regarding the financing of the A33 Asti – Cuneo motorway from the revenues of the SATAP A4 Torino – Milano motorway or regarding the possible takeover value to be paid to the concessionaires at the end of the concessions by the possible new concessionaire, and without guaranteeing that they would not ‘revive’ the prolongation of the concessions at issue in the future. In those circumstances, annulment of the contested decision would prevent the Commission from repeating the errors identified by the action at issue if the new financial plans contained aid measures whose compatibility with the internal market depended on assessments similar to those underlying the contested decision.

71      It should be borne in mind, in that regard, that the factor on which the Commission relied in order to classify the measures at issue as State aid within the meaning of Article 107(1) TFEU is the prolongation of the concessions at issue. In particular, it is the revenue generated during the period corresponding to that prolongation which, according to the Commission, constitutes State resources conferring an advantage on the current concessionaires (see paragraphs 12, 13 and 50 above). Furthermore, and in particular with regard to the financing of the works on the A33 Asti – Cuneo motorway, it is from the revenue generated by the prolongation of the SATAP A4 Torino – Milano motorway concession that that works would be financed and it is on the basis of that revenue that the takeover value would be calculated (see paragraphs 10, 11 and the third indent of paragraph 15 above).

72      It follows that the abandonment of the prolongation of the concessions at issue automatically renders obsolete the Commission’s analysis in the contested decision as regards both the nature of the measures at issue as State aid and their compatibility with the internal market on the basis of Article 106(2) TFEU.

73      In that context, the question whether the new financial plans constitute measures involving the grant of State aid in any form whatsoever may be examined only within a new procedure which the Commission would, if necessary, be called upon to initiate following a new notification from the Italian Republic, in accordance with Article 108 TFEU and Article 4 of Regulation 2015/1589. It is in the context of such a procedure that the Commission would examine the compatibility of the measures at issue with the internal market taking account of all their relevant characteristics and assess the need to initiate a formal investigation procedure in accordance with Article 4(4) and Article 6 of Regulation 2015/1589.

74      The argument based on the possibility that the Italian Republic might benefit from the contested decision by reviving the prolongation of the concessions at issue after the present case has closed must be rejected for the reasons set out in paragraphs 61 to 65 above.

75      Thirdly, the applicants claim that annulment of the contested decision would require the Commission to initiate the formal investigation procedure and thus to respect their procedural rights. However, that argument must be rejected for the reasons set out in paragraphs 47 to 60 above.

76      Fourthly, the applicants claim that the contested decision remains in force and is binding in respect of any dispute concerning ‘existing aid measures’ or future measures, since only the parameter relating to the prolongation of the concessions at issue has been changed.

77      In that regard, it should be recalled that, for the reasons set out in paragraphs 71 and 72 above, the prolongation of the concessions at issue is not merely a parameter of the measures examined by the contested decision, but the factor which, according to the Commission, justifies classifying those measures as State aid within the meaning of Article 107(1) TFEU. Thus, the abandonment of the prolongation in question entails the disappearance of the ‘existing aid measures’ as examined by the Commission. Moreover, the nature of the contested decision, which consists in declaring the measures examined to be compatible with the internal market, precludes that decision from having any binding effect in relation to other aid measures that would have to be the subject matter of a new examination (see paragraph 73 above).

78      It follows that the present case must be distinguished from the cases relied on by the applicants in which the Court affirmed the existence of a continuing interest in bringing proceedings in substantially different circumstances.

79      In the first place, at issue are cases in which the formal investigation procedure which the Commission is obliged to initiate following the annulment of the decision adopted after a preliminary examination is not, unlike in the present case, devoid of purpose, owing to the fact that the contested measure has not been abandoned in any way (see, to that effect, judgments of 19 June 2019, Ja zum Nürburgring v Commission, T‑373/15, EU:T:2019:432, paragraphs 15, 83 and 90 to 92, and of 19 June 2019, NeXovation v Commission, T‑353/15, EU:T:2019:434, paragraphs 14, 67 and 72 to 74). In those circumstances, the annulment of the contested act may have the effect of obliging the Commission to invite interested parties to submit their comments in the context of the formal investigation procedure, which, unlike the present case, is not devoid of purpose.

80      In the second place, the present case must be distinguished from cases in which the action for annulment of a decision which has become void calls into question the legality or interpretation of rules under which the contested act was adopted and which may apply in the future in proceedings in which it is likely that the applicant will take part. In such a case, the applicant may also have an interest in seeking the annulment of an act in order to prevent the alleged unlawfulness of that act from recurring in the future (see, to that effect, judgments of 6 March 1979, Simmenthal v Commission, 92/78, EU:C:1979:53, paragraph 32, and of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraphs 45 to 60).

