Judgment_paragraph 28 · Alro SA v European Commission (T-517/12)

28A decision to initiate the formal investigation procedure in relation to a measure in the course of implementation and classified by the Commission as new aid necessarily alters the legal implications of the measure under consideration and the legal position of the beneficiary undertakings, particularly as regards the continued implementation of the measure. Until the adoption of such a decision, the Member State, the beneficiary undertakings and other economic operators may think that the measure is being lawfully implemented as a general measure not falling within the scope of Article 107(1) EC or as existing aid. On the other hand, after its adoption there is at the very least a significant element of doubt as to the legality of the measure, which, without prejudice to the possibility of seeking interim relief from the Court, must lead the Member State to suspend its application, since the initiation of the formal investigation procedure excludes the possibility of an immediate decision that the measure is compatible with the internal market, which would enable it to continue to be lawfully implemented. Such a decision might also be invoked before a national court called upon to draw all the consequences arising from infringement of the last sentence of Article 108(3) TFEU. Finally, it may lead the beneficiary undertakings of the measure to refuse in any event new payments or new advantages or to hold the necessary sums as provision for possible subsequent financial compensations. Businesses will also take account, in their relations with those beneficiaries, of the uncertainty of their legal and financial situation (Italy v Commission, cited in paragraph 27 above, paragraph 59; Diputación Foral de Álava and Others v Commission, cited in paragraph 27 above, paragraph 34; and Alcoa Trasformazioni v Commission, cited in paragraph 27 above, paragraph 36).