81      However, that interest in bringing proceedings can exist only if the alleged unlawfulness is liable, as the case-law states, to recur in the future ‘independently of the circumstances of the case which gave rise to the action brought by [the applicant]’ (judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 52) or ‘irrespective of the particular circumstances of the case in question’ (judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 48).

82      Thus, having regard to the current and not hypothetical nature of the interest in bringing proceedings (see paragraph 37 above), it may be considered to be established where the action challenges the validity or interpretation of the rules applied for the purposes of adopting the contested act (see, to that effect, judgments of 6 March 1979, Simmenthal v Commission, 92/78, EU:C:1979:53, paragraph 32; of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraphs 54 to 59; and of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraphs 49 to 52).

83      In the present case, however, the applicants claim that they have an interest in pursuing the annulment of the contested decision in order to prevent the Commission from again committing the alleged errors of assessment which led it to declare the measures at issue to be compatible with the internal market without initiating the formal investigation procedure. Having regard to the scope of the pleas in law put forward in support of the action (see paragraphs 32 to 35 above), the alleged errors in question concern the assessments made by the Commission, which underlie the declaration that the measures at issue are compatible with the internal market, assessments which are aimed precisely at the particular circumstances of the case. It follows that the errors of assessment raised clearly do not refer to unlawful acts liable to recur ‘independently of the circumstances of the case which gave rise to the action’ within the meaning set out in paragraphs 81 and 82 above.

84      Furthermore, if that argument were to be considered adequate as a basis for maintaining an interest in bringing proceedings in circumstances such as those of the present case, the requirement that that interest be current and not hypothetical (see paragraph 37 above) would be rendered meaningless. In that case, the interest in avoiding repetition of any alleged unlawfulness raised in the context of an action could be usefully relied on in all circumstances, including where, as in the present case, the applicant would not derive any benefit from the annulment of the contested act (see paragraph 87 below).

85      In the third and final place, the present case must be distinguished from cases in which, far from becoming void, the contested act has produced binding effects with which the applicant, the addressee of the measure, has complied, effects which the defendant institution will be obliged to eliminate on the basis of the grounds for annulment of that act (see, to that effect, judgments of 25 March 1999, Gencor v Commission, T‑102/96, EU:T:1999:65, paragraphs 40 to 42; of 15 December 1999, Kesko v Commission, T‑22/97, EU:T:1999:327, paragraphs 55 to 64; and of 28 September 2004, MCI v Commission, T‑310/00, EU:T:2004:275, paragraphs 44 to 55).

86      However, in the present case, first, the fact that the measures at issue were abandoned before they were implemented rules out the possibility that they produced effects on the applicants’ competitive situation (see, to that effect and by analogy, judgments of 27 April 1995, ASPEC and Others v Commission, T‑435/93, EU:T:1995:79, paragraphs 29 and 30, and of 27 April 1995, Casillo Grani v Commission, T‑443/93, EU:T:1995:81, paragraphs 7 and 8). Secondly, as stated in paragraphs 39 and 40 above, the applicants’ interest in bringing proceedings does not consist in the elimination of binding effects caused by the contested decision, which they claim to have suffered, but in safeguarding the procedural rights which they would be able to exercise following the annulment of that decision. For the reasons set out in paragraphs 50 to 66 above, the annulment of the contested decision is not capable of procuring to the applicants the advantage that they seek, namely the opportunity to submit comments in the context of a formal investigation procedure.

87      It follows from all of the above that the annulment of the contested decision is not capable of procuring, as a result, any advantage to the applicants.

88      There is therefore no longer any need to adjudicate on the action (see paragraphs 36 to 38 above).

 Costs

89      Under Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are in the discretion of the Court. In view of the fact that the Commission submitted the main information relating to the abandonment of the plan at issue for the first time at the hearing, even though it was in possession of that information at an earlier stage, the Commission must be ordered to bear its own costs and to pay half of those incurred by the applicants and the applicants must be ordered to bear half of their own costs.

On those grounds,

THE GENERAL COURT (Ninth Chamber, Extended Composition)

hereby:

1.      Declares that there is no longer any need to adjudicate on the action brought by INC SpA and by Consorzio Stabile Sis SCpA;

2.      Orders the European Commission to bear its own costs and to pay half of the costs incurred by INC and by Consorzio Stabile Sis;

3.      Orders INC and Consorzio Stabile Sis to bear half of their own costs.

Delivered in open court in Luxembourg on 15 September 2021.

*      Language of the case: English.

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